August 29, 2012

Windsor school board takes Ontario Labour Relations board, unions to court over construction employer status

The Greater Essex County District School Board is going to court over decisions by the Ontario Labour Relations Board (OLRB) ruling the Windsor-based organization is a construction employer and cannot invite non-union contractors to bid on some projects.

The school board, which includes public schools in the City of Windsor and Essex County, will be taking its case to the Ontario Court of Appeal, said Penny Allen, the board’s superintendent of business and treasurer, who is responsible for the physical plant and construction. She told the Daily Commercial News in early August that the board has a “tentative date” in November, but it’s not confirmed.

Even though her organization is a school board, it is one of the few boards in the province which is considered a construction employer under the Ontario Labour Relations Act. Section 126 of the Act defines a non-construction employer as "an employer who does no work in the construction industry for which the employer expects compensation from an unrelated person." If an employer is found to be a non-construction employer, then the OLRB must declare that any trade union that represents construction employees for that employer no longer represents them, according to court records.

“For certain trades we can only use (industrial, commercial and institutional) provincial trade unions, which means we can only use contractors who are registered as employers of those unions,” she said. Since 1999 the board has been trying to become a non-construction employer, so they can get de-certified and allow all contractors to bid on projects.

“It's not fair,” Allen said. “All contractors pay taxes, but we, as a publicly funded body, can only put our tenders out to certain contractors that are unionized.”

Currently, the Greater Essex board is certified with five unions affiliated with the Building Trades. They are: the International Unions of Bricklayers and Allied Craftsmen, Local 6; the United Association (UA) of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552; The International Unions of Painters and Allied Trades (IUPAT) Local 1494; Laborers' International Union of North America (LIUNA) Local 625; and the International Brotherhood of Electrical Workers (IBEW) Local 773.

"The Greater Essex County District School Board has spent in excess of probably $300,000 or $400,000 to de-certify the unions and that's a shame to abuse taxpayer money like this," said Sol Furer, business manager of IBEW Local 773, which will be represented at the Greater Essex board’s Court of Appeal hearing. "This has been a battle for five to seven years now, and it's been proven they are not a non-construction employer."

Allen said the IBEW has grieved the school board in the past over an electrical sign.

“There has been the odd time, especially when our schools don’t go through the plant department like they’re supposed to, they will just go out and order something,” she said, adding electrical signs can only be installed by IBEW-certified contractors.

“If the school gets the installation through a sign company and they are not IBEW, we can get grieved over that,” Allen said. “We have to be careful, and we are a huge organization, so it’s pretty hard to keep control of that.”

The OLRB ruled in 2009 that the board is a construction employer because it does construction work for an unrelated party from whom it expects compensation.

According to court and OLRB records, the board shares floor space in the Essex County Civic and Education Centre with the County of Essex, the Windsor-Essex Catholic District School Board and the Essex Region Conservation Authority. The OLRB noted in its 2009 decision that "the great bulk of the supervision work of outside contractors" is performed by an engineer with the school board, who tenders the work, reviews the bids and assesses the quality of the work. For this, the Civic Centre paid the Greater Essex board an administration fee of $30,000 per year.

Although the OLRB rejected several arguments from the five Building Trades unions certified with the Greater Essex board, it ultimately ruled in their favour in its 2009 decision.

That ruling came four years after the OLRB ruled against the school board in an earlier application. The school board then applied to the Ontario Divisional Court in Toronto to have those two OLRB decisions reviewed and set aside. The Divisional Court dismissed the school board’s application last January, and the board now has leave to take its case to the Ontario Court of Appeal.

Joe Mancinelli, LIUNA’s vice-president and regional manager for Central and Eastern Canada, said many institutions are trying to be declared non-construction employers.

“The fact remains, the Building Trades do an extraordinary amount of work for school boards and institutions like that," Mancinelli said. "They should be deemed a construction employer. They should allow workers who are well trained and work safely the first crack at the work as opposed to workers with no training or experience. It would make a lot of business sense for school boards and institutions to think that way.”

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