[1995] OLRB Rep. May 645
3229-94-JD International Association of Bridge, Structural and Ornamental Iron Workers, Iron Workers District Council of Ontario, International Association of Bridge, Structural and Ornamental Iron Workers, Local 700, Applicants v. Elecon Electrical Contractors Inc., Pro-Mart Industrial Products Ltd., International Brotherhood of Electrical Workers, Local 530, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, Responding Parties
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.
APPEARANCES: Gary Caroline and Bill Howard for the applicant; Bruce Binning and Ronald W. Best for Elecon; Denis Lajoie for Pro-Mart; M. Lewis and Jack Dowding for Electrical Workers; David McKee and Tony Roach for Boilermakers.
DECISION OF THE BOARD; May 4, 1995
This is a complaint, under section 93 of the Labour Relations Act, concerning an assignment of work in the construction industry. Pursuant to the provisions of section 93, a consultation (which is not a "hearing" in the traditional sense) was convened by the Board on April 19, 1995.
The applicants International Association of Bridge, Structural and Ornamental Iron Workers, Iron Workers District Council of Ontario, and International Association of Bridge, Structural and Ornamental Iron Workers, Local 700 (all three of which will hereinafter be referred to as the "Ironworkers") seek an order and direction affirming the assignment of the on-site work in dispute to members of Ironworkers, Local 700, a declaration that such industrial, commercial, and institutional ("ICI") sector work in Board Area No. 2 is within the work jurisdiction of Iron-workers, Local 700, and an order and direction that future such ICI sector work in Board Area No. 2 be assigned exclusively to members of the Ironworkers, Local 700.
The responding party International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128 (the "Boilermakers") seeks a declaration that the shop fabrication part of the work in dispute was properly assigned to its members.
The responding party Elecon electrical Contractors Inc. ("Elecon") agrees with the position and relief sought by the Ironworkers and Boilermakers. So does Pro-Mart Industrial Products Ltd. ("Pro-Mart"), which did not file a response or other materials but did appear at the consultation.
The Ironworkers described the work in dispute as:
“…..the shop fabrication, unloading, field fabrication, rigging, erection, installation and welding of miscellaneous support steel for multi-purpose supports at Polysar Ltd. 's . .. Cavern Well-head Project in Sarnia, Ontario... contracted to Elecon. . . and subcontracted to Pro-Mart
[emphasis added]
Members of Ironworkers, Local 700 were assigned and performed all of the work at the actual job site. Members of the Boilermakers performed the shop fabrication.
The Boilermakers agree with the Ironworkers' description of the work in dispute, although it is careful to limit its submissions to shop fabrication of the miscellaneous support steel, which is the work its members performed.
Elecon and Pro-Mart also agreed with the Ironworkers' description of the work in dispute.
The IBEW describes the work in dispute as follows:
“….The shop fabrication, unloading, steel fabrication, rigging, erection and installation of steel supports used exclusively for electrical cable trays, clips, conduit and cable exclusively for electrical cable trays clips conduit and cable at Polysar Ltd. . . . Cavern Wellhead Project in Sarnia, Ontario, contracted as part of a total electrical construction package by Polysar to Elecon.
[emphasis added]
For purposes of this case, the IBEW concedes that if the Ironworkers' description of the work in dispute is correct the work was properly assigned, but it disputes the Ironworkers' assertion, with which all the other parties agree, that the steel supports in issue are "multi-purpose". The IBEW seeks a declaration that the work in dispute (as it describes it) was improperly assigned or sub-contracted, and that it should have been assigned to its members or sub-contracted to an employer with which it has a collective agreement (which Pro-Mart does not), and also an order for damages.
Having read and considered the materials filed, and having heard and considered what was said by the parties at the consultation, the Board concluded that it was not necessary to hear evidence, entertain further submissions, or to otherwise conduct a formal hearing in this matter, and the Board ruled, orally, in favour of the Ironworkers and Boilermakers.
Section 93(1) of the Labour Relations Act provides that:
93.- (1) This section applies when the Board receives a complaint,
(a) that a trade union or council of trade unions, or an agent of either was or is requiring an employer or employers' organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another; or
(b) that an employer was or is assigning work to persons in a particular trade union rather than to persons in another.
The purpose of section 93 has always been to provide a mechanism for resolving disputes over work jurisdiction without the disruption caused by a resort to economic weapons or conflict. Section 93 provides a mechanism for dealing with all of the competing interests in a jurisdictional dispute in a single forum, something to which no other provision in the Act is suited. The jurisdictional dispute provisions of the Labour Relations Act have never been intended to deal with representation issues as such, and a jurisdictional dispute complaint is not a process through which a trade union can obtain representation rights. There is nothing in the amendments which came into effect on January 1, 1993 which altered that.
- In complaints concerning work assignments, the Board generally considers the factors first discussed almost thirty years ago in Canada Millwrights Ltd., [1967] OLRB Rep. May 195:
— collective bargaining relationships
— trade union agreements between the competing parties
— area practice
— employer practice
— safety, skill and training
— economy and efficiency
(more recently, see Acco Canadian Material Handling, [1992] OLRB Rep. May 537, Electrical
Power Systems Construction Association, [1992] OLRB Rep. August 915, Vic West Steel, [1993]
OLRB Rep. March 256; Application For Judicial Review to the Ontario Court of Justice (Divisional Court) dismissed June 1, 1994, [1994] OLRB Rep. June 803; Groff & Associates Ltd., [1994] OLRB Rep. July 846).
- The Board's jurisdictional dispute jurisprudence demonstrates that this is not an exhaustive list of factors. It is neither possible to make an exhaustive list, nor appropriate to mechanically apply some formula or list of factors to a jurisdictional dispute complaint. Accordingly, in every case, the Board considers those factors which it considers relevant to the particular jurisdictional dispute before it, which may include some or all of those factors listed above, or others which are not. Some of the six factors listed above will be of little assistance in any given case. For example, in recent years, the jurisdictions asserted by construction trade unions in their various collective agreements (and in their constitutions) have become so broad that they are of little assistance, particularly in cases where the employer which made the disputed work assignment is bound to collective agreements with all of the competing trade unions. Because of the historical developments of the division of work in the construction industry in a craft or trade basis, and the ever-increasing overlap between the construction trades in the work jurisdictions which they assert, the Board has recognized that collective bargaining relationships cannot, by themselves, be determinative of a jurisdictional dispute complaint. Consequently, while a trade union which has no applicable collective agreement with the employer which assigned the work in dispute is likely to have a difficult time in having that assignment altered, a trade union which has a collective agreement with the assigning employer will not necessarily be successful in fending off a claim for work by a trade union which has no collective agreement with that employer (Brunswick Drywall Limited [1982] OLRB Rep. Aug. 1143, Pigott Construction Limited, [1992] OLRB Rep. June 748 ("Pigoft #2"); but see, Groff & Associates Ltd., supra, at paragraphs 19 and 20) so long as the issue is one of work jurisdiction and not one of representation (Simcoe Mechanical Contracting Ltd., [1982] OLRB Rep. Sept. 1352). On the other hand, a single factor may be determinative of a jurisdictional dispute complaint. Work jurisdiction trade agreements provide one example of a factor to which the Board has given great weight, especially in recent cases (Pigott #2, supra, Ellis-Don Limited, [1993] OLRB Rep. Nov. 1130, the various decisions in Kora Mechanical inc., [1992] OLRB Rep. June 740 and March 3, 1993, April 26, 1993, June 14, 1993, July 12, 1993 and November 8, 1993, all unreported). Similarly, although the Board has determined jurisdictional dispute complaints in favour of a trade union which the area practice did not favour (Simcoe Mechanical Contracting Ltd., supra, K-Line Maintenance & Construction Limited, [1979] OLRB Rep. Dec. 1185), area practice has more and more often been the determining factor (Rena Construction Company Limited, [1974] OLRB Rep. Nov. 775, Acco Canadian Material Handling, supra). Indeed, the Board has said that:
"It is the rare and unusual complaint in which the Board does not attach significant and primary weight to area and employer past practice"; and that
"The real crux of most jurisdictional disputes revolves around the two past practice criteria."
(Electrical Power Systems Construction Association, [1992] OLRB Rep. Aug. 915.
The emphasis on past practice is reflected in the time and energy devoted to the practice factors in jurisdictional disputes proceedings before the Board.
In its request for relief in this case, the IBEW focused on Elecon, an employer with which it has a collective bargaining relationship, instead of on Pro-Mart, the employer to which Elecon sub-contracted the work in dispute and which made the actual work assignment, and with which the IBEW does not have a collective bargaining relationship.
As the Board's decision in Pigott Construction Limited, [1990] OLRB Rep. April 441 ("Pigott #1") indicates, the Board is not inclined to require an employer to sub-contract work to another employer in a particular way or at all. Further, as we have already indicated, the Board will not require an employer to assign work to members of a trade union which has no collective bargaining relationship with the employer which made the assignment of work unless it is satisfied that there are compelling reasons to do so (see Groff & Associates Ltd., supra). In this case, the Board accepted the applicant's description of the work in dispute. Further, the Board was not satisfied that there was a compelling reason, or indeed any reason, to disturb the assignment of the work in dispute.
Pro-Mart advised the Board that, as a general matter, there is no difference between multi-purpose steel supports and steel supports used solely to support electrical equipment. However, since work jurisdiction is sometimes divided on the basis of end use, this did not take us very far.
However, Polysar, the "owner" of the project in question, has stipulated that the structural supports in question are to be used to support both electrical equipment and piping. The drawings, specifications and pictures in the materials do not suggest otherwise; that is, they do not suggest that the structural steel in question will or can support only electrical equipment.
Further, and in any event, it is clear that members of the Ironworkers and Boilermakers have the necessary training and skill to perform the welding which is an integral part of the work in dispute to the applicable Canadian Standards Association ("CSA") standards. While IBEW contractors and members do perform welding as a part of the electrical trade, it is far from clear that there are IBEW contractors or members in Board Area No. 2 who have the necessary training or skill to perform the welding required in this case. There is nothing in the IBEW's consultation brief or elsewhere in the materials before the Board which indicates that such IBEW contractors or members perform welding to CSA standards or that their IBEW contractors or members certified by the Canadian Welding Bureau to perform the welding required in this case. Indeed, the materials suggest that electrical contractors in Board Area No. 2 do not normally perform work like that in dispute themselves but that they contract it out, often to Pro-Mart.
In the result, the Board was satisfied that the work in dispute involved multi-purpose steel supports, that the collective bargaining relationship, area and employer practice, safety, skill and training, and economy and efficiency factors all favoured maintaining the assignment as made. The Board was not satisfied that there was any reason to alter that assignment. Accordingly, the Board ruled as aforesaid.
In the result, the complaint is allowed. The assignment of the work in dispute as made is affirmed.
The Board does not find it appropriate to make any other or additional orders.