[1999] OLRB REP. MARCH/APRIL 142
1742-98-JD United Brotherhood of Carpenters and Joiners of America, Local 446, Applicant v. Labourers' International Union of North America,Local 1036 and Aluma Systems Canada Inc., Responding Parties
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
APPEARANCES: David McKee and Gil Scott for the applicant; C. M. Mitchell and B. Suppa for Labourers, Local 1036; G. F. Luborsky and B. E. Forrester for Aluma Systems Canada Inc.
DECISION OF THE BOARD; March 15, 1999
This is a complaint under section 99 of the Labour Relations Act, 1995, S.O. 1995, c.1 (the "Act") arising from the assignment of work to members of the United Brotherhood of Carpenters and Joiners of America, Local 446, (the "Carpenters") by the responding party Aluma Systems Inc. ("Aluma") at the Holiday Inn restoration project in Sault Ste. Marie. The responding party Labourers' International Union of North America, Local 1036 (the "Labourers") claimed that its members were entitled to perform the work of providing scaffolding materials to members of the Carpenters employed by Aluma to erect scaffolding on the north wall and part of the west wall of the Holiday Inn building undergoing renovations.
The issue before the Board in this case is where to draw the line between the trade of the Carpenters and the trade of the Labourers in relation to the work of providing scaffolding materials to members of the Carpenters who are erecting scaffolding, the work in dispute in this proceeding.
The parties have used the term "tending" to describe the work in dispute in this case. This is not the first time that a dispute over the assignment of tending working in relation to scaffolding has arisen between the labourers and carpenters. In Doug Chalmers Construction Limited, F 1998] OLRB Rep. July/Aug. 594, the Board described the work of tending carpenters engaged in the erection and dismantling of scaffolding in the following terms at page 604:
"The ordinary meaning of the verb 'to tend' is 'taking care of, looking after' something or someone. So what we are dealing with is the work of construction labourers 'looking after' the needs of carpenters engaged in erecting or dismantling scaffolding."
In this proceeding before the Board, the person who was "looking after" the needs of carpenters engaged in erecting scaffolding was another member of the Carpenters. The Board went on in Doug Chalmers Construction Limited, supra, at page 605 to further refine the description of tending work:
"The work in dispute is the tending of carpenters for erecting or dismantling scaffolding. 'Tending' consists of looking after the needs of carpenters in that respect. ...In the context of this case, any handling of material from the delivery drop point to the point of use by the Carpenters is tending. The handling of material after the point of first use by the carpenters may or may not be tending. If the handling beyond the point of first use is integral to the carpenters' erection or dismantling functions it is either not tending at all, or it is a tending, whether properly called self-tending or not, which is part of the carpenters' work jurisdiction. The construction labourers' tending work is limited to the tending functions which are severable from the erection and dismantling work performed by the carpenter."
The Board's analysis and description of "tending work", which is the essence of the work in dispute in this case, provides a useful context within which to consider the issues raised by the parties before the Board in this proceeding.
Aluma is a scaffolding specialty contractor which is bound by provincial ICI collective agreements with the both the Carpenters and the Labourers. (See Aluma Systems Canada Inc., [1994] OLRB Rep. Nov. 1469 which held that Aluma was bound by the Labourers' provincial ICI collective agreement as a result of its acquisition of a business for whom the Labourers held bargaining rights in the ICI sector.) Aluma is engaged in the design, engineering, supply, erection and dismantling of scaffolding systems. Although bound by both the Carpenters' and the Labourers' provincial ICI collective agreements, Aluma has had history of using members of the Carpenters to perform its erection and dismantling work (including the tending of scaffolding materials to its crews) throughout Ontario, except in the Sarnia area, where Aluma had traditionally used an agent to carry out that work.
The scaffolding materials used by Aluma's employees were unloaded from Aluma's trucks at the job site and placed at the base of the walls where the erection work was to be carried out. At the base of the walls, the scaffolding materials were handled initially by the Aluma employees doing the erecting and then, as the scaffolding was built higher off the ground, by an apprentice member of the Carpenters employed by Aluma who assembled and bundled the material and then hooked the bundles on to a lifting device for hoisting to the level where the crew was continuing to erect the scaffold.
While the Labourers claim the work of both unloading the scaffolding materials from the Aluma vehicles as well as the assembling, bundling and hoisting of the materials, the Board is satisfied that the delivery of the scaffolding materials to the job site and the initial placement of the materials from the vehicle on to the job site at the base of the walls where the erection work was being done by Aluma is discrete work and not a part of the tending work required to be done in support of the crew doing the erection work. In the circumstances of this case, having regard to the relevant factors considered by the Board in determining the merits of a dispute over the assignment of work, that is, area practice, employer preference, economy and efficiency, skill and ability, trade agreements and union constitutions, and collective bargaining relationships, all but economy and efficiency and employer preference are neutral. There was no definitive area practice presented by the parties in relation to the unloading of scaffolding material from a scaffolding contractor's delivery vehicle. In essence, the scaffolding contractor used its own forces (who are members of the Carpenters) to deliver the material to the job site and unload it from the truck. The scaffolding contractor was responsible to ensure that the scaffolding material was delivered to the job site for use, in this case, by its own employees in the erection of the scaffolds. The proper assignment of this work might well have been different if the scaffolding material had been provided by Aluma with the understanding that its responsibility was simply to have its delivery truck arrive at the job site to be unloaded by the general contractor. From the perspective of both economy and efficiency and employer preference, the assignment of that portion of the work in dispute, that is the unloading of the scaffolding materials and their initial placement on the job site at the base of the walls where the scaffolding was to be erected by Aluma, to the members of the Carpenters who were employees of Aluma, is confirmed.
Counsel for Aluma and counsel for the Carpenters asserted that prior to preparing the scaffolding materials for bundling and hoisting, the scaffolding material was inspected and measured, and that such preparatory work was an integral part of the tending work associated with the erection of the scaffolding. They submitted that the inspection and measurement of the scaffolding material were ideal tasks for an apprentice member of the Carpenters.
Aluma was under contract to the general contractor on the Holiday Inn project (George Stone & Sons Ltd.) to erect scaffolding for use by other trades working on the project, including carpenters, plasterers, labourers, bricklayers and electricians employed by subcontractors engaged by the general contractor and the owner of the project. Counsel for the Labourers asserted that work on the building commenced on the east wall where the general contractor erected its own scaffolding. George Stone & Sons Ltd. was bound by collective agreements with both the Carpenters and the Labourers. In accordance with those collective agreements, counsel submitted that George Stone & Sons Ltd. assigned the erection of its own scaffolding to members of the Carpenters with members of the Labourers tending to the crew performing the erection work. In essence, counsel for the Labourers claims that the general contractor assigned the work in dispute, when it was done by its own forces, to members of the Labourers. (We note that the description of the performance of the work on the east wall, which the Labourers contend was done before Aluma arrived at the job, was not disputed by either the Carpenters or Aluma.)
Aluma supplied and installed the scaffolding for the north wall of the building and for part of the west wall. Once Aluma completed the installation it was contracted to perform, it left the job site. The general contractor was responsible for the dismantling of the scaffolding material supplied and erected by Aluma. Once the work on the north and west walls was completed, the scaffolding was dismantled, moved and erected on the south wall by the general contractor. George Stone & Sons Ltd. used members of the Labourers and members of the Carpenters to perform the work of dismantling the scaffolding on the north and west walls and erecting the scaffolding on the south wall. Counsel for the Labourers contends that the general contractor assigned the work in dispute that had been done by an employee of Aluma to members of the Labourers when that work was done by employees of George Stone & Sons Ltd. Counsel for the Carpenters asserted that the work in dispute, when performed by the general contractor in relation to the erection of scaffolding on the south wall, was done by the apprentice member of the Carpenters who had been employed by Aluma and was then hired and worked as an apprentice member of the Carpenters as an employee of George Stone & Sons Ltd.
Counsel for the Carpenters submitted that in assessing area practice, the Board should have regard to scaffolding work only and to such work done by scaffolding contractors as opposed to scaffolding work done by general contractors or where the scaffolding work is only an element of the contract as is the case, for example, of masonry contractors. Counsel for the Labourers submits that there is no basis for focusing area practice so narrowly. Counsel argues that scaffolding work done in the ICI sector in Board area 21, the Board area in which Sault Ste. Marie is located, is the relevant area practice to which the Board should have regard.
Counsel for the Carpenters relied on Delsan Demolition Limited, [1993] OLRB Rep. Oct. 963 to argue that the Board should focus not on how scaffolding work is done by general contractors or by others who erect scaffolding as part of a broader contract but rather on how speciality scaffolding contractors assign the work in dispute. In Delsan Demolition Limited, supra, the Board viewed demolition work, although part of the ICI sector, as being distinctive, relying in part on the fact that the Minister of Labour saw fit to carve out the collective bargaining relationships in respect of demolition contractors from the Labourers' designation. The Board in that case described what took place as follows:
"In a new designation issued September 30, 1983, the Minister did recognize (amongst other matters) the ICI demolition was special, amending the prior Labourers' ICI designation to exclude from its application this particular bargaining relationship."
The exclusion of the demolition collective bargaining relationship from the general Labourers' designation and a subsequent designation of an employee bargaining agency "to represent construction labourers engaged in the wrecking, dismantling or salvage of buildings and structures in the industrial, commercial and institutional sector of the construction industry" (see page 967 of Delsan Demolition Limited, supra) caused the Board in that case to conclude that the distinct nature of demolition work ought to prompt the Board to focus on area practice in respect of demolition work in determining work assignment complaints and not to the area practice generally in the ICI sector. (In Delsan Demolition Limited, supra, the work in dispute related to the erection of wooden hoarding with a canopy.) The Board concluded at pages 967-968:
"Until now, the Board has not considered the parameters and significance of practice evidence in demolition project jurisdictional disputes. In other contexts, the Board has in recent years increasingly come to rely on the relevant employer and area practice in determining the correct assignment. . In our view, the Board's approach must be different when disputes arise over work performed on demolition projects. For the reasons recited above, demolition is an acknowledged, distinctive part of ICI construction. It follows that practice evidence related to demolition projects or sites will be of particular relevance. This relevant practice evidence will be, as it is here, the evidence of employer or area practice on demolition projects only. We see nothing in the current designation or construction industry practice which suggests that this demolition practice ought to be restricted to projects engaged in by speciality or demolition contractors."
There is no separate designation or recognition that scaffolding erection is a distinctive segment of the ICI sector of the construction industry. Furthermore, the Board in Delsan Demolition Limited, supra, clearly stated that even though it was prepared to narrow the area practice evidence of hoarding erection in relation to demolition projects, it was not going to restrict such evidence to the practice of specialty or demolition contractors. Thus, we are not prepared to accept the Carpenter's approach that we must look only to scaffolding jobs as opposed to scaffolding erection work that is undertaken as part of a broader contract. To do so would in effect limit the review, as a practical matter, to the work assignments of specialty scaffolding contractors, something the Board was not prepared to do in Delsan Demolition Limited.
Counsel for the Carpenters also relied on Clifford Masonry Limited, unreported, Board File No. 3093-92-JD, decision dated March 3, 1993, as an example of a contractor who was retained for scaffolding work only and was not a specialty scaffolding contractor. In Clifford Masonry Limited, the employer had assigned all of its scaffolding handling, erection and dismantling work to members of Local 506 of the Labourers' International Union of North America. The Board awarded the assignment of that work to members of Local 27 of the United Brotherhood of Carpenters and Joiners of America. Neither the parties nor the Board in that case sought to hive off the "tending" portion of the work. Although Clifford Masonry was not a specialty scaffolding contractor and would nevertheless be included if the Board were to adopt the Carpenters' suggestion about area practice, we do not accept that we ought to limit the review of area practice as sought by counsel for the Carpenters.
It is clear that the invariable practice of Aluma throughout the province is to use members of the Carpenters to perform all of the work it carries out with the only exception being in the Sarnia area. Counsel points out that even in the Sarnia area, the work in dispute in this case is performed by members of the Carpenters. In Doug Chalmers Construction Limited, supra, the Board noted at page 608 that "...all work at the point of erection, including the tying on and hoisting of materials is part of the erection work assignment to carpenters."
Counsel for Aluma pointed out that where a general contractor performs scaffolding erection with its own employees, the work in dispute may be done by members of either or both the Carpenters and the Labourers. Counsel submitted that the practice of Aluma is to have the apprentice assist in the erection work and therefore must be part of the crew comprised of members of the Carpenters. While acknowledging that general tending work (i.e. the movement of scaffolding material from a stockpile or storage area on the project to an inspection and fabrication point and the movement of scaffolding material from the inspection and fabrication point to the point of erection) is properly assigned to members of the Labourers, the balance of the work associated with the erection of the scaffolding, including the work in dispute in this case, is properly assigned to members of the Carpenters.
Counsel for the Labourers argues that in the Sault Ste. Marie area (Board area 21) the area practice for the work in dispute is to have it assigned to members of the Labourers. Counsel submits that the distinction between general tending and trades tending simply does not apply in Board area 21. All tending work in relation to the erection of scaffolding in Board area 21 is done by members of the Labourers. As counsel for the Labourers' points out in the brief filed, the area practice in the ICI sector, limited as it is to only a few jobs, has members of the Labourers tending to the Carpenters. Prior to Aluma arriving on the project, the general contractor had erected scaffolding using members of the Carpenters to do the erection work with members of the Labourers performing the work in dispute. The same type of assignment prevailed after Aluma completed its erection work.
It is apparent to the Board that there is no clear dividing line between the two trades in connection with the tending of carpenters engaged in the erection of scaffolding. There is overlapping jurisdiction over the work in dispute. Indeed, the Labourers' brief contained a statement from a member of the Labourers who had been doing tending work at the Holiday Inn restoration project who said: "For the south wall, labourers dismantled the scaffolding from the north wall, and moved it to the south wall where it was re-erected by carpenters, tended by labourers. A carpenter's apprentice also aided in the tending of the carpenters." [emphasis added] The Board understood from the submissions of the parties that there is some sharing of the work in dispute between members of the Carpenters and members of the Labourers, particularly where a general contractor who employs members of both trades is responsible for the erection of the scaffolding. But where, as here, only a single trade performs the work in dispute on an ICI project, that trade in Board Area 21 is the Labourers.
Which trade should perform the work two or more trades claim is their work is best determined by the affected parties themselves, (the unions claiming the work and the employer assigning the work) but when that does not happen, the parties may invoke either the dispute resolution processes they have established privately or the Board's process under section 99 of the Act. While it would be relatively easy for the Board to confirm an employer's work assignment except where such an assignment is unreasonable, the approach the Board takes in work assignment complaints arising in the construction industry recognizes the historical claims of the trades in the construction industry and how they themselves have dealt with the assignment of work where two or more trades claim jurisdiction over that work. The historical evolution of how work is performed when more than one trade claims jurisdiction over such work is a principal reason area practice is such a significant factor in determining the appropriate assignment of work. In our opinion, area practice is the best evidence of how the trades affected have divided up the work available to their members.
The Board need not analyze the usual factors that are used in determining work assignments under section 99 of the Act. There are numerous cases that set them out. In this case skill and ability, trade agreements and union constitutions, and collective bargaining relationships are neutral and do not point to either of the two trades. Employer preference clearly is in favour of the Carpenters in view of Aluma's invariable practice throughout Ontario to have carpenters to perform all of its work in relation to the erection of scaffolding. Economy and efficiency, Aluma submits, tends to favour confirmation of its assignment to the extent that if its employee (apprentice carpenter) is not fully occupied bundling and hoisting material to the rest of the Aluma crew doing the erection, than that apprentice can assist the crew in performing erection functions. The area practice in Sault Ste. Marie, to the extent it exists, clearly favours assigning the work in dispute to members of the Labourers.
In Ecodyne Limited, [1997] OLRB Rep. March/April 197 the Board dealt with a work assignment dispute in Board area 21 in relation to tending of carpenters erecting a cooling tower. The Board commented on the approach taken in assessing the relevant factors. At page 201 the Board wrote, after noting that the employer had used labourers to tend carpenters some twenty years earlier in connection with the erection of a cooling tower in Board area 21:
"Ecodyne's employer practice in the rest of the province is quite different in the sense that it appears that it has used members of the Carpenters' Union to tend carpenters; that is, carpenters have tended themselves. Employer practice can be of important consideration, except where it is at odds with the established area practice....
Further, Ecodyne's only previous cooling tower job in the District of Algoma [Board area 21] was performed in a manner which is consistent with what appears to be the practice in that area, and which is inconsistent with the company's practice in other parts of the province. In these circumstances, we consider it appropriate to give less weight to Ecodyne's practice outside of the District of Algoma."
Much of the same considerations apply in this case. It was clear from the material filed that the Labourers in Board area 21 actively pursue jurisdictional claims in relation to tending work in relation to scaffolding erection. As a result the Labourers have established an area practice of carrying out the work in dispute despite the practice and preference of the specialty contractors from other parts of the province who come in to Board area 21 and perform scaffolding erection work. Furthermore, we simply observe that the general contractor on the job used principally members of the Labourers to perform the work in dispute both before and after Aluma was on the project. In our view, it is not for the specialty contractor who is on a project for a relatively short period of time to change the assignment of work established for that project. Rather, where there is an established area practice and there was, as here, a job of work to be done (which was done by an apprentice employed specifically to perform the work in dispute) then in our view the correct assignment of that work was to a member of the Labourers.
In our opinion, having regard to all of the relevant considerations and in particular, to the area practice in the ICI sector in Board area 21 and to the prior assignment of the work in dispute on the project, the Board declares that the work in dispute, that is the tending of members of the carpenters employed by Aluma to erect scaffolding on the north and west walls of the Holiday Inn restoration project in Sault Ste. Marie (other than the work of unloading the scaffolding material from the Aluma delivery vehicles and immediately placing it at the base of the walls) should have been assigned to a member of the Labourers.