International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers v. Labourers' International Union of North America, Local 1089
[1995] OLRB Rep. May 610
2981-94-JD International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Applicant v. Labourers' International Union of North America, Local 1089, Canadian Erectors Construction Services Inc., Foster Wheeler Limited, Construction Division, Responding Parties
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. N. Fraser and G. McMenemy.
APPEARANCES: David McKee and Ed Power for the applicant; John Moszynski and Robert Leone for Labourers' International Union of North America, Local 1089; Brad Compton for Canadian Erectors Construction Services Inc.; Robin McDonald for Foster Wheeler Limited, Construction Division.
DECISION OF LOUISA M. DAVIE, VICE CHAIR, AND BOARD MEMBER G. MCMENEMY; May 16, 1995
Pursuant to section 93 of the Labour Relations Act (the "Act") the Board consulted with the parties affected by this complaint regarding the assignment of particular work on Friday May 12, 1995.
The work in dispute is:
all work in connection with the staffing of tool cribs at the Esso Coker Unit project and the C02 Boiler Repair project in Sarnia in April and May, 1994 by employees of Canadian Erectors Limited and Foster Wheeler Limited.
We have carefully considered the oral submissions of the parties made on Friday May 12, 1995 together with the written material each filed with the Board.
It is our view that the Labourers' International Union of North America, Local 1089 has provided sufficiently detailed evidence of area practice to indicate that in Board Area 2 (the geographic area in which the work in dispute was performed) is to assign the staffing of tool cribs on multi-trade jobs to members of the Labourers International Union of North America, Local 1089 ("labourers"). Although the evidence presented by the labourers does not go so far as to detail with precision that portion of its area practice which relates solely to the staffing of tool cribs on "predominantly boilermakers" jobs rather than "multi-trade" jobs, the evidence and the circumstances which apply to that evidence have persuaded us that area practice favours an assignment of the work to labourers.
In contrast to this labourers evidence regarding area practice (i.e. those numerous occasions when members of the labourers union have staffed tool cribs whether or not those tool cribs are used predominately by boilermakers or other trades) we have only the inecdotal evidence of the applicant International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers ("boilermakers") that specialty "boilermaker" contractors employ boilermakers to staff the tool cribs on jobs that involve "predominately boilermaker" work (apparently regardless of whether other trades also make use of that tool crib). On balance therefore, we are of the view that area practice does favour the claim of the labourers.
In contrast, the factor of employer preference or the employer's own practice in areas outside of Board Area 2 favours the assignment of this work to the boilermakers. It is apparent that outside Board Area 2, the two employers assigning this work generally assigned the staffing of a tool crib on jobs which are "predominately boilermakers" work to members of the boilermakers union. Neither employer however has an established practice in Board Area 2.
We would generally agree with our colleague that an employer's assignment of work should not be lightly interfered with unless there is good and sufficient reason to do so. In our view, and although this is by no means meant to be an exclusive list of factors, such good and sufficient reason may exist where there is evidence of an overwhelming area practice which favours a particular trade, or significant factors relating to craft claims, skill or ability which raise, for example, safety issues etc. Thus, in cases of mixed practice with respect to the assignment of particular work in a particular Board Area, we also would not lightly interfere with the employer's assignment of work to a particular trade where two or more trades have done the work in that Board Area, and where there are no issues of safety or craft related ability to do the work raised by the very nature of the work.
In our view however, in the unique circumstances of this case where:
(a) the trade which was assigned the work is unable to specify any projects within this sector of the construction industry (I.C.I. sector) in Board Area 2 in support of their claim that tool cribs on "predominately boilermaker jobs" are staffed by boilermakers, and
(b) where the trade claiming to overturn the assignment of the employer can point to an overwhelming area practice of staffing tool cribs on "multi-trade" jobs, (a practice which has never been made the subject of a grievance by the boilermakers), and
(c) where the Board can reasonably infer that at least some of those "multi-trade" jobs included projects which, given the circumstances of the work environment in Board Area 2 were likely projects where the work was "predominately boilermakers" work.
We have determined that the employer preference~ or the employer's own practice in areas outside of Board Area 2 does not tip the balance in favour of upholding the employer's assignment.
- On balance therefore, we have determined that the work in dispute listed in paragraph 2 herein was improperly assigned and should properly have been assigned to members of the labourers union.
DECISION OF W. N. FRASER; May 16, 1995
- In my view the material before this Board is not so compelling, and does not sufficiently establish an area practice which warrants the Board interfering with the employer's assignment. I found the labourers evidence to be equivocal and I am not persuaded that on jobs that are "predominately boilermakers" work, the area practice is nonetheless to assign the staffing of tool cribs to the labourers. I would therefore not have disturbed the employers assignment of this work.