Ontario Labour Relations Board
File No.: 0118-01-PR Date: August 28, 2001
Between: International Brotherhood of Electrical Workers, Local 530, Applicant v. Sarnia Construction Association as agent for Shell Canada Products; International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers Local Union 128; Brick and Allied Craft Union of Canada Local Union 23; United Brotherhood of Carpenters and Joiners of America Local Union 1256; Operative Plasterers’ and Cement Masons International Association of the United States and Canada Local Union 598; International Association of Heat and Frost Insulators and Asbestos Workers Local Union 95; International Association of Bridge, Structural and Ornamental Ironworkers Local Union 700; Labourers International Union of North America Local Union 1089; United Brotherhood of Carpenters and Joiners of America, Local Union 1592; International Union of Operating Engineers Local Union 793; International Union of Painters and Allied Trades Local Union 1590; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local Union 663; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local Union 787; Sheet Metal Workers International Association Local 539; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 853; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Local Union 880, Responding Parties.
Before: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
Decision of the Board
1The Board, by decision in this matter dated July 26, 2001 made an order declaring that the proposed project agreement as amended by the Board is in force. The Sarnia Construction Association as agent for Shell Canada Projects (the “proponent”), by application filed August 8, 2001 has applied for reconsideration of that decision. That application for reconsideration was served on all of the parties to this proceeding.
2The Sheet Metal Workers International Association, Local 539 (“Local 539”) by letter to the Board dated August 17, 2001 submitted that the applicant used an incorrect wage rate when it made its calculations to support its argument for an amendment to the project agreement. That letter from Local 539 stated in part:
…the Board used Local 95 Insulator wages as the highest paid trade that voted in favour of the Project Agreement to use as a comparison with the Electricians; but in fact I believe that the Sheet Metal Workers who also voted in favour of the Project Agreement have a higher rate of pay….The actual gross pay for Local 539 should have been $1662.44 for weekly wages or $41.56 as an average hourly rate under the Provincial Agreement for 40 hours of work.
That letter goes on to request reconsideration of the decision because “the Board used the wrong numbers to make their calculation”.
3Unfortunately, Local 539 did not provide the Board with what it says is its wage rate under the proposed project agreement and therefore the Board cannot determine whether the error Local 539 says the applicant made is material to the result. Furthermore, the Board did not use “Local 95 Insulator wages as the highest paid trade that voted in favour of the Project Agreement” for the comparative analysis required by section 163.1(9)2 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended, (the “Act”). Rather, the applicant submitted and the proponent did not dispute that the reduction for employees represented by Local 95 was 9.0% once the change in the work week was factored into the calculation. The reduction for employees represented by Local 539 was said by the applicant to have been 8.5%. Local 95 was used for comparison not because it had the highest wage rate but rather because the employees represented by Local 95 were the employees to whom the largest reduction in wages and benefits applied represented by a bargaining agent who gave notice of approval of the proposed project agreement. Local 539 does not appear to dispute that the reduction in total wages and benefits applied to the employees it represents was less than the reduction applicable to employees represented by Local 95. Local 539 may, if it wishes to pursue the matter, clarify its position.
4If the wrong figures were used by the Board in making the calculations because the applicant provided the incorrect figures and the error is material to the result, Local 539 must provide the Board (and the proponent and applicant) with its submissions containing the correct figures and calculations demonstrating that the employees it represents had a larger reduction in wages and benefits applied to them under the project agreement than was applied to the employees represented by Local 95. Those submissions must be delivered to the applicant, the proponent and the Board within 10 days of the date of this decision. The applicant and proponent may make any submissions in response five days after receiving the submissions from Local 539.
5By letter dated August 16, 2001, the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663 (“Local 663”) made submissions in which it purports to seek reconsideration of the Board’s decision to have the Board’s amendment to the project agreement apply to the employees it represents. The United Brotherhood of Carpenters and Joiners of America, Local 1592 (“Local 1592”), by letter dated August 17, 2001 submits that the Board’s decision has created an inequity and also seeks to have the amendment to the project agreement apply to the employees it represents. Local 663 and Local 1592 had notice of this proceeding. They were directed by the Board by decision dated May 31, 2001 to notify the Board if they wished to participate in this proceeding. As the Board noted in its July 26th decision, no other party except the proponent advised the Board that they wished to participate.
6The letter from Local 1592 states:
As the representative for the Millwrights in the Sarnia area, I believe I must respond to the recent Board decision with regard to the IBEW and the Shell Project Agreement.
With due respect, the Millwrights had no expectations of a challenge to the Project agreement to go any further than the challenges put forth on previous Project Agreement - that being no change.
We believed the Agreement treated all parties equally; however, this recent decision makes the Agreement far from equitable or fair.
This decision can only create inequity on site which ultimately could affect the overall harmony of the project.
In the event the new decision stands, the Millwrights would request similar treatment to the IBEW or a reconsideration of the latest decision.
The letter from Local 663 states:
U.A. Local 663 is in receipt of the decision of the Board dated July 26, 2001 and the Proponent’s Request for Reconsideration dated august 8, 2001, U. A.. Local 663 makes the following submissions:
When U.A. Local 663 received the application for Project Agreement, it determined that it was in sum and substance identical to the prior Sarnia area project agreement and further that continued opposition to agreement was futile and accordingly we did not file a Notice of Disapproval to the proposed project agreement. U. A. Local 663 did not agree in writing to the proposed project agreement. It was not within our contemplation nor, we suggest, within the contemplation of the proponent that the Board would alter or amend the proposed project agreement.
Just as the I.B.E.W. members have a standard work wee of 36 hours and double time for overtime, so too U. A. Local 663 tradespersons are entitled to double time after 36 hours of work per week. Accordingly, the decision of the Board dated July 26, 2001 stands as a binding determination of the effect of the standardized 40-hour work week on all trades whose provincial agreements provide for a 36-hour work week including the U. A. Provincial Agreement. It is the position of U.A. Local 663 therefore that under the Shell Project Agreement, U. A. Local 663 members must be paid 100.22% of the U. A. Provincial Agreement wage rate for all regular hours worked. It is notable that the vast majority of tradesperson hours on the Project are within U. A. jurisdiction. Currently, the U. A. feels that they were dealt with unfairly by the Board decision.
If necessary, U. A. Local 663 requests reconsideration of the Board decision of July 26, 2001 to extend its determination to be applicable to U. A. Local 663 members working under the Shell Project Agreement as modification to the U. A. Provincial Agreement.
While U. A. Local 663 opposes any project agreement, we support the position of the I.B.E.W. in the event that there is an operative Shell Project Agreement. However, all trades in identical positions, must be dealt with equally and fairly.
7Local 1592 had the opportunity to file a challenge to the project agreement and seek the relief that the applicant sought but did not do so within the time prescribed by the Act. Its reason for not doing so (no expectation that the challenge would be successful) does not provide any justification for reconsidering the Board’s decision as requested by Local 1592.
8Local 663 did not file a notice of disapproval of the project agreement. As a result, it did not even have the right to challenge the project agreement. Its reason for not doing so (the proposed project agreement was identical and continued opposition was futile) does not provide any legitimate basis for reconsidering the Board’s decision as requested by Local 663.
9The proponent’s request for reconsideration is timely and sets out a number of grounds for reconsideration. In our view, the applicant should have the opportunity to respond to the request. Therefore, the Board directs the applicant to file its submissions in response to the proponent’s request for reconsideration within 15 days of the date of this decision and deliver a copy of those submissions to the proponent before filing them with the Board. The proponent, if it wishes to reply, must file its submissions in reply within 10 days of having received the applicant’s response.
10In summary, the requests for reconsideration filed Local 663 and Local 1592 are dismissed. If Local 539 wishes to make submissions about the figures used by the Board in calculating the amount of the reductions under the project agreement and the comparative analysis it undertook, those submissions must be filed with the Board and delivered to the applicant and proponent within 10 days of the date of this decision. The applicant and proponent must file their response to those submissions within five days of having received them from Local 539. Finally, the applicant must file its response to the proponent’s request for reconsideration within 15 days of the date of this decision and deliver that response to the proponent before filing it with the Board. The proponent must file its reply, if any, to that response within 10 days of having received it from the applicant. The Board will determine shortly thereafter how to deal with the matter based on the material that has been properly filed with the Board.
“Harry Freedman”
for the Board