Sheet Metal Workers’ International Association, Local 537 v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 666, 2001 CanLII 4346

Sheet Metal Workers’ International Association, Local 537 v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 666, E.S. Fox Limited

2971-00-JD Sheet Metal Workers’ International Association, Local 537, Applicant v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 666, E.S. Fox Limited, Responding Parties v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, Intervenor.

BEFORE: D.L. Gee, Vice-Chair, and Board Members J.G. Knight and G. McMenemy.

APPEARANCES: J. Raso, Fred Kneebone, Gord Robinson and Jack Whitwell for the applicant; Laurence C. Arnold and Edward Nicholas for United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 666; W.J. McNaughton, H. Miron, D. Pendlebury and M. Rodrigue for E.S. Fox Limited; Micheil Russell and Reg White for the intervenor.

DECISION OF THE BOARD; July 12, 2001

1This matter is an application concerning a work assignment dispute filed pursuant to section 99 of the Labour Relations Act, 1995 (the “Act”).

2The applicant, Sheet Metal Workers’ International Association, Local 537 (the “Sheet Metal Workers”) seeks an order that the work in dispute was properly assigned by E. S. Fox Limited (“E. S. Fox”) to members of the Sheet Metal Workers. The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 666 (“U.A. Local 666”) and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128 (the “Boilermakers”) are parties to Articles of Agreement (hereinafter “INFO-67”) that, amongst other things, delineates the proper assignment of the installation of tanks as between the U. A. Local 666 and the Boilermakers. The U.A. Local 666 and the Boilermakers do not seek a Board declaration that delineates which portion of the work in dispute should have been assigned to members of U. A. Local 666 and which part of the work in dispute should have been assigned to members of the Boilermakers. Rather, the Boilermakers and the U. A. Local 666, confident that there is no issue as between themselves as to the proper assignment of the work in dispute, request a Board declaration to the effect that the work in dispute should have been assigned to members of the U.A. Local 666 and/or Boilermakers in accordance with INFO-67.

3The work in dispute is as follows:

All work in connection with the installation of wine tanks, including unloading, levelling and anchoring at the Jackson Triggs project, Niagara-on-the-Lake, Ontario.

4In making determinations as to the proper assignment of work pursuant to what is now section 99 of the Act, the Board considers a variety of factors including: collective bargaining relationships; skill and training; economy and efficiency; employer practice; area practice; safety; trade agreements; decisions of record and employer preference. The relevance and weight the Board affords to any one factor depends on the specific facts of the case.

5In the instant matter, E. S. Fox is bound to a collective agreement with each of the Sheet Metal Workers, U.A. Local 666 and Boilermakers. Each collective agreement defines the work falling within its scope so as to include the work in dispute. Each of the three trade unions has a constitution that defines of the trade’s jurisdiction in terms that would include the work in dispute. It was not argued that the work in dispute is at the core of any one of the trade’s jurisdiction. Accordingly, the factor of collective bargaining relationships does not favour an assignment of the work in dispute to any one of the trades.

6It is not in dispute that the tanks in issue were made of 10-gauge steel or under. The tanks in question are, relatively speaking, extremely light. None of the parties suggested that the installation of such tanks requires any special skills. At the consultation, it was the Boilermakers’ position that all of the trades have the necessary skills to install these tanks. Accordingly, the criterion of skill and ability is likewise neutral.

7The factors of economy, efficiency and employer preference are usually interconnected. In the usual case, the employer prefers the assignment of the work that is most efficient and/or economical for it. The employer is in the best position to advise the Board as to why it prefers a particular assignment and why such assignment works for the employer in terms of economy and efficiency. In the instant matter, E. S. Fox did not file a brief. E.S. Fox filed a letter with the Board in which it states, inter alia, that it adopts the submissions of the Sheet Metal Workers. The Sheet Metal Workers asserts that the factors of economy and efficiency favour the assignment of the work to its members as they have expertise in the fabrication and installation of tanks. Members of the Sheet Metal Workers fabricated the tanks in issue. The Boilermakers asserts that it was more economical and efficient for the employer to assign the work in dispute to its members because of their substantial training and expertise in the handling and installation of tanks. The U.A. Local 666 asserts that it is more economical and efficient to assign the work to its members as they are typically engaged in the installation of piping for the tanks.

8As indicated above, members of the Sheet Metal Workers fabricate tanks and, based on the past practice evidence, have installed similar tanks in the past. U.A. Local 666 members routinely install piping to tanks. Based on the past practice evidence, members of the Boilermakers have installed a large number of tanks. Thus, in the absence of submissions from the employer on point, it is not apparent that an assignment of the installation of tanks to any one of the trades would result in a more economical or efficient performance of the work. Based on the fact that all three trades have familiarity and experience with tanks, and the installation of these particular tanks does not require a great deal of skill, it appears that any one of the trades could install the tanks efficiently and economically. Accordingly, it is our determination that the factors of employer preference and economy and efficiency are neutral factors.

9Turning to the factor of trade agreements, it is the position of the U.A. Local 666 and the Boilermakers that the handling and installation of tanks of every nature and kind, regardless of their use, lies wholly within the jurisdiction of the United Association and the International Brotherhood of Boilermakers as contained in INFO-67. Rule 17 of INFO-67 divides tank installation between the United Association and Boilermakers. The Sheet Metal Workers is not a party to INFO-67. There’s no trade agreement that has been applied in the Province of Ontario to which the Sheet Metal Workers is a party that applies to the work in dispute.

10Had the Sheet Metal Workers been party to INFO-67 it would be fairly dispositive of the issue of the proper assignment of the work in dispute. Sheet Metal Workers is not, however, party to INFO-67. The weight to be attributed to INFO-67 is thus dependent upon the extent to which the employer and area practice support a determination that the work in connection with the installation of tanks is assigned to members of the United Association and the Boilermakers in accordance with INFO-67. If the practice evidence indicates that INFO-67 is virtually always applied to tank installations, the existence of INFO-67, notwithstanding that Sheet Metal Workers is not a party thereto, would be of some significance. However, if the practice evidence does not support such a conclusion, the existence of INFO-67 is of no assistance to the Board in determining the proper assignment of the work vis-à-vis the Sheet Metal Workers.

11As is set out below, the employer and area practice evidence filed in this matter does not support a conclusion that the installation of tanks has virtually always been assigned to members of the Boilermakers or the U.A. Local 666 in accordance with INFO-67. Accordingly, it is our determination that the existence of INFO-67 does not support an assignment of the work in dispute to members of U.A. Local 666 and/or the Boilermakers. As a result, the factor of trade agreements is a neutral factor in our determination.

12We turn then to the factors of employer and area practice. The Sheet Metal Workers and E.S. Fox submit that the relevant employer and area practice is comprised of jobs involving the installation of 10 gauge or lighter non-pressurized steel tanks to hold wine (hereinafter “wine tanks”). The U.A. Local 666 and the Boilermakers submit that the relevant employer and area practice should be determined by reference to jobs involving the installation of tanks regardless of the material used to fabricate them, whether or not they are pressurized or their end use.

13We have determined that it is not necessary to decide whether we will confine the scope of work that is relevant for the purposes of assessing the employer and area practice to wine tanks or whether the relevant scope of work is all tanks. The best assumption from the perspective of the U.A. Local 666 and the Boilermakers is that all projects involving the installation of any tank are relevant to the Board’s assessment of the prevailing employer and area practice. As set out below, assuming all projects involving the installation of a tank to be relevant, the employer and the area practice are mixed, resulting in neither of such criteria favouring any one trade.

14Turning first to the employer practice evidence, the Sheet Metal Workers filed documentary evidence of 29 tank installation projects performed by members of the Sheet Metal Workers employed by E. S. Fox. The projects involved the installation of in excess of 500 tanks. The U.A. Local 666 filed documentary evidence of 22 jobs involving the installation of tanks by it members either alone or in combination with members of the Boilermakers and/or Millwrights in the employ of E. S. Fox. Two of such jobs are challenged by the Sheet Metal Workers who asserts that its members performed the work in question. The Boilermakers filed documentary evidence of 10 jobs involving the installation of tanks by its members and/or members of U.A. Local 666. The Sheet Metal Workers asserts that one of such jobs was reassigned to its members. One of the jobs is the subject of an outstanding jurisdictional dispute. Thus, the documentary evidence indicates that, of the tank jobs undertaken by E. S. Fox, approximately half of them have been assigned to members of the Sheet Metal Workers and the other half to members of the U.A. Local 666 and/or Boilermakers.

15The project on which the work in dispute was performed is located in Board Area 5. Accordingly, in terms of assessing the area practice, evidence with respect to projects involving tanks within Board Area 5 are relevant.

16The Sheet Metal Workers submit evidence of wine tanks installed in Board Area 5 by three contractors other than E.S. Fox. One of the contractors, Shelby Sheet Metal and Mechanical (“Shelby”) is bound to an agreement with the U. A. Local 666 but not to an agreement with the Boilermakers. Shelby was incorporated in 1981 and has, since that time, undertaken approximately 20 projects involving in excess of 370 tanks on which it employed members of the Sheet Metal Workers. As indicated below, Shelby has performed other projects on which it employed members of the U.A. Local 666. The other two contractors with respect to which the Sheet Metal Workers submit practice evidence are not bound to an agreement with either the U. A. Local 666 or the Boilermakers and accordingly their practice is not relevant.

17U.A. Local 666 submit evidence of approximately 23 projects involving tanks performed by contractors in Board Area 5 employing members of U.A. Local 666 alone or in combination with members of the Boilermakers. Fourteen of the projects were performed by contractors with respect to which the Sheet Metal Workers do not have bargaining rights and accordingly are not relevant to our assessment of the area practice evidence. The evidence indicates that five contractors with respect to whom the Sheet Metal Workers have bargaining rights have performed tank jobs in Board Area 5 employing members of the U.A. Local 666 alone or in combination with the Boilermakers. The five contractors performed 17 tank projects involving an unknown number of tanks. The U.A. Local 666 also filed letters with the Board from three contractors that are bound to the Sheet Metal Workers ICI Collective Agreement in which the contractor states that all of its tank jobs have been performed using members of the U.A. Local 666. These letters are of limited assistance as they do not particularize jobs performed in Board Area 5.

18The Boilermakers submit evidence of five tank projects that were performed in accordance with INFO-67. Two of the projects were performed by contractors not bound to the Sheet Metal Workers ICI Collective Agreement (one of the contractors has since become bound). One of the projects is not in the ICI sector of the construction industry. The Boilermakers also filed seven letters written by various contractors that state that the contractor has performed tank work using Boilermakers or in accordance with INFO-67. The Sheet Metal Workers does not have bargaining rights with respect to five of the contractors that wrote the letters.

19Thus, adding the practice of E.S. Fox to the foregoing, in Board Area 5, the documentary evidence filed with the Board indicates that there have been approximately 98 tank jobs in Board Area 5 performed by contractors bound to the Sheet Metal Workers and the U.A. Local 666 and, in all but one case, the Boilermakers. Of such jobs, 49 of the jobs were performed by members of the Sheet Metal Workers and 49 of the jobs were performed by members of the U.A. Local 666 and/or Boilermakers. The area practice evidence is thus a neutral factor.

20Having regard to the foregoing, assuming the relevant scope of work for the purposes of assessing employer and area practice to be as urged upon us by U.A. Local 666 and the Boilermakers, all tank projects, all of the factors typically considered by the Board in the course of determining the proper assignment of work are neutral. There is no one factor that strongly indicates that the work in dispute ought to have been assigned to any one of the trades. As a result, the Board declines to interfere with the assignment of the work in dispute made by E. S. Fox.

“D.L. Gee”

for the Board