The Millwright District Council of Ontario v. Rockwell International Corporation Graphic Systems Division, 1981 CanLII 964

The Millwright District Council of Ontario v. Rockwell International Corporation Graphic Systems Division

[1981] OLRB Rep. June 780

1984-80-R The Millwright District Council of Ontario, United Brotherhood of Carpenters and Joiners of America, on behalf of Locals 494; 1007; 1410; 1425; 1592; 1916 and 2309, Applicant v. Rockwell International Corporation Graphic Systems Division, Respondent, v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.) and its Locals 61, 1941, 1297 1067 and 127, Intervener #1, v. Progressive Lodge No. 126, International Association of Machinists and Aerospace Workers, Intervener #2.

BEFORE: Ian Springate, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.

APPEARANCES: Douglas J. Wrap, John H. Irvine and Harry Carruthers for the applicant; H. A. Beresford, W. J. Hayter, Robert Ostrovitz and Al Fisher for the respondent; H. P. Rolph, Bill Zilio, Lorna Moses and Bob Farrel for intervener #1; R. Hayes and A. Walker for intervener #2.

DECISION OF IAN SPRINGATE, VICE-CHAIRMAN, AND BOARD MEMBERS H. J. F. ADE; June 8, 1981

1. The name: "Rockwell International — Graphic Systems Division" appearing in the style of cause of this application as the name of the respondent is amended to read: "Rockwell International Corporation Graphic Systems Division

2. This is an application for certification filed pursuant to the construction industry provisions of The Labour Relations Act. By way of this application the applicant is seeking to be certified to represent a unit of millwrights and millwrights' apprentices in the employ of Rockwell International Corporation Graphic Systems Division ("Rockwell International") in the Province of Ontario.

3. Rockwell International is a company incorporated in the United States of America with its corporate headquarters at Pittsburgh, Pennsylvania. Affiliated with Rockwell International is Rockwell International of Canada Limited, a firm incorporated in Canada which carries on manufacturing operations at a number of locations in Ontario. The United Automobile Workers ("U.A.W.") represents certain employees of Rockwell International of Canada Limited and intervened in the proceedings out of a concern that the application might affect its own bargaining rights. However, once assured that the applicant was not seeking bargaining right; with respect to Rockwell International of Canada Limited, the U.A.W. withdrew from active participation in the proceedings.

4. Rockwell International engaged in a variety of operations through several different divisions. The instant application is concerned only with its graphic systems division which is headquartered in Chicago, Illinois. Rockwell International's graphic systems division manufactures and installs large modern printing presses. During the month of December, 1980, a crew of employees of Rockwell International were engaged in the installation of a press for Web Offset Publications Ltd. in Pickering, Ontario. While so engaged, certain of these employees signed applications to become members of one of the constituent locals of the applicant council of trade unions and on this basis the applicant filed its application for certification.

5. Counsel for Rockwell International raised a number of objections to the application for certification, including an allegation that the employees who had signed the applications for membership filed by the applicant did so under the impression that the documents were temporary work permits. However, on agreement of the parties, the Board first dealt with yet another objection to the application, one supported by Progressive Lodge No. 126, International Association of Machinists and Aerospace Workers ("Lodge No. 126"). This objection was based on the claim that the employees in question are already covered by a subsisting collective agreement between Rockwell International and Lodge No. 126 which is not due to expire until November 1, 1981 and that accordingly the application is untimely. The applicant acknowledges that if the agreement in question is recognized as a valid collective agreement covering the employees of Rockwell International while working in Ontario, then its application for certification is untimely under section 5 of the Act. However, the applicant submits that the agreement is not a valid collective agreement in Ontario on the grounds that since Lodge No. 126 has no permanent presence in Ontario, it cannot be a trade union under The Labour Relations Act, and accordingly cannot enter into a collective agreement valid in Ontario. In addition, the applicant contends that the Board should not recognize an agreement executed outside of the province as a collective agreement under the Act.

6. Lodge No. 126 is based in Bellwood, Illinois, a suburb of Chicago. The Board heard extensive evidence concerning the structure and history of the Lodge, as well as its role as the bargaining representative of "press erectors", skilled individuals who are engaged in the installation and repair of large printing presses. When installing presses, these press erectors appear to perform the same general types of functions as are performed by millwrights when they install other types of equipment. We are satisfied that much, if not all, of the installation work performed by press erectors represented by Lodge No. 126 is work within the construction industry as that term is defined in section l(l)(f) of the Act.

7. From its early beginning, the International Association of Machinists and Aerospace Workers ("I .A. M.") has represented a number of construction industry employees. However, over the years the union has evolved into what is essentially an industrial trade union. In Canada only one British Columbia Lodge of the union remains active in the construction industry. At the hearing, Mr. A. Walker, an international representative of the I.A.M., indicated that no Ontario based Lodge of the union has been signatory to a construction industry collective agreement since 1940. Although no direct evidence was led on this point, we received the impression that only a relatively small number of lodges of the union in the United States are still active in the construction industry. Lodge No. 126 is one of the I.A.M.'s "construction lodges", and its members appear to be primarily engaged in work that falls within the construction industry. The Lodge is affiliated with the Chicago and Cook County Building and Construction Trades Council. The total membership of the Lodge is 936, of whom approximately seventy-five are employed as press erectors by Rockwell International. The Lodge also has as members a small number of "independent" press erectors who work primarily on installation of second-hand presses.

8. Prior to 1972 there were three major companies in North America engaged in the manufacture arid installation of large presses. At least one of these companies was based in Chicago. Lodge No. 126 had collective agreements covering press erectors with two of these companies as hr back as 1942. The third company apparently never did sign a collective agreement with the Lodge, although it only employed press erectors belonging to Lodge No. 126 and it paid them pursuant to the terms of the agreements with the other two firms. The evidence indicates that press erectors belonging to the Lodge have for at least the past thirty-four years installed presses outside of the Chicago area.

9. In 1972 the three press manufacturing firms became part of Rockwell International. This made Rockwell International the world's pre-eminent manufacturer and installer of large presses. The company installs presses throughout the world, including in such far off locations as South America and the Soviet Union. Generally, employees of a local contractor do the bulk of the installation work, but their work is overseen by Rockwell's own press erectors and it is Rockwell's own erectors who level the presses and do the final check of the equipment. Although both Rockwell International's graphic systems division and Lodge No. 126 are based in the Chicago area, because the press erectors are constantly being sent to different locations to install presses, it matters little where they permanently reside. As a result, most of the company's press erectors have established their permanent residences away from Chicago. Indeed, of the seventy-five press erectors who work for Rockwell International only about twenty reside in the Chicago area.

10. Press erectors belonging to Lodge No. 126 and employed by Rockwell International have on a number of occasions worked on the installation of large presses in the Province of Ontario. At the time of the making of this application, all the press erectors working in Ontario were American citizens. However, five of the press erectors employed by Rockwell International are Canadian citizens, and, like all of the company's press erectors, they are members of Lodge No. 126. Three of these Canadian citizens have their permanent residences in Ontario, one resides in Manitoba, and the remaining one resides permanently in the United States. At the time of the hearing, two of the Canadian residents were engaged in erection work for Rockwell International in the United States (one in Alabama, the other in California), one was doing similar work for the company in Finland, and the other was employed by the company in New Zealand.

11. As already indicated, only some twenty of the press erectors who work for Rockwell International live in the Chicago area, and at any point in time, many of the erectors will be working in various is parts of the world. Lodge No. 126 has sought to tailor its operations to take into account the geographic spread of its membership. Although all meetings of the Lodge are held in the Chicago area, persons outside of the area can vote in elections for Lodge officers by way of mail-in ballots. All communications with the Lodge membership with respect to negotiations covering press erectors is done by mail, and when a tentative agreement has been reached with Rcckwell International a mail-in ratification vote is conducted amongst the erectors.

12. The current collective agreement between Rockwell International and Lodge No. 126 contains no geographic limitation. The recognition clause reads as follows:

The company agrees to recognize the Progressive Lodge No. 126. International Association of Machinists and Aerospace Workers as the sole exclusive bargaining representative of all machinists, erectors and press erectors engaged in assembling, erecting and dismantling, repairing and maintenance of printing presses and auxiliary printing equipment outside of the plant premises.

There are at least two provisions in the collective agreement which clearly indicate that the agreement is meant to apply outside of the United States. Article VI stipulates that the pay of leadman installers is to vary, depending on whether or not they are working on the North American continent. Article XVIII of the agreement provides as follows for home visits by employees working away from home for long period of time:

The Company will pay the transportation costs (round trip) to an employee's home once every three (3) months for those employees who are away from home for long period of time. All trips home shall be arranged by the Company to the convenience of the job. This clause applies only to those erectors employed within the continental limits of the United States and Canada.

13. The evidence before the Board indicates that the terms of the collective agreement have in fact been applied to the press erectors of Rockwell International wherever they have been employed throughout the world. In particular, the evidence indicates the collective agreement has been applied to press erectors employed by Rockwell International when they have been employed in the Province of Ontario.

14. In seeking to determine the status of Lodge No. 126 and of its agreement with Rockwell International in the Province of Ontario, it goes without saying that the only applicable law is the law of Ontario. If Lodge No. 126 has the status of a trade union in Ontario it must be because it meets the definition of a trade union set out in section l(l)(n) of the Ontario Act. Similarly, if the agreement is to be regarded as a valid collective agreement in Ontario, it must be because it meets the definition of a collective agreement set out in section l(l)(e) of the Act.

15. Section l(l)(n) of the Act defines a trade union in the following terms:

l.—(l) In this Act,

(n) "trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and designated or certified employee bargaining agency.

16. Having reviewed the constitution of the I.A.M., the by-laws of Lodge No. 126 and the viva voce testimony given concerning how the Lodge functions, we are satisfied that the Lodge is a viable organization of employees based in Bellwood, Illinois which has been established to regulate relations between employees and employers. If the Lodge's headquarters were in Ontario there would be no question but that the Lodge meets the requirements of a trade union set out in section l(l)(n).

17. It was strenuously contended by counsel for the applicant that Lodge No. 126 cannot be a trade union under the Act because it lacks any permanent presence in Ontario. It is undisputed that while a small number of the Lodge's membership permanently reside in Ontario, and while members from time to time work in Ontario in the installation of presses, the Lodge has no permanent officials or offices in the Province. In support of its contention that Lodge No. 126 lacks the status of a trade union in Ontario, the applicant relied on the 1952 decision of the Board in the A. H. Boulton case, 52 CLLC ¶ 17,035, in which the Board dismissed an application for certification of a union local situated in Detroit, Michigan even though the local had an office in Ontario and employed organizers in the Province. In that case the Board concluded that the local did not subsist in any true sense within the Province and on this basis concluded that it did not have the status of a trade union in Ontario. The decision in the Boulton case was considered recently by the Board in La-Z-Boy Canada Limited, [1981] OLRB Rep. April 460. In that case the Board declined to follow the reasoning of the Boulton case on the basis that when the Board determines whether or not an organization has the status of a trade union, the Board must look to see whether or not it fits the definition of a trade union set out in the A ct, not whether the organization has established a presence in Ontario. In reaching this determination the Board stated as follows:

It is firmly established that the Board can certify an international union which has its head office outside of Ontario (see Ford Motor Co. of Canada Ltd., 46 CLLC ¶ 16.401, and Metal Textile Corporation of Canada Limited [55 CLLC ¶18.016]). Indeed, section l(l)(n) specifies that " 'trade union'... includes a provincial, national or international trade anion.. .". There is nothing in the Act which either expressly or implicitly requires an international trade union to have a permanent office in Ontario or to have officers or representatives based in Ontario. Section 77(1) of the Act merely requires every trade union with members in Ontario to file with the Board a notice in the prescribed form giving the name and address of a person resident in Ontario who is authorized by the trade union to accept on its behalf service of process and notices under the Act. Far fro requiring a substantial "presence" in Ontario, that provision amounts to a legislative recognition of the fact that the representatives of an international trade union may well be based in another jurisdiction where it might be difficult to effect service of process and notices under the Act. Accordingly, in view of the CSAO National case, the provisions of section l( l)(n) and the other provisions of the Act, the Board is not entitled to consider whether an entity which claims to have status as a trade union has established a "presence" in Ontario or "subsists in any true sense within the province"; the Board can only detent me whether or not the applicant is a trade union as defined by the Act. Therefore, we agree with counsel for the applicant that the Boulton case cannot be considered to be authoritative with regard to the issue of trade union status.

18. We agree with the basic reasoning of the Board in the La-Z-Boy Canada Limited case. A union local is not deprived of the status of as trade union in Ontario simply because it is headquartered outside of the province. However, the Board in determining whether an organization is "in organization of employees formed for purposes that include the regulation of relations between employees and employers" must be satisfied that the organization is a viable organization capable of performing the functions of a trade union under the Act. See: University of Ottawa, [1981] OLRB Rep. Feb. 232. In our view, for an organization to be a trade union for the purposes of the Act, it must be capable of carrying out the functions of a trade union in Ontario. On the evidence before us, we are satisfied that although Lodge No. 126 has its headquarters in Bellwood, Illinois, the Lodge has structured its affairs so as to allow it to carry out the function of a trade union in Ontario. Members of the Lodge employed in Ontario can participate in local elections and vote in ratification votes by way of mail-in ballots. The local has negotiated a collective agreement which covers Ontario, and its members have on a number of occasions been employed in Ontario pursuant to the terms of the collective agreement. There was no evidence led as to any situation where members of the lodge working in Ontario became involved in situations requiring the local's active assistance. However, from the evidence led at the hearing concerning the union's assistance to its members at other locations outside the United States, we have no doubts as to the Lodge's capacity to assist its members when working in Ontario. If required, the Lodge can call upon the assistance of international representatives of the I.A.M. based in Ontario. Indeed, at the hearing in this matter, Lodge No. 126 was represented by both Mr. R. Hayes, the secretary-treasurer of the Lodge, as well as by Mr. A. Walker, an international representative of the union who works out of Toronto. In all these circumstances then, we are satisfied that Lodge No. 126 is a trade union within the meaning of section l(l)(n) of the Act.

19. In opposing granting status to Lodge No. 126, the applicant noted that in Article I, section 2 of the by-laws of the Lodge, the jurisdiction of the Lodge is set out as follows:

The jurisdiction territory of Progressive Lodge No. 126 shall be the territory lying within the city of Chicago and Fifty (50) miles of the city limits, in accordance with our agreement with the Contractors Association.

The reference to an agreement with a Contractors' Association is to an Association which does not include Rockwell International and which does not concern itself with press erectors. We are not prepared on the basis of this Article to decline to find that the Lodge is a trade union under the Act. For one thing, Article IV, Section 25 of the by-laws addresses itself to the situations where Lodge members work outside of the stated jurisdiction of the Lodge. Further, the evidence is clear that for at least thirty-four years press erectors belonging to the Lodge have worked outside the Chicago area and have still been represented by the Lodge.

20. We turn now to consider whether the agreement between Rockwell International and Lodge No. 126 is a collective agreement under section l(l)(e) of the Act which defines a collective agreement as follows:

l.—(l) In this Act,

(e) "collective agreement" means an agreement in writing between an employer and an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees, and includes a provincial agreement.

We are satisfied that the document in question is an agreement in writing between an employer, Roccwell International, and a trade union, Lodge No. 126, that represents employees of the employer, and that it contains provisions respecting terms or conditions of employment as well as of the rights, privileges and duties of the employer and of the trade union. Further, the document contains those provisions required of a collective agreement under the Act, namely, a prohibition against strikes and lock-outs during the term of the agreement, as well as a provision for the settlement of arbitration of any disputes arising during the term of the agreement. In addition, the agreement is for a term certain in excess of one year. Accordingly, we are satisfied the document fits all the statutory requirements of a collective agreement under the Act.

21. In most circumstances we would not be prepared to conclude that a seemingly open-ended recognition clause in a collective agreement signed with a trade union based outside of Ontario does in fact cover Ontario. However, in the instant case, on the basis of both the contents of the agreement itself and the viva voce evidence as to how it has been interpreted and applied over the years, we are satisfied that the scope of the collective agreement does in fact encompass the Province of Ontario. We are well aware of the potential for abuse if trade union locals based outside the province are free to sign valid collective agreements which encompass Ontario within their scope clause. However, we believe that the Act is capable for ensuring that such abuses do not occur. In this regard we would note in particular section 40 of the Act which provides that an agreement shall be deemed not to be a collective agreement if the employer has contributed improper support to the union, as well as section 52 which sets out a mechanism by which employees can challenge the validity of a collective agreement entered into by a trade union that has not be certified. In the instant case however, there has been no abuse arid no improper employer support of Lodge No. 126. The current collective agreement was signed against the backdrop of a history of Rockwell International employing individuals in Ontario who were members of Lodge No. 126. In these circumstances, we are satisfied that the agreement is in fact a valid collective agreement.

22. We would note that although the collective agreement purports to be multi-national in scope, to the e 'tent that it applies in Ontario, it is affected by the provisions of The Labour Relations Act and in that respect must be viewed as being in the nature of a province wide agreement. Thus, for example, during the "open period" of the last two months of the collective agreement, if would be open for another trade union to seek to displace Lodge No. 126 as the bargaining agent of press erectors employed by Rockwell International in Ontario, or for the employees themselves to apply to terminate the union's bargaining rights. If successful, then pursuant to either section 48(1) or section 49(6) of the Act, the collective agreement would no longer have any force or effect in Ontario.

23. Having regard to our determination that there is a subsisting collective agreement covering the persons sought to be represented by the applicant and to the fact that this application was not made during any of the "open periods" provided for in sections of the Act, the application is, hereby dismissed as being untimely.

DECISION OF BOARD MEMBER C.A. BALLENTINE;

1. This application for certification was filed pursuant to the construction industry provisions of The Labour Relations Act. The applicant is seeking to be certified to represent a unit of millwrights and millwrights' apprentices in the employ of Rockwell International in the province of Ontario, pursuant to section 131a of the Act.

2. A purported collective agreement between the respondent and intervener #2, Lodge #126 of the International Association of Machinists and Aerospace Workers (I.A. of M.) was raised as a bar to the application. I note that Lodge #126 is based in Bellwood, Illinois, a suburb of Chicago, U.S.A. with a constitution providing that it has a territorial jurisdiction limited to the City of Chicago and 50 miles from the Chicago city limits. The applicant seeking certification from the Ontario Labour Relations Board is comprised of local unions both situated and having jurisdiction in Ontario. The Board heard evidence concerning the jurisdiction and practice of Lodge #126. As the majority notes, Lodge #126 is one of the International Association of Machinists's construction lodges and members of that lodge are engaged in work which would come within the construction industry. Lodge #126 is affiliated with the Chicago and Cook County Building and Construction Trades Council. However, it is this union which is seeking to establish that it has bargaining rights in Ontario to prevent the applicant, a Council of Ontario based unions, from obtaining a certificate.

3. The definition of a trade union contained in section 106(f) of the Act provides that a trade union in the construction industry must be a union that according to established trade union practice pertains to the construction industry. Neither Lodge #126 nor the International Association of Machinists have status as a construction industry trade union in the province of Ontario.

4. The majority rely on the La-Z-Boy Canada Limited case to justify its position that Lodge #126 is a viable entity in Ontario. The main difference between this case and La-Z-Boy is that the instant case falls within the construction industry provisions of the Act, La-Z-Boy does not. In La-Z-Boy, the international union, "the United Furniture Workers of America, A.F.L.-C.I.O." applied for certification of La-A-Boy employees. Since it had not established status as a trade union in Ontario, it had to prove status as a trade union. On the other hand the L.A. of M. and its lodges in Ontario have been long established trade unions in Ontario, but not in the construction industry. Lodge #126 may be an established trade union in the state of Illinois and has an established trade union practice pertaining to the construction industry in the United States, but not in Ontario.

5. In my opinion, neither Lodge #126 nor the I.A. of M. is a viable trade union in the construction industry of Ontario. Mr. R. Hayes, the secretary-treasurer of Lodge #126, when questioned, admitted that he was not familiar with the labour laws of Ontario, including The Occupational Health and Safety Act provisions pertaining to the construction industry. Mr. A. Walker, the international representative in Canada, admitted that the L.A. of M. did not have a presence in the construction industry in Ontario. This raises the question in my mind as to how can they properly represent employees in the construction industry of Ontario in accordance with the trade union's responsibility under section 60 of The Labour Relations Act, when the union is both unfamiliar with the construction industry of Ontario, and in particular, unfamiliar with the relevant portions of the safety regulations dealing with the construction industry.

6. It is rot much consolation for the majority of the Board to inform the applicant and the employees seeking representation by the applicant that they may apply to the Board during the open period under the collective agreement. The evidence before the Board indicated that the respondent enters and leaves Ontario periodically and is not always present in Ontario. For this reason, the applicant would have to be lucky and apply for certification when the company was engaged in operations in Ontario during the two month open period.

7. In my view, the majority's decision does not recognize the realities of the Construction I industry in Ontario because it permits an agreement negotiated outside of Ontario, indeed outside of Canada, between a trade union which is not a trade union within the meaning of the construction industry provisions of the Act to be raised as a bar to an application for certification by an affiliated bargaining agent under the laws of Ontario.

8. In conclusion, lam of the opinion that Lodge #126, is not a trade union within the meaning of the construction industry provisions of the Act. Furthermore, the collective agreement between Lodge #126 and the company was negotiated in a foreign country and ought not to be placed as a bar to an application for certification made by a recognized construction industry trade union in the province of Ontario. For these reasons, I would find that the application is timely.