[1981] OLRB Rep. November 1598
1215-81-JD Joseph Brant Memorial Hospital, Complainant, v. International Union of Operating Engineers, Local 772, and Canadian Union of Public Employees, Local 1065, Respondents
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members D. B. Archer and W. G. Donnelly.
APPEARANCES: D. W. Brady, W. J. Lyall and D. L. Bugsis for the complainant; F. G. Grigsby and E.J. Herechuk for International Union of Operating Engineers, Local 772; and M. Hikl, R. Quinn and D. Reid for Canadian Union of Public Employees, Local 1065.
DECISION OF THE BOARD; November 6, 1981
[1]. This is an application under section 91 of the Labour Relations Act. Since this is the second application before the Board involving these parties, it may be useful to briefly set out some of the history of their relationship, and the context in which the present proceeding arises.
[2]. In 1962, the International Union of Operating Engineers (IUOE) was certified as the bargaining agent for the four stationary engineers then employed by the applicant. The bargaining unit was framed as a "craft unit" referring only to "stationary engineers". Shortly thereafter, the IUOE applied to be certified as the bargaining agent for the hospital's maintenance employees, but the Board found that this employee group did not constitute an appropriate bargaining unit, and the application was dismissed. Subsequently, the Canadian Union of Public Employees (CUPE) was certified to represent all of the hospital's service employees including certain skilled trades and employees engaged in maintenance work. The two bargaining units have existed side by side for many years. Over time, a practice evolved whereby certain maintenance functions came to be performed by members of both units. Both collective agreements recognize this practice. Until January 1979, jurisdiction over maintenance work has been shared by the IUOF and CUPE.
[3]. From 1976 to 1978, the hospital employed seven stationary engineers. Four of these were employed exclusively in the boiler-room on regularly scheduled shifts. The other three were primarily engaged in maintenance work, but worked in the boiler-room on a "relief" basis when any of the four regular boiler-room employees was on vacation, sick leave, etc. Because of the equipment then in place, a stationary engineer holding a valid provincial licence had to be in the boiler-room at all times and all persons working in the boiler-room had to have a thorough understanding of steam and pressure vessels. These qualifications were required of all seven stationary engineers then employed by the hospital, even though the three engineers ordinarily engaged in maintenance work were only in the boiler-room on a sporadic basis (perhaps ten to fifteen per cent of their time). Prior to 1979, all seven members of the IUOF were employed because they were stationary engineers.
[4]. As we have already mentioned, the three "fill-in" stationary engineers were not the only employees engaged in general maintenance. Two or three employees represented by CUPE were also used to perform routine maintenance jobs around the hospital. In addition, specialized work was done by the CUPE skilled trades group (plumbers, electricians, etc.). In the negotiations preceding the 1976-1978 agreement, the IUGE tried to secure exclusive jurisdiction over general maintenance work, but the hospital opposed this submission, and eventually it was agreed that the hospital would retain its discretion to allocate the maintenance work to members of both unions.
[5]. In 1977, the hospital began to consider the conversion of its boiler-room to a newer and safer coil tube system. The conversion was completed on or about January 1st, 1979. The operation and maintenance of the new system did not require stationary engineers. Of the seven stationary engineers employed in January 1979, four were reclassified as "maintenance mechanics", one retired, and two left to find work elsewhere where they could maintain their skills and status as stationary engineers. The hospital has treated those who remained as maintenance employees falling within the CUPE unit. CUPE agreed to waive the job posting requirements in its agreement, and to accept the four individuals into membership. By agreement, they maintained their seniority rights, which they were then permitted to exercise within the CUPE bargaining unit. Had they not been prepared to accept this reclassification, they would had been laid off and the maintenance work performed by other CUPE members. One of the stationary engineers who joined the CUPE local in 1979, is now the local union president.
[6]. The applicant's general maintenance group now consists of four stationary engineers formerly represented by the I UGE, and two other employees who have always been represented by CUPE. No longer is anyone permanently located in the boiler-room, nor do provincial regulations now require it. All six maintenance employees do visit the boiler-room from time to time, to check the water pressure and coil temperature, inspect the equipment, check the panels for alarms or warning lights, do a water analysis, or adjust the chemical feeds; however, these duties only occupy one person for about 1 or l-l/2 hours on the day shift and about 3!4 of an hour on the night shift. Innovation has substantially reduced the skill content of the job. It no longer requires the training and experience of a stationary engineer. The hospital maintains that since 1979 when the equipment was converted, there has been no work for stationary engineers, and the IUOE has represented an empty bargaining unit. The IUOF claims that it continues to represent those employees now doing maintenance work.
[7]. The last jointly negotiated collective agreement between the hospital and the IUGE expired on March 31, 1978, however the elimination of the hospital's need for stationary engineers did not wipe out the IUOE's bargaining rights and the IUOE continued to press for a new collective agreement. When negotiations broke down, a Board of Arbitration constituted pursuant to the Hospital Labour Disputes Arbitration Act prescribed a collective agreement running from April, 1978 to March 31, 1980. It was clear that this agreement could apply for the period between April 1, 1978 and December 31, 1978, since the conversion of the boiler system had not been completed. Thereafter, however, the stationary engineers remaining in the hospital's employ were treated for all purposes as falling within the maintenance classification in the CUPE collective agreement. Dues were deducted for these employees and remitted to CUPE. No dues were deducted on behalf of the IUOE. The hospital claims that from January 1979 on, the IUOE agreement was "academic".
[8]. While the reclassification of the stationary engineers was accepted by the IUOE members, it was not accepted by the union itself. On August 13, 1979, the IUOE filed a policy grievance alleging the non-remittance of dues in respect of six" maintenance" employees. This grievance was not pressed to arbitration; however, a further grievance to the same effect was filed on March31, 1981. On March4, 1980, the IUOE gave notice of its desire to renegotiate a new collective agreement. The hospital responded that there was nothing to negotiate since the bargaining unit had been vacant for more than a year. Some eight months later, on February 18, 1981, the union again wrote to the hospital requesting a resumption of negotiations. At a subsequent meeting on March 13, 1981, the hospital reiterated its position that further bargaining was pointless. On April 10, 1981, the union applied for conciliation which was granted on May 13, 1981.
[9]. After the meeting with the IUOE but before a conciliation officer had been appointed, the hospital filed a termination application with the Board. The hospital argued that only a declaration terminating the IUOE's bargaining rights, would avoid what it characterized as a "pointless merry-go-round" of bargaining and mandatory interest arbitration. In its view, there were no employees in the bargaining unit, and no job classifications, vacant or otherwise, that could be covered by any collective agreement with the operating engineers. The hospital urged the Board to terminate the union's bargaining rights.
[10]. For reasons more particularly set out in its decision of August 12, 1981 (Reported in [1981] OLRB Rep. Aug. 1151) the Board dismissed the hospital's application, — holding that the termination provisions of the Act did not apply to the rather unusual circumstances of the case. But the Board was not unsympathetic to the hospital's dilemma, and noted that the jurisdictional dispute provisions of the Act might provide a remedy. The present application was filed on September 1, 1981.
[11]. The relevant provisions of the Act are as follows:
91(l)The Board may inquire into a complaint that a trade union or council of trade unions, or an officer, official or agent of a trade union or council of trades unions, was or is requiring an employer or an employers' organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another trade union or in another trade, craft or class, or that an employer was or is assigning work to persons in a particular trade union rather than to persons in another trade union, and it shall direct what action, if any, the employer, the employers' organization, the trade union or the council of trade unions or any officer, official or agent of any of them or any person shall do or refrain from doing with respect to the assignment of work.
(15) The Board may in its discretion, or at any time following the release of its direction, alter the bargaining unit determined in a collective agreement as it considers proper, and the certificate or agreement, as the case may be, shall be deemed to have been altered accordingly.
(16) The Board may, upon the application of any person, employer, trade union, council of trade unions or employers' organization affected by a decision of a tribunal referred to in subsection (14), alter the bargaining unit determined in certificate or defined in a collective agreement as it considers proper to enable the parties to conform to the decision of the tribunal, and the certificate or agreement, as the case may be, shall be deemed to have been altered accordingly.
(18) Where an employer is a party to or is bound by two or more collective agreements and it appears that the description of the bargaining unit in one of such agreements conflicts with the description of the bargaining unit in the other or another of such agreements, the Board may, upon the application of the employer or any of the trade unions concerned, alter the description of the bargaining units in any such agreement as it considers proper, and the agreement or agreements shall be deemed to have been altered accordingly.
[12]. The hospital argues, as it did on the earlier termination application, that unless the Board grants the hospital relief under section 91, it will be compelled to engage in protracted, costly, and pointless negotiations. In the hospital's submission, it is trapped on a meaningless treadmill from which it cannot escape without the assistance of the Board. The hospital urges the Board to use the broad powers conferred upon it by sections 91(14) and 91(15) to erase the IUOE's bargaining rights.
[13]. The IUOE argues that its bargaining unit is not now and never has been vacant. The hospital continues to employ individuals who continue to hold their licence as stationary engineers. Stationary engineers are continuing to perform maintenance work in much the same way as they did prior to January 1979. The change, argues the IUOE, is that two CUPE members who are not stationary engineers are now doing work in the boiler-room. The IUOE does not ignore the fact of the conversion to new equipment, but maintains that its members remain entitled to perform the maintenance work as they did before, and seeks a Board direction to this effect. The practical result of such direction of course, would be to create the very kind of "maintenance" bargaining unit which the Board refused to create in 1962, and since the IUOE now claims exclusive jurisdiction over maintenance, would remove from the CUPE bargaining unit a body of work to which some of its members also have a claim. Moreover, there is no indication that the persons performing the work, (who are now all members of CUPE) have any interest in being represented by the IUOE. Since the same individuals are doing the maintenance work, there is no question of directing the hospital to assign it to anyone else. Rather, the IUOF seeks a direction that the hospital recognize its status or rights respecting the employees doing that work.
[14]. The evidence discloses that both CUPE and the IUOE are claiming the same body of maintenance work, and accordingly, there is a jurisdictional dispute within the meaning of section 91(1) of the Act. It is our view that in the rather unusual circumstances of this case, CUPE has the stronger claim. The employer has always retained the jurisdiction to assign the work as it sees fit and neither union has ever had a monopoly. The nature of the maintenance work does not require the skills of a stationary engineer. It can be performed safely, efficiently, and economically by less skilled unlicenced employees. Indeed, even before the conversion of the boiler-room, the stationary engineers engaged in maintenance work, were only engaged for a small portion of their time in work for which their licence and specialized expertise was necessary. Now, semi-skilled work of the kind formerly done by CUPE and IUOE members interchangeably, is the only kind of work available. Technological change has made the special skills of a stationary engineer superfluous to the applicant's operation. That is why, following conversion, two of the stationary engineers left to seek work elsewhere where they could continue to work in their recognized job territory.
[15]. The Labour Relations Act accords a special status to craft bargaining units, but it does not guarantee their continued preservation when the craft basis for them has been eroded or disappears. That is essentially what has happened in the instant case, and we are satisfied that the most appropriate resolution to this application would be for the Board to affirm CUPE's entitlement to the maintenance work in dispute, and redefine the IUOE's bargaining unit so that it applies only to persons engaged to performing tasks for which a licence stationary engineer is required. Accordingly, the Board directs:
a) that the general maintenance work formerly shared by members of CUPE and the IUOE, but not requiring the specialized training and licence of a stationary engineer, shall henceforth be assigned exclusively to members of CUPE;
b) that the routine maintenance, observation and related duties in the boiler-room, formerly performed by members of the IUOE but now no longer requiring a licenced stationary engineer, shall likewise be assigned to members of CUPE;
c) that the scope clause in the latest collective agreement between the applicant and the I UOE shall be amended so that it reads as follows:
"This agreement shall apply to all stationary engineers engaged in activities for which a licenced stationary engineer is required (hereinafter called "employees") employed in the Joseph Brant Memorial Hospital at Burlington, Ontario, save and except supervisors and personnel above the rank of supervisor".
These directions will resolve the jurisdictional dispute, and restrict the IUOE's bargaining rights to work requiring a licenced stationary engineer. Since there are no employees engaged in such work at the present time, and no likelihood that anyone will be so employed in the future, the IUOE's bargaining unit is and will likely remain vacant. This does not mean that, as a matter of law, the IUOE's bargaining rights are terminated. While that is what the applicant requested, we do not think that result can be obtained under section 91. On the other hand, since there are currently no members in the bargaining unit for the union to represent, and little likelihood that there ever will be, continued bargaining would be meaningless charade which the hospital could quite properly ignore. In any event, despite the tenacity which the IUOE has demonstrated heretofore, in light of this decision, it is inconceivable that it would continue to engage in a pointless exercise which could have no tangible benefits to anyone.