[1998] OLRB REP. JANUARY/FEBRUARY 1
2577-97-JD United Brotherhood of Carpenters and Joiners of America, Local 446, Applicant v. Labourers' International Union of North America, Local 1036 and BFC Industrial - Nicholls Radtke Ltd., Responding Parties
BEFORE: Lee Shouldice, Vice-Chair, and Board Members I. Knight and G. McMenemy
APPEARANCES: David McKee and Gil Scott for the applicant; C.M. Mitchell, B. Suppa and A. Bowker for the responding party Labourers' International Union of North America, Local 1036; Gary Robertson for the responding party BFC Industrial - Nicholls Radtke Ltd.
DECISION OF THE BOARD; February 4, 1998
I. Introduction
This is a work assignment complaint brought before the Board pursuant to section 99 of the Labour Relations Act, 1995. A consultation with the parties was held before this panel of the Board on January 5, 1998.
The work in dispute is described thusly:
All tending of Carpenters relating to construction work being performed by Nicholls-Radtke for Algoma Steel at the #7 Blast Furnace in Sault Ste. Marie. The general work being done involves the building of the base of the cooling tower. The Carpenters are building forms for the base, including constructing panels, putting on whalers and strongbacks, and are also constructing scaffolding for the use of other trades who are putting in pipes leading to the cooling tower. The forms are being constructed by the Carpenters in holes in the ground.
The Labourers are currently off-loading materials from supply trucks and stock-piling the material. However, Carpenters helpers under the Labourers' collective agreement are also supposed to then hand the Carpenters needed material from the stockpile. The specific work in dispute is the tending of Carpenters, which means taking the material from the stockpile to the area where the Carpenters are working. The company has either declined to assign this work to the Union, or it has assigned it, but when a Labourer performs the work and takes the material to the hole where it is needed by the Carpenters, the Carpenters are ignoring the Labourer and going to the stockpile themselves to get the necessary material. (emphasis added)
Prior to the consultation there was some question raised whether the Labourers' International Union of North America, Local 1036 (hereinafter "the Labourers"') had attempted to broaden the definition of the work in dispute. It was evident to the Board that no such expansion had been intended by the Labourers', and the consultation proceeded on that basis.
- The responding party BFC Industrial-Nicholls Radtke (hereinafter "Nicholls Radtke") did not file a response or brief of materials as required by the Board's Rules of Procedure. Mr. Robertson, a representative of Nicholls Radtke, attended at the consultation and made submissions before the Board. In essence, Nicholls Radtke supported the position of the applicant. However, as we indicated to Mr. Robertson at the outset of the consultation, the Board has considered in reaching this decision only those submissions made by Mr. Robertson which are supported by the materials filed by the other parties at the consultation.
II. Basic Factual Background
Certain undisputed background facts are of assistance here. Nicholls Radtke is the general contractor for the project, which is located at Algoma Steel in Sault Ste. Marie, in Board Area 21. Nicholls Radtke is responsible for the performance of the formwork for the base of the cooling tower in question and is also erecting scaffolding for use by members of other trades who are connecting piping to and from the cooling tower.
In mid-March, 1997, Nicholls Radtke convened a mark-up meeting in Sault Ste. Marie to set out the work assignments for this project. At that time, it proposed that the formwork component of the project be assigned to members of the applicant (hereinafter ~'the Carpenters"'), with members of the Labourers' tending. It further proposed that work on the cooling tower be performed by Carpenters' only. The Labourers' disputed this latter proposed assignment. Nicholls Radtke thereupon requested that the Labourers' and Carpenters' submit their evidence to support their respective claims to this work.
Shortly thereafter, the Labourers' submitted to Nicholls Radtke certain evidence respecting previous jobs performed by that company, as well as the decision of the Board in Ecodyne Limited, [1997] OLRB Rep. Mar/Apr 197. We will have much more to say about this decision below. Ultimately, Nicholls Radtke determined that the final assignment of the work at the cooling tower ought to reflect an assignment to the Carpenters', with the Labourers' tending. It was this assignment which was communicated to the trades in late-April, 1997.
The project commenced in May, 1997. The parties agreed that the raw materials from which the forms and scaffolds were installed or erected were stockpiled at various locations around the worksite. It would appear that the stockpiles were located anywhere from zero to 75 feet away from the precise location of any work being performed. There is no dispute that carpenters and carpenters' apprentices performed all of the work associated with the fabrication, erection, and installation of the forms and the erection of the scaffolding. It would also appear that during the course of the project, various carpenters refused to accept materials tended to them by the members of the Labourers', preferring instead to walk to the stockpile to choose the materials themselves.
On June 10, 1997, the Labourers' filed a grievance against Nicholls Radtke in which it asserted that the company had failed to assign the work in dispute to its members. That grievance was referred to the Board for arbitration on August 14, 1997. The Carpenters' intervened in that proceeding, and as directed in a decision of the Board adjourning that Board File, this jurisdictional dispute application was filed by the Carpenters'.
III. Decision
- As has been noted on innumerable occasions, when determining a jurisdictional dispute complaint the Board considers all factors relevant to the proper assignment of the work. As a general observation, the Board has historically given consideration to certain factors which include the following:
(a) employer practice and preference;
(b) area practice;
(c) trade agreements;
(d) collective agreement obligations;
(e) trade union constitutions;
(f) skill, training and safety; and
(g) economy and efficiency.
In any particular case, one or more of these factors may be of special significance, and will be given greater weight than other factors. For example, in this case, the constitutions of the respective trade unions are not particularly helpful, and have no bearing on the disposition of this proceeding. On the other hand, some considerable significance attaches to the factor of collective agreement obligations, as is described below.
- One of the difficulties faced by the Board in this case is that of identifying exactly what "tending" means. It became evident from the submissions of the parties that each had a different understanding as to the scope of the meaning of that term. Accordingly, it was submitted by counsel for the Carpenters' that much of the evidence of employer and area practice was impossible to interpret -that is, that the words "carpenters/labourers tending" found in any particular document could have various meanings, and therefore that the practice referred to by the Labourers' may, or may not, be supportive of its position. To some extent, that submission has merit. However, as was noted by opposing counsel, the words "labourers tending" must have some meaning, and the position taken by the Carpenters' has the result of making these words largely redundant, unless they are limited only to moving materials used to make the forms and scaffolds from the truck to a central stockpile. In our view, each and every piece of area and employer practice must be reviewed carefully with this concern in mind, to consider whether it identifies with sufficient particularity the practice of the company in question.
II. We want to make clear, at this juncture, what this decision does not determine. During the course of the consultation reference was made more than once to the suggestion that whether the work in dispute ought to be assigned to members of the Labourers' or to members of the Carpenters' depended upon the distance between the stockpile in question and the place where the form or scaffold was being installed or erected. Put another way, if the pile of materials were within a defined "work area" of the carpenter performing the installation or erection of the form or scaffold, he or she could perform the tending work him or herself; but if the pile of materials were outside of that "work area", a labourer would tend the materials. We do not in this decision venture any comment whatsoever on that proposition, as it is unnecessary to do so.
Turning, then, to the merits of the application, we have reviewed very carefully the evidence of employer practice before the Board. There was very little evidence of employer practice filed by the parties. That which was filed was filed by the Labourers' and supports its claim. There were three separate projects relied upon by the Labourers' in its brief. The first project, the construction of the Millwater Treatment Facility in Sault Ste. Marie, is sufficiently vague as to be unhelpful, as the minutes of the mark up meeting refer only to "formwork" as having been assigned to "Carpenters/Labourers". The final jurisdictional assignment for Phases I and II of the Lake Superior Power Cogeneration Plant in Sault Ste. Marie is more helpful. Under the heading of "Forming/Falsework", labourers' are stated to be responsible for "carry[ing] forming materials", and carpenters for "build[ing] and plac[ing] forms". Although not entirely clear of ambiguity, it appears to us more likely than not that members of the Labourers' performed the specific work in dispute on that project. Similarly, on Phase III of that Cogeneration Plant, the scaffolding work is identified as being assigned thusly: "carp. erect/dismantle - labourer tending". In our view, the same conclusion can be reached with regard to this project - that the likelihood is that members of the Labourers' performed the specific work in dispute in this proceeding on that project. We note here that the employer's representative at the consultation did not make any submission to the contrary.
The Labourers' put forward as evidence of employer practice Minutes of Settlement dated November 4, 1997, in Board File 2758-97-G, a grievance referral to the Board between the Labourers' and Nicholls Radtke dealing with the work of tending carpenters and general cleanup at what is known as "the Marley Cooling Towers Project", at the Algoma Mill site. In essence, the Labourers' asserted in that proceeding that Nicholls Radtke had failed to subcontract work under its Provincial ICI collective agreement to a contractor in contractual relations with it, contrary to the provisions of that collective agreement. In the Minutes of Settlement, Nicholls Radtke acknowledges that:
…..the work of tending carpenters and general cleanup at the Marley Cooling Towers Project of the Responding Party is the work of the Applicant, and such work ought to have been assigned to members of the Applicant, in accordance with past practice in the area, and the decision of the Board in Ecodvne Limited, [1997] OLRB Reports March/April 197.
In our view, this settlement is of little assistance in determining this application. There is no evidence or suggestion that the Carpenters' were made aware of that application, and given the relative time frame of this proceeding and the Marley Cooling Towers proceeding, we do not consider the terms of the Minutes of Settlement to be indicative of an employer or area practice.
The evidence of the area practice before the Board suffered from the difficulties identified above in paragraph 10. We do not intend to review the materials filed by the parties at any great length. However, we note here that we have placed no weight whatsoever upon the list of projects contained at Tab F of the Labourers' brief which are asserted to be a list of projects completed in Board Area 21 in the last 30 years in the manner suggested by the Labourers'. Mere assertion of that conclusion and provision of a list of projects is hardly sufficient to establish the proposition relied upon. Having regard to the remainder of the materials before the Board, it would appear that the practice of contractors in performing the work in dispute in Board Area 21 is of a mixed nature. That is, the evidence before the Board indicates that some contractors utilized members of the Labourers' to perform the work in dispute, and some permitted members of the Carpenters' to tend themselves. Quite a bit of the area practice material before the Board is vague and does not support a discernible practice. In fact, some of the area practice evidence submitted by the Labourers' supports the position of the Carpenters', and vice-versa. Accordingly, this factor does not favour the claim made by either party.
Turning to the factor of trade agreements, there are no such agreements pertaining to the work in dispute. Counsel for the Carpenters' relied upon an "Area Work Practice Agreement" for Board Area 21, executed by the Carpenters' and the Carpenters' Employer Bargaining Agency, dated October 3, 1991. This Agreement purports to be the result of the application of Article 19.03 of the Carpenters' Provincial ICI Collective Agreement, and confirms the handling of materials from a stockpile designated by a contractor as being work exclusively assigned to members of the Carpenters' in Board Area 21. This document is hardly distinguishable from a unilateral declaration of work assignment and cannot be viewed as supportive of a claim for work as against another trade. To the extent that the document speaks to an area practice in Board Area 21, the document does not assist in establishing an area practice beyond that identified above in paragraph 14.
The Labourers' put great weight on the Board's decision in Ecodyne Limited, [1997] OLRB Rep. Mar/Apr 197, as supportive of its claim. There are significant parallels to be drawn as between that decision and the facts of this proceeding. In Ecodyne Limited, the responding party had obtained a subcontract for the erection of a new water cooling tower at the Algoma Steel Mill in Sault Ste. Marie. The Labourers' and Carpenters' disagreed as to the proper assignment of tending the pairs of carpenters on the site, and the clean-up work associated with the job. In that case, the working carpenter's foreman would select the materials required by the carpenters performing the erection of the cooling tower, and would deliver those materials to the carpenters at the appropriate location.
During the course of the Board's decision, the following observations were made:
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'.
Furthermore, the following comments were made by the Board in paragraph 22 of its decision:
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.
Ultimately, the Board concluded that in Board Area 21. the work in dispute ought to have been assigned to the Labourers'.
We are in agreement with the observations made by the Board in Ecodyne Limited. In our view, the decision stands for more than that urged upon us by counsel for the Carpenters'. Applied to this proceeding, the result is that the collective agreement factor falls in favour of the Labourers' as well. The work in dispute here is, as in Ecodyne Limited, at the "core" of the work jurisdiction of the Labourers'. A review of the Labourers' Provincial ICI collective agreement makes that point evident. In the circumstances, the collective agreement factor strongly favours the claim made by the Labourers'.
The parties addressed, as well, the issue of economy and efficiency in the circumstances. The Carpenters' and Nicholls Radtke took the position that there were significant inefficiencies involved in the assignment of this work to the members of the Labourers' union; that either the contractor would be required to keep largely idle labourers on the payroll, or that an insufficient number of labourers would cause delays while members of the Carpenters' awaited delivery of materials by members of the Labourers'.
Irrespective of the comment made in Ecodyne Limited, cited above, to the effect that economy and efficiency considerations ought not to "trump" collective agreement rights, and that the former factor ought to "give way" to the latter factor (a comment with which we agree), we are not satisfied, on the materials before us, that the economy and efficiency factor is one which would otherwise fall in favour of the Carpenters'. Assuming that the contractor properly monitors the number of labourers required to satisfactorily perform all of the tasks assigned to the Labourers' on the site, there is at least equal legitimacy to the proposition (urged upon us by counsel for the Labourers') that the assignment of tending work to members of the Labourers' can augment the efficiency of the carpenters on site. It is not plainly obvious that the consequences of the division of work reflected by the position taken by the Labourers' is an inefficient use of human resources, with persons "standing around, doing nothing". If the contractor carefully monitors its workforce, such a result is unlikely to occur. Accordingly, this factor does not assist the Carpenters' claim for the work in dispute. If anything, it favours the claim made by the Labourers'.
We have, finally, considered the parties' submissions regarding the factor of skill and safety. In our view, on the basis of the materials before the Board, that factor also supports an assignment of the work to members of the Labourers'. Certain issues of safety arise when a carpenter tends for himself or herself, although those same issues do not arise when one or more carpenters tend for other carpenters. On the basis of the materials before the Board, it would appear that Nicholls Radtke permitted members of the Carpenters' to tend for themselves at this project. In our view, the form and scaffolding work is performed more safely if the carpenters performing that work are assisted by other individuals dedicated to the performance of tending materials. In this case, the safety factor also supports the assignment of the work to a member of the Labourers'.
III. Conclusion
- In the result, having regard to all of the above factors, we are of the view that the work in dispute ought to have been performed by members of the Labourers'.