Labourers' International Union of North America, Local 837 v. Doug Chalmers Construction Limited, 1999 CanLII 20167

Ontario Labour Relations Board

[1999] OLRB REP. NOVEMBER/DECEMBER 996

4373-98-G; 0426-99-JD; 1141-99-G; 1847-99-G Labourers' International Union of North America, Local 837, Applicant v. Doug Chalmers Construction Limited, Responding Party v. United Brotherhood of Carpenters and Joiners of America, Local 18, Intervenor; United Brotherhood of Carpenters and Joiners of America, Local 18, Applicant v. Doug Chalmers Construction Limited, and Labourers' International Union of North America, Local 837, Responding Parties.

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

APPEARANCES: N. L. Jesin and C. Calligan for United Brotherhood of Carpenters and Joiners of America, Local 18; A. M. Minsky and Manual Bastos for Labourers' International Union of North America, Local 837; Richard Drmaj and Doug Chalmers for Doug Chalmers Construction Limited.

DECISION OF THE BOARD; November 9, 1999

I. Board File No. 0426-99-ID is a complaint under section 99 of the Labour Relations Act, 1995 (the "Act"). Board File Nos. 4373-98-G, 1141-99-G and 1847-99-G are referrals of grievances to arbitration that have been adjourned pending the outcome of Board File No. 0426-99-JD.

2. During the period of March 13 to 29, 1999, Doug Chalmers Construction Limited ("Chalmers") was engaged by Imperial Oil Limited at the Esso Refinery Plant located in Nanticoke, Ontario (located in Board Area 5) to erect and dismantle scaffolding required at the C.R.U. Heaters 103, 105 and 106. Chalmers assigned all aspects of the work to members of the United Brotherhood of Carpenters and Joiners of America, Local 18 ("Carpenters Local 18").

3. The Labourers' International Union of North America, Local 837 ("Labourers Local 837") claims that its members should have been assigned to tend the carpenters who erected and dismantled the scaffolding. The work in dispute is described as:

1. Establishing main and sub-stock piles of scaffolding materials including:

(a) the manual loading or off-loading of trucks; and (b) the carrying of materials by hand to stockpiles.

2. Handling materials from the stockpile to the point of erection at the base of the scaffold including:

(a) carrying by hand;

(b) pulling by cart or wagon;

(c) loading or off-loading;

(d) tying on or off of scaffold materials to point of erection at the base of the scaffold;

(e) tying on or off of scaffold materials for carpenters to draw up;

(f) handing up of scaffold materials; and

(g) the operation of any pulleys.

4. Labourers Local 837 asserts that main stockpiles were established 150, 75 and 60 yards respectively from Heaters 103, 105 and 106 and that sub-stockpiles were established a distance of 110, 50 and 15 yards respectively from the heaters. Chalmers and Carpenters Local 18 assert that the scaffolding materials were delivered and dropped in a stockpile adjacent to the point of erection such that there was no tending work performed. There was no suggestion that the panel should not entertain this complaint on the basis that the work in dispute was not performed.

5. Chalmers is one of the largest specialty scaffold contractors in the Province of Ontario and has been involved for many years in the erection and dismantling of scaffolding on a number of sites throughout the Province. This jurisdictional dispute follows on the heels of three Board determinations concerning the assignment of tending work by Chalmers in Board Area 2 (see: Doug Chalmers Construction Limited, Board File No. 2214-92-JD, January 29, 1993, unreported ("Chalmers #1"); Doug Chalmers Construction Limited, [1997] OLRB Rep. May/June 385 ("Chalmers #2"); and Doug Chalmers Construction Limited, [1998] OLRB Rep. July/Aug. 594 ("Chalmers #3"), request for reconsideration denied [1998] OLRB Rep. Sept./Oct. 788).

6. The Board's determinations in Chalmers #1, #2 and #3 are not determinative of the instant matter. The trade union parties to the instant matter were not parties to the dispute in Chalmers #1, #2 and #3. As a result, the Board's determinations in those matters cannot be binding on these parties. Further, one of the factors considered by the Board in the course of determining a work assignment dispute is, generally, the practice of the geographic area in which the dispute arose. As indicated above, the dispute at issue in Chalmers #1, #2 and #3 arose in Board Area 2 whereas the instant dispute arose in Board Area S.

7. Having said that, the Board's determinations in Chalmers #1, #2 and #3 are not without significance. They concern the same employer. They concern the performance of work identical to that in dispute in the instant matter. They concern a dispute over identical work by, while not the same locals as in the present case, locals of the "Labourers" and the "Carpenters". Further, the Board's determination in Chalmers #3 was reached after a lengthy process which provided the parties with a much fuller opportunity than is usually available in the context of a jurisdictional dispute proceeding to inform the panel of the nature of the industry, technological advances that have been made in scaffolding and how such advances have affected work practices. During the course of the consultation held in connection with the instant matter, all of the parties referred to the previous Chalmers decisions and sought to convince this panel to either follow or depart from various findings and determinations made therein. All of the parties recognized that while the previous Chalmers decisions are not binding on this panel, they would be considered.

Chalmers #1, #2 and #3

8. In Chalmers #1, the Board, in a very short decision, rejected the assertion of Labourers' International Union of North America, Local 1089 ("Labourers Local 1089") that the erection and dismantling of scaffolding should have been assigned to a composite crew composed of labourers and carpenters. The Board ordered as follows:

The erection and dismantling of scaffolding shall be assigned to carpenters, with labourers tending.

9. Chalmers #2 concerned the issue of the proper assignment of the tending of carpenters working on scaffolding. Given that the issue had been a source of conflict between the parties dating back to 1990, Chalmers asked the Board to not only affirm the correctness of the particular work assignments in issue, but also asked the Board to resolve the broader issue of future assignments. For reasons given by the Board at paragraphs 6 through 11 of its decision, the Board declined to make any orders concerning future work assignments. The Board determined the dispute in accordance with its usual approach. It enumerated the factors typically considered by the Board in work assignment disputes and applied them to the case before it.

10. The Board concluded that the factor of skill, training and safety favoured neither union. The Board found that tending work was at the core of the work jurisdiction claimed by labourers and was not at the core of the work jurisdiction claimed by carpenters such that the collective agreement/ constitutional factor slightly favoured the labourers. The Board noted that while there was no consistent practice of either employing or not employing labourers to tend carpenters engaged in erecting or dismantling scaffolding in Board Area 2 either generally or by Chalmers, the evidence did establish that labourers had established a claim to tending work such that the factors of employer and area practice favoured the labourers. The Board stated that Chalmers' economy and efficiency argument could not be allowed to trump the other factors and could only serve as a tie breaker. As the labourers had a superior claim to the work based on the trade union constitutions and collective agreements, an agreement between Chalmers and the Labourers Local 1089, and the area and employer practice factors, the factor of economy and efficiency was not applied. The Board thus concluded that a consideration of the relevant factors established that Labourers Local 1089 had a tending work jurisdiction in Board Area 2.

11. In the normal course, the determination that a trade has jurisdiction over particular work would be the end of the matter. However, the Board was of the view that while contractors in Board Area 2 had assigned a labourer to tend carpenters on the vast majority of the scaffolding jobs, such was not always the case. There was also evidence of jobs where Chalmers and scaffolding contractors in general had been permitted considerable discretion with respect to assigning additional labourers to tend carpenters. In order to have the result reflect the practice, the Board determined as follows:

12. In that respect, the Board considers it appropriate to require that Chalmers assign at least one construction labourer to tend the carpenters on all of the scaffolding jobs in issue, and to permit Chalmers to add additional labourers to tend carpenters, as it considers appropriate.

13. Unfortunately, within months of the Board's decision in Chalmers #2, a number of grievances were filed alleging, amongst other things, that Chalmers was refusing to accept or comply with the Board's decision. A panel of the Board chaired by the same vice-chair that chaired the panel that heard Chalmers #2, was assigned to hear the grievances. As indicated in paragraph 13 of Chalmers #3, the dispute concerning the assignment of tending work continued to exist between the parties. After mediation efforts failed, pursuant to the joint request of all of the parties, a further work assignment consultation held.

14. As indicated above, the consultation held in respect of Chalmers #3 followed the vice-chair of the panel having engaged in extensive mediation efforts with the parties. As a result, the parties had a much fuller opportunity to present evidence and submissions than is usual in a work assignment consultation.

15. Having taken a fresh look at the issue, the panel determined that it was appropriate for the Board to depart from its usual approach to jurisdictional disputes. The Board noted that it had a substantial amount of information concerning area and employer practice, however, suggested that area and employer practice may be dependent upon the size and type of scaffolding being erected or dismantled and the environment in which the scaffolding work was being performed. Having regard to the fact that considering such factors would result in a potentially unlimited number of scaffolding classifications, each with a different work assignment, the Board determined that it was not appropriate to approach the dispute by emphasizing area or employer practice.

16. The Board identified the issues before it as, firstly, what tending consists of and, secondly, where the work jurisdictions of labourers and carpenters intersect. The first question was answered at paragraphs 51 and 52 as follows:

17. 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 (see paragraph 46, above). 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. That is, not all handling of materials is tending work which is in the construction labourers' work jurisdiction. The construction labourers' tending work jurisdiction is limited to the tending functions which are severable from the erection and dismantling work performed by the carpenter. This is consistent with the Board's decision in Ecodyne Limited, [1997] OLRB Rep. Mar./Apr. 197 where the Board determined that "the work of tending the pairs of carpenters", which appears to have been in the nature of general tending work, should have been assigned to construction labourers.

18. The amount of construction labourer tending work associated with a particular scaffolding 'job" (which consists of all of the work associated with the erection and dismantling of an individual scaffold) will depend on the kind, size and components of the scaffold, and the environment in which the scaffold is being erected or dismantled. Accordingly, there may be much or very little construction labourer tending work associated with the scaffolding job, perhaps as little as none.

19. In order to determine where the work jurisdictions of labourers and carpenters intersect, the Board considered the factors that the Board typically considers in the course of determining a work assignment dispute. The Board determined that the collective agreement factor favours the labourers' claim to general tending work and the carpenters' claim to tending work that cannot be rationally severed from the erection and dismantling functions that the carpenters perform. The Board gave no weight to the factors of employer and area practice on the basis that it was the idiosyncrasies of individual jobs that was the most significant determinant of the amount of construction labourer tending work. An agreement between Chalmers and Labourers Local 1089 which attached great significance to considerations of costs, efficiency and productivity was considered relevant as supporting Chalmers' plea that consideration be given to its economy and efficiency argument. The factor of skill, training and safety was viewed as supporting a conclusion that the handling portion of the erection and dismantling work performed by carpenters is properly considered to be a part of that work. The Board stated that economy and efficiency were to be given greater weight than the Board had afforded them in Chalmers #2. The Board commented that it found the photographs, video of the Safway systems scaffolding and the descriptions of how scaffolding work is performed to be very helpful.

20. Having regard to the above determinations as well as the Board's comments in Tilechem Limited, Board File No. 1880-88-JD, July 14, 1982, unreported, wherein the Board gave consideration to the factors of economy and efficiency in a dispute concerning the erection of scaffolding, the Board determined that a labourer will only be required to tend carpenters where there is sufficient general tending work available to fully occupy a labourer for a minimum of four hours during a single shift.

Turning to the Instant Matter

18. As indicated above, this matter is between different parties that those involved in Chalmers #1, #2 and #3. It arises in a different Board Area. However, the collective agreements and the trade union constitutions in issue are the same. The trades contesting the right to perform the work are the same. The employer is the same. The industry and means of performing the work are the same. The parties referred us to the same videos, photographs and charts outlining technological developments in the scaffolding industry as were referred to the panel of the Board that considered Chalmers #3. No evidence or submissions were presented to the instant panel that was not considered by the panel that determined Chalmers #3 in relation to the factors of trade union constitutions and collective agreements, safety, skill and training, and economy and efficiency. It is the view of the instant panel, based on the evidence and submissions before us, that the conclusions reached by the panel in Chalmers #3 in relation to the factors of trade union constitutions and collective agreements, safety, skill and training, and economy and efficiency, are correct.

19. As a result, we adopt the conclusions reached by the panel in Chalmers #3 and apply them to the facts before us.

20. As indicated above, the instant matter concerns the identical collective agreements and trade union constitutions that were considered by the Board in Chalmers #3. We were presented with no additional evidence that was not considered by the Board in Chalmers #3. Labourers Local 837 advised the Board that it objects to the tending distinction developed by the Board in Chalmers #3 and asserted that there was nothing before the Board in the instant matter that should lead this panel to bifurcate the tending work as was done in Chalmers #3. Labourers Local 837 pointed out that, in the instant matter, neither Chalmers or Carpenters Local 18 requested that the Board divide tending work as was done in Chalmers #3.

21. In the instant case, Chalmers and Carpenters Local 18 asserted that members of Labourers Local 837 have no right to perform any tending work. Accordingly, Chalmers and Carpenters Local 18 did not advance an argument that this panel should follow the Board in Chalmers #3 and bifurcate the tending work. In our view, the failure of Chalmers and Carpenters Local 18 to advance such an argument, does not prevent this panel from doing so. The task of this panel is to consider the work in dispute and determine whether any, a portion, or all, of the work in dispute should have been assigned to members of the Labourers Local 837. The answer to the complaint before us does not have to be, as the parties have presented it, all to one trade or the other.

22. For the reasons expressed by the Board in Chalmers #3, it is our view that the division of the tending work described therein as between the labourers and the carpenters is appropriate. We find the factor of collective agreements and trade union constitutions to favour the assignment of general tending work to labourers and the assignment of tending work which cannot be rationally severed from the erection and dismantling functions to carpenters.

23. As indicated above, this matter concerns the performance of the same type of work by the same employer in an identical facility as was in issue in Chalmers #3. We were presented with no evidence that was not before the panel that determined Chalmers #3 with respect to the factor of safety, skill and training. In our view the determination reached by the panel in Chalmers #3 to the effect that the factors of safety, skill and training support the division of tending work described in the foregoing paragraph is correct. We see no reason to depart from such determination on the facts before us. Accordingly, it is our determination that the factors of safety, skill and training support the assignment of general tending work to labourers and the assignment of tending work which cannot be rationally severed from the erection and dismantling functions to carpenters.

24. Turning then to the factor of economy and efficiency, the work at issue in this case, the technology utilized in the performance of the work, the work environment and the employer, are all the same as considered by the Board in Chalmers #3. Without providing the Board with any description of how the work in dispute in the instant matter was performed, Chalmers asserts that the factor of economy and efficiency dictates that it not be required to assign any tending work to labourers. Labourers Local 837 asserts that the factor of economy and efficiency should not be given significant weight by the Board and, in any event, Chalmers has presented no evidence going to the issue of economy and efficiency.

25. At paragraph 62 of Chalmers #3, the Board stated as follows:

26. Our analysis of the work in dispute, and of the other factors or considerations as aforesaid, leads us to conclude that it is appropriate to give, economy, efficiency and employer preference greater weight than the Board was prepared to do in Doug Chalmers Construction Limited, supra. In that respect, the Board finds the photographs, the video of the Safway systems scaffolding, and the descriptions of how scaffolding work is performed very helpful. The Board has also considered the Labourers' response in that respect, including its inability to satisfactorily answer the feather bedding concerns, to be significant.

27. The "other factors or considerations as aforesaid" referred to by the Board include the Board's conclusion that the detailed area practice approach adopted in most jurisdictional disputes was not appropriate in the case before it. As is discussed in greater detail below, we have found that the area practice approach is appropriate in the instant matter. However, all of the other factors considered by the Board in Chalmers #3 in the course of coming to its conclusion that the factor of economy and efficiency should be given significant weight are present in this case. The work in dispute is identical to that at issue in Chalmers #3; the same evidence that was before the Board in Chalmers #3 pertaining to how the work is performed is before this panel of the Board in connection with the instant matter; and Labourers Local 837 has still not provided an answer to Chalmers' efficiency concerns. As a result, it is our determination that it is appropriate to give weight to the factor of economy and efficiency and that such factor favours the Carpenters Local 18.

28. There are no agreements, trade or otherwise, in issue in the instant matter and accordingly this factor is neutral.

29. A number of issues arise in respect of determining which trade union the area practice evidence favours. First, Carpenters Local 18 and Chalmers both assert that the relevant area practice is that of contractors in both Board Areas 5 and 26 on the basis that, for the most part, both unions have jurisdiction in both Board Areas 5 and 26. Labourers Local 837 asserts that the relevant area practice is confined to Board Area 5. The Board has, on numerous occasions, indicated that the relevant area practice evidence is that of the area in which the work in dispute was performed (see: JD Ecodyne Limited, [1997] OLRB Rep. March/April 197). In the instant matter, the work in dispute was performed in Board Area 5. We are not persuaded that the fact that the two trade union parties to this dispute have common jurisdiction outside of the Board Area in which the work was performed warrants considering area practice evidence beyond Board Area 5. Accordingly it is our determination that the relevant area practice evidence is that within Board Area 5 alone.

30. Secondly, each of Carpenters Local 18 and Labourers Local 837 challenges the area practice evidence filed by the other.

31. In keeping with its argument that the relevant area practice evidence is that of both Board Areas 5 and 26, the Brief filed on behalf of Carpenters Local 18 contains lists of contractors that have performed work in both Board Areas 5 and 26 together with each contractor's total number of scaffolding hours. Labourers Local 837 argues that, as a result of failing to break the evidence down according to the relevant Board Area, namely Board Area 5, Carpenters Local 18 has filed no area practice evidence. Further, Labourers Local 837 takes issue with the fact that Carpenters Local 18 did not file any practice sheets prepared by contractors and failed to identify the projects that the contractors listed worked on.

32. The Brief filed by Carpenters Local 18 provides a list of contractors that have performed scaffolding work in both Board Areas 5 and 26 along with the total number of scaffolding hours each contractor has performed. Absent anything further, we would agree with Labourers Local 837 that such is not sufficient to constitute practice evidence with respect to Board Area 5. However, the Brief also indicates that most of the contractors listed therein had performed scaffolding work within the Esso Refinery Plant and on various construction sites throughout Board Areas 5 and 26. The Brief further states that the contractors listed utilized carpenters exclusively or almost exclusively to perform all fabrication, erection, and dismantling of scaffolding together with any necessary and ancillary tending work. While it certainly would have been clearer had the Brief simply stated as much, we are satisfied that the natural inference to be drawn from the Brief is that a significant number of the contractors listed had performed work in the very facility in which the work in dispute was performed, and at various projects within Board Area 5, and that no tending work was assigned to members of Labourers Local 837 by such contractors. We also agree with Labourers Local 837 that contractor practice sheets and a listing of the actual projects would have been much more compelling evidence, however, we note that Labourers Local 837 has a union steward in the Esso Refinery Plant and does not dispute that a significant number of the contractors listed by Carpenters Local 18 have worked in the Esso Refinery Plant or that they have assigned their scaffolding work exclusively to carpenters. Likewise, Labourers Local 837 does not dispute the assertion that many of the contractors are active in Board Area 5. In the absence of such a denial, we are prepared to accept the Carpenters' assertions without further particulars. In our view, the evidence presented by Carpenters Local 18 is sufficient to establish that specialty contractors, meaning contractors whose contract is limited to the performance of scaffolding work, have performed a significant amount of scaffolding work in the Esso Refinery Plant and Board Area 5 generally and have done so for the most part by utilizing carpenters exclusively.

33. Carpenters Local 18 challenges the practice evidence filed by Labourers Local 837 on the basis that it is practice evidence of general contractors. Carpenters Local 18 asserts that the relevant area practice evidence is that of specialty contractors. Carpenters Local 18 asserts that general contractors utilize labourers in connection with scaffolding projects in varying degrees and for varying purposes. It is asserted that the practice of general contractors is a direct result of the fact that they have numerous responsibilities on a site and have labourers present on the site for other purposes. It is thus a simple matter for a general contractor to assign a labourer, where one is available, to assist with a scaffolding project. In contrast, given that a scaffolding contractor is present on the project for the sole purpose of erecting and/or dismantling scaffolding and has no labourers otherwise engaged, it is neither economical nor efficient for a specialty contractor to utilize labourers. Further, given that Chalmers must compete against specialty contractors, who do not utilize labourers, it is the practice of specialty contractors that the Board should consider.

34. Labourers Local 837 asserts that the relevant area practice evidence includes that of general contractors. Relying on Aluma Systems Canada Inc., [1999] OLRB Rep. Mar./Apr. 142, Labourers Local 837 asserts that, in the past, the Board has not been prepared to accept the distinction being urged upon it in this case. The evidence presented by Labourers Local 837 establishes that general contractors in fact assign members of Labourers Local 837 to work on scaffolding projects in Board Area 5 in varying ratios with carpenters.

35. It is our determination that the more pertinent area practice evidence is, as argued by Carpenters Local 18, that of the specialty contractors. We are so persuaded for a number of reasons. First, the quantity of work performed by specialty contractors in Board Area 5 is not insignificant. While the exact quantity cannot be ascertained, it is fair to say, based on the assertions of Carpenters Local 18 which have not been disputed by Labourers Local 837, that there is a fair amount of scaffolding work being done in the Esso Refinery Plant, and in Board Area 5 generally, by specialty contractors who virtually always employ exclusively carpenters. This fact alone distinguishes the instant matter from Aluma Systems Canada Inc., supra, wherein there was no evidence of past practice by specialty contractors. Secondly, it is apparent that the specialty contractors have a virtually consistent practice of assigning the work in dispute to carpenters in contrast to the general contractors who have a practice of assigning the work to labourers and carpenters in varying ratios. Thirdly, we accept that the differing practices are the result of differing economies and efficiencies. A general contractor usually has labourers employed on the site for a variety of reasons and can thus efficiently assign a labourer to assist with scaffolding work for intermittent periods of time. On the other hand, a specialty contractor does not generally employ labourers and would face inefficiencies if required to have a labourer present solely or tending purposes.

36. The Board looks to the area practice evidence as an indicator of how the parties, left to their own devices, have determined the work in dispute ought to be performed. A resolution worked out by the parties is usually considered superior to anything that might be imposed by the Board. In the present case, the area practice evidence suggests that, for good reason, the contractors and trade unions that are involved in the erection and dismantling of scaffolding have worked out an arrangement in Board Area 5 whereby general contractors utilize labourers and specialty contractors do not. In our view, such arrangement ought to carry fairly significant weight.

37. Finally, we consider the factor of employer practice. Chalmers and Carpenters Local 18 rely on Chalmers' past practice in Board Area 5. It is asserted that Chalmers' past practice in Board Area 5 has been to assign all work in connection with scaffolding to carpenters. The Labourers Local 837 relies on Chalmer's past practice province-wide and asserts that it had no knowledge of any prior work Chalmers did in Board Area 5. Chalmers' past practice province-wide has been to assign labourers to work on scaffolding projects in some, but not all, cases. In those cases where labourers were assigned, they were assigned in varying ratios to carpenters.

38. In the usual course, the Board considers an employer's province-wide past practice, without restriction to the Board Area in which the work in dispute was performed (see: Nicholls-Radke Ltd., (unreported, Board File No. 4092-95-JD, July 15, 1996). Thus, in the instant case, the employer past practice factor favours the labourers. However, in the present case, where quite specific area practices have developed, defined by the nature of the contractor performing the work, it is our view that Chalmers' own individual practice developed outside of Board Area 5 is of less significance than the area practice evidence.

Determination

38. While the factors of collective agreements, safety, skill and training, and employer past practice favour the assignment of general tending work to Labourers Local 837, the factors of area practice and economy and efficiency, which in our view ought to be given the greatest weight, favour the assignment of all of the work in dispute to Carpenters Local 18. As a result, we hereby affirm the assignment of the work in dispute as made by Chalmers.