Carpenters & Allied Workers Local 27 v. Labourers International Union of North America, Local 183, 1999 CanLII 19954

[1999] OLRB REP. JANUARY/FEBRUARY 28

1754-95-JD; 1733-98-JD Carpenters & Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Labourers International Union of North America, Local 183 and Ellis-Don Ltd., Responding Parties v. Heavy Construc­tion Association of Toronto, Intervenor; Labourers International Union of North America, Local 183, Applicant v. Ellis-Don Ltd. and Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Responding Parties v. Heavy Construction Association of Toronto, Intervenor

Construction Industry - Jurisdictional Dispute - Carpenters' union and Labourers' union disputing assignment of carpentry portion of concrete forming work on two bridge projects in Board Area No. 8 - Board finding that factors of employer practice, area practice, employer preference and economy and efficiency supporting assignment of disputed work to Carpenters' union and that remaining factors neutral - Board ruling that disputed work properly assigned to Carpenters

BEFORE: D. L. Gee, Vice-Chair, and Board Members G. Pickell and A. Haward.F.

APPEARANCES: David McKee and Ucal Powell for Carpenters and Allied Workers, Local 27; A. M. Minsky and Roger Quinn for Labourers' International Union of North America, Local 183; D. J. Shields and Manny Fines for Heavy Construction Association of Toronto, Roy Filion, Daryn Jeifries and Paul Richer for Ellis-Don Limited.

DECISION OF THE BOARD; February 5, 1999

1. Board File No. 1754-95-JD is an Application Concerning Work Assignment filed with the Board on August 3, 1995. The work in dispute is the carpentry portion of concrete forming work on the Humber Bridge/Lakeshore Blvd. Eastbound Bridge and Approaches in Metropolitan Toronto (the "Humber Bridge dispute"). The work in dispute was assigned by Ellis-Don Ltd. ("Ellis-Don") to members of the Carpenters & Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America (the "Carpenters"). The Labourers' International Union of North America, Local 183 (the "Labourers") asserts that the work should have been assigned to its members.

2. The brief filed on behalf of the Carpenters in connection with the Humber Bridge dispute states that the Carpenters entered into a collective agreement with Ellis-Don to govern the Humber Bridge project (the "Humber Bridge Agreement") and that the Humber Bridge Agreement covers the work in dispute. The Labourers brief took issue with the validity of the Humber Bridge Agreement on a number of bases including the assertion that, at the time the Humber Bridge Agreement was entered into, the Labourers already held bargaining rights for carpenters employed by Ellis-Don in the heavy engineering sector of the construction industry by virtue of the collective agreement between the Labourers and the Heavy Construction Association of Toronto (the "HCAT Agreement") to which Ellis-Don is bound. A consultation was held for the purpose of determining the validity of the Humber Bridge Agreement. A decision issued, by a differently constituted panel of the Board, on July 18, 1996 in which it was determined that the HCAT Agreement was not a bar to Ellis-Don and the Carpenters entering into the Humber Bridge Agreement. The matter was then adjourned sine die.

3. In 1997, the Toronto Transit Commission awarded Ellis-Don a contract to construct the Don River Bridge near the Leslie station on the Sheppard Subway line. Ellis-Don negotiated a project agreement with the Carpenters relating to terms and conditions of employment on the project (the "Don River Bridge Agreement") and assigned the carpentry portion of the concrete forming work to members of the Carpenters. The Labourers filed an Application Concerning Work Assignment (Board File No. 1733-98-JD) in which it is asserted that the carpentry portion of the concrete forming work on the Don River Bridge should have been assigned to its members (the "Don River dispute").

4. As both the Humber River dispute and the Don River dispute concern the same work (the carpentry portion of concrete forming work), it was determined that both matters would be listed together for a day of consultation.

5. The Heavy Construction Association of Toronto (the "HCAT") intervened in both matters. HCAT is the accredited bargaining agent for all employers of employees for whom the Labourers has bargaining rights in Board Area 8 in the heavy engineering sector of the construction industry. Ellis-Don is not a member of HCAT but is bound to the HCAT Agreement since the Labourers holds bargaining rights for employees of Ellis-Don employed in the heavy engineering sector of the construc­tion industry in Board Area 8.

6. The Board has no fixed list of factors that it will consider when determining the outcome of a jurisdictional dispute, however, it is well known that the factors of collective bargaining relationships, employer practice, area practice, safety, skills and training, employer preference, economy and effi­ciency, trade agreements and prior determinations are generally considered.

Collective Bargaining Relationships

7. The Labourers and the HCAT assert that the factor of collective bargaining relationships is neutral. Both unions have bargaining rights and both unions have collective agreements that cover the work in dispute.

8. The Carpenters does not agree that the collective bargaining relationship factor is neutral. The Carpenters points to the following letter of understanding that was appended to the HCAT Agreement until its most recent renewal on May 1, 1998:

LETT'ER TO: The Heavy Construction Association of Toronto

FROM: Labourers' International Union of North America, Local 183

RE: COLLECTIVE AGREEMENT, MAY 1ST, 1992

Further to the signing of the collective agreement between us, this letter will serve to confirm certain understandings which were reached in connection with the classifications of Form Builder, Fabricator and Erector. It is agreed and understood that the said classification does not apply to those employees engaged in the building, fabrication and erection and of forms and in the employ of an Employer who is in contractual relationship with the United Brotherhood of Carpenters and Joiners of America.

Dated at Toronto this 9th day of June, 1993.

Signed on behalf of Signed on behalf of

The Heavy Construction The Labourers’

Association of Toronto International Union

North America, Local 183

"Illegible Signature" "Illegible Signature"

The Carpenters submits that the letter of understanding was an acknowledgement that, where an employer was also in a contractual relationship with the Carpenters, the work in dispute was not covered by the HCAT Agreement.

9. The Labourers and the HCAT dispute the interpretation the Carpenters place on the letter of understanding. They assert that their evidence would be that the letter of understanding was intended to apply only to contractors who were in a contractual relationship with the Carpenters prior to becoming bound to the HCAT Agreement. It was a grandfathering provision. It was not intended to apply to contractors, such as Ellis-Don, who were bound to the HCAT Agreement prior to entering into a contractual relationship with the Carpenters. The Labourers asserts that evidence as to how the letter of understanding was applied would support such an interpretation.

10. The Carpenters does not accept the interpretation of the letter of understanding advanced by the Labourers and HCAT. The Carpenters points out that the letter of understanding spoke in the present tense. Further, the letter of understanding was renewed, redated and resigned each time the HCAT Agreement was renewed. The letter of understanding made no reference to contractors who were bound "prior" to their becoming bound to the HCAT Agreement.

11. As indicated above, the letter of understanding is no longer appended to the HCAT Agreement. If the Board was to determine the outcome of this dispute based on which interpretation of the letter of understanding is correct, the value of our determination in terms of future work assignments would be lessened. While work assignment determinations are not determinative of anything other than the very project in issue in each case, such determinations do, and should, serve as a road map for the parties in terms of similar assignments of work in the future. Further, given our determination with respect to the remaining factors, it is not necessary for us to make a determination with respect to the factor of collective bargaining relationships. We will assume, without so finding, that the collective bargaining relationship factor is, as asserted by the Labourers and the HCAT, a neutral factor.

Employer Practice

12. Ellis-Don has performed five projects in the heavy engineering sector in Board Area 8 as follows:

13. Scarborough Light Rail expansion. This project was performed in approximately 1981. It involved the construction of an overpass. Members of the Carpenters were assigned to perform the work in dispute on this project. The work was performed under the provisions of the ICI agreement. The Labourers acquired bargaining rights with Ellis-Don on this project.

14. Spadina Subway extension. This project was performed in the early 1990's. As its name indicates, it involved work extending the subway. Members of the Carpenters were assigned to perform the work in dispute on this project.

15. Sheppard West Station. This project was performed in 1994-95. It involved construction at the Sheppard West Subway station. Members of the Carpenters were assigned to perform the work in dispute on this project.

16. Humber River Bridge. This project is one of the projects in dispute in the instant matters. As indicated at the outset of this decision, members of the Carpenters were assigned to perform the work in dispute.

17. Don River Bridge. This project is the second project in dispute in the instant matters. As indicated at the outset of this decision, members of the Carpenters were assigned to perform the work in dispute.

Thus, Ellis-Don has assigned the work in dispute to members of the Carpenters on every heavy engineering project which it has performed in Board Area 8.

13. The Labourers asserts that the factor of employer practice is neutral. Relying on Foster Wheeler Limited, [1989] OLRB Rep. Feb. 128; Foster Wheeler Limited, [1989] OLRB Rep. May 451; Foster Wheeler Limited, [1990] OLRB Rep. May 630 (Court File No. 600/89); Foster Wheeler Limited, [1991] OLRB Rep Aug. 990; and Commonwealth Construction Company, [1991] OLRB Rep. June 742 the Labourers asserts that the Board should limit its consideration to projects which are similar to the Humber River Bridge and Don River Bridge projects. In the Labourers' submission, the Board should thus only consider "bridge" projects. Further, relying on Kora Mechanical lnc., unreported decision dated March 3, 1993 (OLRB File No. 0657-91 -JD) the Labourers submits that the Board should only consider projects proximate in time to the projects in issue. The Labourers suggests that it would be appropriate for the Board to confine its consideration to projects completed within 10 years of the commencement of the Humber River Bridge project. Thus, the Labourers submits that the Board should only consider bridge projects performed by Ellis-Don after 1985. As the only bridges constructed by Ellis-Don after 1985 (or for that matter at all) are the two projects in issue in the instant proceedings, the Labourers submits that Ellis-Don has no past practice. In the submission of the Labourers, the factor of employer practice, is thus a neutral factor.

14. The Carpenters and Ellis-Don dispute the Labourers' assertion that the Board ought to confine its consideration to projects that are bridges or to projects that were performed after 1985. The Carpenters submits that the Labourers have provided no reason why the Board would consider only bridges and not other heavy engineering projects. The Labourers states that bridges are constructed according to a Bridge Code but do not suggested that the performance of the work in dispute differs in any way depending upon the type of structure being built. The Labourers does not suggest that the techniques used to perform the work or issues of safety or training differ depending upon the nature of the project. In the Carpenters' submission, the Labourers has offered no basis for differentiating a bridge from any other heavy engineering project. Further, the Labourers relies on one unreported decision to support its argument that the Board ought not to consider projects prior to 1985. In the submission of the Carpenters, the Board has not adopted such an approach and should not do so unless reasons so dictate.

15. It is our determination that in assessing Ellis-Don's practice, it is appropriate to consider all of the projects they have performed in the heavy engineering sector in Board Area 8. We are not persuaded that it is appropriate to limit Ellis-Don's practice to a period of time commencing in 1985. We see no rational justification for doing so. Ellis-Don's practice goes back to the early 1980's, a period of less than 20 years. Its practice consists of only three projects prior to the projects in issue. Ellis-Don's practice has been consistent. Its practice prior to 1985 is consistent with its practice after 1985. There is simply no reason why we would limit our consideration to a period of time 10 years prior to the earliest of the projects in dispute.

16. Likewise, we were presented with no rationale as to why we would confine our consideration to bridge projects. We accept that the Board often confines its consideration to projects which the Board considers similar to the work in dispute, which means that the Board does not consider all work performed within the sector in issue. It does so, however, because there is usually a reason to differentiate between the types of work. There may be a different employer or area practice which has developed depending on the type of work. Different types of work may be performed in different ways, utilizing different techniques, tools or equipment, requiring workers with different skills and training, and imposing different work conditions. In such situations, it makes sense to confine the Board's consideration to work which is similar to the work in dispute. In the present case, it has not been suggested that there is anything to distinguish the performance of the work in dispute on a bridge from the performance of the work in dispute on any other heavy engineering project. As a result, it is our determination that the three heavy engineering projects performed by Ellis-Don in Board Area 8 prior to the construction of the projects in issue in these matters are relevant.

17. The work in dispute was assigned to members of the Carpenters on all three prior heavy engineering projects performed by Ellis-Don. In no instance was the work in dispute assigned to members of the Labourers. Accordingly, this factor favours the assignment of the work to the members of Carpenters.

Area Practice

18. The Carpenters filed area practice evidence which indicates that six different contractors have built approximately 64 bridges in Board Area 8 and assigned the work in dispute to the members of Carpenters. Seven of the 64 bridges were built in the past 10 years. The Carpenters also filed area practice evidence which indicates that one of the six contractors also built 20 underground passageways for a variety of owners with forming crews manned mainly by Carpenters. The Carpenters accepts that the volume of bridgework in the heavy engineering sector of Board Area 8 performed by employers in contractual relations with the Carpenters has declined over the past 10 years. The Carpenters asserts that such does not result in a loss of the Carpenters' jurisdiction over the work in dispute as it is not caused by employers assigning work away from the Carpenters in favour of the Labourers but rather is caused by fewer contractors in contractual relations with the Carpenters doing bridge work in Board Area 8.

19. The Labourers challenges the Carpenters' area practice evidence on the basis that one of the six contractors, Falco Construction, actually assigned the work in dispute to Labourers in a 3:1 ratio with Carpenters. Falco Construction's most recent project was in 1992 and Falco Construction is no longer in business. One of the contractors is no longer active in Board Area 8 and one of the contractors no longer builds bridges.

20. The Labourers relies on area practice evidence which indicates that hundreds of bridges have been built over the past 10 years by contractors using members of the Labourers. During the same 10 year period, not counting the projects in dispute in these matters, contractors using members of the Carpenters have constructed only seven bridges.

21. The Carpenters asserts that the Board should give little if any weight to the Labourers' area practice evidence as none of it relates to contractors who are bound to an agreement with both the Carpenters and the Labourers. Thus, the Labourers' area practice evidence does not demonstrate a single instance where an employer in contractual relations with both the Carpenters and the Labourers has refused to assign it to the members of Carpenters.

22. Again relying on the Kora Mechanical Inc., supra, decision, the Labourers asserts that the Board ought to confine its consideration of the evidence going to area practice to bridge projects performed in the five years predating the commencement of the first project in issue.

23. We are not persuaded that the Board should confine the past practice evidence it considers to the time frame advocated by the Labourers or to projects involving bridges. As discussed above, there may be instances where it is appropriate to do so, however, in the instant matters, there is no basis for doing so. Thus, it is our determination that the Board ought to consider all past practice evidence relating to work, without temporal limitation, performed in Board Area 8 in the heavy engineering sector.

24. We are also not persuaded that the fact that contractors who have no contractual relationship with the Carpenters have assigned the work in dispute to the members of Labourers is significant. Where a contractor bound only to an agreement with the Labourers assigns the work in dispute to the members of Labourers, such can hardly be taken as an indicator that, where there is a contest between the two trades, the work is Labourers' work (see JD Ecodyne Limited, [1997] OLRB Rep. March/April 197 as one example of where the Board has given no weight to work performed by a contractor in contractual relations with only one of the competing unions). Accordingly, we decline to consider area practice evidence of work performed by contractors in contractual relations with only the Labourers.

25. As a result, the only relevant area practice is that relied upon by the Carpenters. Such evidence overwhelmingly supports a determination that, where a contractor is in contractual relations with both the Carpenters and the Labourers, the contractor has assigned the work in dispute to members of the Carpenters. We concur with the Carpenters' submissions concerning the decline in the past 10 years of bridge work being performed by Carpenters. Such is a result of fewer contractors who are in contractual relations with the Carpenters doing such work. It is not indicative of the Labourers usurping what jurisdiction the Carpenters have over such work.

Remaining Factors

26. Members of both the Carpenters and the Labourers frequently perform the work in dispute. Members of both the Carpenters and the Labourers have the skills and training to perform the work. The factor of skills and training is thus neutral.

27. Likewise, given the fact that members of both the Carpenters and the Labourers perform the work in dispute and we were not advised of any safety issues which have arisen, the issue of safety is a neutral factor.

28. Ellis-Don asserts that the factors of employer preference, economy and efficiency favour the assignment of the work in dispute to members of the Carpenters. Ellis-Don has a relationship with the Carpenters by virtue of its past projects in the heavy engineering sector and the ICI sector. Ellis-Don's agreements with the Carpenters give Ellis-Don the ability to transfer men from its other crews to its bridge projects and to name hire Carpenters who Ellis-Don deems best suited to work on its projects. It is Ellis-Don's assessment that the hiring of Carpenters that it knows by virtue of their having worked on other Ellis-Don projects results in increased efficiency and economy. The Labourers submits that Ellis-Don's argument with respect to employer preference is dispelled by the fact that, when the Carpenters were unable to fulfill Ellis-Don's manpower requirements, Ellis-Don obtained additional men to perform the work in dispute from the Labourers.

29. Ellis-Don receives benefits by virtue of its agreement with the Carpenters which it asserts results in efficiencies notwithstanding that the Carpenters have not been able to completely satisfy Ellis-Don's manpower requirements. It is reasonable to infer that such is in fact the case. As a result, it is our view that the factors of employer preference, and economy and efficiency tend to favour the Carpenters.

30. The factor of prior Board decisions is a neutral factor. The Board's decision in Dufferin Construction Ltd. [1988] OLRB Rep. Nov. 1164; [1989] OLRB Rep. Jan. 25; [1991] OLRB Rep. Feb. 178 and Armbro Materials and Construction Limited (OLRB File No. 21 89-88-JD), upon which the Labourers relies, concerned employers with whom the Carpenters had no collective bargaining relation­ship in the heavy engineering sector and accordingly are of no precedential value.

31. Having regard to the foregoing, it is our determination that the factors of employer practice, area practice, employer preference, and economy and efficiency support the assignment of the work in dispute to members of the Carpenters. The remaining factors are neutral. In the result, it is our determination that the work in dispute in both the Humber Bridge dispute and the Don River Bridge dispute was properly assigned by Ellis-Don to members of the Carpenters.