[1998] OLRB REP. MARCH/APRIL 333
2845-97-JD Iron Workers District Council of Ontario and International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 736, Applicants v. The State Group Limited and Millwright District Council of Ontario and its Local 1007, Responding Parties
BEFORE: Lee Shouldice, Vice-Chair, and Board Members J. Knight and G. McMenemy.
APPEARANCES: Gary Caroline. Doug Smees and Ted Pratt for the applicants; Pierre Sadik. Claude Cournover and Ron Coltart for the responding parties Millwright District Council of Ontario and its Local 1007; no one appearing on behalf of The State Group.
DECISION OF THE BOARD; April 27, 1998
This is an application respecting a work assignment dispute filed with the Board pursuant to section 99 of the Labour Relations Act, 1995 (hereinafter "the Act"). An oral consultation was held before this panel of the Board on April 15, 1998.
In accordance with the Board's Rules of Procedure and the practice of the Board in jurisdictional disputes, the parties (with the exception of The State Group, which we will hereinafter refer to as "State") filed briefs in advance of the oral consultation. These briefs were very carefully reviewed by the Board prior to the oral consultation.
There was no substantive difference amongst the parties regarding the description of the work in dispute. That work consists of the offloading, moving, handling, erection, installation and welding of interlocking safety screen fencing at the Hayes Dana auto parts plant in Thorold, Ontario. There would appear to be no dispute that the safety screen fencing was free-standing; that is, that it was independent of the machinery or conveyors that it surrounded. The work in dispute was contracted to State, as part of a larger contract for the installation of new machinery and conveyors at the plant.
The assignment of the work in dispute was unusual. State initially assigned the work to members of The International Association of Bridge, Structural and Ornamental Iron Workers, Local 736 (hereinafter "the Ironworkers"). Shortly thereafter, the members of the Ironworkers were removed from the work and State reassigned the work to members of the Millwrights Union Local 1007 (hereinafter "the Millwrights"). The Ironworkers attempted, unsuccessfully. to reclaim the work for its members, and subsequently filed both a grievance with State (which was referred to the Board for arbitration), and this proceeding with the Board.
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. Having reviewed the briefs filed by the parties prior to the oral consultation, the Board advised counsel at the outset that it was unnecessary to hear any submissions from them regarding the factors of collective agreement obligations, trade union constitutions, skill, training and safety, or economy and efficiency, which were all neutral factors as between the two unions.
Accordingly, counsel focused their submissions on the factors of employer and area practice. and trade agreements. We will deal with each of these factors below. Before doing so, however, we wish to briefly address one aspect of the oral consultation process, namely the ability of the parties to call oral evidence. This issue arose during the submissions made by counsel for the Millwrights, who indicated that the materials relied upon by the Ironworkers in its reply brief told only half the story. Accordingly, counsel indicated his desire to call oral evidence through Mr. Coltart (a business representative for the Millwrights) to rebut the written assertions made by the Ironworkers. Counsel for the Ironworkers expressed concern about entertaining such evidence, as it put his client at a disadvantage in the circumstances.
Ultimately, we indicated to counsel for the Millwrights that we would permit him to assert what Mr. Coltart would say had he been able to testify, and we advised the parties that if those assertions had an effect on the proceeding, we would hear the testimony and permit cross-examination. This was acceptable to opposing counsel. At the end of the day. it has been unnecessary to deal with the question of how the hearing of such testimony would have been effected.
We make the following observation for the benefit of the labour relations community. Counsel for the Millwrights indicated that he had believed that he could call oral evidence at the consultation to deal with the alleged frailties of the Ironworkers' materials on the basis that "the buzz on the street" was that the Board was providing more latitude in that regard at oral consultations. The "buzz on the street" is wrong. For reasons which are all too obvious and unnecessary to recount here, the Board is extremely hesitant to entertain oral testimony during the course of an oral consultation. The consultation process was enacted over five years ago to remedy the historically established failings of work assignment dispute hearings and, for the most part, it has worked.
It is the experience of this panel of the Board that in virtually every work assignment dispute filed with the Board one or more of the parties now "reserves the right" to call oral evidence with regard to one or more parts of the case. There is no "right" to "reserve". The discretion of the Board to entertain oral evidence in a work assignment proceeding has been. and will continue to be, exercised extremely sparingly. In fact, the Act does not require an "oral" consultation and the Board has the authority to determine work assignment proceedings without convening an oral consultation at all. In that light, parties to work assignment disputes must include in their briefs all of the materials they want the Board to consider. The parties must be prepared to have a jurisdictional dispute determined on the basis of the written materials alone.
In this case, the Board noted that the reply brief filed by the Ironworkers was delivered to counsel for the Millwrights approximately two weeks before the date scheduled for the oral consultation. Reply briefs are not specifically identified in the Board's Rules but are almost invariably filed by the applicant in work dispute proceedings and usually there is no controversy created by the filing of such a pleading. In this case, counsel had more than sufficient time to reduce to writing the statements that Mr. Coltart was prepared to make in response to the materials filed by the Ironworkers, and to deliver these to the other parties and the Board.
Returning to the merits of the proceeding, we will comment first on the question of employer practice. A dispute arose on the materials filed with the Board regarding the ability of the Ironworkers to rely upon the past practice of Canal Contractors, which is a division of State. Counsel for the Millwrights asserted both at the oral consultation and in his brief that the practice of Canal Contractors (hereinafter "Canal") ought not to be considered the practice of State. At the oral consultation, counsel asserted that State operates side-by-side with Canal, separately. Counsel for the Ironworkers disputed that assertion, and noted that there was nothing in the materials filed by the Millwrights establishing such an assertion.
Ultimately, it was the submission of the Millwrights that the same principles that apply to sale of a business applications brought before the Board ought to apply in work assignment disputes; that is, that the Ironworkers, in order to be able to rely on Canal's practice, must establish that Canal has eroded the bargaining rights held as against State. In the absence of any such evidence, it was asserted that the practice of State could not include the practice of Canal.
We disagree with this approach. Having regard to the materials before the Board, it is apparent that there has been, to a great extent, an integration of the operations of Canal and State. The Ironworkers filed business cards for managers of Canal who are now working with State. They identify the individuals as working for the Millwrighting & Rigging" or "M & R" Division of "State Canal" or "State-Canal". Furthermore, the Millwrights' own employer practice material identifies State as working out of the same office in Stoney Creek, Ontario as "State Canal". Even more compelling is correspondence on State letterhead relied upon by the Millwrights as evidence of employer practice which is signed by one of the two business card holders referred to immediately above as being with the "M & R Division" of State. In the circumstances, we can only conclude that the operations of Canal are sufficiently integrated with those of State as to permit for the conclusion that the practice of Canal (since, of course, its purchase by State) is the practice of State itself.
Given that conclusion, the factor of employer practice falls in favour of the Ironworkers. Counsel for the Millwrights conceded during argument that the evidence filed by the Ironworkers was compelling, as it was Canal's practice to have Ironworkers perform the work in dispute at General Motors operations. Over and above that specific source of work, the evidence of employer practice amassed by the Ironworkers which was not challenged by the Millwrights in its materials establishes that since the early 1990's the work in dispute was performed either exclusively by members of the Ironworkers, or as a composite crew with members of the Millwrights. This corresponds with the date that the parties believed that Canal was purchased by State. The materials which support the Millwrights' claim on the basis of employer practice are typically dated before 1990, and do not speak specifically to safety screen fencing (though we are not particularly surprised that minutes of a mark up meeting for the construction of a conveyor would not specifically speak to the work in dispute). In the circumstances, the factor of employer practice favours the Ironworkers.
Turning to the factor of area practice, we are of the view that the materials filed do not
evidence a clear area practice favouring any one trade. The parties were in agreement that the most relevant practice for the Board to consider is that followed in auto and auto parts plants in Board Area 5, the Board Area where the Hayes Dana plant is located. The difficulty in assessing the area practice materials is that there is a tendency for individuals to refer in various different ways to work which may (or may not) be the work in dispute. The parties to this proceeding refer to "safety screen fencing", but the wider community appears to utilize numerous other names for the same (or similar) product. Accordingly, each of the trade unions could (and did) rely upon the same piece of correspondence as supporting its claim, depending upon how one read the letter.
Some of the materials filed by the Millwrights in support of area practice were not given much weight by the Board. For example, the Ironworkers filed a letter from Mr. Henry Miron, a Mechanical Manager with E. S. Fox Ltd., in support of its claim. In response, the Millwrights filed a letter authored by Mr. E. Spencer Fox in which he observes (incorrectly, we may add) that Mr. Miron's letter was "misleading", and in which he purports to identify the manner in which that employer assigned the work in dispute. In our view, the letter filed by the Millwrights would have been given more weight had it been authored by Mr. Miron rather than by Mr. Fox. That being said, the letter was vague enough in its content to have been unhelpful in any event.
The final factor addressed by counsel was that of the applicability of a trade agreement. The Millwrights relied upon the terms of the Conveyor Agreement between the parties dated June 3, 1953 (as clarified by way of Memorandum of Agreement dated June 5, 1957). The Conveyor Agreement provides for the distribution of work relating to the erection of "protective screen or metal guards". The Millwrights rely on that part of the Conveyor Agreement which reads as follows:
The erection of protective screen guards or other than metal guards on all other types of conveyors is the work of Millwrights.
Counsel for the Millwrights directed the attention of the Board to material filed which supports the conclusion that the Conveyor Agreement has been applied to determine the assignment of safety screen fencing work in automotive plants in Board Area 5.
Having reviewed all of that material, it would appear to us that the Conveyor Agreement has, on occasion, been applied by employers operating automotive plants in Board Area 5. Some of the materials filed and relied upon by the Millwrights in this regard were vague and required a certain degree of extrapolation to reach the conclusion argued by counsel. Other materials required a somewhat larger leap of faith which the Board was not willing to make. However, taken in its entirety, there can be no doubt that some employers - including State - have utilized the Conveyor Agreement to distribute work encompassed by that agreement as between members of the Millwrights and the Ironworkers in Board Area 5.
The difficulty which we have, in this instance, in giving determinative weight to the Conveyor Agreement is that it is not evident to us that the Conveyor Agreement has ever been utilized to assign the work in dispute in Board Area 5. There is nothing before the Board that specifically indicates that it has been used this way. The Conveyor Agreement speaks to many different aspects of work on conveyor and monorail installations - the erection of protective screen guards is but a small part of that document. Accordingly, while the materials filed by the Millwrights do establish that the Conveyor Agreement has been applied by some employers in Board Area 5, it is far from clear that it has ever been applied to distribute the work in dispute as between members of the two trades in this proceeding. In fact, if anything, the one thing that is clear is that Canal, along with numerous other employers in Board Area 5, have assigned the work in dispute exclusively to the Ironworkers, or to a composite crew of Ironworkers and Millwrights. Accordingly, it has not been established that the Conveyor Agreement has been applied in Board Area 5 to assign the work in dispute as amongst members of the Millwrights and the Ironworkers.
In the circumstances of this case, then, the trade agreement factor does not cause us to conclude that the work in dispute ought to have been assigned to members of the Millwrights.
As noted earlier, the other factors taken into account by the Board in determining work assignment disputes are neutral in this proceeding. On the basis of the materials before the Board, the strong evidence of employer practice compels the conclusion that the work in dispute ought to have been performed by members of the Ironworkers.
We make one final observation here. During the course of the oral consultation the parties quite vigorously argued the issue of whether the practice of Canal ought to be considered "employer" practice. As was noted by the Board at the time, if we had concluded otherwise - that is, that Canal's practice in assigning the work in dispute ought not to be considered to be "employer" practice - the practice of Canal in Board Area 5 would establish an overwhelming area practice in favour of the Ironworkers. Such an overwhelming area practice would have caused us to reach the same conclusion as we have reached otherwise.
Accordingly, this application is granted, and the Board declares that the work in dispute ought to have been assigned to members of the Ironworkers.