[1983] OLRB Rep. January 65
0275-82-M International Union of Operating Engineers, Local 793, Applicant, v. Operating Engineers Employer Bargaining Agency and Ellis-Don Limited, Respondent
BEFORE: Pamela C. Picher, Vice Chairman and Board Members I. Stamp and H. Kobryn.
APPEARANCES: B. Chercover and E. Ford for the applicant; R. A. Werry, B. Foote and P. Van cook for the respondent.
DECISION OF THE BOARD; January 21, 1983
The applicant, Local 793 of the International Union of Operating Engineers, has referred to this Board a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement covering the International Union of Operating Engineers, Local 793 and Ellis-Don Limited.
Ellis-Don Limited was the general contractor for the construction of a multi-storied addition to the St. Michael's Hospital in Toronto. The project was started sometime in 1981. Up until the end of March of 1982, a manually operated construction hoist was used on the project to lift men and material to the various floors. Consistent with the collective agreement, a member of Local 793 was employed to operate the hoist.
This grievance arises, however, because a member of Local 793 was not further employed to operate the elevator that took over the job of lifting workmen and construction materials when, during the normal progression of the project, the construction hoist was dismantled and taken out of service. This occurred at or about the end of March of 1982. When the elevator was put in service and the construction hoist removed, the operating engineer who had run the hoist was laid off. It is common ground that no member of the applicant union was ever employed to operate the elevator from the time it was first put into service through to the point of the Board's hearing on November 1, 1982. Instead, the elevator was run by persons from the various trades as they used it.
Counsel for the applicant union argues that the employer's failure to utilize an operating engineer to operate the elevator for the lifting of men and materials from the end of March when it was first put into service until, at least, the date of the Board's hearing in November of 1982 is a breach of article 2.2 of the collective agreement between the parties. Counsel for the employer, on the other hand, maintains that the management rights clause of the collective agreement, article 4, gives the employer the right to decide when and whether to employ someone to operate the elevator in question.
The relevant sections of the collective agreement are set out below:
PROVINCIAL AGREEMENT
BETWEEN:
OPERATING ENGINEERS
EMPLOYER BARGAINING AGENCY
hereinafter called the "Employer"
- and -
OPERATING ENGINEERS
EMPLOYEE BARGAINING AGENCY,
hereinafter called the "Union
000
ARTICLE 2 - RECOGNITION
2.1 The employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer [which includes Ellis-Don] and for whom the Union has bargaining rights within the Province of Ontario engaged in work covered by the schedules and classifications set out in this agreement, and any additional classifications as may be agreed to by the parties.
2.2 The onsite operation, repair, maintenance and servicing of all equipment listed in this agreement shall be performed by a member of the Union including the assembly and dismantling of equipment operated by members of the Union and coming within the jurisdiction of the Union, boom, boom sections and counter-weight installation and removal and any other requirements necessary to put equipment into production or preparation for removal from operations. When Ironworkers are available on site they may be used to assist in the installation and removal of boom, boom sections and counterweight components. Additional assistance by other than Union members for the installation or removal of boom, boom sections and counterweight components shall only be used upon agreement with the Union.
000
2.5 When equipment covered by this agreement is being moved from place to place under its power only employees covered by this agreement shall be used to move such equipment.
000
3.4 a) The employer agrees to engage only those sub-contractors and equipment rentals (except equipment dealers) who are in contractual relations with the Union to perform work set out in the classifications of this agreement or as otherwise agreed to by the parties.
000
ARTICLE 4 - MANAGEMENT RIGHTS
4.1 The Union agrees and acknowledges that the Employer has the exclusive right to manage the business and to exercise such right without restriction, save and except such prerogatives of management as may be specifically modified by the terms and conditions of this Agreement. Without restricting the generality of the foregoing paragraph, it is the exclusive function of the Employer.
a) To determine qualifications, classify, transfer, hire, direct, promote, demote, lay-off, discipline and discharge employees for just cause and to increase and decrease working forces in accordance with the terms of this Agreement.
ARTICLE 27
The parties agree that Schedules "A" to "0" attached hereto are incorporated into and form part of this Collective Agreement.
000
SCHEDULE "J"
This Schedule shall cover and apply to Employers engaged in all work other than thework covered by Schedules "A", "B", "C" & "D" hereof and without limiting the generality of the foregoing BUILDING AND CONSTRUCTION WORK within Metropolitan Toronto, the Regional Municipalities of Peel, York, Durham, the Counties of Simcoe, Muskoka, Victoria, Haliburton, Peterborough and that portion of Northumberland lying West of a line running north from Colborne to McCrackens Landing and that portion of the Regional Municipality of Halton lying East of 25 Highway.
ARTICLE 1 - CLASSIFICATION AND WAGES
1.3 Operators of: air tuggers used for installation of vessels, tanks, machinery, and for steel erection; side booms on land or water;
man and material hoist and single drum hoists 12 stories and under not of a manual friction and brake type; elevators, monorails, bullmoose type equipment of t ton capacity or over, air compressor feeding low pressure into air locks, tunnel mole. 3rd class Stationary Engineer.
[emphasis added]
Article 2.2 stipulates that the "onsite operation ... of all equipment listed in this agreement shall be performed by a member of the union". Article 27 provides that the schedules, including Schedule J, are "incorporated into and form part of [the] Collective Agreement". Schedule J states that it shall cover and apply to employers engaged in building and construction work in Metropolitan Toronto, such as Ellis-Don on the St. Michael's construction project. Article 1.3 of Schedule J sets out the wages and classifications for operators of specified equipment. The man and material hoist and elevators are among the listed equipment.
Counsel for the union argues that as article 1.3 of Schedule J. lists "elevators" as a piece of equipment, article 2.2 of the Agreement requires that the onsite operation of that elevator be performed by a member of the union.
The elevator in question is contained within a bank of several elevators all of which will ultimately be used by the occupants of and visitors to the building. During the relevant period of time, however, the elevator in dispute was the sole elevator in operation. None of the other elevators had been put into service. The evidence further reveals that during the relevant period only persons directly concerned with the construction of the addition used the elevator.
There are two modes of operating an elevator. It may be run on "automatic" and controlled from inside or outside by the push of a button, or it may be put on "attendant service". When it is on attendant service it is operated by a key and may only be controlled from the panel inside the elevator. It will not, in other words, respond to a call initiated on another floor. When an elevator on attendant service reaches the floor of its destination, the doors open and remain open. On automatic service, on the other hand, the elevator doors close automatically some eight to ten seconds after it arrives at the designated floor. When the elevator is on automatic, therefore, the doors must be jammed open to remain open, as might well be required for the delivery of material.
At one time the Operating Engineers and the International Union of Elevator Constructors had disagreements over which union was entitled to operate the elevator during construction. Ultimately the two unions resolved the matter by agreeing to share the work on a fifty/fifty basis. Mr. William Shanks a business representative for Local 50 of the Elevator Constructors, visited the Ellis-Don site in early April of 1982, soon after the man and material hoist had been removed and the elevator in dispute put into operation. He stated that the elevator was in "attendant service" with no one in particular designated to operate it. It was available, in other words, for persons from any trade to operate as needed. The evidence reveals that at that point the project was far from finished and substantial material was still being lifted by the elevator. Mr. Shanks testified that when he returned to the site in May and June he observed further construction material being lifted by the elevator.
Mr Robert MeCoubrey, the construction foreman on the site for the Otis Elevator Company, confirmed Mr. Shanks' evidence in this regard. He stated that the elevator, from its commencement at or about the end of March of 1982 through to at least the first week of July when he left the project, was used in the same manner as its predecessor, the man and material hoist. It was consistently used to lift workmen and material for the construction project.
Mr. Shanks visited the site again in September of 1982. At that time the elevator was in the fully automatic mode and the maintenance panel was locked. He stated that the only people he saw operating the elevator were workmen on the construction project. Moreover, a sign on the front door stated that the location was a construction site and a hard hat project.
Mr. Leo A. Palmer is the site superintendent for Ellis-Don. He acknowledged that with the transfer from the man and material hoist to the elevator, the work being done by the elevator was the same as that which had previously been performed with the hoist. Mr. Palmer noted that in April and May the elevator was used on a mixed mode; sometimes it was on automatic service and sometimes it was on attendant service. He stated that sometime in June it was switched to the fully automatic mode. He acknowledged, though, that some damage to the doors occurred while it was being used on automatic. Apparently the doors were jammed open to deliver material and the door detectors broke. Mr. Palmer testified that the regular flow of construction material and workmen up the elevator continued until the last week of October, 1982, just prior to the Board's hearing. He estimated that by the point of the Board's hearing, approximately 92 per cent of the material had been delivered to the various floors. He noted that although they had encountered a delay in delivery, some further few materials would be lifted by the elevator.
Mr. Ernest Ford, the business representative for Local 793 of the Operating Engineers, testified to the union's expectation and the general practice with respect to the operation of the elevators following the removal of the man and material hoist on construction sites in Toronto. He stated his opinion that while the words of the collective agreement might indicate that an operating engineer would have to be employed to operate the elevator until the last piece of construction material had been lifted, the practice in the Toronto area has been for the operating engineers to cease their operation of the elevators at some point prior to that. He commented that every project reaches a point in its winding down where there may be some minimal materials left to go up but not enough to justify the employment of a full time operator of the elevator. Mr. Shanks of Local 50 of the Elevators Constructors stated that normally when all construction material has been put into place and the tenants are moving into the building, the union agrees that an attendant is no longer required. He noted that the normal routine would be for the contractor to call the union when all the construction material has been lifted up and for the union to then inspect the project to verify the situation. Mr. Shanks noted that the union does not insist that the last tradesmen be off the site before the elevator operator can be laid off. He stated this view, however, that all the material should be up. Both Mr. Ford and Mr. Shanks stated that they had never before encountered a situation where the contractor had sought to lay-off the elevator operator at the point when the man and material hoist was removed and the elevator brought into operation, as Ellis Don Limited did in this situation.
Counsel for the employer argued that Ellis Don was entitled under the management rights clause of the collective agreement to decline to employ anyone to operate the elevator in question. Counsel submitted that carried to its logical conclusion the interpretation of the collective agreement sought by counsel for the union would require that an operating engineer be employed to operate the elevator until the very end of project. He asserted that that could not possibly be the intention of the collective agreement as both Mr. Ford and Mr. Shanks conceded that it would not be appropriate to require an operating engineer to man the elevator after all the internals had been put in place. When asked for his view of the effect of article 2.2. of the collective agreement, counsel for the employer submitted that if the company chose to utilize someone to operate the elevator, article 2.2 would preclude management from hiring someone from outside the applicant union to do so. He maintained, however, that article 2.2 could not require the company to employ someone to operate the elevator in the first place.
Counsel for the union views the matter differently. He maintains that article 2.2 is an aspect of union security that has been negotiated between the parties and requires that the employer utilize an operating engineer to operate the elevator whenever the elevator is operated on the construction project. Counsel maintains that the language of the collective agreement may well be strong enough to require someone from the applicant union to operate the elevator to the very end of the project. He noted though that in its practice the union has recognized that there is a point in the winding down of a construction project when the situation no longer justifies a person operating the elevator on a full-time basis. Counsel argues that clearly that point had not been reached in the facts before this Board and that the employer's failure to utilize an operating engineer to operate the elevator from the end of March of 1982 through to the point of the hearing was a clear violation of the collective agreement. He submits that the testimony from both company and union witnesses establishes that up to the week before the hearing substantial materials were still being lifted by the elevator. He submitted, therefore, that the project had not reached the point where the union's practice would suggest that the union would agree that a union member was no longer required to operate the elevator.
The rights of the employer set out in the management rights clause of the collective agreement are by the clear wording of article 4.1 of the agreement, subject to modification by the terms and conditions of the agreement. The Board is satisfied that article 2.2 is a modification of the employer's right to decide when and whether to employ an operator for the elevator.
The union has bargained a considerable measure of security into the collective agreement as may be seen, in part, through articles 2.5 and 3.4 of the collective agreement set out above. One further aspect of that security is the article in dispute, article 2.2. In the Board's opinion, article 2.2 establishes the union's right to have all the onsite operation of the equipment listed in the agreement performed by members of the union. Article 27 clearly provides that Schedule J is part of the collective agreement. Article 1.3 of Schedule J lists various pieces of equipment, one of which is elevators. No one suggested that "elevators" in article 1.3 of Schedule J was not equipment" within the meaning of article 2.2 of the agreement. Indeed, it would seem difficult to make such an argument. Moreover, no one suggested that "elevators" in article 1.3 of Schedule J did not encompass the elevator in dispute. Instead, counsel for the company argued that the union's right in article 2.2 should be limited to requiring the company to hire a member of the applicant union only if the company first chose to employ an operator to operate the equipment but not if it decided, as in this case, to leave the elevator unattended.
Having carefully reviewed the language of the collective agreement, the Board is satisfied that article 2.2 cannot be restricted in the manner suggested by the employer. The article stipulates that the onsite operation of the equipment listed in the agreement, i.e. the elevator in dispute, shall be performed by a member of the union. The Board is satisfied that when an elevator moves from one floor to another to lift men and material it is being operated. Accordingly, the Board concludes that when the elevator is so used, that is, when it is moved from one floor to another, the collective agreement requires that it must be operated by a member of the union. Article 2.2 does not say, "When an operator is required for the equipment listed in this agreement, the operation shall be performed by a member of the union". That, however, is the interpretation of article 2.2 that the employer asks us to draw from the existing language of the agreement. In the Board's assessment, to interpret article 2.2 in the manner requested by the employer would be to change the clear words of the collective agreement which is something which this Board, in these circumstances, cannot do.
Accordingly, for the reasons set out above, the Board allows the grievance. The Board declares that from the commencement of the operation of the elevator in dispute, at or about the end of March of 1982, until the date of the Board's hearing on November 1, 1982, the employer contravened article 2.2 of the collective agreement by failing to utilize a member of the applicant union for the onsite operation of the elevator in question. It may well be that the circumstances of the project from the point of the hearing onwards would have fallen within that stage of winding down when the union's practice would be to no longer insist that one of its members be employed to operate the elevator. We make no finding, however, in this regard. The Board orders that the employer compensate the union for the losses flowing from the employer's breach of the collective agreement from the point at or about the end of March, 1982, when the elevator was first put into service, through to the end of October, 1982 when substantial material was still being regularly lifted by the elevator.
The Board remains seized in the event that a dispute arises over the assessment of the appropriate amount of compensation.