[1998] OLRB REP. SEPTEMBER/OCTOBER 894
3089-97-JD Labourers' International Union of North America, Local 493, Applicant v. Steen Pipelines, International Union of Operating Engineers, Local 793 and Pipeline Contractors' Association of Canada, Responding Parties
BEFORE: D. L. Gee, Vice-Chair, and Board Members G. Pickell and A. Haward.
APPEARANCES: John Moszynski and Art Adams on behalf of the applicant; Robert Gibson and Brian Madigan on behalf of the International Union of Operating Engineers, Local 793; no one appearing on behalf of Steen Pipelines or the Pipeline Contractors' Association of Canada.
DECISION OF THE BOARD; September 25, 1998
This is an application under section 99 of the Labour Relations Act, 1995 in which the applicant (the "Labourers") complain that certain work which has been assigned by the responding party employer ("Steen Pipelines") to members of the International Union of Operating Engineers, Local 793 ("Operating Engineers") should have been assigned to members of the Labourers.
A consultation was held on September 11, 1998.
It is agreed that the work in dispute is the operation of two (2) Caterpillar Model 225 excavators with John Henry Rock Drill attachments used to drill blasting holes in rock at Steen Pipelines' Mainline Pipeline project located in and around North Bay, Ontario (the "project"). The ground level work performed in connection with the John Henry Rock Drill attachments which includes the changing of the drill bits, the plugging of the drill holes, the lining up of the drill holes, and other related ground work is not included in the work in dispute as the Operating Engineers do not claim the ground level work.
The Labourers and Operating Engineers filed the usual comprehensive briefs consisting of their respective submissions and materials in support thereof. No materials were filed on behalf of Steen Pipelines or the Pipeline Contractors' Association of Canada and no one appeared at the consultation on their behalf. At the consultation, the Board heard the oral submissions of the Labourers following which the Board indicated that it did not need to hear from the Operating Engineers. The Board advised the parties that it was the panel's determination that the work in dispute was properly assigned to the Operating Engineers. The Board's reasons are as follows.
Counsel for the Labourers submits that Labourers have performed the drilling for blasting on pipe line projects for a very long time. On the very project in issue, Labourers were employed drilling holes for blasting using conventional hydraulic drills. Steen Pipelines only utilized the CAT excavators with John Henry Rock Drills when it was unable to obtain a sufficient number of the conventional hydraulic drills. Counsel argues that the fact that Steen Pipelines used a different piece of machinery to perform work which has traditionally been the work of the Labourers, does not operate to remove the work from the Labourers' jurisdiction. The Labourers do not claim, and thus acknowledge that they do not have jurisdiction over, the operation of the CAT excavators with the John Henry Rock Drill when it is being used for a purpose other than drilling holes for blasting or with any other attachments.
In the brief filed on behalf of the Operating Engineers, it is submitted that the Operating Engineers have jurisdiction over the operation of excavators and excavators with attachments within the pipe line sector of the construction industry. The John Henry Rock Drill is merely an attachment to that excavator and is controlled and powered entirely by the excavator. The operation of the drill is not separate from the operation of the CAT 225 excavator. Relying on significant area practice in the pipe line sector of the construction industry, the Operating Engineers submit that the operation of all excavators, including the CAT 225 excavator, is properly assigned to members of the Operating Engineers.
It is our determination that the Labourers cannot maintain jurisdiction over the drilling of holes for blasting regardless of the technology utilized to perform such work. There are instances, such as the present one, when the performance of work will pass from one trade to another based on the equipment utilized. The operation of CAT 225 excavators is clearly work within the jurisdiction of the Operating Engineers and not within the jurisdiction of the Labourers. Whether Operating Engineers have jurisdiction over the operation of CAT 225 excavators does not depend on what work the equipment is being used to perform. To date, such has not been the test. In our view, it is not a desirable approach to adopt. The Operating Engineers have jurisdiction over the operation of the CAT 225 excavators, the work in dispute involved the operation of CAT 225 excavators, and accordingly the work was properly assigned to the Operating Engineers.
This application is hereby dismissed.