Electrical Power Systems Construction Association and Ontario Hydro v. International Brotherhood of Electrical Workers, Local 1788 and Labourers' International Union of North America, Local 1059

[1995] OLRB Rep. December 1462

3415-94-JD Electrical Power Systems Construction Association and Ontario Hydro, Applicants v. International Brotherhood of Electrical Workers, Local 1788 and Labourers' International Union of North America, Local 1059, Responding Parties

BEFORE: D. L. Gee, Vice-Chair, and Board Members F. B. Reaume and J. Redshaw.

APPEARANCES: M. Patrick Moran, Ron McFadden, Don Nielson, Ros Rioux, Scott Williams and Rick Currie for the applicants; David McKee and Al Diggon for International Brotherhood of Electrical Workers, Local 1788; John Moszynski and Jim McKinnon for Labourers' International Union of North America, Local 1059.

DECISION OF D. L. GEE, VICE-CHAIR, AND BOARD MEMBER F. B. REAUME: December 6, 1995

1. This is an application under section 93 of the Labour Relations Act (the "Act") con­cerning an assignment of work in the construction industry. Pursuant to the provisions of section 93, a consultation was held on October 26, 1995.

2. The work in dispute is as follows:

The hand digging and backfilling of earth at the base of the tower legs of transmission towers during the course of a line refurbishment project on the following portions of the Ontario Hydro grid:

(i) Buchanan T.S. to Woodstock T.S. (1993 to 1994);

(ii) St. Mary's to Devizes Junction (1995).

3. The applicants, Electrical Power Systems Construction Association and Ontario Hydro, seek an order confirming the assignment of the work in dispute to members of the International Brotherhood of Electrical Workers, Local 1788 ("Local 1788"). Local 1788 agrees with the relief sought by the applicants. The Labourers' International Union of North America, Local 1059 (the "Labourers") seeks an order that the work in dispute should have been assigned to its members.

4. The work in dispute was performed as part of a project undertaken by Ontario Hydro commencing in the spring of 1993. The project consists of inspecting and replacing worn out steel and conductors on its transmission towers in Southwestern Ontario. The project was divided into several components. As indicated above in the description of the work in dispute, two of the com­ponents are the subject of this application. The project is ongoing.

5. The brief filed by the applicants indicates that the work on each component of the project was performed in two stages. The first stage involved checking the tower's integrity while the line was live which involved:

(a) hand digging an area approximately 24" wide and 18" deep around the grillage foundation of the towers;

(b) inspecting the steel at the tower base for corrosion;

(c) brushing and cleaning the steel;

(d) applying a protective coating if necessary;

(e) bolting reinforcement steel to either side of the tower legs where required; and

(f) backfilling the dirt around the tower legs.

6. Once the first stage was completed, the second stage, which does not form part of the work in dispute, was performed. The crew which performed the work involved in the second stage of the project included members of both Local 1788 and the Labourers.

7. The applicants' brief indicates that employees working around the towers are exposed to electrical hazards as the work is done on the towers while the line is live. The electrical current from a discharge to ground could be lethal and consequently proper education and safety training is of paramount importance. It is asserted that Local 1788 members are trained to recognize safety problems whereas not all members of the Labourers are.

8. The applicants rely on three similar projects which were assigned to Local 1788 crews in the past as establishing a past practice. The projects in question were field assignments for which no mark-up meetings were held.

9. The brief filed by Local 1788 describes the manner in which the crew, comprised of a foreman and six crew members, performs the work involved in the first stage of the project as fol­lows. Generally speaking, the crew is divided into two groups. The first group works ahead of the second group. It digs up the earth around the tower leg, performs some scraping and cleaning around the bolted areas of the leg, removes all of the bolts, adds a new reinforcing plate (if neces­sary) and fastens new bolts in place. When the first group is finished the second group completes scraping and cleaning the steel and paints it. The paint is then allowed to dry and the dirt is back-filled at a later time by whoever is available.

10. Local 1788's brief indicates that, although the above description sets out how the work is generally performed, such is not always the case. If the line runs through an area of bush, the cleaning of the tower base and digging may take longer, in which case it is more efficient to have every person in the crew performing the same work on each tower leg up to the point of painting.

11. It is further stated that the time it takes to hand dig around a tower leg varies. In good conditions, the task takes as little as five minutes per leg. In poor conditions it may take up to an hour. The initial cleaning and changing of bolts takes at least one hour. If reinforcing steel has to be added, it will take longer.

12. It is asserted in Local 1788's brief that the work in dispute (the hand digging around the base of each tower leg and later backfilling) cannot be segregated into work for a single person. The brief indicates that, if the work in dispute was assigned to a member of the Labourers, it would require linemen in the first group to stand idle while a labourer dug around each of the legs of the tower. The labourer would then stand idle for some period of time (as much as one hour) while linemen performed the other functions. The labourer could not work too far ahead of the members of Local 1788 as the tower legs cannot be left exposed for too long. Further, the work in question would amount to no more than two days worth of work per week. Thus, if a member of the Labourers must be assigned the work in dispute, it would involve either the constant hiring and lay-off (or stand-off and recall) of one labourer with the consequent requirement of paying travel time each week or paying a labourer to stand around for the majority of the week. The number of members of Local 1788 needed to perform the work would not be reduced.

13. At the hearing of this matter, counsel for the applicants and Local 1788 gave an oral description of how the work is performed that went into greater detail than the description set out in the briefs (summarized above). Given that the Labourers had no opportunity to review and investigate such additional details in advance of the consultation, only the description of how the work is performed as contained in the briefs has been considered by the panel in reaching its deter­mination.

14. The applicants and Local 1788 assert that the assignment of the work in dispute to mem­bers of Local 1788 should be confirmed on the basis of economy and efficiency, skills and safety, employer preference and past practice.

15. The Labourers agree with the applicants and Local 1788 as to the nature of the func­tions involved in performing the work in dispute. The Labourers assert that, where severable from and not integral to other work, hand digging and backfilling are labourers' work. The Labourers assert that the applicants and Local 1788 have failed to put any evidence before the Board which establishes that the hand digging and backfilling functions are not severable from the remaining functions performed by members of Local 1788 and accordingly, the work in dispute is labourers' work. The Labourers assert that, because the applicants did not specifically plead that the digging and backfilling was not assigned exclusively to one or more persons, there is no basis for an asser­tion that the work could not be performed by a composite crew composed of an equal number of members of the Labourers and Local 1788. It is asserted that a labourer need not stand idle while the member of Local 1788 inspects the steel, but rather can go on to dig around the next leg or backfill previous legs.

16. The Labourers dispute the electrical hazard alleged by the applicants and point out that, in some cases, towers are located within feet of a public sidewalk. Further, they assert that mem­bers of the Labourers typically receive safety training with respect to safety hazards.

17. The Labourers assert that Ontario Hydro has a general past practice of assigning all hand digging and backfilling to members of the Labourers. Numerous minutes of various mark-up meetings were submitted to the Board.

18. The Labourers submit that all factors generally considered by the Board in determining the outcome of a jurisdictional dispute favour the assignment of the work in dispute to members of the Labourers.

Decision

19. In decisions concerning work assignments, the Board generally considers the following factors:

• collective bargaining relationships

• trade union agreements between the competing trade unions

• area practice

• employer practice

• safety, skill and training

• economy and efficiency

• employer preference

20. In the present case, both the Labourers and Local 1788 have collective bargaining rela­tionships with the applicants. Neither the EPSCA - IBEW collective agreement nor the EPSCA -OACTC collective agreement helps to resolve the dispute. No trade agreements between the two unions relating to the work in dispute were provided to the Board.

21. The area practice relied upon by the applicants is comprised of field assignments which were made in the absence of mark-up meetings. As the Board determined in Ontario Hydro, [1993J OLRB Rep. Mar. 227, because of the manner in which field assignments are made, such assignments are generally given less weight by the Board. The Labourers provided the Board with copies of minutes of numerous mark-up meetings upon which they rely to establish that Ontario Hydro has a past practice of assigning digging and backfilling to members of the Labourers. The brief filed by the Labourers does not provide the Board with a description of the work to which the minutes relate or explain how the work to which the minutes relate is similar to the work in dis­pute. It appears that the projects relied on by the Labourers relate to dissimilar work. For exam­ple, some of the minutes relate to the construction of a new transmission line or new construction. Accordingly, the past practice evidence relied upon by the Labourers does not establish that Ontario Hydro has a past practice of assigning work, similar to the work in dispute, to members of the Labourers. It is our determination that the factor of past practice does not favour either the Labourers or Local 1788.

22. With respect to skill and safety, although the briefs filed by the applicants and Local 1788 assert that the work involves electrical hazards because the work is performed while the line is live, they do not explain the safety hazard that exists for the individual who performs the digging (it is not contended that the backfilling presents an electrical hazard). As the photographs provided in the Labourers' brief indicate, towers can be located within very close proximity to public side­walks. Additional details of the electrical hazard involved in the performance of the work provided by counsel orally at the hearing have not been considered by the panel as the Labourers did not have prior notice of such information or an opportunity to prepare to respond to it in advance of the consultation. Based on the submissions contained in the briefs, we are not persuaded that the work poses an electrical hazard of such a nature as to require the extra safety training of a Local 1788 member. Members of both unions have the requisite skill to perform the work in dispute. As a result, it is our determination that the factor of skill and safety does not favour either union.

23. Thus, we turn to the factor of economy and efficiency. As set out above, the briefs filed by the applicants and Local 1788 explain the manner in which the work is performed and assert that it is impossible to segregate the work in dispute and assign it exclusively to a labourer for rea­sons of economy and efficiency. Local 1788's brief states that to do so would result in a maximum of two days of work per week for a labourer. The labourer would spend the rest of the time stand­ing around waiting for the Local 1788 members to catch up to him or would have to be constantly laid off and recalled. There would be no reduction in the number of Local 1788 members on the crew.

24. At the consultation, the Labourers took serious issue with the Board relying on the description of how the work was performed provided by the applicants and Local 1788. The Lab­ourers assert that the descriptions contained in the briefs (and provided by counsel at the hearing which, as indicated above, we have not relied upon in coming to our decision) do not constitute "evidence". It was suggested that the applicants or Local 1788 should have filed affidavits or decla­rations from the crew members or filed supporting documentation. The Labourers did not assert a different version of how the work was performed - only that the version asserted by the other par­ties was not sufficient and did not constitute evidence upon which the Board could come to a decision.

25. In our view, the description of the work provided by the applicants and Local 1788 is sufficient for our purposes. Section 93 (now section 99) gives the Board the power to determine a jurisdictional dispute without holding a hearing. The Board's procedures, which provide for deal­ing with jurisdictional disputes by way of consultation, are designed to avoid lengthy and costly liti­gation and have the matter determined as quickly as possible. The Board has been handling juris­dictional disputes by way of consultation, relying solely on the information contained in the briefs filed, for almost three years. That the Board would rely on the information contained in the briefs filed by the applicants and Local 1788 in the instant case, where no contrary version of the facts is put forward by the Labourers, is not unusual.

26. In the present case, counsel for Local 1788 contacted members of the crew who were working in a remote location and obtained a description of how the work is being performed, This description was set out in Local 1788's brief in some detail. The Labourers were provided with a copy of Local 1788's brief well in advance of the consultation. It had the opportunity, if it wished to do so,to conduct its own investigation into how the work is being performed and present the Board with a description of such at the consultation. In the absence of even an assertion from the Labourers that it has information that the description given by local 1788 is inaccurate, we see no reason not to rely on it for the purposes of our determination.

27. Based on the description of how the work is performed as contained in Local 1788's brief, it is our view that the functions of hand digging and backfilling are not severable from the other functions performed. Requiring Ontario Hydro to assign the work in dispute to members of the Labourers would result in serious inefficiencies. The digging and backfilling is a very minor part of the work being performed. Of the total 35 working days that the seven-man crew works on the project each week, the hand digging and backfilling functions would fill only two. Digging the hole can take as little as five minutes. The following repair work can take over an hour. The subse­quent backfilling of the hole takes minutes. Clearly the digging and backfilling time for each leg of the tower is much less than the time required to inspect and repair the leg. If a member of the crew is assigned to only digging and backfilling, that individual would spend a considerable portion of his/her day standing around or would work for a day or two (working ahead of the rest of the crew which cannot be done to any great extent) and then be laid off. Given the remote location of the towers, Ontario Hydro would be required to pay travel pay.

28. As a result, it is our determination, based solely on the description of how the work is performed contained in the briefs filed with the Board, that economy and efficiency favours assign­ing the work in dispute to members of Local 1788.

29. The only factor which favours one union or the other favours Local 1788. Accordingly, we see no reason to change the assignment of the work in dispute.

DECISION OF BOARD MEMBER J. REDSHAW; December 6, 1995

1. I dissent.

2. I cannot agree with my colleagues that the description of the work actually performed is clear. In my opinion the description of the work described by the applicant and IBEW Local 1788 is mostly hypothetical. The oral submissions only served to further cloud the issue. Labourers Local 1059 was not helpful in that they did not tell their version of how the work was actually car­ried out.

3. In my opinion, I would have had the parties, in written submissions, describe the work performed in detail.

4. I feel that there is too much confusion to allow me to decide who should have per­formed the work.