[1998] OLRB REP. JULY/AUGUST 611
1201-96-JD Millwright District Council of Ontario on its own behalf and on behalf of its Local 1151, Applicant v. EKT 90 Inc.; Iron Workers District Council of Ontario; International Association of Bridge, Structural and Ornamental Iron Workers, Local 759, Responding Parties
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W N. Fraser and G. McMenemy.
APPEARANCES: Pierre Sadik and Gord Milliard for the applicant; Fred Bickford and Denis Magne for EKT 90 Inc; Gary Caroline and Robert Stoppel for Iron Workers, Local 759.
DECISION OF THE BOARD; August 21, 1998
This is an application concerning a work assignment filed with the Board pursuant to section 99 of the Labour Relations Act, 1995 (the "Act").
The parties filed briefs supporting their claims. A consultation was held to hear the parties' representations. On agreement of the parties representations were completed in writing following the consultation.
The parties agreed to describe the work in dispute as follows:
"the removal and rigging of worn chain clips, pins and chains, and the rigging, installation and welding of new chain clips, pins and chains at the James River Paper Mill lime kin in Marathon, Ontario".
EKT 90 Inc. ("EKT") is bound to the Ironworkers and Millwrights ICI collective agreements. EKT assigned the work on a 50/50 basis to members of the Ironworkers Local 759 and members of the Millwrights Local 1151 in accordance with its understanding of the trade agreement for Rotary Kilns and Related Equipment. This is EKT's first kiln chain project. The Ironworkers are claiming all of the disputed work. The Millwrights do not claim exclusive jurisdiction over this work.
The work in dispute took place over a period of 5 days using 2 ironworkers and 2 millwrights. The jobsite is located in Board Area 22. The geographic jurisdiction of both union locals covers Board Areas 22, 23, 24 and 25. The parties agreed the Board's decision would apply to these four Board Areas.
It is the Millwrights' position that the disputed work was part of EKT's shut-down contract at the mill. Both trades were on site throughout the shut-down. Where both trades are on site, the Millwrights assert the area practice has been to assign the work in dispute on the basis of a composite crew.
The Ironworkers assert section 4 of the trade agreement's reference to "installation of chain and attachments" refers to drive chains not the non-mechanical chains inside the lime kilns. At the time of the trade union agreement in 1968 kilns' were chain-driven as opposed to operated by gear-driven motors used now.
In the alternative, the Ironworkers assert the 50/50 composite crew trade agreement only applies to the installation of the chains, not their maintenance, repair or replacement; the area practice assigning maintenance repair, and replacement of kiln chains is exclusively to iron workers.
The Millwrights submit as the Ironworkers assert the assignment was improper, they bear the onus to persuade the Board the EKT assignment should be interfered with. (see Ecodyne Limited, [1997] OLRB Rep. March/April 197 at para. 13).
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.
The Millwrights assert the area practice with respect to chains supports their claim of a 50/50 composite crew. Some of the materials filed by the Ironworkers do not refer to "chains" specifically.
The trade agreement for Kilns provides:
Section 4. Kilns
Trunnions will be power rigged over anchor bolts by Iron Workers, Millwrights and align, level and secure. Shell of kiln will be rigged, assembled and welded by Iron Workers.
Iron Workers will power rig tires, bull gear and drive. Millwrights will completely assemble and weld same, including pads and keeper rings, align, level and secure drive. Final alignment of kiln will be done by Millwrights. Chain, including attachments, will be installed by a 50-50 composite crew.
The work in dispute was performed during a shut-down. For the purpose of making this determination it is assumed this is construction work as defined by the Act. The Board further finds it is appropriate in these circumstances to make its declaration with respect to the geographic jurisdiction of both union locals, Board Areas 22, 23, 24 and 25.
It is not necessary for this determination to make a finding with respect to the meaning of the 1968 trade agreement for kilns. EKT made the assignment of the work based on its understanding of section 4 of the trade agreement. The area practice in Board Areas 22, 23, 24 and 25 by contractors signatory to both collective agreements is mixed. This mixed area practice appears to be evenly divided between utilizing a 50-50 composite crew of millwrights and ironworkers and assigning the disputed work exclusively to ironworkers. On some projects the disputed work was assigned exclusively to Millwrights.
The factors of skill and ability are neutral. Both trades are able to perform this work. Economy and efficiency does not favour either trade.
As this is the first time EKT has performed this type of work there is no relevant past employer practice. The employer's preference however is to assign the work to a 50-50 composite crew.
It appears that in the past both unions have accommodated owner/client requests to the contractors to use the trades on site rather than bringing in additional ironworkers (or millwrights as the case may be) to do the work. For example the work done by Link Steel at Avenor in Dryden was assigned to the millwrights at the request of the customer because millwrights were already on site.
Having regard to the materials filed and the submissions of the parties, the Board is satisfied the work in dispute was properly assigned by EKT to a 50-50 composite crew of ironworkers and millwrights.
EKT is directed to assign this work on a 50-50 composite crew basis in Board Areas 22, 23, 24 and 25, the geographic jurisdiction of Ironworkers Local No. 759 and Millwrights Local No. 1151.