[1995] OLRB Rep. May 711
2430-94-JD Millwrights District Council of Ontario on its own behalf and on behalf of its Local 1244, Applicant v. Victoria Steel Corporation, Ironworkers' District Council of Ontario, International Association of Bridge, Structural and Ornamental Ironworkers, Local 700, Ontario Erectors Association Incorporated, Association of Millwrighting Contractors of Ontario, Responding Parties
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members F. B. Reaume and J. Redshaw.
APPEARANCES: N. L. Jesin, R. Lumley and H. Martinak for the applicant; S.B.D. Wahl and G. Michaluk for Ironworkers' District Council of Ontario and International Association of Bridge, Structural and Ornamental Ironworkers, Local 700; Robin B. Cumine and William Jemison for Ontario Erectors Association Incorporated; no one appearing for Victoria Steel Corporation; no one appearing for Association of Millwrighting Contractors of Ontario.
DECISION OF THE BOARD; May 25, 1995
This is a complaint concerning an assignment of work in the construction industry. Pursuant to section 93 of the Labour Relations Act, a consultation was held in this matter. Both trade unions and the Ontario Erectors Association Incorporated appeared at the consultation.
The work in dispute is described as follows:
"All work in connection with the off-loading, rigging, handling, transport and installation of
flumes at the Ford Essex Engine Plant, Windsor, Ontario."
- The Ironworker's Brief described a flume as:
“…..a series of steel liners forming trenches or culverts installed beneath the floor elevation flushed with water or oil to remove debris and machine cuttings."
The Ironworkers assert that flumes are not "a material handling system consisting of conveyors, machinery and equipment" and are the exclusive work jurisdiction of the Ironworkers in Board Area #1 (Counties of Essex and Kent). The Ironworkers take the position that a production process material handling system consisting of conveyors, equipment and machinery is installed on or above floor elevation and in Board Area #1 is properly assigned to a crew consisting of equal numbers of members of the Ironworkers Local 700 and Millwrights Local 1244.
The work in dispute was performed exclusively by Ironworkers. Victoria Steel Corporation ("Victoria Steel") is bound to the provincial ICI agreement between the Ironworkers and the Ontario Erectors Association Incorporated ("OEA"). The Millwrights do not have an agreement with Victoria Steel.
It is the Ironworkers' position that Victoria has no obligation to consider the constitution of the United Brotherhood of Carpenters and Joiners of America ("UBCJA"). Victoria Steel is not bound to any collective agreement with the UBCJA, the Millwrights District Council of Ontario or Millwrights Local 1244 ("Millwrights"). The Ironworkers submit the Board has no jurisdiction to declare or order that Victoria Steel is bound by a collective agreement with the UBCJA/Millwrights. The Ironworkers submit in the absence of a collective agreement the Ontario Labour Relations Board has no jurisdiction to declare or order an assignment of work in accordance with a collective agreement binding on the applicant Millwrights.
The applicant Millwrights refer to the Board's decisions in Acco Canadian Material Handling, [1992] OLRB May 537, Inplant Contractors Inc., Oct. 5, 1992 Board File No. 2827-90-JD) (unreported), Comstock Canada, [1993] OLRB Rep. Aug. 740, and State Contractors Inc., [1993] OLRB Rep. Dec. 1397 which confirm that at least 50% of the disputed work should be assigned to the applicant's members. All future assignments of a material handling system by contractors bound to both the Millwrights and Ironworkers provincial ICI agreements should be made to a composite crew of equal numbers of Millwrights and Ironworkers in Board Area #1.
The applicant requests that such orders be made binding on companies like Victoria Steel who are bound to a collective agreement with either the Ironworkers Local 700 or Millwrights Local 1244. The applicant requests a declaration that at least 50% of the work in dispute should properly be assigned to members of the applicant, and an order that in future at least 50% of the work in dispute performed by contractors who are bound to either of the Millwrights' or Ironworkers' provincial ICI collective agreements be assigned to members of the applicant.
The OEA did not take any position with respect to the work jurisdiction other than to say that this aspect has previously been fully canvassed by the Board. The OEA submits the Board should refuse to make any declaration or order purporting to be binding upon any contractors not bound by the applicant's provincial collective agreement. The OEA set out its position as follows:
It is understood that the Applicant does not have bargaining rights with respect to the employees of Victoria Steel Corporation and that Victoria Steel Corporation is not bound by a collective agreement in favour of the Applicant.
The relief sought by the Applicant includes a request for a declaration that would effectively confer bargaining rights with respect to employees of employers who have no collective agreement with the Applicant and with whom the Applicant has no bargaining rights.
OEA takes the position that the making of such an order would be contrary to the Board's previous practice and in fact would be in direct contravention of Section 2.1 of the Labour Relations Act.
The applicant submits the Board should issue the orders it requests as Victoria Steel is not objecting by virtue of their non participation.
Victoria Steel, a single trade contractor or specialty sub-contractor, only installed the Flumes, a series of steel liners that are welded and embedded in concrete. In its letter of September 24, 1993, submitted in the Ironworkers' brief, Victoria Steel states that it has "installed coolant flumes for the past thirty-three years with ironworkers from Local 700." Victoria Steel did not install any of the moving parts of the material handling system.
However, even if the flume installation is considered part of a material handling system as contemplated in the Board's decisions we would not apply the 50% - 50% order in these circumstances. The Board in Comstock Canada, supra, in paragraph 15 stated:
Our order will be binding upon all the parties before us, including the employer, Comstock Canada, the Millwrights District Council of Ontario, Millwrights Locals 1244 and 1592, all applicants, and in addition, upon the two employer organizations which were named in the application as parties which might be affected by the application, and to which notice of the proceedings was provided, namely the Ontario Erectors Association, Incorporated and the Association of Millwright Contractors of Ontario. Further, pursuant to section 93(2) of the Act, our order is to be binding as well upon all other jobs undertaken in the future in Board Area #1. The orders in this paragraph apply to assignments where the contractor is bound to both the Ironworkers' Provincial Agreement and the Millwrights' Provincial Agreement.
[emphasis added]
In Groff & Associates Ltd., [1994] OLRB Rep. July 846 the Board addresses the issue of assigning work to a union that does not have a collective agreement with the respondent company and states in paragraph 17:
In this case, for example, what if Groff had assigned the work in dispute to a composite crew consisting of an equal number of non-union sheet metal workers and members of the UA? Even the Sheet Metal Workers conceded that, on the basis of decisions like Simcoe Mechanical, supra, that scenario would raise a pure representation issue and it would have no real jurisdictional dispute complaint. What makes the situation different now? Even if the Board concluded that the work in dispute in this case should have been done by a composite crew of Sheet Metal Workers and Plumbers, on what basis would the Board declare that the Sheet Metal Worker trade component of the work should have been assigned to members of the Sheet Metal Workers' union, since there was nothing to oblige the employer to do so? Further, on what basis would the Board order, either with respect to the project in issue or in future projects, that Groff assign any sheet metal worker trade component of the work in dispute to members of the Sheet Metal Workers' Union rather than to any sheet metal worker tradesmen Groff chose, whether members of the Sheet Metal Workers Union or not? And why and what basis would the Board make that kind of order?
Even if the Board were to find the flumes is part of a material handling system there is no basis upon which to grant the relief requested by the applicant. The Board has no jurisdiction to bind all contractors in Board Area #1 who are signatory to only one of the two ICI collective agreements (Ironworkers or Millwrights) to an order like the order issued in Cornstock Canada, supra. There is no labour relations purpose served by such an order where an applicant does not have a collective agreement with the company, nor is it clear to the Board how such an order could be enforced in the absence of such collective agreement.
The applicant at the hearing requested that if the Board would not issue a blanket order it should issue the order for all future work of Victoria Steel and member companies (who are signatory to only the Ironworkers' ICI agreement) of OBA who were represented by counsel at the consultation. For the same reasons set out in Comstock Canada, supra, and Groff & Associates Ltd., supra, the Board declines to make such an order.
The Board is satisfied that the work in dispute in this case is assigned in accordance with the collective agreement and there is no reason to interfere with this assignment. This complaint is dismissed.