Ontario Labour Relations Board
[1999] OLRB REP. MARCH/APRIL 193
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
BEFORE: D. L. Gee, Vice-Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD; April 19, 1999
1These matters are applications concerning work assignments in which the Labourers' International Union of North America, Local 183 (the "Labourers") sought a Board determination that the work in issue should have been assigned to its members. By decision dated February 5, 1999, the Board determined that the work in dispute in both applications was properly assigned to members of the Carpenters & Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America (the "Carpenters"). The Labourers has filed a request that the Board reconsider its decision on the basis that the Board failed to properly follow and apply its "well-settled and relevant" criteria for the adjudication of jurisdictional disputes and that the Board "ignored the evidence before it and/or made findings inconsistent with it". The Heavy Construction Association of Toronto supports the Labourers' request. Both the Carpenters and Ellis-Don Ltd. oppose the request.
2It is a trite proposition that the Board has the discretion to consider whatever factors it considers relevant in the course of determining a jurisdictional dispute. The following excerpt from Elecon Electrical Contractors Inc., [1995] OLRB Rep. May 645 is repeatedly quoted by the Board in its decisions concerning work assignments:
- In complaints concerning work assignments, the Board generally considers the factors first discussed almost thirty years ago in Canada Millwrights Ltd., [1967] OLRB Rep. May 195:
- collective bargaining relationships
- trade union agreements between the competing parties
- area practice
- employer practice
- safety, skill and training
- economy and efficiency
(more recently, see Acco Canadian Material Handling, [1992] OLRB Rep. May 537, Electrical Power Systems Construction Association, [1992] OLRB Rep. August 915, Vic West Steel, [1993] OLRB Rep. March 256; Application For Judicial Review to the Ontario Court of Justice (Divisional Court) dismissed June 1, 1994, [1994] OLRB Rep. June 803; Groff & Associates Ltd., [1994] OLRB Rep. July 846).
- The Board's jurisdictional dispute jurisprudence demonstrates that this is not an exhaustive list of factors. It is neither possible to make an exhaustive list, nor appropriate to mechanically apply some formula or list of factors to a jurisdictional dispute complaint. Accordingly, in every case, the Board considers those factors which it considers relevant to the particular jurisdictional dispute before it, which may include some or all of those factors listed above, or others which are not. Some of the six factors listed above will be of little assistance in any given case. For example, in recent years, the jurisdictions asserted by construction trade unions in their various collective agreements (and in their constitutions) have become so broad that they are of little assistance, particularly in cases where the employer which made the disputed work assignment is bound to collective agreements with all of the competing trade unions. Because of the historical developments of the division of work in the construction industry in a craft or trade basis, and the ever-increasing overlap between the construction trades in the work jurisdictions which they assert, the Board has recognized that collective bargaining relationships cannot, by themselves, be determinative of a jurisdictional dispute complaint. Consequently, while a trade union which has no applicable collective agreement with the employer which assigned the work in dispute is likely to have a difficult time in having that assignment altered, a trade union which has a collective agreement with the assigning employer will not necessarily be successful in fending off a claim for work by a trade union which has no collective agreement with that employer (Brunswick Drywall Limited [1982] OLRB Rep. Aug. 1143, Pigott Construction Limited, [1992] OLRB Rep. June 748 ("Pigott #2"); but see, Groff & Associates Ltd., supra, at paragraphs 19 and 20) so long as the issue is one of work jurisdiction and not one of representation (Simcoe Mechanical Contracting Ltd., [1982] OLRB Rep. Sept. 1335). On the other hand, a single factor may be determinative of ajurisdictional dispute complaint. Work jurisdiction trade agreements provide one example of a factor to which the Board has given great weight, especially in recent cases (Pigott #2, supra, Ellis-Don Limited, [1993] OLRB Rep. Nov. 1130, the various decisions in Kora Mechanical Inc., [1992] OLRB Rep. June 640 and March 3, 1993, April 26, 1993, June 14, 1993, July 12, 1993 and November 8, 1993, all unreported). Similarly, although the Board has determined jurisdictional dispute complaints in favour of a trade union which the area practice did not favour (Simcoe Mechanical Contracting Ltd., supra, K-Line Maintenance & Construction Limited, [1979] OLRB Rep. Dec. 1185), area practice has more and more often been the determining factor (Ilena Construction Company Limited, [1974] OLRB Rep. Nov. 775, Acco Canadian Material Handling, supra). Indeed, the Board has said that:
"It is the rare and unusual complaint in which the Board does not attach significant and primary weight to area and employer past practice"; and that
"The real crux of most jurisdictional disputes revolves around the two past practice criteria."
(Electrical Power Systems Construction Association, [1993] OLRB Rep. Nov. 1130.
The emphasis on past practice is reflected in the time and energy devoted to the practice factors in jurisdictional disputes proceedings before the Board.
3What the above quote aptly articulates is the fact that there is no formula for determining the outcome of a jurisdictional dispute. At best, the Board can list the factors that will most likely be of assistance to it in the course of determining the proper assignment of the work. What factors the Board will consider and what weight will be given to each factor depends on the individual circumstances of each case.
4Further, it is a trite proposition that the factors usually considered by the Board are not defined terms. For example, there is no definition of the terms "employer practice" or "area practice". Rather, the Board, on a case by case basis, considers the evidence and/or submissions before it, makes a determination of what is relevant to its determination of what the "employer practice" or "area practice" is, and, based on the "relevant" evidence, determines which trade union the factor in question favours. In determining what is relevant, the Board considers all of the circumstances in issue before it. It is simply not possible nor desirable to create a watertight definition of the factors the Board considers or a definitive list of what factors the Board considers, as such would restrict the Board's ability to be responsive to a unique industry.
5Thus, the Board has not, as suggested by the Labourers, defined employer or area practice so as to restrict the practice evidence it considers on a temporal basis. There will certainly be instances where to do so is appropriate, however, for the reasons stated by the Board in its February 5, 1999 decision, it is the Board's determination that it is not appropriate to do so in this case.
6Nor has the Board defined area practice so as to require the Board to give weight to the practice evidence pertaining to single-union contractors. What weight is given to such evidence is determined on a case by case basis. In the instant case, to give weight to the area practice evidence of single union contractors (which is a practice developed in circumstances where the Carpenters were completely unable to challenge the assignment of the work to the Labourers) would swamp the area practice of contractors who had contractual relations with both unions (and hence developed in an environment where both unions had an opportunity to claim the work). In the circumstances of the instant case, where there is area practice evidence of contractors in contractual relations with both unions, it is the Board's view that that evidence is most relevant to a determination of which union the area practice factor favours.
7Concerning the Labourers' submission that the Board failed to consider the evidence before it and/or made findings inconsistent with it, we do not agree. Counsel for the Labourers is correct in his assertion that he referred the panel to the Bridge Code and the Board's decision in Dufferin Construction Company, Board File Nos. 1067-88-G, 1068-88-G and 1465-88-JD, dated August 31, 1992, unreported, in support of his argument that work on bridges is different from other work on reinforced concrete structures in the heavy engineering sector. The quote relied upon from Dufferin Construction Company highlights that, aside from the void forms, the materials used on the construction of bridges is common to that used in other heavy engineering construction. The quote further indicates that unlike a terminal building, hotel, parking garage or office building, the specifications of building a bridge are not determined by the Ontario Building Code. Rather, the specifications of building a bridge are determined by the Bridge Code. The decision does state that the "construction techniques, materials and equipment" and "variety of skills" used to build a bridge were dictated by the specifications in the Bridge Code. The decision does not indicate, however, how they differ, if at all, from the specifications under the Ontario Building Code, or, more importantly, the nature of any such differences. Absent any submissions as to how performing work to specifications set out in the Bridge Code, differs from performing work to specifications set out in the Ontario Building Code, in a fashion that would warrant the assignment of the work to potentially different trades, the mere fact that a bridge is built under the Bridge Code as opposed to the Ontario Building Code, does not warrant the consideration of bridge work in isolation of other work in the heavy engineering sector of the construction industry.
8This panel of the Board was not required to follow the manner in which past panel's of the Board have applied various factors in the course of determining a work assignment dispute. Further, the decision of this panel in the instant matter does not represent a significant departure from the manner in which the Board has applied the factors it typically considers in work assignment disputes. The Board reached its determination after considering all of the evidence and submissions before it. It was, and remains, the Board's determination, after weighing all of the relevant factors and making an assessment as to which factors are most significant, that the work in dispute was properly assigned to members of the Carpenters.
9The request for reconsideration is denied.