Opinion | Unionized and Non-unionized Firms Should All Have Fair Shake at City Projects

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I must say I was happy to read this week that the Greater Essex and County District School Board, an amalgamation of the Windsor and Essex County Boards of Education, had won it three-year fight before the Ontario Labour Relations Board to have its construction projects open to all contractors and workers.
Previously the board was allowed to offer work on its projects only to contractors and sub-contractors that employed union workers.
The Corporation of the City of Sault Ste. Marie still operates under such restrictions.
In 1987 the OLRB ruled that employees hired directly or sub-contracted by the city to work on city projects must become “party to respective collective agreements” and receive union scale.
That ruling came down after several men, hired temporarily under a government job program to perform work at the fish hatchery, complained that they were being paid only $6.50 an hour rather than the $14.95 granted union labour. The union obliged by taking them in and the OLRB went along with it.
This meant the city, in the eyes of the OLRB, essentially was considered to be a construction employer.
The cities of Toronto, Hamilton and Waterloo are the only other cities in Ontario to have suffered such designations.
The way it occurred in Waterloo was just as stupid as what occurred in the Sault, where those employed through a government make-work program ending up being certified as union employees.
In the Waterloo Region case, two employees working on a shed on a Saturday afternoon agreed to switch from CUPE to the United Brotherhood of Carpenters and joiners. The OLRB went along with the move so just like that the Region was forcefully certified as a unionized workplace.
To illustrate how ridiculous this kind of thing is, when the city of Sault Ste. Marie tendered the more-than $40-million east-end sewage disposal plant upgrade in 2004, it stipulated that contractual obligations with Local 1036 of the Labourers’ International Union and Local 446 of the United Brotherhood of Carpenters and Joiners required it use contractors who were in contractual relations with these unions.
That, of course, was a polite way of saying that all non-unionized firms needn’t apply. Much to the chagrin of the city, they had to shut them out of the process.
The Open Shop Contractors Association wasn’t happy either. Its president, Phil Besseling, wrote then Mayor John Rowswell that, “We find it extremely unfortunate that the city of Sault Ste. Marie has been put in a position where it must issue construction tenders that restrict which contractors are entitled to bid on the project, based on the unionization of the contractor’s work force.”
Unfortunate that the city was put in this position? That was being kind to the body that put it there – the OLRB, which, putting common sense aside, ruled against the city even though it didn’t have a representative at the hearing and its opposition was well known.
I have never been able to understand how this situation has not been seen as unfair by the provincial government and legislation brought forth to change it.
Think about it, four cities having to work under restrictions that do no apply to others.
Actually, it is not only unfair, it is discriminatory. Non-union firms and their employees, many of them right here in the Sault, pay taxes like everyone else.
How is it possible that they can be frozen out of city job sites?
If a person was not allowed on a job site because of race or gender there would be an immediate outcry. Why is there not a similar outcry because a non-union person is frozen out?
Sec. 126 of the Labour Relations Act states: “A ‘non-construction employer’ means an employer who does no work in the construction industry for which the employer expects compensation from an unrelated person.”
Although it doesn’t specifically say it, the recognized intent of the description of a “non-construction employer” is that it includes municipalities, school boards and others who do construction work with public funds.
Considering that this has been interpreted so broadly and so badly by the OLRB, it has long been obvious that it needs to be spelled out more clearly.
But successive governments over the years, Liberal, NDP, Progressive Conservative and then Liberal again, simply ignored the issue.
In 2013 Progressive Conservative MPP Michael Harris had a private member’s bill, Bill 73, the Fair and Open Tendering Act, before the legislature that city staff recommended council support.
Joe Fratesi, then the city’s chief administrative officer, said there were many large construction firms in our community that would have bid for work on municipal building projects were it not for the clause restricting the hiring of non-union shops.
The intent of Harris’s bill was to make the wording in the Act so clear that even the OLRB could understand the way it was supposed to work in the past and how, if his bill was passed, it would work in the future.
“Qualified contractors and their employees who live, work and pay taxes in their community are shut out from working on public infrastructure and that’s not fair,” Harris said.
The bill had the support of Sault MPP David Orazietti who, having been a member of the Sault’s city council before entering provincial politics, had seen first-hand the effect the OLRB ruling binding the city to union companies had had on it and the non-union companies and their employees who have been shut out of the bidding process.
Orazietti told me at the time that he had approached the Ministry of Labour about the issue but was told all the city had to do was appeal to the OLRB.
He said he explained that this had been tried and it didn’t work.
“Change the legislation. That is what’s needed,” he said he told them.
That, of course, was exactly what Harris was seeking but Orazietti’s colleagues were rejecting. They sided with the NDP to defeat Harris’s bill.
Reporter Elaine Della-Mattia quoted Mayor Christian Provenzano in The Sault Star this week as saying the Essex board ruling was “interesting” and that it was something council and staff needs to consider.
“A report could be requested by council on the impact (of the decision) and how the city can proceed from here,” Provenzano said.
The Christian Labour Association of Canada as a result of the latest ruling vowed in a news release to bring the matter again to the attention of decision makers at Queen’s Park.
But Provenzano told Della-Mattia he doesn’t see the need to raise the lobby effort again since Harris’s bill failed and the same government is in power.
Instead, he wants to know whether the Greater Essex and County District School Board decision set a precedence the city can capitalize on.
“That might be the more effective way to deal with this,” he said.
The same government may be in power, all right, but it should be noted its circumstances have changed. It now has a majority whereas in 2013 it was in a minority situation and needed the NDP to shore it up. So it may now have a change of heart.
It also will be interesting how our council reacts. The previous council didn’t cover itself in glory in 2013, deferring staff’s recommendation that it support Harris’s bill on the basis of a complaint by Ward 6 Coun. Joe Krmpotich, council’s resident unionist, that it was an attack on unions and needed public input.
That, of course, was a crock.
Yet only then mayor Debbie Amaroso and Councillors Lou Turco and Susan Myers voted against deferral, acknowledging council already had at hand all the information required to make a reasoned decision. Coun. Paul Christian, who was absent, voiced approval of staff’s recommendation in a short note.
In any event, Harris’s bill was defeated before council got back to it so the matter was laid to rest.
Provenzano stressed to Della-Mattia that the issue isn’t about being anti-union, but instead about fairness.
“It’s a matter of fairness in the market and getting a contract with the most competitive price for the taxpayer,” he said.
As far as it goes, I agree with that statement; competitive pricing on city projects is important.
But I believe what is at stake here goes far beyond that.
We are talking about a fundamental freedom, a freedom under which all are equal in life, liberty and the pursuit of happiness.
And to work on city projects whether unionized or not.
Council should move quickly and forcefully to again attempt to right the wrong that has been plaguing the city since 1987.
Doug Millroy can be reached a dmillroy@gmail.com.
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