0333-01-R Carlos Ribeiro and Jose Oliveira, Applicants v. Labourers’ International Union of North America, Ontario Provincial District Council, Universal Workers Union Local 183, Responding Parties v. C.S.B.I. Contracting Ltd., Intervenor.
0334-01-R Carlos Ribeiro and Jose Oliveira, Applicants v. Labourers’ International Union of North America, Ontario Provincial District Council, Labourers’ International Union of North America, Local 506; Universal Workers Union Local 183, Responding Parties v. C.S.B.I. Contracting Ltd., Intervenor.
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: Ian Werker, Carlos Ribeiro and Jose Oliveira for the applicants; Carolyn Hart, Marcia Kredentser, John Cabral and Henry Pereira for the responding parties; David Cowling and Dwayne Staranchuk for the intervenor.
DECISION OF THE BOARD; December 11, 2001
These matters are two applications for termination of bargaining rights under section 63 or 132 of the Labour Relations Act, 1995 (the “Act”). Board File No. 0333-01-R is an application to terminate non-ICI bargaining rights (the “non-ICI application”) and Board File No. 0334-01-R is an application to terminate ICI bargaining rights (the “ICI application”).
This decision sets out the Board’s reasons for a bottom line ruling dated November 20, 2001 in connection with Board File No. 0334-01-R in which it determined that the project on which Mr. Ribeiro was employed on the date of application does not fall within the ICI sector of the construction industry and confirms an oral ruling given at the hearing held on November 25, 2001 to the effect that Mr. Oliveira is properly on the list of voters in Board File No.
0333-01-R.
Board File No. 0334-01-R
When these matters first came on for hearing on September 5, 2001, an issue arose in the ICI application as to whether the responding parties therein (the “Labourers”) would be permitted to challenge the applicants’ characterization of the work performed on the application filing date as work falling within the ICI sector of the construction industry. The Board ruled orally at the hearing that it would permit the Labourers to pursue such challenge. The Board’s reasons for its oral ruling are set out in a written decision dated October 3, 2001.
It is useful to outline the nature of the issue in dispute. In order for an individual to vote in a construction industry termination application, the individual must have been at work, performing bargaining unit work, on the date the application was filed. In the ICI application, the applicants and the intervenor assert that there was one person, Mr. Ribeiro, who was at work, performing work covered by the Provincial ICI Collective Agreement, on the date of application. It is not in dispute that Mr. Ribeiro was removing and replacing damaged tiles in a pedestrian tunnel that joins a shopping concourse with the subway (the “Project”). The Labourers assert that the Project falls within the heavy engineering sector, and not the ICI sector, of the construction industry. If such assertion is correct, it follows that no one was as work in the ICI sector of the construction industry on the application date and accordingly, the ICI application must be dismissed.
At the first day of hearing, following the Board delivering its oral ruling, the parties were directed to file written submissions with the Board with respect to the issue of what sector of the construction industry the Project is in and informed that, if it was possible for the Board to reach a determination based on the submissions filed, the Board would endeavour to provide the parties with the Board’s determination in advance of the next scheduled hearing date. The Board’s October 3, 2001 decision, containing its reasons for allowing the Labourers to raise the sector issue, confirmed the Board’s directions concerning the filing of written submissions on the sector issue and stated that the Board may determine the sector issue based on the materials filed.
Submissions were in fact filed by all of the parties pursuant to the Board’s direction. By decision dated November 20, 2001 the Board released a bottom line ruling stating that, for reasons to follow, it was the Board’s determination that the Project does not fall within the ICI sector of the construction industry. The Board’s reasons for its determination are as follows.
Section 110(18) of the Act empowers the Chair of the Board to make Rules to expedite proceedings to which the construction industry provisions of the Act apply. Subsection 110(20) provides that the Rules made under subsection 110(18) may provide that the Board is not required to hold a hearing and may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence and to make their submissions. Subsection 110(21) provides that Rules made under subsection 110(18) apply despite anything in the Statutory Powers Procedure Act.
Rule 76 of the Board’s Rules of Procedure provides that, in order to expedite proceedings, the Board may, on terms as it considers advisable, limit the parties’ opportunities to present their evidence or to make their submissions. Rule 77 provides that, having regard to the need for expedition in labour relations matters, where the Board is satisfied that a case can be decided on the basis of the materials before it, the Board may decide an application under the construction industry provisions of the Act without an oral hearing. Rule 114 reiterates that Rules 76 and 77 apply to construction industry proceedings.
Finally, section 166(4) of the Act empowers the Board to determine a sector application without holding a hearing.
Thus, the Act specifically empowers the Chair of the Board to make Rules that will serve to expedite proceedings. The Act specifically contemplates that the Chair would make Rules that would limit the extent to which the Board would otherwise be required to permit parties to present their evidence and make submissions. Such Rules have in fact been made and clearly state that the Board can decide a construction industry matter on the basis of the materials before it and without an oral hearing. The Board commonly determines construction industry matters without holding an oral hearing.
The present matter involves an application to terminate bargaining rights. It was filed on April 27, 2001. The parties have all been operating under the uncertainty of how this matter might be resolved for seven months. The employer needs to know the outcome of this matter in order to bid for jobs. The employees and the union are entitled to a timely determination of the issue of whether the union represents the employees or not. Further delay with respect to the final resolution of this matter is not in the interests of any of the parties. Accordingly, having regard to the need for expedition and, in order to expedite the proceedings, the Board directed the parties to file written submissions with respect to the sector issue and advised them that the Board may make a final determination based on such submissions. Upon review of such submissions, the Board determined that it was in fact able to determine the matter based on the written submissions filed and did so.
As indicated above, there is no issue that Mr. Ribeiro was performing construction work in a pedestrian tunnel which runs from the Sheppard Subway Station to the Federal Building at Yonge and Madison.
The Labourers assert that the project upon which Mr. Ribeiro was employed on the application date falls within the heavy engineering sector of the construction industry. The Labourers submits that the tunnel was initially constructed in 1979 by Starnino Construction Ltd. (“Starnino”) who employed labourers to build the tunnel under the Collective Agreement between the Labourers’ International Union of North America, Local 183 and the Heavy Engineering Construction Association of Toronto (the “HCAT Agreement”). In support of such assertion, the Labourers state that Roger Quinn was the Local 183 Business Manager assigned to monitor enforcement of the HCAT Agreement during the construction of the tunnel and that he visited the site numerous times during its construction. In addition, the Labourers attached to their submissions copies of remittance forms filed by Starnino that clearly indicate that Starnino was applying the HCAT Agreement to the project at all material times.
The Labourers described the construction of the tunnel as having been performed using the cut and cover method. The construction involved breaking up the road, excavating the ground, driving pilings into the ground, installing lagging, building forms, pouring concrete, covering the tunnel with earth and reconstructing the road.
The Labourers identified four contractors who built a total of 16 different pedestrian tunnels all of which were constructed by labourers under the HCAT Agreement and, in some cases, by carpenters under the Heavy Construction Agreement with the Carpenters and Allied Workers, Local 27. It is asserted that there was never any dispute that any of the tunnels, including the tunnel in question in the instant matter, fell within the heavy engineering sector of the construction industry when they were built or subsequently when repair work was performed.
The scope clause of the current and previous HCAT Agreement covers the repair of tunnels. The relevant portion reads as follows:
3(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:
(6) Tunnels, save and except cable conduits (utilities), pipeline and sewer and watermain tunnels.
The applicants and intervenor assert that the project that Mr. Ribeiro was working on the date of application falls within the ICI sector of the construction industry.
CSBI Contracting Ltd. (“CSBI”) states that it did not have engineered drawings associated with the project and there was no use of heavy equipment. CSBI asserts that it is not a contractor that performs the construction of bridges or other civil construction, rather, it engages in repair and restoration work in the ICI and residential sectors. It is asserted that Mr. Ribeiro has performed similar work on projects where there was never an issue that the work was within the ICI sector. CSBI asserts that it has never performed a project or work under the HCAT Agreement.
CSBI filed a copy of a grievance filed by the Labourers’ International Union of North America Local 506 (“Local 506”) in which Local 506 asserts that the project in question was covered by the terms of the Labourers’ Provincial ICI Collective Agreement (the “ICI Agreement”). It was not until the first day of hearing in this matter that the Labourers asserted that the project fell within the heavy engineering sector of the construction industry. Up until September 5, 2001, all parties had taken the position that the project was an ICI project.
The applicants describe the work performed by Mr. Ribeiro as non-structural superficial repairs to remove and replace damp ceiling tiles. It is stated that Mr. Ribeiro worked with hand tools, primarily a crowbar. Mr. Ribeiro removed debris in bags that he carried through the concourse and placed in his van. Mr. Ribeiro used a light portable scaffold to reach the ceiling. He used no heavy equipment. As far as Mr. Ribeiro was aware, his hours and union dues in connection with his work were remitted under the ICI Agreement.
The applicants assert that they put the Labourers to the strict proof of the facts asserted. The applicants do not put forward any basis on which they dispute the facts asserted by the Labourers’ nor do they put forward a different version of such facts. In the circumstances, the Board sees no reason to doubt or require the Labourers to prove the facts as asserted in their submissions. Likewise, the Board accepts the facts as stated by the applicants and CSBI in their respective submissions.
The main dispute between the parties appears to be whether it is appropriate to focus on the initial construction of the tunnel, or the construction work performed by Mr. Ribeiro in the tunnel on the application date, when defining what sector of the construction industry the Project falls within. It is the Board’s determination that it is appropriate to focus on the initial construction of the tunnel to determine sector and not the subsequent work performed by Mr. Ribeiro. It is simply not in the interests of labour relations stability in the construction industry for a project to move from one sector to another depending upon either its stage of construction or the nature of the work being performed. If a project, at its initial construction phase falls within the heavy engineering sector, bearing some significant overhaul of the entire project, the project remains henceforth in the heavy engineering sector of the construction industry. Aside from work that completely changes the character of the project, any construction work subsequently performed on that project, regardless of the exact nature of the work being done, the tools being used or the existence of drawings, falls within the heavy engineering sector.
The manner in which the Board determines sector issues, and particularly whether a project falls within the heavy engineering sector of the construction industry, is described in Heavy Construction Association of Toronto, [1973] OLRB Rep. March 245 and Mathews Construction, [1993] OLRB Rep. Dec. 1332. The Board first determines whether the end use of the project points to a particular sector. Where the end use of the project is not readily identifiable, and it is alleged that the project falls within the heavy engineering sector, the Board then considers work characteristics. It has been said that work may fall within the heavy engineering sector of the construction industry if the project’s end use does not suggest another sector; the problems faced on the project are primarily engineering as opposed to architectural problems; and there is a use of heavy equipment.
The end use of the Project is a pedestrian tunnel. There are no shops in the tunnel. It connects a subway to a commercial building. The end use of the tunnel is not readily identifiable with any one sector. The fact that the tunnel connects two commercial buildings does not mean that it is a commercial project (see: Dufferin Construction Company, Board File No. 1465-88-JD, unreported, August 31, 1992). The design and construction of the Project posed engineering as opposed to architectural problems and, based on the description of how the tunnel was constructed, it is a reasonable inference that heavy equipment was utilized. The relevant collective agreement that governed the terms and conditions applicable to the construction of the Project was the HCAT Agreement. In so far as possible, the Board’s determinations with respect to sector take into account existing labour relations realities (see: West York Construction Ltd., [1983] OLRB Rep. Dec. 2132). In the present case, a number of contractors have constructed at least 16 pedestrian tunnels in Board Area 8 under the terms of the relevant heavy engineering sector collective agreements.
The Board does not find the description of the work performed by CSBI to be of assistance. Sector issues are not determined based on the contractor’s characteristics. Likewise, the Board does not find the description of the work performed by Mr. Ribeiro on the application date or the tools he used to be of assistance. In determining sector, the Board considers the construction of the project at large and not the individual work performed by one discrete contractor thereon. In the face of compelling factors that suggest that the Project is within the heavy engineering sector, Local 506’s grievance asserting that the work is in the ICI sector is not determinative.
Having regard to all of the foregoing, the Board determined that the Project falls within the heavy engineering sector of the construction industry and so ruled by way of its decision dated November 20, 2001.
Board File No. 0333-01-R
At the November 25, 2001 hearing, the Board heard evidence concerning the issue of whether or not Mr. Oliveira was at work on the application date performing bargaining unit work. Mr. Oliveira testified that he was at work on April 26, 2001 for CSBI on a project located at 45 Carlton Street where he was engaged performing concrete work, chipping and sandblasting. I ruled orally at the hearing that I found Mr. Oliveira to be a credible witness and had no reason to doubt the veracity of his evidence and as such it was my determination that he was at work in the bargaining unit on the date of application.
Following my ruling, the parties met with a Labour Relations Officer and counted the ballot in Board File No. 0333-01-R. The ballot was cast in opposition to the responding parties.
The Board declares that the responding parties no longer represent the employees of C.S.B.I. Contracting Ltd. for whom the responding parties have heretofore been the bargaining agent in the following bargaining unit:
all construction employees of CSBI Contracting Ltd. represented by Labourers International Union of North America, and/or its Local Union 183, engaged in all types of construction other than Industrial, Commercial and Institutional (ICI) construction, in the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion for the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, including Simcoe County, save and except non-working foremen and those above the rank of non-working foreman.
The applicant and the intervenor have indicated to the Board that they may file a request that the Board reconsider decisions made to date in these matters. Having regard to such a possibility, the ballots cast in these matters are not to be destroyed until such time as the Board so directs.
The parties are hereby granted an extension of time, to the extent such may be necessary, for the filing of a request for reconsideration, to 20 days from the date of this decision.
“D. L. Gee”
for the Board