[1995] OLRB Rep. August 1127
0867-95-JD Labourers' International Union of North America, Ontario Provincial District Council, Labourers' International Union of North America, Local 1089, Applicants v. United Brotherhood of Carpenters and Joiners of America, Local 1256, PCL Construction Limited, PCL Civil Constructors (Canada) Inc., PCL Constructors Inc., PCL Constructors Eastern Inc., PCL/McCarthy, a Joint Venture, Responding Parties
BEFORE: D. L. Gee, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.
APPEARANCES: John Moszynski and Robert Leone for the applicant; N. L. Jesin and Ron Carlton for the United Brotherhood of Carpenters and Joiners of America, Local 1256; Bruce Binning for PCL Construction Limited, PCL Civil Constructors (Canada) Inc., PCL Constructors Inc., PCL Constructors Eastern Inc., PCL/McCarthy, a Joint Venture.
DECISION OF VICE-CHAIR, D. L. GEE AND BOARD MEMBER F. B. REAUME: August 2, 1995
This is a jurisdictional dispute proceeding brought under section 93 of the Labour Relations Act (the "Act"). A consultation was held on June 21, 1995. By way of a "bottom-line" ruling dated July 6, 1995 the parties were advised of the Board's determination that the work assignment made by PCL/McCarthy, a Joint Venture (hereinafter "PCL/McCarthy") would not be disturbed. Our reasons for such ruling are as follows.
The work in dispute is described in the applicants' pre-hearing brief as follows:
all construction work undertaken by PCL (earlier defined as including all of the PCL companies named as responding parties] falling within the jurisdiction of the applicants pursuant to the Construction General Contract entered into by PCL with the Blue Water Bridge Authority and the Michigan Department of Transportation for the Canadian portion (between the abutment and the centre line) of the Blue Water Bridge Project in Sarnia, Ontario.
The Labourers' International Union of North America, Ontario Provincial District Council, Labourers' International Union of North America, Local 1089 (the "Labourers") complain that PCL/McCarthy should assign some of the work in dispute to its members rather than exclusively to members of the United Brotherhood of Carpenters and Joiners of America, Local 1256 (the "Carpenters"). The Carpenters assert that the Board does not have the constitutional jurisdiction to deal with this dispute as the construction of the Blue Water Bridge falls within federal jurisdiction. If the Board does have jurisdiction, the Carpenters assert that, having regard to the usual factors considered by the Board in determining work assignment disputes, there is no basis for interfering with PCL/McCarthy's assignment of the work in question to members of the Carpenters.
The panel was provided with very few facts on which to determine the constitutional issue. The project in question involves the construction of a bridge, to replace one presently in existence, across the St. Clair River between Port Edward, Lambton County, Ontario and Port Huron, St. Clair County, Michigan. The construction of the bridge is a joint effort by Canada and the United States. PCL/McCarthy is a joint venture between a Canadian and an American company. The Canadian portion of the bridge (between the abutment and the centre line) will be constructed by Canadian workers. The American portion of the bridge will be constructed by American workers. A composite crew will be used to join the two portions.
Based on the limited facts provided to us, it is our determination that we have jurisdiction to determine this dispute. As stated by the Supreme Court of Canada in Montcalm Construction Inc. (1978), 1978 CanLII 18 (SCC), 93 D.L.R. (3d) 641 at 652, primary federal competence over a given subject can only prevent the application of provincial law relating to labour relations if it can be demonstrated that federal authority over labour relations is integral to federal competence. In our view, it cannot be said that control over the employees who will be building the bridge is integral to Parliament's ability to eventually operate the bridge. The bridge will not be in operation while it is being constructed. The fact that provincial labour law will apply to the Canadian employees engaged in the construction of the bridge will have no impact on Parliament's exclusive authority, upon completion, to operate the bridge. Except for the minimal work which will be done by the composite crew which joins the Canadian and American portions of the bridge, there is no suggestion that the workers engaged on the project will be required to cross either provincial or international boundaries. In our view, the fact that the bridge will cross an international boundary (the factor relied upon to distinguish this case from Toronto Dominion Bank, [1992] OLRB Rep. Oct. 1123) does not result in the construction of the bridge becoming integral to Parliament's authority to operate the bridge. Thus, the Labour Relations Act applies to the work in dispute and we have jurisdiction to determine its proper assignment.
We turn then to consider the merits of the dispute.
The Labourers assert that they have a collective bargaining relationship with PCL/McCarthy, either by virtue of a project agreement which the Labourers and the Carpenters had been jointly negotiating with all of the Canadian contractors who had pre-qualified to bid on the job, or by virtue of the fact that PCL Constructors Eastern Inc. (to which the Labourers assert PCL/McCarthy is related) is bound to the agreement between the Ontario Formwork Association and the Formwork Council of Ontario (the "Ontario Formwork Agreement").
We do not conclude that the Labourers have bargaining rights with respect to PCL/McCarthy on either of the two bases asserted. PCL/McCarthy asserted throughout the negotiations with respect to the project agreement that it would not enter into the project agreement with the Carpenters and Labourers unless all of the contractors who had pre-qualified to bid on the project signed. None of the contractors, including PCL/McCarthy, ever signed the project agreement. The Labourers thus cannot rely on such agreement to establish bargaining rights for PCL/McCarthy.
Assuming (without finding) that PCL Constructors Eastern Inc. and PCL/McCarthy are related employers, PCL Constructors Eastern Inc. is bound to the Ontario Formwork Agreement by virtue of a cross-over clause contained in the MTABA Agreement. The MTABA agreement, however, stipulates that its terms and conditions are recognized only within Board Area 8. The work presently in dispute is not within Board Area 8. Thus, even if it was determined that PCL/McCarthy and PCL Constructors Eastern Inc. are related employers, such that PCL/McCarthy is bound to the Ontario Formwork Agreement, such would not result in the Labourers having bargaining rights for work which arises outside of Board Area 8. In the result, the Labourers do not have bargaining rights with PCL/McCarthy which cover the work in question.
On May 3, 1995, PCL/McCarthy entered into a collective agreement with the Carpenters whereby PCL/McCarthy recognized the Carpenters as bargaining agent for all of the employees of PCL/McCarthy performing work on the Blue Water Bridge Project. Further, PCL Constructors Eastern Inc. is bound to the Carpenters' province-wide Heavy Engineering Agreement. Thus, if PCL Constructors Eastern Inc. and PCL/McCarthy are related employers, as asserted by the Labourers, it appears as if the Carpenters may have a collective agreement based claim to the work.
Relying on the Board's decision in Pigott Construction Limited, (1992] OLRB Rep. June 748, the Labourers assert that, even if they have no collective bargaining relationship with respect to PCL/McCarthy, they have a valid claim to the work as there is an existing trade agreement between the Labourers and the Carpenters which provides that the work will be assigned to composite crews comprised of members of both unions. The Labourers assert that they and the Carpenters agreed to jointly negotiate with the contractors towards a project agreement (which would provide for the assignment of much of the work on the project to composite crews), that all of the contractors would be offered the same terms and conditions, and that neither of the unions would negotiate any departure from those terms with any of the contractors. The agreement between PCL/McCarthy and the Carpenters is thus in violation of the "trade agreement" between the Labourers and Carpenters. The Labourers ask that the PCL/McCarthy agreement with the Carpenters be set aside, and that PCL/McCarthy be required to assign the work in accordance with work assignment provisions contained in the last circulated draft of the project agreement.
The Carpenters acknowledge that they agreed to jointly negotiate with the Labourers towards a project agreement with the five contractors. Such agreement (and thus the work assignment provisions contained therein) was, however, conditional on the project agreement being signed by all five of the contractors. They assert that there was no agreement that, if the contractors refused to sign, neither union would attempt to reach an individual agreement with any one or more of the contractors. The Carpenters assert that they did not enter into an agreement with PCL/McCarthy until it became apparent that none of the contractors intended to sign the project agreement. The agreement reached with PCL/McCarthy stipulates that it will not take effect if all five contractors reach an agreement with the Labourers and Carpenters. Thus, the Carpenters assert that they did not breach their agreement with the Labourers.
It is not necessary for us to determine whether the Labourers' or the Carpenters' version of the terms of the agreement reached is the accurate one. Assuming the Labourers' version to be accurate, we would not accord the agreement any weight in determining the proper assignment of the work in dispute. The agreement in question was between the Labourers and the Carpenters. PLC/McCarthy was not a party to the agreement. There is no evidence that PCL/McCarthy was aware of an agreement between the Labourers and the Carpenters to the effect that they would not negotiate individually with the contractors. PCL/McCarthy had no pre-existing collective bargaining relationship with either the Carpenters or the Labourers. There is no suggestion that PCL/McCarthy was not acting in good faith when it entered into a collective agreement with the Carpenters. PCL/McCarthy assigned the work in dispute to members of the Carpenters on the basis of their collective agreement based right to the work. Under such circumstances, even if the trade agreement asserted by the Labourers was reached, it would not cause us to overturn the assignment of the work made by PCL/McCarthy and require PCL/McCarthy to assign the work to members of the Labourers, with whom it has no collective bargaining relationship.
The area practice evidence indicates that the Labourers have performed work in connection with a number of bridges and overpasses built in Lambton County. The Carpenters have performed work on two existing bridges. Thus, the area practice evidence favours the assignment of the work to the Labourers.
There is no evidence with respect to the employers' past practice. We find the factors of skills and training, economy and efficiency to be neutral.
As the Board stated in Groff & Associates Ltd., [1994] OLRB Rep. July 846, a trade union that does not have a collective bargaining relationship with the employer which assigned the work in dispute is likely to have a difficult time in having the assignment altered. In our view, the area practice evidence which favours the Labourers is not sufficient to outweigh the fact that the Labourers do not have an applicable collective agreement with PCL/McCarthy and that the Carpenters do have such an agreement.
Accordingly, we confirm our bottom-line ruling of July 6, 1995 in which we declined to disturb the assignment of the work made by PCL/McCarthy to the Carpenters.
CONCURRING OPINION OF BOARD MEMBER G. MCMENEMY; August 2, 1995
While I concur with the majority decision, I would like to comment on the nature of the events that led up to the filing of this complaint.
The two local unions involved in this case must be commended on the co-operative approach they initially embarked upon in an attempt to achieve a project agreement which would enable the contractors and their union members a better chance to bid on and obtain the contract for the construction of the Blue Water Bridge.
However, for whatever reasons, the project agreement arrived at by this co-operative approach, was never executed or signed by any of the five contractors or the two unions.
At some point in time, the carpenters local union entered into separate and single negotiations with the contractor who was to become the successful bidder on the bridge project. The carpenters' local signed a "Letter of Understanding" with PCL/McCarthy on April 3, 1995. This letter referenced terms and conditions that were very different than the terms of the co-operative agreement.
At no time did the carpenters' local communicate to the labourers' local that they had
abandoned the co-operative agreement and that they were going to do whatever was necessary to
acquire the work for their members or, for that matter, that they were in the process of negotiating
a project agreement with PCL/McCarthy.
It is this lack of common courtesy, the failure to notify the partner in a co-operative venture of your withdrawal, that I find troubling.
Given the history of these unions in the construction industry of Ontario, the abandonment of joint negotiations without notice to the other party will do nothing but further the mistrust and ill feelings between not only these two locals but other locals of both international unions in the province.
I would hope that the two union parties involved in this jurisdictional dispute could before the job begins, or at least during the job, try to repair the mistrust and ill feelings generated by this unfortunate dispute.