Labourers’ International Union of North America v. Calvin E. Construction Ltd., 2000 CanLII 4152

2262-98-G Labourers’ International Union of North America, Applicant v. Calvin E. Construction Ltd., Responding Party.

2306-98-U Greater Toronto Sewer and Watermain Contractors Association, Applicant v. Labourers’ International Union of North America, Local 183, Responding Party v. International Union of Operating Engineers, Local 793, Heavy Construction Association of Toronto, Calvin E. Construction Ltd., Spiniello Companies and New Tide Investments Limited, Intervenors.

2558-98-M Greater Toronto Sewer and Watermain Contractors Association, Applicant v. Labourers’ International Union of North America, Local 183, Responding Party.

BEFORE: D. L. Gee, Vice-Chair.

APPEARANCES: Richard J. Charney and Sam Morra for Greater Toronto Sewer and Watermain Contractors Association; Mark Lewis, Roger J. Quinn and Jack Oliviera for Labourers’ International Union of North America, Local 183; no one appearing on behalf of Calvin E. Construction Ltd.; Richard J. Charney and Lloyd Gass for Spiniello Companies; Ben Barnes for International Union of Operating Engineers, Local 793; no one appearing on behalf of New Tide Investments Limited; no one appearing on behalf of Heavy Construction Association of Toronto.

DECISION OF THE BOARD; March 22, 2000

1. Board File No. 2262-98-G is a referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”) in which Labourers’ International Union of North America, Local 183 (“Local 183”) asserts that work performed by Calvin E. Construction Ltd. (“Calvin”) under the terms of the collective agreement between the Metropolitan Toronto Sewer and Watermain Contractors Association and a Council of Trade Unions acting as the representative and agent of Teamsters Local Union 230 and Local 183 (the “Sewer and Watermain Collective Agreement”) should have been performed under the terms of the collective agreement between the Heavy Construction Association of Toronto and Local 183 (the “Heavy Collective Agreement”). The project in issue in the grievance was located at the corner of Keele Street and Blaydon Avenue (the “Blaydon project”). Calvin was engaged on the project as a subcontractor to Main Rehabilitation Co. Ltd. The project involved the cement relining of watermains. Calvin has not yet filed a response in Board File No. 2262-98-G, however, there is no dispute that Calvin takes the position that the work was properly performed under the Sewer and Watermain Collective Agreement. The Greater Toronto Sewer and Watermain Contractors Association (“GTSWCA”), the accredited employers’ association party to the Sewer and Watermain Collective Agreement, has indicated its intention to intervene in Board File No. 2262-98-G and supports Calvin’s position that the work was properly performed under the terms of the Sewer and Watermain Collective Agreement.

2. On October 6, 1999, GTSWCA filed an application under section 96 of the Act which, amongst other things, alleges various violations of the Act and seeks a declaration that the work performed by Calvin in issue in Board File No. 2262-98-G is in the sewers and watermains sector of the construction industry. GTSWCA’s section 96 application was assigned Board File No. 2306-98-U. Subsequently, a second board file, Board File No. 2558-98-M was opened based on the understanding that GTSWCA’s application was two separate applications: an unfair labour practice complaint (Board File 2306-98-U) and an application for a sector determination (Board File No.

2558-98-M). As a result of developments following the filing of Board File No.

2306-98-U many of the allegations set out therein are no longer being pursued. As a result, the essence of Board File No. 2306-98-U is a request for a sector determination. Thus, there is little if any difference between Board File Nos. 2306-98-U and 2558-98-M. As a result, both of these files will be referred to for the remainder of this decision collectively as the “section 166 application”.

3. In its section 166 application, GTSWCA requests that the Board make a determination with respect to sector prior to enquiring into the grievance referral. In response, Local 183 objects to GTSWCA’s request that the sector dispute be heard in advance of the grievance referral on the basis that the core dispute is not what sector various tasks performed by Calvin fall within but rather what collective agreement should be applied to such work.

4. On March 16, 2000, a hearing was conducted in connection with these matters for the purpose of hearing a motion by Local 183 that the Board not entertain the section 166 application but rather, list the grievance referral for hearing. The only parties to participate in the proceedings were Local 183, GTSWCA and the International Union of Operating Engineers, Local 793 (“Local 793”). Local 793 took no position with respect to how the Board ought to rule on the motion.

5. As indicated above, the work in dispute was carried out in connection with a project that involved the cement lining or relining of watermains. Article 3 of the Heavy Collective Agreement provides in part as follows:

(b) It is agreed that this agreement applies to all work falling within the Heavy Engineering Sector in Ontario Labour Relations Board Area 8 performed by members of the bargaining unit including but not limited, to the construction, reconstruction, demolition, construction maintenance, rehabilitation and repair of the following:

15. Cement lining of watermains.

[emphasis added]

6. Article 2 of the Sewer and Watermain Collective Agreement provides in part as follows:

2.01 The Association on behalf of each of the Employers recognizes the Council as the collective bargaining agent for all employees save and except non-working foremen and persons above the rank of non-working foreman, of the Employers being contractor member companies listed in Schedule “D” hereto and all other Employers of employees on behalf of whom the Association bargains pursuant to its Accreditation Certificates while working in the County of Simcoe and Board Area 8 in the Sewer and Watermain Industry including construction, reconstruction, demolition, construction maintenance, rehabilitation and repair of same as per accreditation order save and except cement concrete lining or relining of watermain.

[emphasis added]

7. The GTSWCA does not dispute that the Heavy Collective Agreement covers the actual cement lining and relining of watermains and that the Sewer and Watermain Collective Agreement does not. The GTSWCA does not take issue with the ability of the Heavy Construction Association of Toronto to negotiate terms and conditions relating to cement lining and relining of watermains. The crux of the dispute is whether work carried out in connection with a cement lining or relining project, beyond the actual lining or relining, is covered by the inclusion in the Heavy Collective Agreement and the exclusion from the Sewer and Watermain Collective Agreement. The GTSWCA describes the work in dispute thusly:

(a) digging, sheeting and shoring watermain excavations;

(b) replacing watermain valves, tees, bends and fire hydrants;

(c) laying temporary “bypass” watermains;

(d) cutting into existing watermains;

(e) performing water services work; and

(f) watermain cleaning.

8. The Board had the benefit of thorough submissions from both counsel for Local 183 and GTSWCA on the issue of whether the Board ought to entertain the section 166 application. Numerous documents and case authorities were filed with the Board. I do not intend to set out the parties’ arguments.

9. The issue before the Board is not whether the Board has jurisdiction to entertain the section 166 application. The Board’s jurisdiction to do so is not in dispute. The issue is whether, given the issues in dispute and what assistance conducting a sector determination may or not be to resolving such issues, a section 166 application ought to be entertained by the Board.

10. The issue has its genesis in the grievance filed by Local 183 against Calvin. Local 183 asserts that work Calvin performed on the Blaydon project is covered by the terms of the Heavy Collective Agreement. Calvin and the GTSWCA assert that the work is covered by the terms of the Sewer and Watermain Collective Agreement. The parties agree that the project involved cement relining of watermains. The parties agree that cement relining of watermains is covered by the Heavy Collective Agreement and not by the Sewer and Watermain Collective Agreement. The parties disagree on the scope of work included within the term “cement relining of watermains”. GTSWCA asserts that the only work included within “cement relining of watermains” is the actual relining itself. Local 183 asserts that all work performed in connection with a cement relining project is included within the scope of “cement relining of watermains”. The issue is thus one that will be resolved by interpreting the meaning and scope of “cement lining of watermains”.

11. In contrast, the issue would not necessarily be resolved by making a determination as to which sector the work in dispute falls. While a determination that the work falls within the heavy engineering sector may result in the GTSWCA withdrawing from the grievance proceedings, it may not. Given the possible implications of an arbitrator’s ruling with respect to the scope of the term “cement lining of watermains” to its own collective agreement, GTSWCA may, even in the face of an adverse sector determination, have a continuing interest in the grievance proceedings. A determination that the work falls within the sewers and watermains sector would not be determinative of the issues in dispute. Following such a determination, the grievance referral would proceed to a hearing. For the reasons discussed below, not only would a determination that the work falls within the sewers and watermains sector not be determinative, it may not even be of any utility to the arbitrator in the course of his or her determination concerning the proper scope of “cement lining of watermains”.

12. Thus, while the Board accepts that there is a dispute between GTSWCA and Local 183 concerning the issue of which sector the work in dispute falls, it is not a dispute that, once resolved, would be dispositive of the issues in dispute in the grievance referral and does not require resolution prior to the Board being able to make a determination in the grievance referral.

13. I turn then to consider whether there is some other benefit to be gained by entertaining the section 166 application. GTSWCA submits that a determination as to sector would be a useful tool for the arbitrator to have in the course of interpreting the collective agreement language. GTSWCA submits that the collective agreement language is a derivative of the accreditation certificate which is in turn a derivative of the scope of the sewer and watermain sector. The difficulty with GTSWCA’s argument is that, as GTSWCA acknowledges, its accreditation order does not cover the entire sewers and watermains sector. The accreditation certificate issued to the GTSWCA excludes, inter alia, employers performing work “in accordance with past or existing practices as at the date hereof” under the Heavy Collective Agreement. Thus, the work could fall within the sewers and watermains sector and yet, because it was, as of the date of the accreditation certificate, performed in accordance with past or existing practices under the Heavy Collective Agreement, be excluded from the GTSWCA’s accreditation certificate. What the GTSWCA truly seeks is a determination as to whether the work is covered by the GTSWCA’s accreditation certificate. That enquiry would not be answered by a sector determination. Further, the GTSWCA acknowledges that its collective agreement does not cover the entire sewers and watermains sector. Having regard to the foregoing, it is apparent that a determination that the work in dispute is in the sewers and watermains sector would not tell us if the work was covered by the GTSWCA’s accreditation certificate and would be of minimal, if any, assistance to a determination concerning the scope of the collective agreements.

14. GTSWCA further submits that a sector determination is necessary in order to resolve ongoing labour relations problems and to avoid problems that will otherwise arise at the collective bargaining table at the next round of bargaining. As indicated above, the grievance referral presently before the Board does not present a labour relations problem arising out of a sector dispute. The dispute at issue in the grievance referral is a dispute arising under a collective agreement. Further, the present issue was identified by the GTSWCA prior to the last round of bargaining and there is no suggestion that any uncertainty that surrounds the issue resulted in insurmountable bargaining disputes. There is simply no basis for the Board to conclude that the issue is, at the present time, creating, or is certain to create, serious labour relations problems. In any event, as outlined above, given the exclusions from the GTSWCA’s accreditation order, even if the Board were to entertain the application and make a sector determination, the GTSWCA would not have the determination that it is seeking, namely whether the work in question is covered by its accreditation certificate.

15. Having regard to the foregoing, it is my determination that there is presently no useful purpose to be served by enquiring into the section 166 application. The grievance referral can be determined without the need to determine which sector the work in dispute falls within. There are no pressing labour relations disputes that would be resolved by virtue of the Board making such a determination.

16. The Registrar of the Board is hereby directed to list Board File No.

2262-98-G for five days of hearing in consultation with counsel for Local 183, Calvin E. Construction Ltd., the Greater Toronto Sewer and Watermain Contractors Association and the Heavy Construction Association of Toronto. My direction with respect to the parties with whom the Registrar is to consult in the course of setting hearing dates is in no way intended to be a determination as to who is entitled to participate in the hearing with respect to the grievance referral. Any party, including Calvin E. Construction Ltd., that wishes to participate in the hearing conducted in relation to Board File No.

2262-98-G is hereby directed to file a response with the Board no later than 20 calendar days in advance of the first day of hearing. Board File Nos. 2306-98-U and 2558-98-M are hereby dismissed.

17. I am not seized.

“D. L. Gee”

for the Board