[1997] OLRB REP. MARCH/APRIL 197
2510-96-JD Ecodyne Limited, Applicant v. Labourers' International Union of North America, Local 1036 ("Labourers") and United Brotherhood of Carpenters and Joiners of America, Local 446 ("Carpenters"), Responding Parties
BEFORE: G. T Surdykowski, Vice-Chair, and Board Members F B. Reaume and G. McMenem¾
APPEARANCES: Carl Peterson, Paul Holmes and Don Skelton for the applicant; Dan Greco and Gil Scott for United Brotherhood of Carpenters and Joiners of America, Local 446; L. A. Richmond, B. Suppa and T Neil for Labourers' International Union of North America, Local 1036.
DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER G. MCMENEMY; March 20, 1997
This is a jurisdictional dispute complaint under section 99 of the Labour Relations Act,
A consultation was convened on February 28, 1997. No party sought leave to call any evidence. Nor did anyone suggest that this complaint could not be disposed of without a formal hearing. The Board finds it appropriate to determine this complaint on the basis of the materials filed by the parties and their representations at the consultation.
This complaint was filed by the employer ("Ecodyne") on November 15, 1996. The Carpenters, whose members were assigned the work in dispute, and which is therefore allied in interest with Ecodyne, filed a brief which is dated November 28, 1996. However, this brief was not received by the Board until February 20, 1997. The Labourers, whose grievance complaining about the assignment of the work in dispute led to this jurisdictional dispute complaint, filed its brief on February 19, 1997. A week later, one and two days before the consultation, the Labourers filed additional area practice materials and several National Joint Board decisions upon which it relied at the consultation. Although neither Ecodyne nor the Carpenters objected to these additional filings, both pointed out that they had not had an opportunity to investigate the additional area practice materials filed on the eve of the hearing. Since no one objected to the admissibility of these filings, the Board will take the circumstances into account in determining what weight, if any, is to be given to the material.
The material facts are not in dispute.
Ecodyne is based in Oakville, Ontario. Its business includes the installation of various water technology systems in industrial plants, power generating plants and municipal water treatment plants across Canada and in 30 countries around the world.
Ecodyne has a Cooling Products Division which is a major player in the installation of cooling towers in Ontario. It designs, erects, inspects, operates, maintains and repairs cooling towers, and also provides spare parts for them. Ecodyne has been involved in the erection of cooling powers for more than sixty years.
On or about May 17, 1996, Ecodyne obtained a subcontract for the erection of a new water cooling tower at the Algoma Steel Mill in Sault Ste. Marie, Ontario and for the supply and installation of the requisite fire protection equipment for the cooling tower. The subcontract did not include the cement foundations for the cooling tower. These were constructed by a form work contractor and were already in place and ready for Ecodyne when it commenced its work.
The cooling tower is a large wooden structure which houses the mechanical and electrical equipment which cools the water.
Ecodyne employed one non-union superintendent to oversee the construction of the cooling tower. It employed two working carpenter foremen, seven journeymen carpenters and one carpenters' apprentice, all of whom are members of the Carpenters, to erect the wooden structure.
The materials which were used to build the cooling tower were largely prefabricated, and came together with a set of installation drawings. The materials were delivered in packages of plywood, 2 x 4's, 2 x 6's and 4 x 4's which are marked and designated for installation. It is very much like a wooden mechano-set. The materials were off-loaded next to the foundation of the cooling tower.
The installation process which was followed is as follows. Each working carpenter's foreman would read the drawings, would select the appropriate materials, and would then deliver these materials to the appropriate carpenters, who worked in pairs, in the appropriate location. The carpenters would then commence the actual erection, including cutting plywood decking to specification as directed by the working carpenter's foreman.
The Labourers' claim the work of tending the pairs of carpenters, and the clean-up work associated with the job. That is the work in dispute.
At the consultation, there was some dispute concerning who bears the onus in this complaint. Jurisdictional disputes are atypical proceedings, particularly where the consultation process is invoked, as it almost always is. A jurisdictional dispute complaint is not always brought by the party which asserts that the work assignment is incorrect. Many such complaints, like this one, are brought by either the employer, or by the trade union which obtained the work, generally in response to a grievance or the threat of one from a trade union which asserts that the work in dispute should have been assigned to its members, in either case with a view to obtaining a confirmatory decision from the Board. The fact is that the determination of most jurisdictional disputes complaints will not depend on who bears the onus, but a fair reading of the Board's jurisprudence is that the party which asserts that a work assignment was improper bears the onus of persuading the Board that the work assignment should be interfered with, whether it is the complainant or a responding party in the actual jurisdictional dispute complaint proceeding. This is as it should be, and is consistent with the traditional legal notion that the party which asserts a wrong must establish it.
In jurisdictional dispute complaints, the Board will consider everything which is relevant. Accordingly, it is neither possible nor appropriate to describe an exhaustive list of factors, or to construct or mechanically apply some formula or "checklist" in that respect. Nevertheless, the Board has developed a general practice, which has been accepted by the construction industry, of referring to several broad overlapping categories and factors which it will consider. These were first set out some 30 years ago in Canada Millwrights Ltd., [1967] OLRB Rep. May 195, as follows:
trade union constitutions and collective agreement;
skill, training and safety;
economy and efficiency;
employer practice and preference;
area practice.
In any given case, some of these five general factors will be of little or no assistance. For example, in recent years, the work jurisdictions asserted by construction trade unions in their constitutions and collective agreements have become so broad that these will often not favour the claim of any trade union involved in a jurisdictional dispute, particularly one concerning work which falls within an overlap between work jurisdictions, as many, if not most, construction jurisdictional disputes do. This reflects that fact that there are a few sharp boundaries between craft or trade work jurisdiction in the construction industry, and that construction trade unions tend to be vigilant in both protecting and pursuing opportunities to expand their work jurisdictions. As a result, constitutions and collective agreements will often be of little assistance. They are rarely determinative. (In that respect, however, we note that a trade union which has no collective agreement with the employer which assigned the work in dispute is likely to have a very difficult time in either overturning or defending a disputed assignment of work. However, such a trade union is not necessarily bound to fail, and concomitantly, the trade union which has a collective agreement with the assigning employer will not necessarily succeed in fending off a claim for the work by a trade union without an applicable collective agreement -see, for example, Brunswick Drywall Limited, [1982] OLRB Rep. Aug. 1143; Pigott Construction Limited, [1992] OLRB Rep. Jun. 748 ("Pigott II"); and see, Groff & Associates Ltd., [1994] OLRB Rep. July 846 regarding the difficulties which a trade without an applicable collective agreement will face.)
Although it will often not be the case, a single factor be determinative in a jurisdictional dispute complaint. Work jurisdiction or trade agreements have been found to be determinative in some cases (see Pigott II, supra). Similarly, although some disputes have been determined in favour of a trade union which area practice did not favour (see, for example, Simcoe Mechanical Contracting Ltd., [1982] OLRB Rep. Sept. 1352; K-Line Maintenance & Construction Limited, [1979] OLRB Rep. Dec. 1185), the factor of area practice has in fact often been determinative (Ilena Construction Company Limited, [1974] OLRB Rep. Nov. 775; Acco Canadian Material Handling, [1992] OLRB Rep. May 537). Indeed, employer and area practice have become the dominant considerations, both in terms of the time and energy devoted to them by the parties, and the weight given them by the Board. The Board has observed that "it is the rare and unusual [jurisdictional dispute] 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 these two past practice criteria" (Electrical Power Systems Construction Association, [1992] OLRB Rep. Aug. 915).
This bears further examination in the context of this case, particularly in light of the comments in Nicholls-Radke Ltd., [1996], (unreported, Board File No. 4092-95-JD, July IS, 1996), in which the Board levelled the following criticism:
In receiving past practice materials from the parties., the Board considers practice of the employer involved across the province of Ontario, and the general practice in the area (generally the particular Board area), within the sector of the construction industry in which the work in dispute falls. The Board has consistently given little or (usually) no weight to practice in a different sector or to practice of employers other than the employer which assigned the work in dispute outside of the area. It is a mystery why parties persist in filing such materials. If there is no employer or area practice then there is no employer or area practice, and referring to the practice of other employers in other areas does not create an employer or area practice. Similarly, the Board will give less weight to the practice of single trade employers (i.e. employers which have a collective agreement with only one of the competing trade unions) than it will to the practice of multi-trade employers.
The parties would be wise to heed these comments. The Board has developed its approach to construction industry jurisdictional disputes having regard to the nature and organization of the construction industry (on both the employer and the trade union side), which is predominantly on a local geographic basis, and which tends to mirror the geographic jurisdictions of construction local trade unions. Of course, the Board does not blindly adhere to single (local) area practice. In an appropriate case, the Board will look to an "industry practice" which is specific to the particular work in dispute but in a broader geographic area (Foster Wheeler Limited, [1989] OLRB Rep. Feb. 128; application for judicial review dismissed by the Divisional Court [1990] OLRB Rep. May 630); or to accommodate jurisdictions of competing trade union which extend beyond the established Board areas or which are not congruent (Commonwealth Construction Company, [1991] OLRB Rep. June 742). Cases such as these should not be taken to be anything more than the exceptions of the general rule which they are. They underline the Board's willingness to take special circumstances into account.
This is a case in which the respective claims to jurisdiction do make a difference. As is apparent from their respective collective agreements, tending (of many trades, not just carpenters) and general clean-up work is part of the core of the work jurisdiction of construction labourers represented by the Labourers' union. It is not part of the core of the work jurisdiction of the Carpenters' union, although it is an incidental part of it. Accordingly, the collective agreement factor favours the claim of the Labourers.
The members of either trade union can quite capably perform the work in dispute. Skill, training and safety favour neither trade union's claim.
Ecodyne asserts that it is more economical and efficient for it to perform the work in dispute using carpenters, who are members of Carpenters Local 446. Obviously, it prefers to do so using carpenters.
Employer preference is generally no more than a "tie-breaker" when an assessment of all relevant considerations favours neither competing trade union. Economy and efficiency can be important considerations, but cannot operate to trump collective bargaining rights. On the contrary, collective bargaining rights and collective agreements, which inevitably affect the manner in which employer's operate, must be given some meaning. Accordingly, it is appropriate for economy and efficiency to give way to the collective agreement factor, particularly when a trade union's core jurisdiction is in issue.
In terms of employer practice, Ecodyne has only erected one other cooling tower in the District of Algoma, the local geographic area with which we are concerned in this complaint. That was in or about 1972. There are no particulars of that job available, but there is also nothing before the Board which suggests that there was anything significantly different about that cooling tower or the manner in which it was erected. On that job, construction labourers were assigned to tend the carpenters who were erecting the cooling tower. Indeed, that job is the genesis of the bargaining rights and collective agreement upon which the Labourers' rely in this case. Ecodyne's employer practice in the rest of the province is quite different in the sense that it appears that it has used members of the Carpenters' union to tend carpenters; that is, carpenters have tended themselves. Employer practice can be of important consideration, except where it is at odds with the established area practice.
As the Board observed in Nicholls-Radke Ltd., supra, if there is no area practice, there is no area practice. In this case, the materials do not suggest a lot of area practice, but what there is supports the Labourers' claim. (We find it appropriate to give no weight to the work performed by Marley Cooling Tower because although the Carpenters have bargaining rights with that employer, the Labourers do not.) This includes the Labourers' late filed materials, which we think can be given some weight in the circumstances. Further, Ecodyne's only previous cooling tower job in the District of Algoma was performed in a manner which is consistent with what appears to be the practice in that area, and which is inconsistent with the company's practice in other parts of the province. In these circumstances, we consider it appropriate to give less weight to Ecodyne's practice outside of the District of Algoma. Consequently, past practice favours the jurisdictional claim of the Labourers.
Finally, there is no real dispute concerning the clean-up work. It is true that the nature of the materials and the erection process means that less clean-up work is necessary than is the case on many construction jobs. Nevertheless, it is also apparent that there is some clean-up work which must be done. Carpenters are entitled to do their own "trade clean-up", and construction labourers are entitled to do all other clean-up work associated with the job, in accordance with the delineation in that respect made in Ellis-Don, [1994] OLRB Rep. Sept. 1222.
In the result, the Board is satisfied that the work in dispute should have been assigned to members of the Labourers' International Union of North America, Local 1036.
The Board therefore declares that the work of tending carpenters and general clean-up work, and any work necessarily incidental thereto, at Ecodyne Limited's cooling tower project at Algoma
Steel in Sault Ste. Marie should have been assigned to construction labourers who are members of the Labourers' International Union of North America, Local 1036. Our impression is that this work has been completed, but if it hasn't been, the Board orders that it be assigned to members of Labourers' International Union of North America, Local 1036. In that respect, it appears to us on the material before the Board that one construction labourer would be sufficient in that respect on this particular job.
- In the event that it is not, we wish to make it clear that the result of an identical complaint outside of the District of Algoma might well be different.
DECISION OF BOARD MEMBER F. B. REAUME; March 20, 1997
After more than 20 years, three downturns in the economy, and significant increases in the comparative wage ratios with respect to labourers compared to carpenters, it is not surprising that this applicant has organized this work as it has done.
It is the considered assessment of the applicant that the efficiency and economy of the job is best served by using only carpenters to do the work in dispute with regard to the erection of the cooling water tower.
In these competitive times, economy and efficiency are paramount in bidding for work whether you are a union contractor or not. In a case such as this where each union has valid claims on the work in dispute, economy and efficiency must be given due consideration in relation to the bargaining rights of its various unions. It would be expected, of course, that when and if it became efficient to effectively utilize one or more labourers, the applicant would do so.
In summary, regardless of why or what happened over twenty years ago, Contractors must focus on the conditions presented currently for each and every such project and make a sound reasonable business decision. Ecodyne clearly did this and determined there was no efficient or effective way to use labourers on this project without featherbedding. This is the core of management rights in the assignment of work where there are conflicting claims by two or more parties.
As a result I would not have altered the assignment which in my opinion was both reasonable and correct.