Labourers’ International Union of North America, Local 1089 v. Chalmers Construction Ltd.
0496-96-G, 0497-96-G Labourers’ International Union of North America, Local 1089, Applicant v. Chalmers Construction Ltd., Responding Party v. United Brotherhood of Carpenters and Joiners of America, Local 1256, Intervenor.
BEFORE: Gail Misra, Vice-Chair, and Board Members J. Knight and G. McMenemy.
APPEARANCES: A. M. Minsky and Robert Leone for the applicant; Richard Drmaj and Doug Chalmers for the responding party; N. L. Jesin and Ron Carlton for the intervenor.
DECISION OF THE BOARD; March 28, 2000
These are two construction industry grievances referred to arbitration under section 133 of the Labour Relations Act, 1995 (the “Act”).
At the request of the applicant, the grievance referral in Board File No. 0497-96-G is withdrawn with leave of the Board.
The parties agreed at the outset that the Board should render its decision in Board File No. 0496-96-G based on the evidence called, but that the parties would reserve the right to call evidence regarding the damages issue until after the issuance of a decision in this matter. They requested that this panel of the Board remain seized for that purpose.
In Board File No. 0496-96-G the applicant (the “Labourers”) grieved on March 27, 1996 that the responding party (“Chalmers”) had violated the collective agreement in that it failed to hire labourers from Local 1089 between March 11, 1996 and April 26, 1996, to perform labourers’ work tending carpenters at scaffolding at the Sunoco site in Lambton County. The Labourers is claiming that from March 11 on Chalmers had crews of two carpenters working on scaffolds without any labourers tending while there were labourers available on both the day and night shifts to do the work. By way of remedy the Labourers is seeking an admission that Chalmers is bound to the collective agreement with the Labourers and payment for all time lost for labourers as a result of the alleged violation of the collective agreement.
There is no dispute that Chalmers is bound to the Provincial I.C.I. collective agreement between the Labourers’ International Union of North America, Ontario Provincial District Council, and the Employer Bargaining Agency which includes the Labour Relations Bureau of the Ontario General Contractors Association. The term of the collective agreement in question was from May 1, 1995 to April 30, 1998.
Some context is necessary in order to comprehend the issue in dispute, the backdrop against which the Board will decide this grievance, and why it has taken so long for these grievances to be dealt with. In 1992 the Labourers filed an application concerning a jurisdictional dispute which resulted in the Board decision of January 29, 1993 in Board File No. 2214-92-JD. For some time there appear to have been no further problems. In 1996 the Labourers filed a spate of grievances including those being addressed in this decision. This time Chalmers filed an application concerning a jurisdictional dispute (Board File No. 1450-96-JD) and consideration of the grievances was deferred pending the disposition of that dispute. After the Board issued its decision on May 8, 1997, further grievances were filed and a third application concerning a jurisdictional dispute was filed (Board File No. 4462-97-JD). The Board, after a lengthy effort at mediating a solution, issued a decision in that jurisdictional dispute on July 2, 1998. The Labourers requested reconsideration and on September 1, 1998 a decision issued dismissing the reconsideration request. By that time there were about 15 outstanding grievances before the Board, some dating back to 1996. It was only after the third jurisdictional dispute decision had been issued and confirmed that the grievances began to be dealt with. Since then the Board has had to deal with various preliminary issues, and is only now getting to the heart of each grievance.
Given the timing of the grievances before this panel, the first two jurisdictional dispute decisions are of some import as they form the background against which the Board must reach its decision.
In a decision dated January 29, 1993 the Board addressed a Labourers’ application concerning a jurisdictional dispute between the Labourers, Carpenters and Chalmers (Doug Chalmers Construction Limited, Board File No. 2214-92-JD, Petryshen, Reaume, Kobryn). The decision will be referred to as the “January 1993 decision”. The work in dispute in that case was the handling from base of scaffolding, erection and dismantling, of scaffolding at the Suncor project (the parties used the names “Sunoco” and “Suncor” interchangeably). Chalmers had assigned the erection and dismantling of scaffolding to members of the Carpenters. The Labourers argued that the work should have been assigned to a composite crew of labourers and carpenters. Tending was not part of the work in dispute. The Board found that “the erection and dismantling of scaffolding shall be assigned to carpenters, with labourers tending”. The Board’s decision did not address what the Board believed the tending assignment included given that tending was not part of the work assignment dispute. This decision appears not to have been a model of clarity for the parties involved as it led to grievances and successive jurisdictional disputes after its issuance.
The grievance presently before the Board arose after the January 1993 decision. In 1996 a second application concerning a jurisdictional dispute was filed, this time filed by Chalmers. In Board File No. 1450-96-JD the work in dispute was the work of tending carpenters working on scaffolding, and the supervision of such work at five specific projects, including the Sunoco site. The decision with respect to this jurisdictional dispute issued on May 8, 1997 (Surdykowski, Reaume, Redshaw) and will be referred to as the “May 1997 decision”. The Board decided that Chalmers had to assign at least one construction labourer to tend carpenters on all of the scaffolding jobs in issue, and permitted Chalmers to add additional labourers to tend carpenters as it considered appropriate. The Board did not interfere with Chalmers’ work assignment regarding the supervision of tending work.
In calling its evidence in this grievance, the union summoned Mr. Doug Chalmers, the President of Chalmers, as a witness. A large part of Chalmers’ business in Lambton County is the erection of scaffolding. It is bound to collective agreements with five unions in the civil trades, including the Labourers and the intervenor (the “Carpenters”). Most of the scaffolding work done by Chalmers in the Sarnia/Lambton area is in the petrochemical industry.
Since some time in the 1990’s Sunoco has had a Procurement Document with Chalmers for the provision by Chalmers of maintenance scaffold services to Sunoco for a year at a time. It is a rollover contract that essentially renews itself annually so long as Sunoco is satisfied with the work Chalmers does. Pursuant to the document Chalmers has undertaken to supply all supervision and manpower as required by Sunoco to perform maintenance scaffold erection or removal, and other carpentry duties on the Sunoco Sarnia refinery site. Chalmers undertook to utilize Sunoco-owned scaffold in the most efficient manner possible in order to reduce the need to incur rental costs for scaffold. It was also required to maintain a flexible work force that would be reviewed daily by Sunoco. Sunoco issues to and takes back from Chalmers a daily permit in order that Chalmers’ crews can be on the refinery site.
In accordance with the Procurement Document Chalmers maintains a flexible work force to work at Sunoco. Persons not in use on a crew at Sunoco are not at the site as that is the only way in which Chalmers can make efficient use of its personnel.
Mr. Chalmers conceded that in March 1996 Chalmers assigned labourers to scaffold work where, in its discretion, it thought it appropriate to do so. The on-site Chalmers managers determined the composition of the crews. At that time Chalmers was using the traditional tube and clamp scaffolding about 50% of the time, but was using systems scaffold the remaining 50% of the time. Systems scaffold has between 30 to 40 per cent less pieces than does tube and clamp scaffold, so it cuts down carpenters’ work by about one third, and there is even less work for labourers because there is simply a lot less sorting and carrying to be done. Systems scaffold is becoming the most commonly utilized type of scaffolding in the industry.
A stockpile of scaffold parts is maintained at the Sunoco site. For tube and clamp scaffold there would be piles of different sizes of clamps and of aluminium tubes. There would also be various lengths of planks. Systems scaffold is arranged on racks which each hold a set of a number of items which can be fitted together without clamps. All parts are colour coded to assist in assembly. Forklifts can move the racks from the storage area to the particular work site. A tilt and load truck can also be used to drop a whole flat bed loaded with the racks to an area where the scaffold will be built. A forklift can then move the racks from the bed to the workface. Chalmers always utilizes the forklifts of the company it has been contracted by, at the place of its operation, and conforms to whatever is the plant practice regarding which trade will operate the forklift. Operating Engineers or Teamsters union members commonly do this work.
Mr. Chalmers testified that Chalmers began to use systems scaffolding in the late 1980’s. It had this type of scaffolding on consignment at first, and eventually bought it. In 1996 or 1997 Chalmers removed all of its tube and clamp scaffolding from the Sunoco site and has been using systems scaffolding since. Initially Sunoco did not want to get into systems scaffolding, but in 1996 it converted all of its own scaffolding to systems. Chalmers bought the tilt and load truck in 1996. It can be used to get systems scaffolding quite close to a work site, if not right up to it.
If Suncor wanted to move a scaffold, it could have its operating engineers move and drop it at the new desired location, so labourers were not needed. If Chalmers had to bring a small amount of scaffolding from its yard, that may be dropped at the erection point by members of the Teamsters union and it would be put up by carpenters. Again, labourers would not be called for in such a case. In cases where a very small scaffold had to be erected, two carpenters, who would then erect the scaffold, usually brought the pieces to the site in their own pick-up truck. A labourer may or may not be used on such a crew. Where a job required that tube and clamp scaffold be moved from the main stockpile of scaffold parts to a sub-stockpile, labourers were utilized to do the work. If Chalmers had three crews working in close proximity to each other, it would have one labourer tend all three.
In the May 1997 decision the Board had noted that only on 19% of all crews were labourers not utilized. Mr. Chalmers agreed that 19% was a representative number of scaffolds on which no labourer would have been used for the period in question. Chalmers has no records that could indicate what percentage of scaffolds erected between March and May 1996 would have been self-tended by two or three person carpenter crews. However, Mr. Chalmers testified that the 19% total figure includes those cases in which Operating Engineers or Teamsters brought the scaffold to the point of erection. In those cases there would be no need for a labourer.
Since Chalmers’ work from Sunoco flows from the Procurement Document, it has no documentation regarding the actual scaffolds put up in the March to May 1996 period. Chalmers simply receives a total of the hours for each trade every week and it bills accordingly. The only time that Chalmers’ office is aware of a particular scaffold is when its foreman at the Sunoco site calls and asks for an engineer’s assistance regarding that scaffold. This is an uncommon occurrence and there is no evidence that Chalmers was particularly aware of any of the scaffold jobs during the time about which the union is grieving.
Mike Medeiros is a union steward for the Labourers at the Suncor site. He has been working at that site for about 10 years. He recalls the period in question in the union’s grievance and that labourers were not used on some crews where two carpenters were working. He thought that there had been five such instances: At Plant No. 1; and at vessels 11V101, 0V159, 15V144, and 12V06. He also thought there had been two or three further instances of two-person carpenter crews working without labourers during the September 1996 shutdown, but he could not be more specific.
DECISION
The issue to be decided is whether the Board should uphold the Labourer’s grievance and if so, should it award the Labourers damages for the loss of work as a result of Chalmers’ decision not to assign any labourers to the scaffolding jobs about which the union is complaining.
The Board does not find the January 1993 decision to be of any assistance in determining what tending work labourers should have done. Tending was not a part of the work in dispute in that case. What appears to have happened is that the Board confirmed Chalmers’ assignment of work and did not accept the Labourers’ contention that the particular work in dispute, the erection and dismantling of scaffolding, should have been assigned to a composite crew of labourers and carpenters. Therefore, Chalmers continued to assign work, as it had previously, sometimes with labourers on the crew, sometimes without labourers if the crew was small and it believed that no tending was required.
That gave rise to the grievance before this panel of the Board. Chalmers then filed the second jurisdictional dispute application because it needed some clarification. The Board was very clear in its May 1997 decision that all it was addressing was “the tending and supervision of tending from the base of the scaffolding” (see para. 17). It also noted in para. 17 that:
… The nature of tending work is such that there could, for example, be a dispute between the Labourers and the Teamsters or Operating Engineers over the assignment of certain kinds or components of tending work. This complaint raises no issue of work jurisdiction as between either the Teamsters or Operating Engineers, and either the Labourers or the Carpenters with respect to the particular tending work in dispute or tending work in general, and nothing in this decision should be construed to be a comment on the distribution of tending work other than that specifically in issue in this complaint.
- At para. 28 of the decision the Board further clarified what it was addressing and stated:
Let us remember what we are talking about here: essentially the manual handling of scaffolding materials up to or down from the carpenters who are either erecting or dismantling scaffolding, as the case may be. …
The Board then went on to find that Chalmers should “assign at least one construction labourer to tend the carpenters on all of the scaffolding jobs in issue” (see para. 45). It is in this context that the grievance before the Board must be decided. Most of the union’s evidence before the Board is of little assistance in reaching a decision as it is related to how scaffold parts are brought to the work site.
The Board finds that the Labourers has satisfied its onus of proving that there were a number of scaffolding jobs in the relevant period wherein only carpenters were assigned to the jobs. Chalmers has conceded that on about 19% of the scaffolding jobs it did not utilize any labourers. It has not challenged the Labourers’ evidence regarding the jobs Mr. Medeiros testified about where there were two or three person carpenter crews which worked on scaffolds where no labourer was assigned to the crew. The obvious conclusion is that the carpenters must have tended themselves, as no labourer was assigned to each of the jobs in question. Therefore, Chalmers did not assign “at least one construction labourer” to all scaffolding jobs. In light of the Board’s May 1997 finding regarding the assignment of the tending work from the base of the scaffold, we uphold the grievance. It is not necessary for the Board to know what the nature of each job was as the May 1997 decision found that at least one labourer should be assigned to all scaffolding jobs.
We turn now to the issue of whether damages should be awarded in this case. In this panel’s decision of October 1, 1999, the Board articulated the test to be applied with respect to damages in this type of case. It is unnecessary to reproduce the entire discussion and review the jurisprudence again here. Suffice it to say that all parties were agreed upon the test as the Board has applied it in the past. An employer should not be subject to damages for lost wages because of its incorrect assignment of work where it has considered the relevant factors and made a reasonable assignment at the time (even if the Board later finds that to be an incorrect assignment). However, if an employer is found to have acted arbitrarily in making an assignment, has disregarded established area practice, or ignored Board decisions regarding the correct method of assignment, the Board may award damages. The Board notes that the foregoing is not an exhaustive list of the circumstances in which it may award damages, but for the purposes of this decision, it is sufficient.
In the Board’s view the January 1993 decision was not a very clear articulation of how Chalmers should assign work. That work assignment issue was not specifically about tending work, and there is no reference to a particular ratio of carpenters to labourers on scaffolding jobs. It is not surprising to this panel that Chalmers continued as it had previously. It was only after the second jurisdictional dispute decision issued in May 1997 that it became clear to everyone involved that there should be at least one labourer assigned to every scaffolding job. We do not believe this was something that could have been in the reasonable contemplation of the employer prior to the issuance of that decision. Furthermore, there is nothing to suggest that Chalmers was acting arbitrarily in its decision not to assign a labourer to a two-carpenter job, it simply felt it was a question of efficiency. In these circumstances it was not until after the Board made its May 1997 decision that it was clear what the work assignment should be. For all of the above reasons the Board is of the view that this is not a case in which it should award damages.
To summarize, the Board upholds the union’s grievance regarding the non-assignment of labourers to scaffolding jobs, as outlined in this decision, and declares that Chalmers has breached the collective agreement with the Labourers. However, the Board declines to award damages in this case.
In accordance with the Board’s earlier decision regarding the order of proceeding with these grievances, the next grievance to be dealt with will be Board File No. 1167-97-G. This panel is seized.
“Gail Misra”
for the Board