[1981] OLRB Rep. November 1624
1279-81-U Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647, Complainant, v. Silverwood Dairies Limited, Division of Silverwood Industries Limited (London Operation) and Office & Professional Employees International Union, Local 473, Respondents.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members W. H. Wightman and D. B. Archer.
APPEARANCES: Douglas J. Wray and Frank Buck for the complainant; Gordon Weir and Norman Hobbs for Silverwood Dairies Limited, Division of Silverwood Industries Limited (London Operation), Janice Best and Marcia Burns for Office & Professional Employees International Union, Local 473.
DECISION OF THE BOARD; November 27, 1981
This is a complaint under section 89 of the Labour Relations Act alleging that the grievor, Patricia Rank, has been dealt with by the respondent Silverwood Dairies Limited, Division of Silverwood Industries Limited (London Operation) ("the employer") contrary to the provisions of sections 3, 64, 66 and 67(1) of the Act and by the respondent Office & Profession Employees International Union, Local 473 ("Local 473") contrary to the provisions of 67(2) of the Act. The event giving rise to the complaint was the issuing of a letter by the employer dated September 8, 1981 and addressed to Rank. By means of that letter the employer advised Rank that her job functions were going to be transferred into the bargaining unit for which Local 473 was the bargaining agent and that she would have the choice of remaining in that job and becoming a member of Local 473 or using her seniority in the complainant's bargaining unit to transfer into another position. The complainant is seeking by way of relief, inter alia, a declaration that both respondents have violated the Act, a direction that they cease violating the Act and a direction that Rank and her job remain in the complainant's bargaining unit.
The employer contended in its reply that the dispute was not properly the subject matter for a complaint under section 89 of the Act, requested that the Board apply section 91(18) of the Act instead and proceed in the following manner:
(a) Make examination and inquiry of the duties and responsibilities of the position of "inventory control clerk" or "records clerk";
(b) review the collective agreements between the parties;
(c) make a declaration and determination with respect to the description of the bargaining units and the appropriate jurisdiction over the subject position of records clerk.
Section 9 1(18) of the Act states as follows:
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.
Local 473 supported the employer's request to apply section 91(18) to the dispute and the complainant, while opposed to the complaint being dealt with pursuant to that section, was prepared to deal further with the question of whether the dispute should be determined pursuant to section 91(18) during argument on the merits of the case. In the course of hearing the representations of the parties, all three parties agreed that deferral to arbitration was not appropriate in the circumstances of the complaint. The majority of the Board, Board Member Wightman dissenting, ruled that the Board would not defer to arbitration and would proceed pursuant to section 89 to hear the evidence and argument of the parties on the substance of the complaint and, in the course of hearing their arguments on the substance, the Board would also hear their further argument on whether section 91(18) should be applied to the complaint.
There is little dispute as to the facts in this case. The employer operates two branches in the London area, one on Bathurst Street in the City of London and the other on Highway 401. The complainant and Local 473 each have a bargaining unit comprised of employees at both locations. Rank, who has been an employee of the employer for some 23 years in the complainant's bargaining unit, has held the job of records clerk at the Bathurst Street branch since 1975 when she was the successful applicant pursuant to the posting provisions of the collective agreement between the complainant and the employer. She was trained in her job by her supervisors. Prior to her appointment she was a production employee in the dairy department. As well, for the six months immediately preceding her appointment, she had been replacing the employee who preceded her in the records clerk job and had replaced her on one or two other occasions. Rank has been paid pursuant to the complainant's agreement ever since her appointment to the records clerk job. It is listed in the complainant's current agreement under the category "General II" of the job classifications in Wage Appendix "B". The current weekly rate shown for the job is $293.93. The evidence indicates that the job has existed in the complainant's bargaining unit since the late 1950's when its collective bargaining relationship with the employer began. Rank is only the third to have held the job. She prepares and maintains records and reports with respect to the production and inventory of raw milk and certain of its by-products; supplies, such as cartons; and machine efficiencies. Her job has not changed since she was appointed in 1975.
Another employee, Janet Andrews, prepares and maintains records and reports similar in nature to those prepared by Rank but which deal with finished products inventories, shipments there from and manpower efficiencies. The Board has no evidence as to how long she has held the job or whether she was appointed to it pursuant to the job posting provision of Local 473's. agreement. It is not in dispute, however, that this job is in Local 473's bargaining unit and according to Rank has been in existence since approximately 1974. Local 473 acquired its bargaining rights in 1973. It carries the job title records clerk and that job title was listed as a level 2 classification in Schedule "D", Classifications and Rates of Pay in the collective agreement between Local 473 and the employer which preceded the current one. The current agreement came into effect in July 1981 and in that agreement the job title is listed as inventory clerk, a level 2 classification and shows a current weekly rate of $240.95. The employer has referred to both jobs by the job title inventory clerk since shortly after Rank was appointed to job. The change in the current collective agreement to Andrews' job title from records clerk to inventory clerk was made to be consistent with the employer's nomenclature. Rank and Andrews share an office at the front of the building in which the production facilities are located at the Bathurst Street branch. The main office is also at the front of that building but on the opposite side of it and the office shared by the two clerks is separated from the main office by the entrance foyer to the building. While this is the third office which Rank has occupied, she has always shared it with the person doing the job now held by Andrews. Both jobs report to the same supervisor, the plant co-ordinator. There is virtually no interchange of work and if Rank is absent from her job, a member of the complainant's bargaining unit replaces her and this is the practice which existed with her predecessor in the job.
The employer had concluded negotiations with the complainant and Local 473 some two to three months prior to this complaint being filed with the Board. Neither set of negotiations addressed the question of transferring the records clerk job from the complainant's bargaining unit to that of Local 473, but rather dealt only with the issue of the wage rate for each job. Around the time that the negotiations in respect of the office unit were concluded but before a memorandum of settlement had been signed, the employer received a request in writing from the president of Local 473 that Rank's job be transferred to the office bargaining unit. The request was made in the form of a memorandum dated June 19, 1981 the text of which is as follows:
I am making a request that the position in Inventory Control held by a teamster member should be taken out of teamster contract & set up as an office position under Local 473 Opeiu.
The employer responded by notifying Rank and the complainant of this request, advised them that, in the employer's view, the job should be in the office bargaining unit and notified Rank that she was to be transferred to that unit. This resulted in a grievance being field and the employer retracted its notice to Rank. That was not the end of the matter, however, because the employer addressed another memorandum to Rank dated September 8, 1981 advising her that, effective September 21, 1981, the job functions which she performs were to be transferred to the office bargaining unit. The letter further advised her that she would have the choice of transferring with the job and becoming a member of Local 473 or remaining in the complainant's bargaining unit and exercising her seniority to transfer into another appropriate position in that unit. This action triggered a new grievance from the complainant and two days later led to this complaint being filed. Local 473, having learned that notice of the complaint would be forthcoming, filed its own grievance seeking that "The Inventory Control Position held by a Teamster member ... be transferred to OPEIU 473 a permanent [sic] position (full-time)".
- The employer's collective agreements with the complainant and Local 473 describe their respective bargaining units in the following terms:
(a) Complainant's bargaining unit
..... all Employees of the Company Employed in or about its Bathurst Street and Highway 401 branches in the City of London, who come within the bargaining unit,.. .". The exclusions from that unit are emprised of "office staff" and certain other categories not here relevant.
(b) Local 473's bargaining unit
"... all of [the employer's] Office and Clerical employees who are employed at its London and London 401 District Offices in the City of London . . .". There are specified exclusions from this unit which are not here relevant.
- While this complaint has been filed under section 89 of the Act, as a result of the Board's ruling on the preliminary issues raised by the parties, it has heard argument from the parties as to whether subsection 18 of section 91 of the Act should be applied to the complaint. The employer contends and Local 473 agrees that subsection 18 is a separate charging section of the Act and does not require that the conditions precedent which are set out in subsection 1 of section 91 be met in order for subsection 18 to be applied. Complainant counsel, on the other hand, takes the position that, even if subsection 18 is a separate charging section, it should not be applied because the descriptions of the respective bargaining units are not in conflict. These arguments notwithstanding, the Board is of the view that the complaint is in fact a complaint which satisfies all of the prerequisites of subsection 1 of section 91 which states as follows:
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 trade 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 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.
The president of Local 473 has made a request of the employer stated in terms of transferring a position out of the complainant's agreement into that of Local 473. The employer has attempted in the first instance to comply with this request by transferring both the work and the employee to whom it is presently assigned into the jurisdiction of Local 473. When this failed, the employer attempted next to transfer the work to the jurisdiction of Local 473 to be done by one of its members. There is no doubt on the evidence that the work would be assigned to Rank if she were to accept the transfer to the office bargaining unit. When the niceties and technicalities of the parties' positions are stripped away, what the Board has before it is in reality a complaint filed by the complainant which was triggered by a demand from the president of Local 473 that work, which had heretofore been assigned to a member of the complainant be in future assigned to a member of Local 473. Therefore the conditions precedent for a complaint under section 91 have been met. Furthermore, all parties to the dispute were present at the hearing into the complaint and had full opportunity to call evidence and make their representations to the Board on that evidence and on the provisions of the Act which should be applied by the Board in determining this matter.
The Court in Ontario has said that the Board has the power under section 106 of the Act to apply any section of the Act in order to grant relief to parties in situations where the Board is of the opinion that they should have relief. See Genaire Ltd. v. International Association of machinists and the Ontario Labour Relations Board, (1958), 1958 CanLII 130 (ON HCJ), 14 D.L.R. (2d) 201,58 CLLC ¶ 15,388 (Ont. H.C.), Aff'd. (1959), 1958 CanLII 352 (ON CA), 18 D.L.R. (2d) 588,59 CLLC ¶ l5,416(Ont. C.A.). The circumstances of this case are such that it could be determined under either of sections 89 or 91. The parties have had the opportunity to argue as to the applicability of these sections, as noted above and, indeed, counsel for the complainant argued as to how the Board should apply its usual jurisdictional disputes resolution criteria were it to decide the complaint pursuant to section 91 of the Act. Therefore there is no risk of a denial of natural justice were the Board to decide the case pursuant to section 91 instead of section 89. Since the complaint contains all the elements of a jurisdictional dispute; since all of the parties to the dispute were parties to the proceedings and since section 91 of the Act provides a satisfactory means of resolving the matters at issue, the Board is of the view that the complaint should be determined pursuant to section 91. The Board will decide the complaint, therefore, as though it had been made under section 91 in the first instance.
When the Board inquires into a complaint under section 91, before deciding what action, if any, it shall direct any of the affected parties to take or refrain from taking with respect to the assignment of work, the Board considers a variety of criteria. These include the nature of the work; the skill and training involved; the employer's past practice; area past practice; employer preference; safety, efficiency and economy; collective bargaining relationships and the jurisdiction of the competing unions based on their constitutions or defined in collective agreements with employers. Several of these criteria are of minimal assistance to the Board in this case because most of the evidence and argument dealt with the collective bargaining relationships between the employer, the complainant and Local 473 as they appear to flow from the collective agreement each union has with the employer and with the representation rights of the complainant and Local 473. It is useful nonetheless to deal separately with that evidence which does relate to each of these criteria.
The Nature of the Work
- The nature of the work involved with both jobs is, for all material purposes, the same. They differ only in that Rank's job deals with raw milk and machine efficiencies and Andrews' job deals with finished products and labour efficiencies. The information with which they work comes from the production operations and the records and reports which they prepare are used primarily for the control of those operations. While this favours keeping them associated with the production facilities, it does not favour either union.
Skill and Training
The skills required are basic clerical skills and the evidence in respect of Rank's job indicates that the training is provided by the supervisors and is entirely on-the-job training. This favours neither union when the jobs are filled by hiring.
Both collective agreements require that job vacancies be posted and that the employer first give consideration to employees in the bargaining unit in filling the vacancy before considering candidates from outside of the respective bargaining units. Rank's job is the only one in the classification schedule of the complainant's collective agreement which bears a job title of an obvious clerical nature. While it is entirely possible that other jobs in the schedule have a clerical content, there is no evidence of this being the fact. On the other hand, Local 473's bargaining unit is a unit of office and clerical employees and this is reflected in all of the job titles in the classification schedule of its collective agreement. Therefore it is reasonable to conclude that there would be a greater store of compatible skills to draw from in filling the Records Clerk job by posting if it were in the office and clerical bargaining unit. This favours slightly Local 473.
Employer's Past Practice
- The past practice of the employer has been to assign the work presently being performed by Rank to an employee in the applicant's bargaining unit since the applicant's bargaining rights for the unit were first established. Rank replaced her predecessor in the job whenever she was absent and did so for the six months prior to Rank's own appointment. Rank, in turn, is replaced by one of two employees in the complainant's bargaining unit when she is absent from the job. Moreover, this practice has continued during the approximately seven years that the parallel job, now filled by Andrews, has existed in Local 473's unit. Finally, Rank was appointed to the job pursuant to the job posting provisions of the complainant's collective agreement. This factor clearly and substantially favours the complainant.
Employer's Preference
- The employer's clear preference is to have the work performed by an employee in Local 473's bargaining unit. This is indicated by the evidence of its several efforts to have the work and/or the incumbent performing the work transferred to the office and clerical unit. This favours Local 473.
Safety, Efficiency and Economy
There is no direct evidence about safety, but the job is performed primarily in an office setting and it would continue to be performed in that setting if the job was performed by an employee in the office and clerical unit. It is reasonable to infer that there would be no difference in the safety element of the job. This favours neither union.
The fact that the rate of pay is lower in Local 473's agreement would, at least for the duration of its collective agreement, allow the employer to realize wage savings. But the Board has held that this factor of itself does not provide a criterion for settling a jurisdictional dispute on the basis that no trade union can claim jurisdiction merely because it is prepared to do the work at a lower rate of pay than another trade union. See Anchor Shoring Limited, [1974] OLRB Rep. Aug. 528.
Were the work assigned to the office and clerical unit there may be some potential for future economies because of the apparently greater opportunity to rationalize work tasks where there are more jobs of a primarily clerical matter, but there is no evidence that the employer has any plans for such rationalization. It is reasonable to infer, however, that some economies or efficiencies might be realized from the greater availability of compatible skills in the office and clerical unit when there is need to find a temporary or regular replacement for the incumbent in the job. This slightly favours Local 473.
Collective Bargaining Relationships and Jurisdiction of the Collective Agreements
Neither agreement contains a work jurisdiction clause claiming for it the work in dispute. The definition of Local 473's bargaining rights in the scope clause of its collective agreement and the exclusion of "office staff" from the bargaining unit in the scope clause of the complainant's agreement this appear to give Local jurisdiction over the work. The uncontradicted evidence is, however, that the employee who has performed the records clerk job has been represented in collective bargaining by the complainant since the commencement of its bargaining relationship with the employer. This was the situation when Local 473 obtained its bargaining rights in 1973, when Andrews' job was created and was still the case when this complaint was made. The job title records clerk in the applicant's current collective agreement was being applied to the disputed work when this dispute arose and from all of the evidence as toa the history of the job being filled by a member of the applicant's bargaining unit, it is reasonable to conclude that the prior collective agreements made provisions in the classification schedule for this work. This leads to the inescapable conclusion that, notwithstanding the wording of the scope clause, the complainant's bargaining unit has always included the work in question. The incumbent, Rank, has been an employee in the complainant's bargaining unit for 23 years, during 17 years of which she has seen persons in her present job being represented by the complainant and for the past 6 years has herself been represented in the job by the complainant. This is clearly a case of long-standing employees having chosen to be and presently being represented by the complainant in this work. This consideration clearly favours the complainant.
The Board is of the view that, having regard to the foregoing criteria and for the following reasons, the employer's past practice and the collective bargaining relationship are the criteria which finally resolve the dispute. The strongest criterion in favour of assignment to Local 473 is the employer's preference and it gains some slight, additional support from the criteria skill and training and safety, efficiency and economy. The employer's past practice, on the other hand, has been so entrenched over such a long period of time that, in the absence of cogent evidence of a reasonable and substantial need to change its assignment, this factor by itself outweighs the influence of the aforementioned criteria. Therefore, when the two criteria, employer past practice and the collective bargaining relationship, are combined, they weigh heavily in favour of the disputed work continuing to be assigned to the complainant.
Accordingly, the Board directs that the employer continue to assign the work of records clerk as it is being performed by Patricia Rank in its London Operation to employees in the bargaining unit represented by Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647.
In view of the foregoing decision, it is unnecessary for the Board to exercise its discretion pursuant to either sub-sections 15 or 18 of section 91 to amend the description of either bargaining unit.