No CrossRef data available.
Article contents
Labour-Management Relations in the Construction Industry: The Findings of the Goldenberg Commission
Published online by Cambridge University Press: 07 November 2014
Extract
Since the Second World War there has been a growing awareness that labour relations in the construction industry do not lend themselves to legislative frameworks designed to cope with union-management relations in general. In the United States this has given rise to a number of provisions in the federal legislation which have particular reference to the labour problems of the construction industry. Under the Taft-Hartley Act, for example, there was the banning of the closed shop and the prohibition of jurisdictional disputes and certain types of secondary boycotts. More recently, under the Landrum-Griffin Act, unions in the building trades were exempted from some of the restrictions which apply to union-security arrangements and to the employment of secondary boycotts in industry and commerce generally.
That there is also the need for a special legislative approach to the labour relations problems of the construction industry in at least one jurisdiction in Canada has been shown by the work of the Goldenberg Commission in the Province of Ontario. After setting this work in perspective, this article will focus on the implications of the Commission's findings for the applicability of both the Ontario Labour Relations Act and such protective labour statutes as the Industrial Standards Act.
- Type
- Articles
- Information
- Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 29 , Issue 3 , August 1963 , pp. 348 - 363
- Copyright
- Copyright © Canadian Political Science Association 1963
References
1 See US Senate, Committee on Labor and Public Welfare, To Amend the National Labor Relations Act, 1947, with Respect to the Building and Construction Industry, Hearings before the Sub-committee on Labor and Labor-Management Relations, 82nd Congress, 1st Session, 08 27–29 and Sept. 4, 1951 (Washington, 1951)Google Scholar; and Richards, Paul B., “The Building and Construction Industry and the Taft-Hartley Act,” Industrial and Labor Relations Review, II, no. 3, 06, 1956, 13–16.Google Scholar
2 Labor-Management Relations Act, Public Law 80–101, 80th Congress, 1st Session, June 23, 1947.
3 Labor-Management Reporting and Disclosure Act, Public Law 86-257, 86th Congress, 1st Session, Sept. 14, 1959.
4 The Commission was appointed in June of 1961 under a Provincial Order-in-Council (O.C.-2622/61, June 27, 1961 ) which instructed it “to inquire into and to report upon the relations between labour and management in the construction industry in Ontario, and such other matters as in the opinion of the Commissioner may pertain thereto.” With the appointment of H. Carl Goldenberg, O.B.E., Q.C., as sole Royal Commissioner, it became known as the Goldenberg Commission. The Commission's Report, the Report of the Royal Commission on Labour-Management Relations in the Construction Industry was released in March, 1962. It will be referred to as the Goldenberg Report.
5 Throughout this paper reference will be made to the Labour Relations Act (Rev. Stat. Ontario, 1960, c. 202 ) as it stood prior to the Goldenberg Commission. Changes which have been enacted, along with a number of other developments since the publication of the Report, have been the subject of a paper by the author at the Spring Meetings of the Industrial Relations Research Association, 1963.
6 Rev. Stat. Ontario, 1960, c. 186.
7 See Dunlop, John T., “Labour-Management Relations,” in Kelly, Burnham, ed., Design and Production of Homes (New York, 1959)Google Scholar; Bertram, G. W. and Maisel, S. J., Industrial Relations in the Construction Industry—The Northern California Experience (Berkeley, 1955)Google Scholar; and Dunlop, John T., Industrial Relations Systems (New York, 1958) chap, vi, 198–263.Google Scholar Much of the material in this section of the paper has been drawn from these sources as well as from unpublished studies prepared for the Goldenberg Commission.
8 The only major exceptions are among the prime or general contractors. Aside from a limited range of jobs, however, it is normal for them to subcontract the bulk of their work to specialty contractors.
9 For a summary of the point of view of the building trades on this subject, see the testimony of an official of the Ontario Federation of Labour, Goldenberg Report, 38.Google Scholar
10 This should not be taken to mean that no progress has been made in this respect in the Province. For over a decade the giant Hydro-Electric Power Commission of Ontario, for example, has dealt with a council of unions representing most of the building trades having members in its employ with considerable success. Another example is afforded by the agreement between the Metropolitan Toronto Road Builders' Association and a three-union council composed of locals of the hoisting engineers, the teamsters, and the labourers. A similar agreement has been signed by the same three unions with the Metropolitan Toronto Sewer and Watermain Contractors' Association. In none of these cases have the unions involved officially surrendered any of their trade autonomy. How much they may have surrendered in practice is not known; the evidence available suggests that it has been minimal.
11 For a comprehensive treatment of the jurisdictional disputes problem in the construction industry and an excellent bibliography, see Strand, Kenneth T., Jurisdictional Disputes in Construction: The Causes, the Joint Board and the NLRB (Pullman, Wash., 1961).Google Scholar
12 See Rains, H. H., “Jurisdictional-Dispute Settlements in the Building Trades,” Labor Law Journal, VIII, no. 6, 06, 1957, 385–94.Google Scholar
13 Under Sections 66 and 76 of the Labour Relations Act.
14 See Crispo, J. H. G. and Arthurs, H. W., “Jurisdictional Disputes in Canada: A Study in Frustration,” in Palmer, Earl, ed., Current Law and Social Problems, III (Toronto, 1963).Google Scholar
15 Regina v. Orliffe (1961), Ontario Weekly Notes 223. The effect of this decision is that, for example, if a contractor was using common labourers to do work normally assigned to carpenters and this led to a work stoppage, the Jurisdictional Disputes Commission would be powerless to remedy the situation by ordering the contractor to use carpenters for the work unless the contractor already had some in his employ.
16 See Goldenberg Report, 10–15.
17 See Bertram, and Maisel, , Industrial Relations in the Construction Industry—The Northern California Experience, 31–2.Google Scholar
18 See Goldenberg Report, 47–55.
19 Testimony before the Commission revealed that somewhat similar although less explosive conditions existed in road-building and sewer and watermain construction. Much of what is said with regard to residential building in this paper might be said to apply with almost equal force to these sectors of the industry. See Goldenberg Report, 23–24.
20 “Downtown” or “old-line” are the terms which came to be used to distinguish the long-established building trades locals in commercial and industrial construction from the “new” locals which were chartered in the residential field.
21 During the period there was some slack in commercial and industrial construction as well as in residential construction. Since a number of their members were either unemployed or not fully employed, the downtown unions had no desire to open their ranks to additional numbers.
22 These unions were content to confine their activities to the commercial and industrial end of the industry and never made a concerted effort to organize residential workers.
23 Where possible, residential workers who were not within the jurisdictions of the new locals joined the appropriate downtown unions. A few of the latter worked closely with the new locals; others remained hostile to them. According to many of the downtown union officials the new locals should never have been chartered in the first place because they infringed upon the jurisdictions of locals already functioning in the area.
24 This term was derived from the fact that many of the mass meetings sponsored by this group were originally held in a hall on Brandon Avenue in Toronto.
25 This tragedy, as well as a series of other industrial accidents ultimately led to the appointment of a Royal Commission on Industrial Safety. In so far as this Commission dealt with the construction industry, its Report confirms a number of the findings of the Goldenberg Commission. See Report of the Royal Commission on Industrial Safety, 1961.
26 Under the Labour Relations Act (sec. 54) all strikes are barred until a union has been certified or voluntarily recognized and until the mandatory conciliation procedure in the province has been exhausted. This rules out all forms of organizational or recognition strikes.
27 For those who were not under contract, the strike amounted to an organizational walkout and was contrary to the law. See ibid. For those who were under contract, the strike was illegal because the Labour Relations Act (sec. 54) bars strike action during the term of a collective agreement.
28 Along with the establishment of the Goldenberg Commission, the government agreed to set up a special ad hoc arbitration board to adjudicate the alleged violations of the collective agreements signed in 1960 and to appoint additional inspectors to enforce the existing labour standards in the Province. In conjunction with the creation of the Commission, the latter proposals—as well as the diminishing effectiveness of the walkout—eventually led the unions to bring the dispute to an unofficial end.
29 Ontario Legislature, Select Committee on Labour Relations, The Report of the Select Committee on Labour Relations of the Ontario Legislature, 1958.Google Scholar
30 A major exception was the creation of the Jurisdictional Disputes Commission referred to previously.
31 The unions also had complaints about the enforcement of the Act. By one means or another, for example, some builders and contractors apparently were intent upon abrogating the right of employees to form unions and bargain collectively. The difficulty with charges concerning these violations stems from their nebulous character and the inherent problems involved in documenting them. That there was substance to the complaints was nevertheless accepted by the Commission, a fact which is reflected in many of its recommendations.
32 Under Ontario law the use of organizational picket lines is not necessarily illegal unless it leads to an actual withdrawal of labour on the jobs affected. In most cases the picket lines in question did have this effect.
33 As was suggested in a previous footnote there was also evidence that some home-builders and residential contractors were employing tactics which although technically legal under the Labour Relations Act were inimical to its basic intent and purpose. See Goldenberg Report, 54.
34 This is the twelve-man tripartite board which is responsible for administering the Act. It is composed of three union, three management, and six public representatives.
35 OFCA alleged that the tripartite composition of the Labour Relations Board was the root cause of the failure to enforce the Act rigorously.
36 Rev. Stat. Ontario, 1960, c. 161.
37 Ibid., c. 437.
38 Rev. Stat. Canada, 1952, c. 273, amended.
39 Rev. Stat. Ontario, 1960, c. 230.
40 Ibid., c. 233.
41 Numerous suggestions of a more specific nature were submitted to improve the effectiveness of the other acts mentioned above.
42 Under a special provision in the Industrial Standards Act this is the manner in which minimum standards are enforced in the garment trades in Ontario. It is the general practice in all industries under the Collective Agreement Act (Rev. Stat. Quebec, 1941, c. 163, as amended to 1960, c. 71) in the Province of Quebec.
43 A number of these groups also joined with the unions in taking exception to the lack of a firm commitment by the province to the paying of prevailing rates on all government contracts. A smaller number endorsed the view that where public funds are involved, a similar commitment should apply to private residential projects.
44 Not all of the many recommendations placed before the Commission could be dealt with in this presentation. Those of major import have been reviewed in some detail and those of minor significance have been ignored.
45 Industrial Relations and Disputes Investigation Act, Rev. Stat. Canada, 1952, c. 152, sec. 2(3).
46 Other suggested changes in the certification procedure would have the effect of placing more emphasis on area certifications (which apply to all of an employer's workers within a specified area) as opposed to project certifications (which only apply to an employer's workers on a particular project) and would serve to expedite certification and decertification proceedings in build-up situations.
47 It has been a long-standing policy of the Labour Relations Board never to grant certification without a public hearing before the Board itself. If the recommendations of the Commission are accepted, public hearings will only be held in the future in the event of an appeal and even then would be limited to an interpretation of the facts as found by the hearing officer.
48 The Commission estimated that it takes a minimum of four months after notice of intention to bargain before the normal conciliation machinery is exhausted and the parties are free to employ direct action. See Goldenberg Report, 34.
49 It also suggested that if the parties should choose to make use of Section 14 of the Act, which allows them to resort to the services of a private mediator instead of the normal conciliation machinery, the services of the former should be paid for by the government. This would be in keeping with the public payment of conciliation officers and the chairmen of conciliation boards and might encourage greater use of private mediators acceptable to both sides. As a further inducement to the peaceful resolution of industrial disputes, it proposed that the Act explicitly authorize the use of mediators and conciliation boards as arbitration tribunals where the parties are prepared formally to agree to this in advance.
50 A number of recommendations were advanced—most of them dealing with the timing element in the present procedure—with this purpose in mind.
51 Although it was recommended that provision be made for joint certification by two or more unions, this is not likely to prove of much practical import.
52 See, for example, Hildebrand, George H., “The Use of Tripartite Bodies to Supplement Collective Bargaining,” in Somers, Gerald G., ed., Proceedings of the 1961 Spring Meeting of the Industrial Relations Research Association (Chicago, 05 4 and 5, 1961), 55–64 Google Scholar, reprinted from the July, 1961, issue of the Labor Law Journal. See also Hildebrand, George H., The Use of Informed Neutrals in Difficult Bargaining Situations (Ithaca, 1961).Google Scholar
53 It is doubtful that the headquarters of the various international unions involved would agree to such an arrangement. On the question of jurisdiction, few international unions, especially in the building trades, have ever granted a great deal of autonomy to their Canadian locals. See Norgren, Paul H., “The Labor Link Between Canada and the United States,” Industrial and Labor Relations Review IV, no. 1, 10, 1950.Google Scholar
54 It is to be noted that the Ontario Labour Relations Board and the Jurisdictional Disputes Commission have both had the right to resort to more direct measures in some cases. The Board has had the power to order appropriate remedial action in cases involving discriminatory discharge for engaging in union activity and the Jurisdictional Disputes Commission has had wide discretion to issue cease and desist orders wherever it felt them to be necessary.
55 The absence of such a policy is likely to result in under-utilization of the existing labour force and the concomitant attachment of undue amounts of labour to the industry. If a contractor is rained out on two days of the week and cannot work his normal crew more than the standard hours of work on the remaining days without paying them overtime rates, he will be tempted either to postpone the work or to hire extra workers to make up for the lost time. When a job is rained out on a particular day, it might be wise to provide for limited extra hours of work on subsequent days at the normal rate of pay, to ensure the existing work force more regular weekly take-home pay and reduce the amount of labour required by the industry.
56 Because of the differing characteristics of the various sectors of the industry, there would probably have to be a separate unit for each of the major sectors.
57 It did suggest that all contracts in the industry terminate on the same date and that a single set of conciliation proceedings be set in motion to deal wih all outstanding disputes as of the expiry dates of the old agreements. While there is considerable merit in each of these proposals, neither really gets to the root of the problem. Unless the contractors are strong and united they would still be subject to the whipsawing tactics which the unions have employed successfully in the past. Given contractors' associations with greater internal strength and cohesiveness, on the other hand, both of these proposals would certainly be of immense strategic value to the employers.
58 This is not to imply that it was the primary purpose of the Commission to facilitate collective bargaining in residential construction. In so far as this seemed to be one of the most effective means by which to eradicate abuse of labour, however, it was bound to be a central consideration. Judging by past performance in the industry it is not unreasonable to suggest that without effective organization the residential workers will remain exceedingly vulnerable to adverse swings in the economic environment.