Ontario Labour Relations Board
File No.: 0955-99-JD Date: March 16, 2000
United Brotherhood of Carpenters and Joiners of America, Local 446, Applicant v. Ecodyne Limited; and Labourers’ International Union of North America, Local 1036, Responding Parties.
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
APPEARANCES: James Nyman and Gil Scott for the applicant; Carl Peterson and Paul Holmes for Ecodyne Limited; Andrea Bowker and Bill Suppa for Labourers’ International Union of North America, Local 1036.
DECISION OF THE BOARD
1This is a jurisdictional dispute complaint filed pursuant to section 99 of the Labour Relations Act, 1995 (the "Act").
2This dispute arises from the assignment of work to members of the applicant, the United Brotherhood of Carpenters and Joiners of America, Local 446 (the "Carpenters") by the responding party, Ecodyne Limited ("Ecodyne") at the Prax-Air project in Sault Ste. Marie, Ontario. The responding party, Labourers’ International Union of North America, Local 1036 (the "Labourers") asserts the work in dispute should have been assigned to its members.
3The Carpenters and Ecodyne describe the work (including the portion being claimed by the Labourers as follows:
Renovation of a cooling tower located at Praxair in Sault Ste. Marie, Ontario;
The tear out and scrapping of portions of the frame of the cooling tower;
Associated clean-up.
4Fred Clement, the Carpenters’ Local 446 steward on site, in his written statement describes the work in dispute in the following terms:
- removed all of the plastic fill and wood slats
- removing wood roof decking
Mr. Clement referred to the entire project as upgrading of cooling tower.
5The project involved two cells of a cooling tower. The plastic fill or poly-grid was to be replaced by a new material described as Accu-Pac, film fill media.
6The Labourers agree with the description of the work performed on the project as set out in Mr. Clement’s statement. The applicant states the materials torn out and scrapped included:
- louvers, "fins", grids, roofdecks, siding and interiors support framing.
7It is the Labourers’ position that none of the materials removed from the cooling tower were reused and that this work is demolition work. The Labourers assert the area practice in Sault Ste. Marie establishes that this kind of work is work that falls under the jurisdiction of the Labourers. Counsel for the Labourers refers to a letter from the Sault Ste. Marie Construction Association dated July 22, 1999 which states: "we confirm that the area practice in regard to assigning the dismantling and removal of construction materials which are not intended for reuse is to assign the work to members of the Labourers Union." The letter goes on to name four contractors who are bound to both collective agreements in the ICI.
8The Labourers filed a statement by Wayne Scott, President of Labourers Local 1036 who defines what work is "demolition" work. He goes on to describe various demolition projects and includes a list of demolition jobs. These jobs are primarily blast furnace relines where the labourers removed the bricks. One project involved stripping of forms. There were no jobs listed that involved water towers.
9The Labourers base their claim on the basis that this is demolition work and that the area practice in Sault Ste. Marie is to assign that work to the Labourers.
10The company and the Carpenters assert this work is not demolition work. It is not disputed that when these towers are built in the province of Ontario the work is done by the Carpenters. The exception is Board Area No. 21 (District of Algoma) where the Board in an earlier Ecodyne decision found the work of tending carpenters and general clean-up work at the Sault Ste. Marie Algoma cooling tower project is to be assigned to Labourers. (See Ecodyne Limited, [1997] OLRB Rep. March/April 197)
11The materials that were removed described as fill trays were attached to the wooden structure of the tower by nails. The polygrid fill trays and the roof deck had to be removed in a manner that did not damage the supporting wooden structure.
12Some repair work was done to the wooden structure. The statement of Mr. Clement describes the progress of the work as follows:
Once the upper decking was removed on the cell being worked on, the carpenters installed new joists and decking as well as a new fan and its components. In the meantime some carpenters were starting to install new siding. Other carpenters finished removing the old fill, installed additional 2x6 joists and 2x4s to support the new plastic fill. In the meantime the labourer continued to do his daily clean-up outside the tower.
13Counsel for the Labourers submits the old system is garbage. It is being replaced with a new system. There is nothing special about the fact that the old system was nailed to the structure, or otherwise attached, that takes it out of the work jurisdiction of the Labourers. The gutting of a structure attached to a building which maintains its integrity is demolition. The area demolition practice shows that labourers tear out bricks and remove them for scrap. This work is the very same type of work. The cooling towers were gutted, the structure was maintained but otherwise gutted to allow the new system to be installed by the carpenters. The work is similar to the theatre building in the local mall which was gutted. The labourers do that work using crowbars and prybars to tear out old walls that are being replaced as part of the refurbishing.
14Counsel for the Labourers submits that this work was a renovation. However the work of installing the new film fill media was not going on at the same time as the removal of the old trays and rotten wood. They were separate steps. They were two separate tasks.
15With respect to the invoices provided by Ecodyne in support of their position of having done this work in the past counsel for the Labourers submits the first invoice does not give a lot of information and appears to be repair work as opposed to tearing out any materials. Counsel further notes the Labourers had obtained bargaining rights for Ecodyne only recently (in 1972) the job was done in 1973.
16The second job in 1988 was for three days and the applicant was not aware of that job.
17Counsel for the Labourers referred to paragraphs 23 and 24 of Ontario Hydro, [1993] OLRB Rep. Nov. 1167 for the proposition that the Board should not give much weight to assignments of work made without the other union’s knowledge.
18This is exactly what happened here Counsel for the Labourers submits. The work was done in a structure covered with siding. When Ecodyne was there doing minor repairs inside without the knowledge of the labourers union that practice cannot be relied on against the Labourers.
19Counsel for the Carpenters takes the position this is an operating tower. When one cell is closed the second cell operates and then the process is reversed. The systems are functioning.
20One of the functions performed by the carpenters who were removing the materials was to determine whether there was structural damage to the tower. If there was any structural damage, the damaged area was to be removed and replaced with new building materials.
21Counsel for the Carpenters submits the letter from the Sault Ste. Marie Construction Association is of little use for the purpose of establishing area practice. Construction materials can mean anything.
22With respect to the statement from Mr. Scott, counsel for the Carpenters points out the list of jobs contains only one job referring to carpenters and labourers. However there is nothing in the material provided by Mr. Scott that would support the proposition that which the carpenters install they would not remove.
23The company’s materials show its practice throughout the province is to use carpenters exclusively to perform this work. This work has been performed for a long period of time in this area and throughout the province by carpenters. Counsel for the Carpenters submits that raises the issue of what is the area practice in a case such as this. The claim by the Labourers that everytime something is removed and scrapped it is demolition work, is too broad. It fails to take into account the way the construction industry is organized and the way some contractors are organized who specialize in certain types of work. It is not good enough to say there is nothing to distinguish a movie theatre from a water cooling tower from a blast furnace or a vacant building. Counsel referred the Board to Foster Wheeler Limited, [1989] OLRB Rep. Feb. 128 where the Board limited the area practice to a particular work in the province of Ontario. Counsel submits this is supported by the language in the Act which refers to particular work in section 99.
24Counsel for the Carpenters submits the Board should uphold the assignment to the carpenters in this particular case.
25Counsel for Ecodyne supports the submissions made by the Carpenters. Counsel went on to say that the Labourers established their practice of tending carpenters in an earlier jurisdictional dispute based on two previous occasions where the labourers claimed the work in the Sault Ste. Marie area of tending to the carpenters. However in this dispute the Labourers have no area practice of doing this type of work in the Board Area No. 21 or in the rest of the province. Counsel submits work performed on blast furnaces has no relevance to this dispute.
26Ecodyne is a water cooling tower expert. Ecodyne constructs them, repairs them, economically and safely. Counsel submits the Foster Wheeler, supra, analysis is correct and the Board should apply it in these circumstances.
27Like Foster Wheeler, supra, there are not a lot of water cooling tower repair jobs. It is a fairly irregular event. The Labourers have no evidence of doing any repair work on cooling towers in the Sault Ste. Marie area. The employer practice is 100% in support of the carpenters doing this work for a number of years. The size of the repair jobs should not be taken into account when looking at area practice. Just because it is a small job it does not mean it should not count as practice. Counsel for Ecodyne pointed out the two earlier cooling tower repair jobs in the area was work done on the same jobsite if not the exact same cooling towers.
28Counsel for the company asserts the work is repair. There is nothing being demolished or gutted. The tradesmen that constructed it are fixing it. The carpenters determine whether trays have to be removed, whether there is structural damage that needs to be repaired. The labourers concede the carpenters install the temporary platform (and remove it).
29It is practical and economical for the carpenters to do this work. The persons taking out the trays have to determine whether they need to be taken out and whether the structural members holding the trays are sound. It is not practical to have the labourers do all that work and then send a carpenter to go over the structure again to see if there is any damage or to replace joists.
30The materials used when the tower was built needed to be replaced. The material used to replace the old trays is a new product.
31Counsel for Ecodyne submits the area practice and employer practice as well as economy and efficiency support the assignment to the carpenters. The party asking for the assignment to be changed must have some compelling or convincing evidence. The Labourers have no evidence, no practice and it is not their core jurisdiction.
32Counsel for Ecodyne further states that the assignment should stand and Sault Ste. Marie will be in step with the rest of the province and the practice of this employer who is doing most of the construction and repair of cooling towers.
33Counsel for the Labourers asserts there was no mention in the submissions of carpenters inspecting the structure while removing the trays. Counsel objects to the reference of repair and submits the work was described as replacement and removing. It was an upgrading of an old system. All of the fill was removed and replaced with the new fill. Counsel referred to an earlier jurisdictional decision involving the same parties Ecodyne Limited, supra, and Nicholls-Radke Ltd. an unreported decision referred to in paragraph 17 of the earlier Ecodyne decision in support of the Labourers position as to what criteria the Board should consider. The Nicholls-Radke decision states ..."the Board has consistently given little or (usually) no weight to practice in a different sector or to practice of employers other than the employer which assigned the work in dispute outside of the area."
34Counsel for the Labourers referred to Aluma Systems Canada Inc., [1999] OLRB Rep. Mar. 142 as to what area practice is. Aluma is a scaffolding contractor and the Board rejected the carpenters’ position to only look at scaffolding contractors for the purpose of area practice.
35It is the Labourers position that the scale of the jobs and the purpose (of the two earlier jobs) were quite different.
36The Labourers submit their agreement identifies demolition as part of the labourers’ claim. The Labourers have a specific demolition designation. This indicates that this work is the core jurisdiction of the construction labourer. The carpenter’s collective agreement claim relates to dismantling things that are to be reused. Just because it was installed by a carpenter it does not mean they have the jurisdiction to remove it. Counsel submits this work is at the core or the jurisdiction of the construction labourer. It is not claimed by the carpenters in their collective agreements.
37Counsel for the Labourers submits the area practice supports the claim of the Labourers and the Board should give effect to that claim in Board Area 21.
38Counsel for the Carpenters submits in Ecodyne, supra, and Aluma, supra, the reason area practice trumped was because the very same work was performed in that particular Board Area using labourers. This is not the case here. It is the employer’s practice that is determinative in this case. This is an attempt by the labourers to use a broad based claim for demolition to claim particular work with respect to a particular employer where it has not done this work in this Board Area or in the province by any of the sister locals.
39Counsel for the employer submits Mr. Clement’s statement of how the work was done should not be read in the way the Labourers interpret but rather should be considered in light of the project. The cooling tower is seven stories high. Mr. Clement’s description is not necessarily a blow by blow description of how the work was done. He was not working alone.
DECISION
40The cooling towers were build by carpenters. On two previous occasions some repair work was performed which involved removing materials that were worn and replacing them in Board Area 21. It is not disputed that Praxair used to be Union Carbide. They are located at the same address.
41The work in issue was performed in the ICI sector. Unlike the two previous occasions the work performed in 1999 involved replacing all of the trays. The structure itself remained in tact. The system remained in operation. It was shut down one cell at a time to allow for the work being performed. The trays were attached to the wooden structure and had to be removed one level at a time.
42The Labourers rely on the Demolition Designation to bolster their area practice claim for demolition work as well as the letter from the Sault Ste. Marie Construction Association.
43The Labourers rely on their definition of what demolition is – it can be described as anything that is not reused and is removed or torn out or dismantled is demolition work and must be done by a labourer.
44This seems to contradict the proposition that the trade that puts it up takes it down especially in an operating facility. If the Labourers are correct in their definition of demolition then for example when a window is broken and the glazier has to replace one window (or 100 windows) then a labourer has to first knock out or break out the broken glass which is to be discarded. We think not.
45The work that gave rise to this dispute is in the ICI sector. There is no suggestion that it should have been done under the demolition collective agreement. The job is an upgrading job. While doing the dismantling or removing of trays the carpenters are also in a position to inspect the wooden structure for deterioration and repair any structural parts.
46The letter from the Sault Ste. Marie Construction Association is sufficiently generic to be of little use. Area practice resulting from work performed under the formwork agreement or work jurisdiction between the bricklayers and labourers is of no assistance. That work may well be covered by trade agreements or collective agreement provisions which are not applicable to the work in dispute.
47This leaves us with the employers practice and a minimal area practice in support of the assignment. Economy and efficiency support the assignment.
48The Board finds the assignment to the carpenters is the correct assignment.
"Inge M. Stamp"
for the Board