Ontario Labour Relations Board
[1998] OLRB REP. JANUARY/FEBRUARY 124
1704-97-JD Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Labourers' International Union of North America, Local 183, Labourers' International Union of North America, Local 837, Labourers' International Union of North America, Local 506, Labourers' International Union of North America, Ontario Provincial District Council, Well-Bur Construction Ltd., and Granville Constructors Ltd., Responding Parties
BEFORE: Lee Shouldice, Vice-Chair, and Board Members J. Knight and G. McMenemy
APPEARANCES: David McKee and Walter Tracogna for the applicant; A. Minsky and R. Lotito for Local 183; John Moszynski and A. Camara for Local 506; John Moszynski and N. Schibeta for Local 837; John Moszynski for Labourers' International Union of North America, Ontario Provincial District Council; C. Peterson for Well-Bur Construction and Granville Constructors.
DECISION OF THE BOARD; February 9, 1998
I. Introduction
1This is an application concerning a work assignment which was filed with the Board pursuant to section 99 of the Labour Relations Act, 1995 (hereinafter "the Act"). A consultation was held with the parties on December 5, 1997. At that time, submissions were entertained by this panel of the Board regarding a work assignment made by Well-Bur Construction. We have determined that we can decide this dispute without a formal hearing, in accordance with section 99 of the Act.
2This application comes before the Board in somewhat unusual circumstances. The work in dispute is defined by the applicant (hereinafter referred to as "Local 27") as "the carpentry portion of concrete forming construction work" on the Barrie Water Pollution Control Centre, Plant Effluent Quality Upgrade project in Barrie, Ontario. Although the written submissions of the responding parties took issue with the manner in which the work in dispute was described, at the consultation none of the responding parties pursued that argument.
II. Background Information
3Some background information is important to place this proceeding in context. On May 15, 1991, four trade unions entered into an agreement with respect to work jurisdiction - Local 27, Labourers' International Union of North America, Local 183 (hereinafter "Local 183"), International Union of Operating Engineers, Local 793, and The Formwork Council of Ontario. This agreement (known colloquially as "the Peace Treaty") has the effect of dividing up certain work as between Local 27 and Local 183 in a defined geographical area (which includes Simcoe County). For the purposes of this proceeding, it is sufficient to observe only that section 3 of the Peace Treaty provides that "the carpentry portion of concrete forming construction work" on most projects in the ICI sector of the construction industry is to be performed exclusively by members of Local 27 employed under the Carpenters' Provincial ICI agreement.
4Moving forward to April, 1996, at that time Granville Constructors Ltd.(hereinafter "Granville") was awarded the upgrade project at the Barrie Water Pollution Control Centre. The applicant asserts that the project was one in the ICI sector of the construction industry. Concrete forming work commenced on the project in September, 1996. That work was subcontracted by Granville to Well-Bur Construction Ltd. (hereinafter "Well-Bur"). Local 27 became aware of the subcontract and further became of the belief that members of Local 183 had been assigned "the carpentry portion of the concrete forming work" on the project, in violation of the terms of the Peace Treaty. Accordingly, it invoked a provision of the Peace Treaty which permitted for arbitration of disputes under that agreement.
5The arbitration was scheduled for March, 1997. Prior to proceeding to arbitration, Local 183 satisfied Local 27 that none of its members had, in fact, been on site at the Barrie project. In fact, it became clear that members of Labourers' International Union of North America Locals 506 and 837 (hereinafter "Local 506" and "Local 837", respectively) had performed the work in question. Although there was some confusion as to whether the work was performed pursuant to the Labourers' Provincial ICI agreement or The Formwork Council agreement, it appears now that all parties agree that the work on the Barrie project was performed pursuant to the former agreement, and not the latter one.
6As a result of the information garnered by Local 27 in the course of preparing for the arbitration under the Peace Treaty, the arbitration was adjourned sine die, and Local 27 has filed this proceeding at the Board. Local 27 asserts that its members ought to have been assigned the work in dispute. Furthermore, it asserts that the arrangement between what it describes as "the Labourers' Union" and Well-Bur is contrary to section 162 of the Act, which reads as follows:
162 (1) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.
(2) Subject to sections 153 and 161, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.
III. Decision
7As has been noted on innumerable occasions, when determining a jurisdictional dispute complaint the Board considers all of the 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. To a greater or lesser extent, all of the parties to this proceeding addressed the applicability and weight of these factors in their written and oral submissions.
8Considering, first, the question of collective bargaining relationships, it was the submission of Local 27 that neither it nor "the Labourers' Union" had any relevant collective agreement with Well-Bur that covered the work in dispute. Local 27 conceded that it has no collective bargaining relationship at all with Well-Bur. Well-Bur is bound to the Labourers' Provincial ICI collective agreement (through a "tie in" agreement dated February 18, 1991). However, the Labourers' Provincial ICI collective agreement governs only "construction labourers", which is evident from Article 1.01 of that collective agreement. It is the submission of Local 27 that the Labourers' Provincial ICI agreement does not cover "carpenters and carpenters' apprentices", and may not lawfully do so, having regard to section 162 of the Act, and the Labourers' employee bargaining agency designation dated September 30, 1983. Counsel for Local 27 notes that the only way that "the Labourers' Union" can lawfully represent carpenters and carpenters' apprentices performing ICI work is by way of the Formwork Council Agreement. Here, it is conceded that the work in dispute was not performed under that agreement. The result, according to Local 27, is that there is really no relevant collective agreement relationship which governs the assignment of the work in dispute.
9Not surprisingly, opposing counsel viewed the matter quite differently. We do so as well. As was pointed out by counsel for Local 183, the Board has stated, on many occasions, that although the Labourers' International Union of North America or one of its affiliated local unions cannot represent carpenters and carpenters' apprentices in the ICI sector of the construction industry, any one of those entities can represent "construction labourers performing carpentry work" in that same sector of the construction industry (see, for example, Runnymede Development Corporation Limited, [1987] OLRB Rep. Oct. 1305, at para. 22 and 23; Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254, at para. 30; and Ellis-Don Limited (Board File 1754-95-JD, unreported decision dated July 18, 1996)). In the latter decision, the Board made the following observations:
Both carpenters and labourers perform the work that is the subject of the jurisdictional dispute. The fact that a labourer performs work also performed by a carpenter does not make the labourer a carpenter or vice versa. The fact that the Labourers inserted the word "carpenter" front of the form-builder classification does not make a construction labourer into a carpenter or change the scope clause to include carpenters
Because the Labourers' or any other trade union performs work that is also performed by another trade union as part of its recognized work function it does not extend bargaining rights for this other trade or craft. As the Board has said in Ellis-Don Limited. supra, and Gisar Contracting Limited, supra. the use of the term "formsetter" or "form- builder" does not create a "carpenter" or a "labourer". Adding the word "carpenter" in front of the classification of "formsetter" or "form-builder" cannot expand the scope of all construction labourers of the collective agreement to include all carpenters. On that basis any parties to a collective agreement could negotiate various classifications within the overlap area of certain trades and claim bargaining rights for other trades or crafts....
10We agree. The work in dispute in this proceeding is not particularized, but it cannot be disputed that what can be described as "the carpentry portion of concrete forming work" in the ICI sector of the construction industry has been performed, historically, by both labourers and carpenters. This does not lead to the conclusion, however, that section 162 of the Act has been violated. Neither Local 506, 837 or 183 purports to represent carpenters and carpenters' apprentices in the ICI sector of the construction industry, but rather construction labourers (or "formworkers") in that same sector. Representation of the latter group by Locals 506, 837 and 183 is entirely within the scope of section 162 of the Act. The fact that "construction labourers" perform work that "carpenters and carpenters' apprentices" also perform cannot lead to the conclusion that section 162 of the Act has been violated.
11In the result, then, there is a collective agreement relationship between Well-Bur and Locals 506 and 837 that covers the work in dispute. There is no such agreement between Local 27 and Well-Bur. This is an extremely strong factor in favour of the assignment of the work in favour of Locals 506 and 837.
12Turning next to the criterion of trade agreements, counsel for Local 27 relied upon the Peace Treaty referred to above as a document of significance. The difficulty with Local 27's position is the simple fact that neither Local 506 nor Local 837 is a signatory to or bound by that document. To the extent that it is asserted that Local 183 has caused the work in dispute to be assigned to sister locals to avoid the provisions of the Peace Treaty, a jurisdictional dispute proceeding is not the proper forum for determination of that question. In the result, there is no relevant trade agreement which speaks to the work in dispute.
13The employer's practice in assigning the work in dispute within the province is to utilize members of various locals of the Labourers' International Union of North America. The brief filed by Well-Bur identifies five prior projects of a similar nature performed throughout Ontario that were completed by members of various locals of the Labourers' International Union of North America. It is not clear if the previous projects were performed pursuant to the Formwork Council Agreement or the Labourers' Provincial ICI agreement. Accordingly, the lack of prior complaint by Local 27 (or a sister Carpenters' local) is not necessarily significant. However, what is clear is that, at the very least, the work in dispute has been completed by Well-Bur at five prior projects of a similar nature utilizing members of Labourers' local unions. On balance, this factor favours the Labourers' as well.
14We have considered the material speaking to area practice which was filed with the Board. The Bane project is located in Board Area 18. Accordingly, the area practice to be considered by the Board is that of contractors in Board Area 18. There are no factors present to suggest that area practice beyond that in Board Area 18 has any relevance. The materials filed by Locals 506 and 837 establish that the overwhelming practice in Board Area 18 is to utilize non-unionized labour to perform the work in dispute. At best, Local 27 has established with its area practice materials that on 7 identifiable projects the work in dispute was performed by members of Local 27 in this Board Area. Counsel for Locals 506, 837 and 183 conceded that the area practice evidence established that Local 27 had an edge in this category, but only marginally, as Local 27 does not have the predominant practice in the area. We agree with this assessment.
15In our view, the factors of trade union constitutions, skill and ability and economy and efficiency are not determinative to this proceeding and need not be addressed.
16In the result, the Board has considered all of the factors identified above. In our view, the overwhelming weight of those factors favours the assignment that was made by Well-Bur in the circumstances, and we therefore confirm that assignment.