2000-98-JD Ontario Sheet Metal Workers’ & Roofers’ Conference and Sheet Metal Workers’ International Association, Local 269, Applicants v. T.A. Andre & Sons (Ontario) Ltd.; Electrical Power Systems Construction Association; the Labourers’ International Union of North America, Local 247 and Local 506; Priestly Demolition Inc., Responding Parties.
BEFORE: John Morgan Lewis, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
APPEARANCES: Jerry Raso and Steve Conkright for Ontario Sheet Metal Workers’ and Roofers’ Conference and Sheet Metal Workers’ International Association, Local 269; Rod Pollock for T.A. Andre & Sons (Ontario) Ltd.; Pat Moran and Rick Currie for Electrical Power Systems Construction Association; John Moszynski for Labourers’ International Union of North America, Local 247 and Labourers’ International Union of North America, Local 506; Robert N. Singer for Priestly Demolition Inc.
DECISION OF THE BOARD; April 9, 2001
This is a work assignment complaint made under section 99 of the Labour Relations Act, 1995 (the “Act”).
The applicants, Ontario Sheet Metal Workers’ and Roofers’ Conference and Sheet Metal Workers’ International Association, Local 269 (referred to collectively as the “Sheet Metal Workers”) are seeking a declaration from the Board that the work in dispute should have been assigned to its members rather than to members of Labourers’ International Union of North America, Local 247 and Local 506 (the “Labourers”).
The work in dispute is described as follows:
All work in connection with the demolition, dismantling and removal for reuse off Ontario Hydro property of the sheet metal siding, air handling equipment, ducts and related, materials forming part of the north warehouse (the “warehouse”) at Ontario Hydro’s Lennox Generating Station located in Board Area No. 29.
The warehouse was constructed in the early 1970’s. It consisted of a steel frame covered with insulation and siding, which sat on a concrete slab and footings. There were interior rooms consisting of drywall partitions and door frames as well as a double girder overhead crane.
In the Spring of 1998, T.A. Andre & Sons (Ontario) Ltd. (“Andre”) entered into a contract with Ontario Hydro for the demolition of a fuel oil storage tank and the dismantling of the warehouse located at the Lennox Generating Station. Under its contract with Ontario Hydro, Andre paid Ontario Hydro a lump sum and undertook to have certain work performed and acquired title to the warehouse and its components. Andre subsequently entered into a lump sum contract for the supply of labour, materials and equipment to dismantle the warehouse and to demolish the fuel oil storage tank with Priestly Demolition Inc. (“Priestly”) who thereby acquired ownership of the warehouse and its components.
On May 7, 1998, a pre-job mark-up meeting was held concerning various work to be performed at the Lennox Generating Station. The Notice of the meeting indicated that the work to be reviewed was in relation to the “demolition” of the warehouse and that the proposed assignment was to the Labourers. Despite the reference to demolition in the Notice, the Minutes of the pre-job/mark-up meeting describe the scope of work as the demolition of the fuel oil storage tank and the dismantling of the warehouse. The Sheet Metal Workers objected to the assignment of the work in dispute and submitted evidence to support its position that the work in dispute should be assigned to its members. The Electrical Power Systems Construction Association (“EPSCA”) advised the parties on May 25, 1998 that Andre and its subcontractors were proceeding with their original assignments as had been indicated in the pre-job/mark-up meeting on May 7, 1998.
On or about June 3, 1998, Priestly commenced the performance of the work in dispute utilizing a crew composed of approximately eight of its regular employees who are members of Labourers’ Local 506 supplemented by nine members of Labourers’ Local 247. Removal of the sheet metal siding was accomplished utilizing wrenches to loosen the bolts holding the siding to the foundations and steel beams. Once the bolts were removed, the siding was placed in bundles. The siding and all other components fit for reuse were loaded on trucks and transported to Priestly’s warehouse located in Aurora, Ontario. The performance of the work in dispute took two or three workers approximately one to two days. Priestly’s entire contract was performed by approximately seventeen workers in fifty-four days.
The Sheet Metal Workers relied heavily the Board’s decision in Ontario Hydro, [1993] OLRB Rep. March 227 in support of its position that the work in dispute should have been assigned to its members. In Ontario Hydro, supra, the work in dispute involved the removal for scrap of exterior metal siding from the roof of the Bruce Nuclear Power Developments Steambridge – Reactor and Turbine Buildings. Ontario Hydro assigned the work in dispute to members of the Labourers’ International Union of North America Local 1059 (“Local 1059”). The Sheet Metal Workers claimed the work for its members on the basis that its members installed the sheet metal roofing in the first place and relied upon a long-standing policy of Ontario Hydro pursuant to which members of the installing trade are assigned to remove material which is to be replaced or which is to be salvaged or reused.
The Board held that the work in dispute should have been assigned to the Sheet Metal Workers. In reaching this result, the Board did not consider the criterion of skills, training and ability, nor economy and efficiency as they favoured neither party. The Board did rely upon the written policy of Ontario Hydro which indicated that the work in dispute should have been assigned to members of the Sheet Metal Workers. The Board found that Ontario Hydro had traditionally followed its policy that the trade which installed material will be assigned the removal of such material at least to the first drop point where it would then be processed by labourers.
In the instant application, the Sheet Metal Workers assert that they have an even stronger claim to the work in dispute than in Ontario Hydro, supra, as the materials from the warehouse are not being removed for salvage but rather for reuse. Accordingly, maintaining the integrity of the materials removed from the warehouse takes on a greater degree of importance than in the case of salvage which, it asserts, favours the claim of the Sheet Metal Workers to the work in dispute.
In Ontario Hydro, supra, the Board dealt with the removal for scrap of sheet metal material. In this application, the work in dispute involves the dismantling of a structure and the removal of material for reuse at a location not owned or operated by Ontario Hydro. The Board agrees with the argument raised by the Sheet Metal Workers that the ratio in Ontario Hydro, supra, favours the assignment to its members of the dismantling of the sheet metal components of a structure should the materials be removed for reuse. The Board disagrees, however, with the position taken by the Sheet Metal Workers that the fact the materials are to be reused at a location not owned or operated by Ontario Hydro is irrelevant and should not be taken into consideration in creating a distinction from the general proposition that the dismantling of a structure and the removal of materials for reuse should be assigned to members of the installing trade.
The Board is satisfied that Ontario Hydro has a long-standing policy which does create a distinction based upon where the materials, which come from a structure which has been demolished or dismantled, are to be reused. The Board was provided with a copy of Ontario Hydro’s Interpretation Bulletin on this very point dated April 4, 1975 which reads as follows:
Where an employer working under the EPSCA Agreement demolishes or dismantles a structure and the material is not to be reused on another site covered by the scope of the EPSCA Agreement, the classifications, wages, weekly hours of work, shift differential rate and overtime rates appropriate for demolition work will be as are established in the nearest influencing representative agreements between locals of the union and builders’ exchanges or contractors’ associations for the class and character of work. At present the nearest influencing representative agreement at all work sites in the Province would be the agreement negotiated between the Metropolitan Toronto House Wreckers Association and the Labourers’ International Union of North America, Local 506.
Where an employer working under the EPSCA Agreement demolishes or dismantles a structure in order that the materials can be reused on another site covered by the scope of the EPSCA Agreement, working conditions for this operating will be as established in the EPSCA Agreement for power systems construction.
- EPSCA asserts that Ontario Hydro has applied its policy as set out in the aforementioned interpretation bulletin. Counsel for EPSCA provided the Board with two examples in which EPSCA confirmed Ontario Hydro policy with respect to the dismantling of materials to be reused off-site. Both examples relate to the dismantling of Units 1 and 2 Precipitators at the Lakeview Generating Station in 1991. EPSCA provided the Board with correspondence dated October 2, 1991 which sets out an agreement between EPSCA and Boilermakers International Union Local 128. The correspondence indicates that the terms of the agreement were in settlement of a grievance being the subject matter of Board File No. 2040-91-G. The text of the correspondence reads as follows:
October 2, 1991
Mr. Joseph Maloney
Business Manager
International Brotherhood of
Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers
7 Queen Elizabeth Boulevard
ETOBICOKE, Ontario
M8Z 1L9
OLRB FILE #2040-91-G
As full and final settlement of the above-noted board file, the parties agree to the following:
Where an employer working under an EPSCA Agreement dismantles and/or disconnects a component of a free-standing structure that has outlived its usefulness (worn out, outdated technology, etc), and is being replaced by a similar updated component at the same location, and the work commences during the same period of time the structure is out of service for the dismantle/disconnect or if the material is being reused on another site covered by the scope of an EPSCA Agreement, working conditions for this work will be as established in the respective EPSCA Agreement.
Where an employer working under the EPSCA Agreement demolishes or dismantles a structure and the material is not to be reused on another site covered by the scope of the EPSCA Agreement, the classifications, wages, weekly hours of work, shift differential rate and overtime rates appropriate for demolition work will be as are established in the nearest influencing representative agreements between locals of the union and builders’ exchanges or contractors’ associations for the class and character of work.
The work on Units 1 & 2 Precipitators at Lakeview TGS will continue as outlined in the pre-job/mark-up meeting of August 9, 1991. Future precipitators and/or components of this nature will be subject to paragraph One.
The applicant, the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers Lodge 128, agrees to withdraw its grievance pertaining to this issue.
J.G. Knight Joseph Maloney
General Manager Business Manager LU 128
EPSCA also produced a copy of an agreement between EPSCA and the International Operating Engineers, Local 793 dated November 6, 1991. The agreement indicates a settlement of a grievance filed on September 10, 1991 pertaining to Delsan Demolition Limited and work it was performing at the Lakeview Generating Station. The terms of this agreement are identical to those between EPSCA and the Boilermakers as set out above.
The Sheet Metal Workers argued that even if the Board was satisfied that Ontario Hydro’s policy distinguished the assignment of work based on where the removed materials are to be reused, the Board should not rely upon such a policy in making a determination in light of its jurisprudence with respect to the rejection of end use as an appropriate consideration in a work assignment dispute. The following passage from Jervis B. Webb Co. of Canada, [2000] OLRB Rep. April 226, was referred to in support of the proposition that end use should not be used as a consideration in a work assignment dispute:
Despite the suggestion that the monorail system support also supported a catwalk and therefore there was more that one use intended for the supporting structure, we accept that this system, although a part of a larger raw material conveyor installation, was a discrete single purpose structure designed to hold and support only festooned electrical cables. Thus, it is distinguishable from the Board's decision in Elecon Electrical Contractors Inc., [1995] OLRB Rep. May 645 relied on by the Ironworkers and Millwrights because the Board found that the support structures in dispute were intended for multiple uses. The Board has indicated however that the end use of the work should not be a significant factor for the Board when it decides how the work assignment should be made. In Newmarch Inc., [1990] OLRB Rep. February 179 the Board wrote at paragraph 63:
In the past, the Board has not looked at the use made of the end product in determining jurisdictional dispute claims. Rather the focus of the Board has been on the nature of the work in dispute, and the work performed by the employees in each trade ... 'End use' is not an appropriate criteria to assist in the determination of this jurisdictional dispute.
The Board in Newmarch Inc., supra, referred to and relied on the following statement in Toronto Star Newspapers Ltd., [1980] OLRB Rep. Apr. 565 at paragraph 19:
We accept the conclusion reached in both Pacific Press and La Presse that the Board must look to the nature of the work done by the employees and not the use made by the employer of the end product of the work in dispute. If the end product was to be cast as a primary criterion the result would be to downgrade the importance of skills and ability, and efficiency, as a primary criteria. Clearly, the skills associated with performing a work process and the efficiency with which it is performed are inter-related factors. A craft union is one whose members are 'distinguishable from the other employees and commonly bargain separate and apart from other employees through a trade union that according to established trade union practice pertains to such skills or craft.' When called upon to resolve competing work claims between craft unions the Board must look to the work and determine if the skills of one of the crafts are more closely related to the nature of the work in dispute and whether or not the use of these skills by persons trained in the craft will have a bearing on efficiency and economy. If we were to restrict ourselves to the end product these considerations, which must be central to the resolution of any jurisdictional dispute, would become irrelevant.
The Board at paragraph 66 of Newmarch Inc., supra, described the uncertainty of the "end use" to which the installation would be put in that case and how the ultimate customer for whom the work was done might well change its use and then said:
To consider 'end use' in these circumstances is not only inconsistent with the previous practice of the Board in dealing with section 91 complaints, but would lead to uncertainty in the industry. Contractors in the industry would have to determine in advance what the work in dispute was to be used for in order to bid upon a project and thereafter assign the work. Similarly, a trade union would have to ascertain the 'end use' of the work in order to determine whether it had a claim to the work.
The Board in Premier Pipelines Limited, [1988] OLRB Rep. October 1068, at paragraph 26 pointed out that the "end use" factor in jurisdictional disputes was of limited applicability, relevant only to the criterion of skill and ability (or skill and training) and that it was, at best, of marginal utility in determining an appropriate assignment of work. Although the Board in the Newmarch Inc. matter was dealing with the installation of a "Hollywood Rail" in a car plant where the end use was uncertain (whether it would support only pneumatic tools or pneumatic tools and other items) while the situation in the case before us is clear that the structure and monorail system is used for carrying only festooned electrical cable, we are of the view that the principles discussed in Premier Pipelines Inc., supra, and adopted by the Board in Toronto Star Newspapers Ltd., supra and Newmarch Inc., supra with respect to considering the end use of the installation are a useful guide to our assessment of the criteria to be used in determining the dispute before us.
The Board is not certain that the reference in Ontario Hydro’s policy to where the materials are to be reused is analogous to the Board’s comments on the appropriateness of end use as a consideration. The end use aspect of Ontario Hydro’s policy is not with respect to the location where the materials will be reused but rather, the functional end use of the materials themselves. In other words, the end use of the materials is a reflection of whether they will be used for scrap, salvage or reused. Accordingly, by considering where the materials will be reused, as contemplated in Ontario Hydro’s policy, the Board is not invoking end use as a consideration.
It is not accurate to state that end use is never considered by the Board in determining jurisdictional disputes. Depending upon the context, end use may be relevant. For example, end use is sometimes utilized by unions in fashioning international trade agreements. In addition, an employer may rely upon end use in forming its workplace policies and practices. In such circumstances, end use is simply a function of employer preference. Another instance where end use has been considered is in relation to comparing relative skill sets of competing trade unions. In Multidem Inc., [1994] OLRB Rep. Feb. 166, the Board considered the end use of materials which were to be removed in assessing the skills required in carrying out the work in dispute. At paragraph 4 the Board writes:
All of the equipment, towers, heat exchangers, copper cables, piping, valves, vessels, motors, etc. are to be knocked down, demolished, cut-up and sold for scrap metal. The cut-up sections are sorted by type of metal, i.e. stainless steel, carbon steel, copper, aluminum. No particular care, other than safety considerations, is required in taking down or demolishing this facility. This is quite different from dismantling equipment or components for salvage and/or reuse where the integrity of the components or the surrounding area needs to be maintained.
As was the case in Ontario Hydro, supra, the Board finds that the criterion of skills, training and ability and economy and efficiency do not favour either the Sheet Metal Workers or the Labourers. The work in dispute required neither the specialized skills of a sheet metal worker nor the specialized demolition skills of a labourer. Many of the examples of assignments of work were not helpful as they did not indicate if the dismantling of the materials was for reuse and if the materials were to be reused, whether the materials were to be reused on a location owned or operated by Ontario Hydro.
The Board is satisfied that Ontario Hydro has had a clear policy with respect to the assignment of the work in dispute and that policy has been in place since 1974. The Board is also satisfied that Ontario Hydro has applied that policy and sees no reason why this practice should be disturbed.
DISPOSITION
- The Board hereby affirms the assignment of the work in dispute to the Labourers. This application is hereby dismissed.
“John Morgan Lewis”
for the Board