Camco Inc. v. United Steelworkers of America
[1982] OLRB Rep. July
2711-81-JD Camco Inc., Applicant, v. United Steelworkers of America on behalf of its Local 3129, United Steelworkers of America on behalf of its Local 7921, United Electrical, Radio & Machine Workers of America, Respondent.
BEFORE: E.N. Davis, Vice-Chairman, and Board Members C.A. Ballentine and J.A. Ronson.
APPEARANCES: B. R. Baldwin, T Lybarger, F. Hannah and L. Turtle for the applicant; B. Shell and]. Fitzpatrick for United Steelworkers of America; H.M. Pollit, F. Piserchia, Art Jenkyn for United Electrical, Radio and Machine Workers of America (UE).
DECISION OF THE BOARD; July 6, 1982
1This is an application made under section 91(18) of the Act seeking the alteration of descriptions of apparently conflicting bargaining units in collective agreements between the applicant and the United Electrical, Radio and Machine Workers of America in one case, and the applicant and the United Steelworkers of America, in the other case. The Board issued its decision to entertain the application on May 25, 1982 and indicated that written reasons would follow. These reasons are now provided.
2The parties are in agreement as to the following facts:
(a) The applicant corporation was formed by the merger in February 1977 of the merger of G.S.W. Appliances Ltd. and the appliance Division of Canadian General Electric Ltd., and in July 1977, the additional merger of the Appliance Division of Canadian Westinghouse Ltd.
(b) The instant application is concerned with the applicant's operations in Metro Toronto where the applicant operates out of a number of locations. Two of these locations were GSW operations pre-1977 and covered by collective agreements between the applicant and two Locals of the United Steelworkers, and these operations continue to be covered currently by such a collective agreement. The recognition clause in that agreement recognizes the union as "the sole collective bargaining agency for all employees in Metro Toronto, save and except guards, office and clerical workers, foremen and those above the rank of foreman". There is also a collective agreement between the United Steelworkers and the applicant in respect to office employees. This agreement is not involved in the present application.
(c) The applicant also has a warehousing operation together with a parts sales counter and clerical support located at Don Mills. Pre-1977 this unit had been covered by a collective agreement with the United Electrical Workers as the bargaining agent. The current collective agreement with that bargaining agent recognizes "the Union as the sole and exclusive bargaining agent for all employees of the Company .. ."; excluded therefrom are certain persons including office staff which are represented by the U.S.W. office and clerical agreement above referred to.
(d) The applicant is currently realigning part of its total operations by moving certain parts supplies operations, up to now performed under the United Steelworker's agreement at the Suntract location, into the Don Mills location where the collective agreement with the United Electrical Workers has been operative.
(e) On January 27, 1982, a letter from Mr. John Fitzpatrick on behalf of United Steelworkers to Camco stated:
'For the official record, it is the position of our Union that these jobs are bound by the collective agreement between the parties and the transfer of such jobs is within the right of the Company. However, there can be no change in the status of our members presently occupying these jobs.
As the York Mills location falls within the scope of our agreement, it is our position that our collective agreement will continue to apply to the job in question and any of our members affected by such transfer shall continue to be members of Local Union 3129 with the full benefits and seniority provided by our collective agreement.'
(f) On February 5, 1981, Mr. Sam Irwin of Camco responded to this letter as follows:
'As you are no doubt aware, hourly rated employees at the Company's Don Mills location are represented by United Electrical, Radio and Machine Workers of America (UE). There is, and has been, a collective bargaining relationship, at that location, between the UE and the Company for many years, now. It is the Company's position that it is bound by contractual commitment and the Labour Relations Act to recognize the UE as the bargaining agent for all employees at the Don Mills location, who fall within the scope of that Union's bargaining rights.'
(g) On February 11, 1982, Mr. Fitzpatrick further wrote to Camco:
'It is our opinion that the Collective Agreement between Canadian Appliance Manufacturing Company Limited and the United Electrical, Radio and Machine Workers of America and its Local 514 only covers the persons occupying jobs within the Job Classification set on 25 at the time of signing of the collective agreement, that is June 27th, 1981. Any employee hired since that time must become and remain members of Local 3129 of our Union, if they are employed in Metropolitan Toronto.'
(h) On February 25, 1982, Mr. Arthur E. Jenkyn, on behalf of the United Electrical Workers, wrote to Camco:
'The United Electrical, Radio and Machine Workers of America (UE) and its local 514 clearly possess the bargaining rights for employees of Camco at its Don Mills location, save and except those exclusions outlined in Article 1.01 of the Collective Agreement between the Company and our Union covering this location.
Mr. Fitzpatrick's contention that our Collective Agreement is limited to those persons occupying the job classifications outlined on page 25 of the Agreement is erroneous and we expect the Company to remain in full compliance with its obligations to this Union under the Collective Agreement and, in particular, Article I thereof.'
(i) On February 19, 1982, Local 3129 of United Steelworkers filed three grievances as follows:
(1) The Union contends that the company is in violation of the C.B.A. in that persons who are not members of this Bargaining Unit, are performing work which is belong to this Bargaining Unit. Namely work contained in the Job Discriptions of Section Leader Service, Lead Hand Warranty parts Adj. Kit Preparator, Warranty Parts Adjuster, Receiver, Shipper & Parts Warehouseman, which were described, classified and agreed to as work coming within the scope of our C.B.A. and any other relevant jobs.
(2) The Company is in violation of the C.B.A. by failing to deduct Union Dues from employees who are performing work which comes under the scope of our C.B.A.
(3) The Union contends that the Company is in violation of our C.B.A. by contracting out work belonging to our Bargaining Unit, which was previously performed at Suntract Rd. and Monogram locations, which has caused and or prolonged a layoff of Bargaining Unit employees.
These grievances have not been referred to a Board of Arbitration and we are advised a hearing date of June 7, 1982, has been set.
3The relief sought by the applicant is set out in its letter of March 26, 1982, to the Board, in which it is stated:
"It is the position of the Company that Article 1.01 of its Collective Agreement with the United Steelworkers of America on behalf of its Local 3129 ought to be amended to exclude those employees covered by a valid and subsisting Collective Agreement with the United Electrical, Radio and Machine Workers of America (UE) and its Local 514. It is the Company's further position that Article 1 .01 of its Collective Agreement with the United Electrical, Radio and Machine workers of America (UE) and its Local 514 ought to be amended to specifically refer to employees of the Company at its Don Mills location.”
4Counsel for the applicant argued that in order for this application to be properly before the Board, it was not necessary to demonstrate that the circumstances fall within the language of section 91(1) but that section 91(18) was in itself a charging section. Counsel also argued alternatively that, in any event, the documents before the Board clearly demonstrate a claim by both Unions to do the particular work and that satisfies the provisions of section 91(1). It is further argued that it would be inappropriate for the Board to defer to arbitration in this instance where the arbitration process is solely a bi-partite process and binding only on two of the three parties having an interest; and that the relief which the applicant is now seeking is no more than a formal confirmation of the manner in which all parties have, up to now, tacitly exercised the extent of bargaining rights.
5Counsel for the United Electrical Workers similarly argued that the Board has authority to entertain these applications under section 91(18). Counsel pointed out that there has in the past been a mutual respecting by each Union of the "other's baliwick" and that the alterations of bargaining unit descriptions now sought is merely a confirmation of this past mutual state of affairs.
6Counsel for the United Steelworkers forcefully argued that the Board should exercise its discretion and defer this matter to arbitration. He argued that the issue is solely one involving the interpretation and administration of the collective agreement between United Steelworkers and the applicant, and for the Board to seize jurisdiction would be an "unwarranted intrusion into the collective bargaining process". He responded to the applicant's argument that any arbitration award between the United Steelworkers and the applicant would have no binding effect on the United Electrical Workers by stating that the mere fact of non-representation of the United Electrical Workers in the particular arbitration process would not in itself make any issuing award a "bad award" therefore he relied on the Hoogendorn case (1968) 1967 CanLII 20 (SCC), 65 D.L.R. (2d) 641 as authority for such proposition.
7In support of his argument that this is a case in which the Board should exercise its discretion by deferring to arbitration counsel referred us to the Board's decision in a case involving all present parties to the present application as well as two of the precessor companies. Canadian General Company Limited, [1978] OLRB Rep. June 501. What was involved there was an application under section 63 of the Act (section 55 as it then was) in which the present applicant sought the delimiting of the United Steelworkers bargaining rights. The Board, in that case, found that since the parties, subsequent to the sale of business, had entered into fresh collective agreements that "such problems must now be regarded as flowing from the collective agreements rather than from the sale that preceded these agreements" and went on to find that the Board did not have jurisdiction, on that application, to deal with the matter. A counsel argued that the Board in the instant application should similarly find that what is here involved is a matter of contract arbitration.
8Counsel for the United Steelworkers argued alternatively that if the Board should decide to entertain the application on the merits that it should approach the matter from the perspective of making a bargaining unit determination based on all employees of the applicant and that such should lead to a representation vote under section 91(19).
9Counsel were unable to refer us to any previous decision of the Board dealing with an application made under section 9 1(18) of the Act. The matter was raised in Silverwood Dairies Limited [1981] OLRB Rep. Nov. 1624 but the Board found in the particular circumstances of that case, the matter could be dealt with adequately as a complaint under section 9 1(1) of the Act and proceeded so to do.
10There is also the Board decision in Toronto Star [1980] OLRB Rep. April 565 where an application made under section 91(18) (section 81(18) as it then was) was entertained by the Board, and resulted in the Board's direction to amend one of the collective agreements by incorporating into it the Board's direction in respect to the refining of certain work jurisdiction.
11In our view section 91, read as a whole, must be interpreted in the light of the existing collective bargaining structures at the time the legislation was enacted. At least since the advent of compulsory collective bargaining, collective agreements have contained recognition clauses which may be broadly described as being of two separate types i.e. the craft unit type and the industrial unit type. In the former, the extent of bargaining rights is considered to be co-extensive with the union's work jurisdiction, and is traditionally found in the construction industry (and in some other industries). In the latter, the extent of bargaining rights are not described in terms of the union's work jurisdiction but in terms of "all employees" irrespective of the precise nature of the work performed. For a discussion in this regard, see the Board's decision in Harold R. Stark Company Limited, [1982] OLRB Rep. Apr. 576.
12Section 91(1) is particularly applicable in those instances where the bargaining rights are described in "craft-type" language and where the complaint relates to work assignments disputes. The dispute, in these cases, is predominantly "work assignment" oriented rather than representational in nature. Thus the sub-sections following section 9 1(1) down to section 91(17) deal with a complaint filed under section 91(1), and in several instances deal with circumstances which, while well-known in bargaining units based on craft-type language, are non-existent in bargaining units of the industrial type. We note that while section 91(1) and the following sub-sections relate to a "complaint", section 91(18) for the first time refers disjunctively to an "application". We also note that section 91(15) confers a discretion in the Board to alter bargaining unit descriptions as "defined in a collective agreement" which is similar, but not co-extensive, to the discretion conferred on the Board in section 9 1(18). We must, therefore, conclude that the Legislature intended section 91(18) to be a separate charging section designed primarily to provide forum for the settlement of representational disputes arising out of conflicting bargaining unit descriptions in the "industrial type" collective agreement, and access to the section is not dependent on bringing the matter within the terms of section 9 1(1).
13In respect to the request by the United Steelworkers that the Board should defer to the arbitration process, we do not find the reasoning on the Board decision reported in [1978] OLRB Rep. June 501 between some of the same parties as here before us, of any relevance. In that case the Board refused to entertain the application on the grounds that the application could not be characterized as arising out of a "sale of a business". The instant case clearly appears to arise out of the description of the bargaining unit in one collective agreement conflicting with the description of the bargaining unit in another collective agreement, and the application is therefore brought within the language of the section. We also note that the relief sought by the applicant is of a nature which this Board is empowered to provide, and that arbitration boards whose function is to interpret a specific agreement, are powerless to provide such relief. We would not therefore defer to arbitration in this case.
14As to the alternative argument made by Counsel for the United Steelworkers as to how the matter should be dealt with on the merits, we conceive it to be premature to express an opinion at this stage of proceedings.