United Paperworkers International Union AFL-CIO (CLC) Kenora Local 1330 v. Boise Cascade Canada Ltd.

[1983] OLRB Rep. February 194

0012-82-JD United Paperworkers International Union AFL-CIO (CLC) Kenora Local 1330, Complainant, v. Boise Cascade Canada Ltd., and International Union of Operating Engineers, Local 940, Respondent

BEFORE: Ian Springate, Vice-Chairman, and Board Members I. M. Stamp and W. F. Rutherford.

APPEARANCES: Lewis Gottheil, Lyle Hudson, and others for the complainant; Fred Grigsby and Garry B. Whitta for International Union of Operating Engineers, Local 940; Jim Harty for Boise Cascade Canada Ltd.

DECISION OF THE BOARD; February 25, 1983

1. This is a complaint under section 91 of the Labour Relations Act wherein the complainant has requested that the Board issue a direction with respect to the assignment of certain work.

2. This complaint concerns the operation of certain motorized equipment "not requiring an operating engineers ticket" at the Kenora mill of Boise Cascade Canada Ltd., ("the company"). The company has assigned the operation of the equipment to employees working under the jurisdiction of Local 940 of the International Union of Operating Engineers ("the Operating Engineers' Union") whereas the applicant, United Paperworkers International Union, Local 1330 claims that the work should come within its jurisdiction.

3. All parties are in agreement that the work in dispute can be described as follows:

"The handling, loading, ground transportation, and unloading of all pulp wood to and at the Woodroom site and in and from all other areas of the Mill complex and to the production sites of the Mill by means of motorized equipment, including rubber-tired front end loaders with grapple equipment, not requiring an operating engi­neers ticket."

4. The Operating Engineers' Union bases its claim to the work largely on the basis that the equipment is being used to perform functions which had previously been performed by cranes operated by its members. The Local 1330 of the Paperworkers' Union does not deny that the equipment is being used in this way, but contends that the relevant history goes back prior to the time that cranes were introduced to the mill.

5. At the hearing several witnesses described United Paperworkers International Union, Local 1330 as being "the successor" to the International Brotherhood of Pulp, Sulphite and Paper Mill Workers Local 133, which first entered into a collective agreement with the company during or about 1923. For ease of reference we will refer to both unions simply as "the Paperworkers' Union". The Board heard direct evidence concerning how the company carried on its operations from approximately 1934 to date. The evidence indicates that throughout the 1930's and 1940's the only company employees involved in the movement of wood were members of the Paperworkers' Union. Most of the wood was received in the summertime by way of a water route into Rideout Bay. Members of the Paperworkers' Union then moved the wood by hand and with the assistance of jackladders. Wood that was not required immediately was stored in piles for later use. Some wood was brought to the mill by local farmers and by train. Although the farmers unloaded their own loads, the train cars were unloaded by hand by members of the Paperworkers' Union.

6. The evidence does not indicate precisely when it was that cranes were introduced into the mill. It is clear, however, that by the early 1950's a large electric crane was being used in connection with a woodpile. This crane replaced a conveyor which had been operated by members of the Paperworkers' Union. By the mid 1950's the company was also using two large "American cranes" mounted on rails. These cranes were used to place wood into storage piles, and in the winter to load wood from the storage piles onto flat bed cars. The flat bed cars were then pushed over to the woodroom where another crane unloaded the wood onto a conveyor. On occasion a crane would not be available to perform this task, and the wood was unloaded from the flat bed cars by hand. Starting in the mid 1950's, cranes were also used to unload wood from trucks and place it in piles. At the time of the hearing, the company had a total of seven cranes at the mill, including a number with caterpillar tracks. Because most wood arrived in the summer by way of the water route, the cranes were always used with greater frequency in the winter as wood was moved from the wood piles to the woodrooms.

7. By law, the company's cranes could only be operated by persons holding hoisting engineer certificates. The Operating Engineers' Union is a craft union which represents, among others, hoisting engineers. The company accordingly employed members of the Operating Engineers' Union to operate its cranes, and recognized the union as their bargaining agent. It should be noted that the Operating Engineers' Union also represents certain employees working in the company's steam plant, but these employees are not affected by these proceedings.

8. The rubber-tired equipment which is the subject matter of these proceedings, is hydraulically operated and does not require a hoisting engineers certificate to operate. The evidence indicates that the equipment requires less skill to operate then does a crane. It was the contention of certain witnesses called by the Operating Engineers' Union that because of their prior training and experience, crane operators were better qualified to operate the equipment. The evidence, however, suggests that if such an advantage does exist, it is a marginal advantage only, and that a non-crane operator with a healthy dose of common sense and concern for safety can compensate for it with, at most, a slightly longer familiarization period. The equipment in question is capable of being used for a variety of tasks. Of interest in these proceedings is the fact that a grappling hook can be attached to the equipment so that it can be used to pick up and move fairly large quantities of wood. Because of the nature of the vehicles, they are much more flexible than are cranes.

9. One of the first rubber-tired machines to be used by the company was a front end "544" loader. This 544 was acquired about 1975 to do tasks such as yard clean up and snow plowing, but not to move wood. The operation of the machine was assigned to members of the Paperworkers' Union, most likely because they had been responsible for yard work. In 1977 the company acquired a second 544 to be used in supplying wood chips, sawdust and the like to the boiler room to be used for fuel. The company originally assigned the operation of the equipment to the Operating Engineers' Union but, after a protest from the Paperworkers' Union, reassigned it to that union. The operation of all forklift trucks when they were introduced was also assigned to members of the Paperworkers' Union.

10. It appears that the first rubber-tired equipment actually used to move wood was a Pettibone "cary lift" which was used briefly on a test basis in 1974. During or about 1975 another Pettibone cary lift was rented for about three months to replace a crawler crane which had broken down. In 1978 the company acquired a hydraulic machine mounted on caterpillar tracks. At first this machine was used sparingly as a back up to an American crane, but during the winter of 1981—82 it began to be used with much greater frequency. Although the operation of these pieces of equipment was claimed by the Paperworkers' Union, the company assigned their operation to the Operating Engineers' Union.

11. What gives rise to these proceedings was the decision of the company to utilize two fairly large rubber-tired hydraulic vehicles equipped with a front end grapple, namely a John Deere Model 844 and a Clark Model 125. The 844 appears to have been acquired in November of 1981, and the 125 sometime thereafter. During the 1981—82 winter season the rubber-tired equipment played a major role in the day to day movement of wood. Indications are that they will play a much more important role during the 1982—83 winter season, and in later years. There is no question but that the equipment is being used to perform work which had previously been performed with the use of cranes. There is also no question but that the use of the new equipment has decreased the use of the cranes. Mr. Rudy Cederwall, the company's head crane operator, testified that of the seven cranes on the mill site, four or five would likely be put up for sale within the next six months.

12. The company assigned the operation of the 844 and 125 to the Operating Engineers' Union. No company official testified at the hearing to explain why it did so. However, in his final submissions, the company's representative did note that the collective agreement between the company and the Operating Engineers' Union appears to cover the work in question while the collective agreement with Paperworkers' Union does not. He also referred to an October 10, 1981 letter to the Operating Engineers' Union from Mr. W. C. McKinnon, the company's Employee Relations Manager, which read as follows:

"This is to advise you in accordance with the labour agreement section 301 (a)(v) that the company is in the process of acquiring a John Deere Model 844, with a Harricana front end grapple. This machine is expected on site November 1st or sooner.

This machine will be used to load, unload and for the ground transport of rough and peeled pulpwood at the old woodroom site, and other areas of the mill complex.

On the basis that the I.U.O.E. Local 940 has traditionally handled pulpwood movements within the mill area with grapple equipment, we are assigning the operation of this equipment while on pulpwood handling operations to your local.

We will be prepared to discuss rate assignment in line with industry standards sometime in the near future, after arrival of the equip­ment.

This equipment is not covered under the provisions of Letter of Understanding #6 and as a consequence, does not fall under the established rules of slotting cranes."

It should be noted that the company played a very "low-key" role in these proceedings, and at the hearing did not actively support the claims of either of the two unions.

13. As already noted, the company utilized its cranes with greater frequency during the winter season than during the summer. Under other circumstances, this might have resulted in a situation where some of the crane operators would have been laid off during the summer months, and where the company might have faced difficulties during the winter months in obtaining the services of a sufficient number of crane operators. In fact, however, these problems did not arise because of an agreement entered into between the two unions on March 1, 1975. The company was not a signatory to this agreement, but it is clear from the way that the agreement was implemented over the years that the company did honour its terms. Part of the agreement dealt with work in the steam plant, and is not relevant to these proceedings. The other part of the agreement, which deals with the manning of cranes, reads as follows:

"1. A quota of Twenty (20) members of Local 940, I.U.O.E. be maintained as a permanent Crane Crew at all times.

2. In the event that additional men are required for the opera­tion of the Crane Crew Department, then the additional men will be drawn from Local #1330 U.P.I.U. on a seniority basis with required qualifications without being required to pay dues or other assess­ments to Local #940.

3. However, if the quota of Twenty (20) men is reduced by retirement or other reasons, then the Senior man of Local #1330 with the requirements, will move up to the permanent Crew, and become a member in good standing of Local #940.

4. If a cut-back occurs to the extent that the Permanent Crews of Local #940 are reduced, then up to Fifteen (15) members of Local #940 will be allowed to work under the jurisdiction of Local #1330, plant seniority considered, without being required to pay dues or other assessments to Local #1330."

5. The essence of this agreement is that the Operating Engineers' Union will maintain a crane crew of 20 members, but that if additional crane operators are required, they will be drawn from the ranks of the Paperworkers' Union. As a result of the agreement, every winter a number of members of the Paperworkers' Union worked on the cranes within the jurisdiction of the Operating Engineers' Union, but neither joined nor paid dues to that union. At times up to ten members of the Paperworkers' Union might be working within the jurisdiction of Operating Engineers' Union. In the summer, these paperworkers would return to work within the jurisdiction of their own union. A number of paperworkers working on the cranes obtained sufficient training and experience to acquire hoisting engineer licences, and thus became fully qualified crane operators, albeit still remaining members of the Paperworkers' Union. Whenever a member of the Operating Engineers' Union retired or for some other reason left the company's employ, then pursuant to paragraph 3 of the agreement one of the members of the Paperworkers' Union holding a hoisting engineers licence became a member of the Operating Engineers' Union. Paragraph 4 of the agreement provides that if for some reason the permanent crew of Operating Engineers is to be reduced to fewer than 20, then up to 15 members of the Operating Engineers' Union will be permitted, in accordance with their plant seniority, to work within the jurisdiction of the Pa­perworkers' Union without joining the union. Indications are that while members of the Operating Engineers' Union did take advantage of this provision in the past, there has been no need for any of them to do so for at least the past five years.

6. Although the company assigned the operation of the equipment in issue to the Operating Engineers' Union, because of the agreement between the unions, at times the equipment has actually been operated by members of the Paperworkers' Union. Up to the time of the hearing, only members of the Paperworkers' Union who were qualified crane operators had been assigned to operate the equipment.

7. Reference has already been made to the fact that the company views the collective agreement between the company and the Operating Engineers' Union as covering the operation of the equipment in question. Article 301(b) of this agreement provides that the Union is to have jurisdiction over the:

'(iv) operation of power hoists of any type used outside the mill buildings and hoisting equipment inside mill buildings requiring licensed hoisting personnel under the laws of Ontario in accordance with existing jurisdiction. It is further understood that changes in licensing requirements will not alter present jurisdiction but may effect classifications."

When operating the equipment in issue, an employee is paid as a "cary-lift operator" (a classification not set-out in the Operating Engineers' collective agreement) and receives a lower rate than when he operates a crane. The Paperworkers' collective agreement with the company defines the bargaining unit by reference to a number of classifica­tions. There is no classification covering the equipment in issue. It is perhaps worth noting at this point that although the Board does consider the terms of relevant collective agreements as one factor among others when making a work assignment, once the assignment has been made then, pursuant to section 91(17) of the Act, the assignment overrides any contrary provisions in a collective agreement.

17. Evidence was put before the Board with respect to the practice of the company at its mill in Fort Frances, where there is no local of the Operating Engineers' Union. The evidence indicates that prior to 1971 the Fort Frances crane operators were represented by their own trade union, but that since 1971 they have been members of the Paperworkers' Union. The evidence further indicates that the operation of all rubber-tired equipment has been assigned to members of the Paperworkers' Union.

18. Only limited evidence was put before the Board concerning the practice of other paper companies. What evidence there is indicates that the operation of rubber-tired equipment has generally been assigned to members of either the United Pa­perworkers' International Union or the Canadian Paperworkers Union. We were advised that one exception to this general practice is to be found at the Ontario Paper Company's mill in Thorold where the equipment is operated by members of the Operating Engineers' Union. A partial exception is also to be found at the Great Lakes Paper Company's mill in Thunder Bay. The evidence indicates that in the 1970's the Great Lakes Paper Company began to replace its cranes, which were operated by members of the Operating Engineers' Union, with rubber-tired hydraulic equipment. At that time an agreement was entered into between the relevant locals of the Pa­perworkers' Union and the Operating Engineers' Union whereby members of the Operating Engineers: Union who were displaced from the cranes would operate the new equipment, but that their replacements or any additional operators, would come within the jurisdiction of the Paperworkers' Union. Today the equipment is being operated by members of both unions. However, by a process of attrition, all such equipment will eventually come to be operated only by members of the Paperworkers' Union.

19. The parties referred the Board- to only one previous case involving the type of equipment in issue, namely, Provincial Paper Limited, Port Arthur Division [1967] OLRB Rep. Oct. 672. In that case the employer assigned the operation of a Pettibone carry-lift (which is basically similar to the type of equipment we are dealing with) to members of a local of the Paperworkers' Union. The Operating Engineers' Union applied to the Board seeking an assignment of the work on the basis of a claim that the equipment was performing the same functions as had previously been performed by diesel crawler cranes operated by members of the Operating Engineers' Union. The historical background to that case was similar in many respects to the background here. The Board summarized its findings of fact in the Provincial Paper case as follows:

"On the basis of the evidence, the type of vehicle and the mode of operation of the carry-lift seems to be quite different from a diesel crawler crane. Also, the skills required to operate a carry-lift appear to be less onerous than those required to operate a diesel crawler crane. Further, the evidence reveals that with the exception of the cranes, all work performed in the mill yard of the company has always been done by members of the respondent union. (i.e. The Paperworkers' Union). Moreover, by having members of the re­spondent union operate the carry-lift, these employees obviously can more readily be integrated and utilized in other yard work, when the carry-lift is not in operation, since the respondent union has general jurisdiction over the mill yard. Finally, the evidence regard­ing the use by other companies of carry-lifts or similar machines indicates that by and large members of the respondent union or another industrial union have been operating these vehicles."

The Board then went on to direct that the work continue to be assigned to members of the Paperworkers' Union.

20. In the instant case, the evidence establishes that the skills of a hoisting engineer are not required to operate the equipment in issue, Historically, all work connected with the movement of wood belonged to the Paperworkers' Union, but technological progress led to the introduction of cranes which required the skills of hoisting engineers to operate. Business of this, the Operating Engineers' Union acquired bargaining rights as a craft for the crane operators. Technological change has occurred once again, but now on the new equipment the skills of the craft are no longer required. In this context, the historical-based claim of the Operating Engineers' Union is not a very strong one. Further, as the Board noted in the Joseph Brant Memorial Hospital case [1981] OLRB Rep. Nov. 1598, while the Labour Relations Act does accord a special status to craft bargaining units, it does not guarantee their continued preservation when the craft basis for them has been eroded or disappears.

21. The terms of the collective agreement between the Operating Engineers' Union and the company do tend to support the claim of the Operating Engineers. However, both area practice and Board jurisprudence favour the Paperworkers' Union. The 1957 agreement between the two unions allowing individuals to move between their respective bargaining units has served to largely shelter the company from the disruptions which would otherwise have occurred as its need for crane operators fluctuated with the seasons. Should one of the unions decide not to apply the agreement with respect to the new hydraulic equipment, then a number of difficulties will likely result. In our view, such difficulties would be minimized if the equipment were to come within the jurisdiction of the Paperworkers' Union, since when employees were no longer required to operate the equipment they could fairly easily be integrated into other mill operations within the Paperworkers' Union's jurisdiction. When all of these considerations are taken into account we are satisfied, and so direct (subject to the condition set out below), that the handling, loading, ground transportation, and unloading of pulp wood by means of motorized equipment, including rubber-tired front end loaders with grapple equipment, not requiring "an operating engineers' ticket," be assigned to employees working within the jurisdiction of the United Paperworkers International Union, Local 1330.

22. Unlike most jurisdictional disputes which come before the Board, this case does not involve a dispute between two craft unions whose members continually move from employer to employer and whose primary connection is to their trade and craft union as opposed to any single employer. All of the members of the Operating Engineers' Union who will be affected by this decision have been employed by Boise Cascade at its Kenora mill for a number of years. Many, if not most of them, originally came out of the Paperworkers' Union. Further, on the basis of the 1975 agreement between the two unions it has been common for members of one union to be working within the jurisdiction of the other. Given this background, it is not our intent that members of the Operating Engineers' Union be displaced from their employment with the company as a result of this award. Accordingly, the aware is made conditional on an undertaking by the Paperworkers' Union that any existing employees who currently belong to the Operating Engineers' Union will be permitted, according to their plant seniority, to work within the jurisdiction of the Paperworkers' Union while continuing to pay dues to the Operating Engineers' Union. We recognize that one likely result of this condition is that for a time a number of members of the Operating Engineers Union will be operating the equipment in issue. However, since the condition is limited only to existing employees who currently belong to the Operating Engineers' Union, over time all such equipment will come to be operated by members of the Pa­perworkers' Union