[1996] OLRB Rep. July/August 690
3084-95-JD Labourers' International Union of North America, Local 247 v. United Brotherhood of Carpenters and Joiners of America, Local 249 and T. A. Andre & Sons (Ontario) Ltd., Responding Parties
BEFORE: Lee Shouldice, Vice-Chair, and Board Members W N. Fraser and G. McMenemy
APPEARANCES: John Moszynski and Victor Claro for the applicant; David McKee and Dennis Grant for Carpenters Local 249; Kevin Kelly and J. Thomson for T.A. Andre & Sons (Ontario) Ltd.
DECISION OF THE BOARD; August 21, 1996
This is an application concerning a work assignment filed with the Board pursuant to section 99 of the Labour Relations Act, 1995 (hereinafter "the Act"). A consultation with the parties was held by the Board on May 15, 1996, at which time the written submissions of the parties, previously filed, were elaborated upon by counsel and Mr. Kevin Kelly, the General Manager of T. A. Andre & Sons (Ontario) Ltd. (hereinafter "the employer"). For convenience, the applicant will be referred to in this decision as "the Labourers" and the responding party, United Brotherhood of Carpenters and Joiners of America, Local 249, will be referred to as "the Carpenters".
The work in dispute in this proceeding is the stripping of formwork where the forms are to be reused. The work includes the dismantling of all components of built-in-place forms and the disassembly of all panel forms. The formwork in question relates to the construction of two plants in Millhaven, which is located in Board Area 29. The formwork undertaken by the employer at both plants consists of utilizing a combination of prefabricated panel forms and built-in-place forms.
There is no dispute that members of the Carpenters have been properly assigned the work of erecting all of the forms in question. The dismantling of the forms, which involves the removal of braces, strongbacks, whalers, studs and plywood (in the case of built-in-place forms) and of braces, strongbacks and whalers (in the case of the prefabricated panel forms) is the focus of the dispute. The dismantling of the forms is effected through the use of sledge hammers and crow bars. We note here that there is no dispute that the release of the various clamps and wedges which hold the form in place has been properly assigned to members of the Carpenters. Nor is there any dispute that the employer has quite properly assigned the work of stripping of forms which are not to be re-used to members of the Labourers.
The briefs submitted by the parties were contradictory in their description of the events which precipitated the work assignment dispute. A great deal of effort was expended by the parties in an attempt to establish the party to whom the work in dispute was initially assigned. It is evident from all of the materials that the employer did not make an assignment of the work to either the Labourers or the Carpenters at any time. The employer did not make an assignment at the mark up meeting held on May 5, 1995. Subsequently, it assigned the work in dispute to one or both of the trades claiming the work. In our view, the employer never really assigned the work in dispute at all. Nonetheless, having regard to the provisions of section 99 of the Act, this work assignment dispute is properly before the Board.
When determining a jurisdictional dispute application, the Board takes into account a number of criteria including, but not limited to, the various collective bargaining relationships affecting the work in dispute, the skills and training required to perform the work, considerations of economy and efficiency, any relevant trade agreements, the employer's practice, and the area practice.
Both the Carpenters and the Labourers have a collective bargaining relationship with the employer. Both of the province-wide collective agreements assert work jurisdiction over the work in dispute. The Labourers' I.C.I. agreement describes the work in greater detail, but there is no question that both trade unions assert jurisdiction over the work in dispute.
In our view, the factors of economy and efficiency, and skills and training, do not have particular relevance in the circumstances of this application. There is no suggestion that employing either carpenters or labourers to perform this work requires an uneconomical or inefficient use of the employer's human resources. Furthermore, it is evident that members of both the Carpenters and the Labourers can perform the work in dispute. Although the brief filed by the Carpenters alludes to an historical basis for the assignment of the work in dispute to its members (i.e. that its members will maximize the salvage and re-usability of the materials because these same workers build the forms), this rationale was questioned by the Board over 25 years ago (see Fraser-Brace Engineering Company Limited, [1969] OLRB Rep. Jan. 1087, at para. 45, where it was observed that "any skills that are needed can as easily be acquired by labourers as carpenters from experience on the job").
In its written submissions, and at the consultation, the Labourers relied upon the oft-cited but rarely helpful "Memorandum on Concrete Forms" dated October 3, 1949 as constituting a trade agreement which gave it a greater claim to the work in dispute. We are of the view that that document is of no assistance. In Fraser-Brace Engineering Company, Limited, supra, the Board, at paragraphs 15 and following, identified in great detail the difficulties that existed at that time in discerning the meaning of the language used in the Memorandum. There is nothing before the Board to suggest that the document's meaning is any more discernible in 1996. Accordingly, we do not place any weight on the document for the purposes of this decision.
There was a great deal of material filed with the Board relating to the employer's past practice and the area practice. With respect to the practice in Board Area 29, the materials filed consist primarily of "form letter-style" correspondence and/or practice sheets provided by the trade unions to general contractors or concrete forming contractors for completion. Leaving aside the issue (discussed below) of what weight, if any, such documents should be given, we note that the documents simply do not support a finding that there was any predominate area practice relating to the stripping of reusable formwork. The Carpenters included in its materials correspondence from the General Manager of the Kingston Construction Association, which correspondence contains his opinion of area practice - that "where re-usable lumber is to be stripped, the work belongs to carpenters...". However, it would appear from all of the materials filed with the Board that the actual practice of general contractors and concrete forming contractors in Board Area 29 is not quite as consistent as was suggested by the Association.
We think it important, at this point, to make a few observations regarding the nature of the materials filed with the Board in this proceeding. It has been more than three years now since the Board has been consulting with the parties respecting jurisdictional disputes rather than holding a hearing and requiring the parties to call evidence respecting the various criteria relied upon by the Board in determining these applications. In order to establish the practice of contractors in the relevant Board Areas, parties to jurisdictional dispute applications have regularly filed with the Board "employer practice sheets" or correspondence from employers respecting their practice in the pertinent Board Area. There is nothing wrong with this practice and materials which include specific details of the projects on which the work was performed and a clear description of the work performed can be quite helpful in establishing an area practice. However, the materials should, to the greatest extent possible, be the work product of the employer and not the party submitting the material to the Board.
In this particular proceeding, the correspondence of contractors respecting their area practice which was filed by the Labourers were, for all intents and purposes, identical. The Labourers apparently provided certain employers with draft letter for completion and signature. The difficulty with such "standard form, fill-in-the-blank" letters is that the Board cannot be certain that individuals signing the correspondence actually read and understood what they signed. Such concern is proved well-founded in this case, by one contractor who appears to have signed such a letter in support of the Labourers and then, subsequently, to have signed a declaration on behalf of the Carpenters denying same, and asserting an area practice consistent with the Carpenters' claim. Naturally, each of the trade unions urged the Board to put weight on its materials and to reject the other's documents. Ultimately, the evidence is of little utility. In order to avoid these problems, contractors should be freely encouraged to describe in specific detail their area practice(s) in their own words, rather than in someone else's, providing details of the jobs and the work upon which such practice was established. Although the Board will have to remain cautious when considering these materials, there will be no doubt as to the contractor's understanding of what is being asserted as an area practice.
The employer's own practice with respect to the stripping of reusable formwork is, oddly enough, not clear. The Carpenters, in an attempt to establish the employer's practice (both within and outside of Board Area 29), filed with the Board numerous handwritten declarations, signed by its members, which were said to establish that the employer's consistent practice was to assign the work in dispute to members of the Carpenters. These declarations are hardly "boilerplate" in nature, and therefore their weight would not be discounted on that basis. Unfortunately, it is apparent that many of the declarations clearly overstate the case for the Carpenters. As noted above, it was not in dispute that the employer has, historically, properly assigned the stripping of the form to members of the Labourers when the wood was not to be reused. Notwithstanding that, a number of the handwritten declarations filed by the Carpenters make assertions such as "the ... stripping of all formwork was to be carried out by carpenters of local 249..." and "Labourers didn't do any stripping of forms". As we know that this is not accurate, what value can be placed on these declarations, keeping in mind that they are prepared by members (or, on occasion, by retired members) of one of the parties claiming the right to perform the work in dispute?
We have concluded that no weight can be given to the type of member declarations filed in this proceeding. As noted above, their authenticity is unquestioned. However, because of their "general" nature their accuracy is often hard to gauge, and in light of the inaccuracies that do appear on the face of some of the declarations, there can be no weight ascribed to the documents filed in this proceeding.
The material filed by the applicant included correspondence by Mr. Kelly which described, as he understood it, the past practice of the employer in assigning the work in dispute, both within and outside Board Area 29. Mr. Kelly asserted, during argument, that it has been the past practice of the employer to assign the work in dispute to labourers. Unfortunately, the correspondence filed by the applicant, authored by Mr. Kelly, hardly supports that assertion. In fact, it is not evident that the employer's own practice is or has been to assign the work in dispute to any one trade.
Throughout the correspondence, Mr. Kelly asserts that, with respect to a significant number of projects, it has been the employer's practice to perform the work in dispute "by a composite crew of labourers and carpenters". We understand the use of this term to mean something different than using carpenters to strip reusable formwork, and labourers to strip non-reusable formwork. Mr. Kelly's letter closes with this statement: "... in the three different Board areas ... both area practice and employer practice was to have stripping carried out by the labourers, although carpenters may be involved from time to time." Our overall sense of the employer's materials suggests that, if anything, both carpenters and labourers have performed the work in dispute for the employer. This is consistent with the observation made by Mr. Pollock, one of the employer's representatives at the May 5, 1995 mark-up meeting, which is contained in the minutes of that meeting. At that meeting Mr. Pollock asserted that "it was common practice to have the available trade strip formwork. If the carpenters were busy, the labourers would strip and vice versa, or a mixed crew would be used". This could very well explain the diversity of the conclusions which each of the unions asked the Board to reach.
We are of the view that the assignment of this work ought to have been made to a composite crew, consistent with what appears to have been the employer's own practice over the years. At the consultation the parties did not address this potential result. Accordingly, the parties are directed to provide the Board with any submissions they may have regarding the appropriate composition of the crew no later than September 16, 1996. As usual, should the parties be able to reach an agreement amongst themselves as to the appropriate composition of the crew, it will be unnecessary to make the submissions directed.
We will remain seized of this proceeding.