[1998] OLRB REP. MARCH/APRIL 152
4135-97-JD International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, Applicant v. Labourers' International Union of North America, Local 1089 and Chemfab Mechanical Contractors, Responding Parties
BEFORE: Lee Shouldice, Vice-Chair, and Board Members J. Knight and G. McMenemy.
APPEARANCES: David McKee, Jim Tinney and Dale Quinn for the applicant; S.B.D. Wahl and R. Leone for Labourers' International Union of North America, Local 1089; Greg Bond and Fraser Maitland for Chemfab Mechanical Contractors.
DECISION OF THE BOARD; April 20, 1998
I. Introduction
This is an application concerning a work assignment filed with the Board pursuant to section 99 of the Labour Relations Act, 1995 (hereinafter "the Act"). A consultation in this proceeding was held by the Board on March 18, 1998.
The applicant (hereinafter "the Boilermakers") and the responding party Labourers' International Union of North America, Local 1089 (hereinafter "the Labourers"') filed briefs with the Board prior to the outset of the consultation. The responding party Chemfab Mechanical Contractors (hereinafter "the employer" or "Chemfab") did not file any materials with the Board, but did attend at the consultation. The Board advised the representatives of the employer that they were entitled to make any submissions they desired based on the materials filed with the Board, but that the Board would not consider any factual allegations not already raised in the briefs previously filed.
The pleadings and briefs filed by the Boilermakers and the Labourers' raised a number of issues. The Board very carefully reviewed the briefs prior to the oral consultation, and determined that a number of the factors relevant to the disposition of a work assignment dispute were neutral, and therefore that it was unnecessary to obtain the oral submissions of counsel on those factors. As well, it appeared to the Board that a number of the issues raised - primarily by the Labourers' - were extraneous to the merits of the application. Accordingly, at the outset of the consultation, the Board advised the parties of the matters upon which we desired to hear oral submissions.
To amplify on the above, we advised the parties, at the outset, that the written materials before the Board disclosed that the constitutions and the collective agreements of the parties clearly gave each of the trade unions a jurisdictional claim to the work in dispute. As well, we advised the parties that it was unnecessary to make reference to prior IJDB decisions filed by the Labourers', or certain practice materials filed by the Boilermakers, as all of those materials were of no assistance to the Board.
Furthermore, we advised the parties that we did not require any submissions on the proposition made by the Labourers' that the Board ought to make an "area-wide" order binding all contractors in Board Area 2 to the resolution of this proceeding. At numerous times in its brief, the Labourers' asserted that it was both necessary and appropriate for the Board to make such an order, in the circumstances of this case. We are of the view that the Board has no authority to do so. It is plainly evident from the provisions of section 99 of the Act that the Board does not have the power to make such a wide-sweeping order. Certainly, the decision relied upon by counsel to support that proposition -Comstock Canada, [1993] OLRB Rep. Aug. 740 - does not authorize such an order. Even under the work assignment provisions of the previous Act such an order would have been incapable, and a breach of natural justice. In our view, to have entertained submissions on this point would have been a waste of the resources of the Board and of the parties.
Accordingly, the Board advised the parties that it desired to hear their submissions regarding the factors of area practice, trade agreements, employer practice, and skill, ability, and safety. In doing so, the Board directed certain questions to the parties. We have considered all of the submissions made by counsel.
II. Decision of the Board
The parties have described, in a different manner, the work in dispute. However, it was evident that the substance of the work in dispute was agreed upon by the parties. The work in dispute relates to the removal of a convection oil heater at the Nova Corunna plant in Sarnia, Ontario. The Labourers' description of the work was not disputed by the Boilermakers. That description of the work includes initial site set up; blanking off of the heater section; welding of lifting lugs to the section; cutting the section free from the production system; rigging of the section for lowering; direction and signaling of the hoisting equipment; receiving the heater section at ground elevation; transporting the heater to a lay down area; cutting the heater section into pieces for disposal as scrap; spraying and decontamination of the material; removal of all cut heater pieces for scrap; and the cleaning and clearing of debris.
It would also appear that there is no dispute that the employer assigned all of the work in dispute to members of the Boilermakers, save and except for the spraying and decontamination of the scrap material, the removal of the cut heater pieces for scrap, and the cleaning and clearing of debris. The Labourers' claim the other work for its members.
At the outset, the Board raised with counsel for the Labourers' the proposition that a vast majority of the area practice relied upon by the Labourers' appeared to be practice of contractors bound only to the Labourers' Provincial ICI agreement. Although there was some doubt initially, it became quite clear that, in fact, the area practice relied upon by the Labourers' is of that very nature. Counsel for the Labourers' submitted that area practice of that nature was pertinent and that the Board ought to consider it for the purposes of this proceeding.
We disagree. The work in dispute in this proceeding was located in Board Area 2. Accordingly, the practice of contractors in Board Area 2 is an important factor to consider in determining this proceeding. We cannot, however, see any purpose in considering the practice of single trade contractors - in particular, demolition contractors bound only to a collective agreement with the Labourers'. In circumstances such as those, one would not be particularly surprised to discover that such a contractor would assign work such as the work in dispute to members of the trade union to which it is bound, rather than to members of the Boilermakers. The assertion that four large demolition contractors in Board Area 2 utilize members of the Labourers' to do similar demolition work is meaningless for the purposes of a work assignment dispute unless the assignment is made in circumstances where the Labourers' are chosen to perform the work over the Boilermakers. None of the evidence proffered by the Labourers' was of this character, and accordingly we consider it to have no probative value.
Much of the argument of the parties focused on the nature and extent of two settlement agreements which were the result of previous jurisdictional dispute applications at the Board. There was no dispute that these documents are agreements which bind the Labourers' and the Boilermakers, and that they apply to work performed in Board Area 2. Furthermore, the Boilermakers state that they desire to abide by the terms of the documents. The real issue, though, was the applicability of the documents to the circumstances before us.
The first settlement document arose out of a Board proceeding involving Foster Wheeler Limited (Board File 0929-88-JD). The second settlement document put before the Board reflects the resolution of another work assignment dispute involving Lam Sar Mechanical Contractors Limited (Board File 0353-91-JD). Both settlements were signed on June 2, 1992. The pertinent portion of the Foster Wheeler settlement reads as follows:
In the County of Lambton, OLRB Geographic Area 2, in circumstances where the contractor is performing demolition or dismantling of field-erected generating boiler(s) for industrial application for scrap within an operating environment and the contractor is bound by collective agreements with both the trade union parties hereto:
(a) demolition or dismantling of particular boiler component(s) normally originally erected by Boilermakers shall be performed by members of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Lodge 128;
(b) all ground rigging at and from the point of first drop on the ground for all loads, the handling, cutting and disposal of all boiler components shall be performed by members of the Labourers' International Union of North America, Local 1089;
(c) demolition or dismantling of particular boiler component(s) not normally originally erected by Boilermakers shall not be claimed by Boilermakers, Lodge 128 as against Labourers, Local 1089.
The Lam Sar settlement reads as follows:
In the County of Lambton, OLRB Geographic Area 2, in circumstances where the contractor is performing demolition or dismantling of tanks (and vessels and/or heaters directly ancillary to the tanks in question), for scrap (including such work in connection with replacement but not in connection with repair, partial replacement or revamping of existing equipment) and the contractor is bound by agreements with both Union parties hereto:
(a) all demolition and dismantling work shall be assigned to and performed by a composite crew consisting of equal numbers of members of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Lodge 128 ... and Labourers International Union of North America, Local 1089 ... performing all work functions interchangeably.
Without going into the same degree of detail that counsel did during the course of argument, counsel for the Labourers' asserted that the Foster Wheeler settlement applied to the circumstances before the Board, and that the work ought to have been assigned in the manner described in that settlement. In particular, counsel asserted that the work in dispute was performed within an "operating environment", and that the terms of the settlement mirrored the work in dispute. If the Board were of the view that the work in question was not performed in an "operating environment", then counsel's alternative position was that the Lam Sar settlement applied and that the distribution of work reflected by that document ought to have been effected by the employer.
There appears to be no question that the work in dispute was performed during a plant shutdown. However, there is also no question that when the work was being performed there were live electrical cables and pressurized gas lines in the working area. In this context, we are quite confident that it can be said that the work in dispute was performed in an "operating environment". Although the plant itself was not operating, electrical power and gas service was maintained in the area, and the same degree of care would have to have been observed by the tradespersons as if the plant were operating. Accordingly, we conclude that the work in dispute was performed in an "operating environment".
In that context, the Labourers' assert that the Foster Wheeler settlement agreement applies in the circumstances. Counsel for the Labourers' acknowledged that the purpose of the heater at Chemfab was not for use as a power boiler (i.e. to generate steam power). However, he asserted that the type of construction was the same. He argued that the heater in question was composed of tube walls which were subjected to heat by way of a firebox or duct, and this reflected only a difference in application of the same type of construction. That is, that in both cases the infrastructure is used as a heat exchanger, and that the construction is the same.
Counsel for the Boilermakers disagreed with this proposition. He noted the precise language inserted into the settlement agreements, and observed that the oil convection heater in question was not a power boiler. In fact, counsel asserted that the heater in question is not akin to a boiler either. Counsel for the Boilermakers asserted that the heater looks like a "field-erected steam generating boiler", but isn't. Instead, its an oil furnace, and there is no steam at all; rather, petroleum is heated by water contained in a bundle of tubes, and draws off heat through what was described as a "cracking process".
Having carefully reviewed the argument of counsel, and the materials before the Board, we are not satisfied that the Foster Wheeler settlement applies to the work in dispute. It is trite to observe that settlement agreements such as the Foster Wheeler settlement must be interpreted by way of the language utilized on the face of the document. It is also trite to observe that a party to an agreement that asserts that it applies to particular circumstances has the burden of establishing its applicability. Here, the settlement agreement speaks to the demolition or dismantling of "field-erected steam generating boiler(s) for industrial application". There can be no doubt that the oil convection heater dismantled and demolished in the proceeding before us is not caught by that description. In the absence of any evidence or materials which would lead us to conclude that the dismantling and demolition of the heater is governed by this settlement agreement, we are not satisfied that it is. Accordingly, we conclude that neither the Foster Wheeler nor the Lam Sar settlement agreements are trade agreements which govern the work in dispute.
Returning, then, to the factor of area practice touched upon earlier, there was very little cogent evidence of area practice filed with the Board. It would appear that employers in the Sarnia area are not inclined to assist these trade unions by providing them with information about their current practice. This has inhibited the parties' from filing up-to-date materials speaking to this factor.
However, the parties have filed some materials speaking to the practice of employers in the area. The Labourers' have adduced very little area practice of relevance. It appears that Kel-Gor Limited performed a contract to remove two heaters at Shell by utilizing a crew consisting only of Labourers'. The Boilermakers assert that Kel-Gor Limited erroneously relied upon the Board's decision in Multidem Inc.,[1994] OLRB Rep. Feb. 166 in making this assignment. The Labourers' claim that such an assertion is "utter foolishness". "Utter foolishness" or not, the assignment was made.
The area practice adduced by the Boilermakers consists of three letters of 10 years vintage (one each from Great Lakes Fabricating, Lam Sar Mechanical Contractors Ltd., and Kel-Gor Limited). We do not give these letters great weight, having regard to their age. We do note, though, that the letter from Kel-Gor Limited does muddy the waters somewhat regarding the practice of that company, given the assignment of work noted above in paragraph 19.
To muddy the waters further, the Boilermakers filed evidence of employer practice which in fact, turned out to be practice of Kel-Gor Limited. Mr. Greg Bond, an employee of the responding party employer before us, filled out an employer practice sheet filed by the Boilermakers, and indicated in it that in 1988 Chemfab had performed the removal of all or a section of a heater or furnace for Esso Chemicals using members of the Boilermakers. At the consultation, counsel for the Boilermakers advised the Board that Mr. Bond had now realized that that specific project had, in fact, been performed by Kel-Gor Limited, for which he worked in 1988.
In the circumstances, therefore, we ascribe little weight to the Kel-Gor Limited assignment of work to the Labourers' at the Shell project in 1994. It is not at all clear to us that the assignment was a recognition of the Labourers' "core jurisdiction", as was asserted by counsel in argument.
Of some significance is a project that was performed by Bluewater Fabricators & Erectors Inc. in 1995. The materials before the Board suggests that this contractor has used, exclusively, Boilermakers and Ironworkers to remove mechanical systems as part of a replacement contract. In 1995, Boilermakers were assigned the work of removing three tanks from a Bayer Chemicals plant in Sarnia. The Labourers' filed a grievance at the time but did not pursue the matter.
The Labourers' assert that this project was "a totally insignificant project", and that the tanks were not scrapped but were, in fact, retained for reuse. It was submitted that in those circumstances, the Labourers' made an assessment regarding the utility of filing a jurisdictional dispute and chose the more prudent route of not pursuing that application.
We do not quite agree with these assertions. The material filed by the Boilermakers from Bluewater Fabricators & Erectors Inc. includes a letter from the Owner and Manager which indicates that the "demolition" of the tank and all of the piperack was awarded to a composite crew of Ironworkers and Boilermakers. It is also stated that the tanks were transported to a scrap yard on Plank Road in Sarnia. As well, an attached "Job Order Form" of the Boilermakers respecting this job states on its face that the job includes "tank demolition". Accordingly, it would appear that the tanks were scrapped, contrary to the assertions of the Labourers'.
"Totally insignificant" or not, the fact is that members of the Boilermakers were utilized to perform the work in question, the work in question included the demolition for scrap of the three tanks, the Labourers' grieved the assignment of that work, and it chose to abandon the grievance and to not bring a work assignment application respecting the work. In those circumstances, we can only conclude that the Bluewater Fabricators job is evidence of area practice in favour of the Boilermakers.
Considering all of the above, we are satisfied that the practice of other contractors in Board Area 2 leans toward the assignment of the work in dispute to members of the Boilermakers.
Turning to the factor of employer practice, again there is little evidence of employer practice before the Board. Chemfab has identified one previous project, at the Nova Corunna plant, in which a furnace was completely dismantled. This project occurred in 1991, and the employer utilized Boilermakers to perform the work.
In its written brief of submissions, and as amplified during the course of oral submissions, the Labourers' assert that there really isn't any cogent evidence before the Board that this work occurred. Counsel for the Labourers' stated that Chemfab did not employ any members of the Labourers' at that time and therefore that the Labourers' did not know of the performance of the work, until it received the Boilermakers' brief in this proceeding. As the employer had not filed anything to suggest that this work had in fact occurred, the Board ought to conclude that Chemfab has not engaged in this work at all in the 1990's. In particular, counsel noted that in the previous litigation involving Foster Wheeler and Lam Sar, the practice of Chemfab had not been noted.
In the circumstances, we do not agree with this submission. There is no question that Chemfab has put forward, in the form of an employer practice sheet provided to the Boilermakers, the proposition that it performed a furnace dismantling for Nova Corunna in 1991, and utilized members of the Boilermakers to perform that work. If that was in fact so, it would not be surprising that the Labourers' may not have been aware of the project. And it may not be all that surprising that the project was not mentioned in either of the Foster Wheeler or Lam Sar litigation, given the time frame of the litigation - Chemfab may have performed the work after the filings made in the Lam Sar litigation (which commenced in 1991), explaining the absence of reference to that project in the litigation. We are not satisfied that the project did not occur as indicated by Chemfab and the Boilermakers, and in our view the project is evidence of employer practice, albeit a limited one.
Finally, we consider the factor of skill and ability to perform the work. We are of the view that this factor falls in favour of the Boilermakers. Although it is fair to say that members of the Labourers' may well be capable of performing the raw tasks done by the Boilermakers on this project, it cannot be overlooked that this work was performed in an "operating environment". The two settlement agreements relied upon by the Labourers' appear to distinguish between an "operating environment", where members of the Boilermakers perform the more safety-sensitive work, and a "non-operating environment", where members of both trades perform all of the work. This, in our view, makes eminent sense. If all that is occurring is the total demolition of a furnace, for scrap, in a non-operating environment, there are no broader safety concerns inherent in the performance of the tasks. In an "operating environment", with certain utilities operative, the situation is different. Some special skill and/or ability is surely necessary to ensure that no significant industrial accident occurs. In our view, that concern favours an assignment of the work to the Boilermakers.
In the circumstances, then, the factors we consider to be relevant to the assignment of this work are either neutral, or favour assignment of the work in dispute to the Boilermakers. Accordingly, we are of the view that the work in dispute which was assigned to the members of the Boilermakers was properly assigned to members of that union, and therefore we uphold the assignment made by the employer.
CONCURRING OPINION OF BOARD MEMBER G. McMENEMY; April 20, 1998
Although I agree with the analysis and the decision in this case, I would like to make a few comments on trade agreements or jurisdictional agreements.
Coming from the craft unions, I am familiar with these agreements and what is the intent of each of them.
There are three trade agreements that govern some of the aspects of the overlapping jurisdictions of my own trade. The first agreement in 1957 outlines what work is captured and how it will be assigned. The second agreement in 1961 supercedes the 1957 agreement and is a further clarification and updates the assignments of work as of that date.
What this example is meant to illustrate is that trade agreements build on the past and as the work changes so do the claims for the work assignment.
While portions of some trade agreements that date to the early 1900's are still applicable today, some parts are not because of technology changes. With trade agreements like of that age it is up to the parties to argue that what is referred to in the old trade agreement is similar to the work in dispute, or that the new technology is a growth from the old.
Both of the June 2, 1992 trade agreements deal with two separate working environments and with specific types of work. Each agreement stands on its own and does not further clarify or build on the established trade practice of each trade union. Also these two trade agreements are not of the age noted in paragraph S above and therefore it can not be argued that technology has changed in the last six years.
While it is likely that a more comprehensive trade agreement was envisioned by Local 1089 when the trade agreements were signed, the wording of each agreement does not support a conclusion other than that reached in this case.