[1983] OLRB Rep. June 932
1117-82-JD International Association of Machinists and Aerospace Workers, Complainant, v. Ontario Hydro & International Union of Operating Engineers, Respondents, v. Lake Ontario District Council United Brotherhood of Carpenters and Joiners of America, Intervener
BEFORE: D. E. Franks, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballentine.
APPEARANCES: George Drennan, John Porte; Gord Johnston and Ches Tulk for the complainant; William 0 Neill, L Mollica and W Gundry for Ontario Hydro; A. M. Minsky, B. Coutts, H. Ingham and P Gauthier for the International Union of Operating Engineers, No one appearing for the intervener
DECISION OF THE BOARD; June 30, 1983
This is a complaint concerning work assignment under section 91 of the Labour Relations Act. The complainant, the International Association of Machinists and Aerospace Workers (hereinafter referred to as either the "I.A.M." or "the Machinists") has a construction industry collective agreement with the respondent, Ontario Hydro. In this complaint the I.A.M. requests this Board to assign certain work in dispute to its members rather than members of the respondent, International Union of Operating Engineers (hereinafter referred to as the "I.U.O.E." or the "Operating Engineers"). That respondent is also bound by a collective agreement with Ontario Hydro through the Ontario Allied Trades Council. The respondent, Operating Engineers, although a respondent in this matter, have asked the Board to affirm the existing assignment of work of the work in dispute to the Operating Engineers. The remaining respondent, Ontario Hydro, has taken a neutral position between these two competing trade unions, and indeed, made no representations in this matter other than to assist the Board, and to indicate that they were prepared to abide by the Board's decision.
The present dispute is in many respects an unusual dispute and it is worth noting the origins of the dispute presently before the Board. It arises as a result of a grievance filed by the I.A.M. against Ontario Hydro. That grievance is dated May 21st, 1982 and is in the nature of a policy grievance requesting that certain work be re-assigned from the Operating Engineers to the I.A.M. This grievance was ultimately denied by Ontario Hydro on August 18, 1982. The grievance in turn arose not simply from the collective agreement between the I.A.M. and Ontario Hydro, but is also a consequence of a mark-up meeting which took place on June 24, 1981. At that mark-up meeting, various assignments for the Darlington Nuclear Generating Station were discussed and under the heading of "Construction Shops" the garage workforce was assigned. The suggested assignment from Ontario Hydro was confirmed on September 24, 1981 and reads as follows:
"Garage
In the gargage, a staff of Auto-Diesel and Heavy Duty Mechanics will be employed on the maintenance and repair of Hydro vehicles and equipment.
Suggested Assignment:
Machinists - Maintenance and
(Auto-Diesel repair of
Mechanics) vehicles,
miscellaneous
tools and
equipment.
Operating Engineers - Maintenance and
(Heavy Duty repair of heavy
Mechanics) construction
equipment."
The Machinists take the position that the work in dispute which is essentially the maintenance and repair of certain types of construction equipment was assigned to them at that mark-up meeting. The unusual element about this case as the evidence discloses is that this decision at the mark-up meeting was done under the mistaken belief that no assignment had been made of the work in dispute, whereas the respondent, Operating Engineers, claim that the work has in fact been done since the first operating engineer mechanic arrived at the Darlington job site in June of 1980.
In accordance with the Board's Practice Note 15, all of the parties to this dispute participated in a pre-hearing conference. That conference resulted in an extensive agreement between the parties as to the basic facts upon which this dispute should be adjudicated, and the parties are to be commended for their efforts with regard to the pre-hearing conference.
At the pre-hearing conference there was an agreement as to the definition of the work in dispute. In the course of the hearing, this work was sometimes referred to as "small or minor construction equipment repairs". The exact definition of the work in dispute agreed to by the parties is as follows:
"14. The work in dispute in this complaint is the maintenance and repair of the following at Ontario Hydro's Darlington Nuclear Generating Station: portable gas heaters, air-operated winches (with 4,000 pound capacity), hydraulic and mechanical work platforms ("man hoists" with 225 to 350 kilogram capacity), portable gas powered lighting generators (with 3 to 6 kilowatt capacity), portable concrete mixers, portable grout pumps, portable grout mixers, concrete finishing power trowels, chain saws (including all repairs but not including sharpening of the saws), vehicle wash units, portable sand blasters, portable gas driven pumps (with discharge of up to 4 inches), vibratory rollers (walking type compactors that would normally be operated by a labourer in the construction industry), mechanical work on electrical welding machines (limited to the parts which are not normally maintained or repaired by electricians, i.e., pumps, fluid drives, wheels, frames), air track drills, and mechanically activated cable suspended work platforms."
At this point it is perhaps worth noting that the equipment repaired is small equipment and does not include what might be termed "construction tools". This failure to distinguish between the repair of construction tools and the repair of small or minor construction equipment probably gave rise to the initial confusion in the present case.
As we have noted above, the suggested assignment by Ontario Hydro at the mark-up meeting was to assign miscellaneous tools and equipment to the I.A.M. It is clear that Ontario Hydro intended this assignment to reflect the practice at the existing shops at the Pickering Generating Station project. However, it appears that in the course of preparing the proposed assignment, when a check was made at the Darlington site about whether small or minor equipment was being repaired, it would appear that the confusion was with the repair of construction tools and those preparing the mark-up meeting were not informed that in fact minor construction equipment had been repaired from the very start of construction at Darlington. Whatever the source of confusion, however, the evidence is clear that from June, 1980 when the first operating engineer mechanic arrived at the Darlington site, as a regular part of his duties work was performed on construction equipment of the type referred to in paragraph 4 as part of the work in dispute as a regular course of his duties. Thus, if a piece of equipment of the type listed in the work in dispute required repair work the operating engineer mechanic would normally go out to the equipment and effect a repair or have it brought to the shop area and repair it. This had been going on for a year prior to the mark-up meeting at which the proposed assignment was made to the Machinists Union.
The fact that this repair work had been going on for a year prior to the mark-up meeting, leads us to the first issue in the present case. Counsel for the respondent, Operating Engineers, argues that the Board ought not for policy reasons disturb a work assignment which has gone on for such a length of time. The representative for the applicant takes the position that this is of no importance and that the Board should look to the mark-up meeting and the actual language of the mark-up meeting in terms of making the present assignment. We are of the view that in the interests of stability on construction sites, the Board should not as a matter of policy disturb assignments which have gone on for a period of time unquestioned. In this regard, we would note that other tribunals dealing with jurisdictional disputes, such as the Impartial Board for the Settlement of Jurisdictional Disputes and its predecessor, the National Joint Board developed similar procedural rules about the bringing of a jurisdictional claim as quickly as possible and that a failure to do so results in a refusal by such tribunals to change an assignment. Clearly, in the present case the complainant I.A.M. was in a position to know that small equipment was being repaired at the Darlington site by the operating engineer mechanics, and its delay in bringing this complaint is sufficient for the Board to refuse to exercise its discretion under section 91.
Although we would be prepared to dispose of the complaint on that ground, we shall go on to consider the merits of the complaint in view of the evidence before the Board concerning the respective jurisdictional claims of the two competing trade unions of the request by the respondent that the Board direct Ontario Hydro to assign the work to its members. The criteria on which the Board normally deals with jurisdictional disputes are collective agreement claims, jurisdictional arrangements between unions, area practice, skills and training, and economy and efficiency. With respect to several of these headings it is clear that both parties have collective bargaining agreements with the respondent employer that neither of them have jurisdictional arrangements between them and that both have members with the skills and training to provide the mechanics to perform the work in question. It is clear then that these three criteria favour neither of the competing unions and cannot form a basis for decided between the two.
With respect to the heading of economy and efficiency the argument made by the representative for the complainant is that the wage rate in the Machinists agreement is lower and, therefore, that criteria favours an assignment to the I.A.M. The Board has on a number of occasions indicated that "a trade union can't buy jurisdiction" by being prepared to do the work for a lower wage rate than the competing trade union. The factors considered by the Board under this heading are the output per man hour by the competing trades and factors such as the overall flow of work. Clearly, on these grounds neither trade union has a distinct advantage.
This leaves the remaining criteria of area practice. In this regard, the I.A.M. claims that the practice in the Pickering shops should be transferred to the Darlington shops. Apart from the fact that such a practice is a practice in a different Board area than the area in which the Darlington site is located, the agreed facts concerning area practice which arises out of the pre-hearing conference are that the Operating Engineers have the overwhelming area practice with respect to the repair and maintenance of equipment covered in the agreed work in dispute set out in paragraph 4 above. On this basis, therefore, the area practice criteria completely favours the respondent, Operating Engineers over the complainant, Machinists Union.
In summary then, it is clear that on the merits of the case, the application of the Board's usual criteria favours an assignment to the respondent, Operating Engineers. Thus, we affirm the original, although inadvertent, assignment by Ontario Hydro to the Operating Engineers.
In view of the foregoing, the Board directs that the respondent, Ontario Hydro, continue to assign all work in relation to the maintenance and repair of the following at Ontario Hydro's Darlington Nuclear Generating Station: portable gas heaters, air-operated winches (with 4,000 pound capacity), hydraulic and mechanical work platforms ("man hoists" with 225 to 350 kilogram capacity), portable gas powered lighting generators (with 3 to 6 kilowatt capacity), portable concrete mixers, portable grout pumps, portable grout mixers, concrete finishing power trowels, chain saws (including all repairs but not including sharpening of the saws), vehicle wash units, portable sand blasters, portable gas driven pumps (with discharge of up to 4 inches), vibratory rollers (walking type compactors that would normally be operated by a labourer in the construction industry), mechanical work on electrical welding machines (limited to the parts which are not normally maintained or repaired by electricians, i.e., pumps, fluid drives, wheels, frames), air track drills, and mechanically activated cable suspended work platforms to members of the Operating Engineers Union.