OLRB overturns interpretation of "50 per cent rule"

Does a company have the ability to place 50 per cent of Brick & Allied Craft Union Of Canada (BACU) employees from outside the local union area?

Last May, the Ontario Labour Relations Board (OLRB) ruled in favour of Toronto-based Limen Group Ltd. on that question, following a grievance by BACU.

Prior to the ruling, Article 5 of the BACU Collective Agreement was generally interpreted to allow an employer to transfer only one foreman and one journeyperson from one local to another local where it is carrying out work. While the union could choose the first journeyperson on site, the employer could choose the second from any local union area.

The so-called "50 per cent rule" stems from the agreement that:

"The Employer shall hire through the Local Union Office fifty percent (50 per cent) of all Bricklayers, Masons and Plasterers who are members of the Union as long as the Local Union is able to supply members in sufficient numbers to take care of the needs of the Employer. This ratio shall be maintained at all times."

The agreement, also allows an employer to "name hire" 50 per cent of union members on a project, selecting workers by name. Prior to the ruling, this was largely interpreted to mean the employer could name hire 50 per cent of union workers from the local in which it was working.

However, Limen Group argued that Article 5 does not specify where the other 50 per cent of union workers must come from. Under that interpretation, Limen Group acted on the conviction that name hires comprising 50 per cent of union hires could also come from any local.

"We work all across Ontario," says Limen Group president Tony Lima.

"However, under the old interpretation of Article 5, when we worked out of town we had to take whoever the local wanted to give us. In many cases, if we used 100 per cent of the labour provided to us from an outside local, we calculated that we would have to hire as many as 30 per cent more workers to equal the productivity of union members we worked with regularly. We also need workers with very specific skills for historic restoration work. In many cases that extra cost would take us out of the running when we were quoting on out-of-town projects. This resulted in lost opportunities for us."

Limen Group subsequently began to hire according to its interpretation of the contract. BACU grievances soon followed, culminating in the OLRB hearing in May. Following the decision in Limen Group’s favour, the union filed a request for reconsideration with the OLRB. However, in the board’s September 17 decision, OLRB vice-chair Diane L. Gee wrote:

"The Board will not grant a reconsideration request to permit a party to call evidence that it could have called earlier."

John Blair, executive director of the Masonry Industry Employers Council of Ontario (MIECO), which is the designated employer bargaining agency for its masonry contractor members, notes that the council initially believed BACU’s interpretation of the issue to be correct.

"We were pleased at what came out of the board’s decision by vice-chair Diane Gee," he says.

"It gives an additional choice to the employer, although that choice is not without its implications. Employers still need to meet all union obligations for travel allowances and that is, in large measure, the reason that many employers haven’t exercised this option."

However, even taking into consideration the required travel allowances, Lima says the company is coming out ahead under the new interpretation of the contract.

"We’ve still been grieved on jobs in Hamilton and Kingston, but the board isn’t looking at those grievances," he says.

"It’s also given us an extra bargaining tool. If we’re taking a job outside the city, we can offer to hire more than 50 per cent of the workers from that local as long as they give us good people."

Calls to BACU were not returned by press time.