Ontario Labour Relations Board
Citation: International Union of Operating Engineers and its Local 793 v. Robert Hume Construction Ltd., 1994 CanLII 9933 Date: 1994-09-20 File No.: 0429-94-G
Between: International Union of Operating Engineers and its Local 793, Applicant v. Robert Hume Construction Ltd., Responding Party
Before: M. A. Nairn, Vice-Chair, and Board Members W. N. Fraser and H. Peacock.
Appearances: Jack J. Slaughter and Mike Unsworth for the applicant; David L. Brisbin and Robert Hume for the responding party.
DECISION OF THE BOARD
The applicant (the "trade union") has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination.
The grievance alleges that from on or about December 20, 1993 and continuing, the responding party (the "employer") has been performing the work of constructing a landfill site in Moore Township. It further alleges that this work is covered by either the ICI provincial agreement between the applicant and responding party or the Sarnia Heavy Construction Association collective agreement between the same parties. Finally, it is asserted that the employer did not apply the terms and conditions of either of these collective agreements to the persons performing the work in issue, did not use members of the applicant to perform that work, and seeks damages in that regard.
As a preliminary matter, the parties requested that the Board make a determination with respect to whether or not the work in issue was work in the construction industry. It was the position of the applicant that the work is work within the construction industry. It was the position of the employer that the work is non-construction.
The parties were able to enter into an agreed statement of fact which was filed with the Board. A number of exhibits were also agreed to and filed.
The agreed statement of fact provides as follows:
Robert Hume Construction Ltd. ("Hume") operates heavy equipment, including scrapers, bulldozers, compactors and power shovels in both construction, primarily but not exclusively road building, and on various landfill sites.
Hume has Collective Agreements with the International Union of Operating Engineers, Local 793 ("Local 793") for Roadbuilding/Heavy Construction as well as the Provincial ICI. Collective Agreement and for a specific landfill site in Innisfil, Ontario (the "Innisfil Agreement"). These Collective Agreements are attached as Appendix "A" and "B".
Except for the Innisfil Agreement, Hume and Local 793 have specifically excluded landfill operations except for construction work on landfill operations -- see Letter of Understanding attached as Appendix "C".
Landfill operations have meant, in basic terms, the excavation, to varying dimensions, of open pits or cells within which waste is placed, the piling of such excavated soil in stockpiles on site to be used for such things as berming around the site and the capping of waste and, finally, the capping of the cell once it is filled with waste. This technique is generally used regardless of the location of the landfill or the type of waste. Some waste, such as household waste, is capped daily for sanitary reasons; other waste such as industrial or demolition waste may be capped either daily or less frequently, depending on the type of waste, weather conditions such as wind, etc.
Hume does not manage the various landfill sites on which it performs work. It does not manage or provide security services, does not operate the weigh scale, does not haul waste to the site, does not contract with users to either haul to site or to permit user haulage and access to the site. Rather, Hume only excavates the cells, pushes waste into the open cells from where it has been dumped by the user/hauler and then caps the waste either on an interim basis or as a final capping, as circumstances require.
Hume has been engaged in working on landfill sites for approximately 19 years.
In Lambton County, Hume performs work at various landfill sites including:
Moore Township — approximately 50 tons/day;
Sarnia — originally 400 tons/day; now approximately 200 tons/day;
Sombra — sporadically, maximum 20 tons/day;
Grand Bend — sporadically, maximum 20 tons/day;
Brooke Township — sporadically, maximum 20 tons/day;
Watord — approximately 200 tons/day;
Unitec —originally 50 tons/day; now 500 tons/day;
Petrolia — Hume no longer has this contract — was up to 100 tons/day.
As well, as referred to, Hume operates in the same manner at the Innisfil, Ontario site under a landfill Collective Agreement with Local 793, Appendix "B". The average daily tonnage there fluctuates from a high of 200 tons per day to the current 75 tons per day.
All tonnages are daily averages with daily or weekly fluctuations and are subject to maximum average stipulated by the Ministry of Environment with the operator of the site; not directly with Hume.
All of the above sites involve essentially the same excavate, fill with waste and cap with excavated/stockpiled soil process on the part of Hume.
Because work at each site does fluctuate, particularly when a new cell is excavated, equipment is moved from site to site as needed. At larger sites, some equipment will normally remain on site continuously; on smaller sites, equipment is only moved on site as needed.
With respect to the Unitec site, the specific subject of the instant Application, Hume and the site owner and operator, Unitec Disposals Inc. ("Unitec") have had a contractual relationship since May 31st, 1989. This relationship is based on a verbal understanding that Unitec pays Hume a fee as services are rendered for ongoing excavation filling and capping of cells at the waste site. The work which gave rise to this Application was performed by Hume and paid for by Unitec under this ongoing understanding. Unitec is an unrelated arms-length company with no corporate relationship with Hume other than this specified working contractual relationship.
In 1993, Unitec received approval from the Ministry of Environment to extend cells at the Unitec site down to 55 feet in depth from the previous depth of approximately 18 to 19 feet. This was part of an extension in the daily allowable tonnage from the previous 50 tons per day to 500 tons per day, again averaged. Because of this approved extension, Unitec authorized Hume, as part of its ongoing contracted services to excavate the cell to the new depth. As this cell was excavated, it was simultaneously being filled with waste newly arriving on site as well as waste previously excavated. In the latter case, the waste previously placed in the cell to a depth of approximately 18 feet was excavated, then the underlying soil was excavated to a