International Union of Operating Engineers, Local 793 v. Myer Salit Limited
[1984] OLRB Rep. October 1489
1364-84-R International Union of Operating Engineers, Local 793, Applicant, v. Myer Salit Limited, Respondent, v. United Steelworkers of America, Intervener
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. D. Bell and C. A. Ballentine.
APPEARANCES: J. Redshaw and D. Bannerman for the applicant; Laurence Cohen and Irvin Feldman for the respondent, David Nicholson for the intervener.
DECISION OF THE BOARD; October 3, 1984
1This is an application for certification by Local 793, International Union of Operating Engineers, to represent the two crane operators employed by the respondent.
2The intervener United Steelworkers of America takes the position that the crane operators are already covered by the "all-employee" collective agreement it has with this employer. The employer concurs in that position. It is conceded by both the respondent and the intervener, however, that the intervener has never sought to bargain nor received union dues on behalf of the respondent's crane operators at any time during the twenty-seven years that the intervener's "all-employee" agreement has been in effect. The parties opposing this application argue nonetheless that the intervener's collective agreement is clear on its face, and that there is no exclusion in its scope clause which could arguably be said to apply to these crane operators.
3The scope clause of the intervener's collective agreement has been in the same form since the agreement was first entered into following certification of the Steelworkers in 1957. That scope clause reads:
ARTICLE 1 — RECOGNITION
1.01 The Company recognizes the Union as the exclusive bargaining agent of all the employees of the Company at Niagara Falls, save and except foremen, those above the rank of foreman, office staff, and all hoisting engineers operating cranes, crawlers, or mobile type derricks, oiler-drivers, or mobile cranes employed by the Company and its erection department or structural steel division in the Province of Ontario.
1.02 The term "employee" as used in this Agreement, unless it is clearly indicated otherwise, shall be deemed to mean only those employees who are included in the bargaining unit.
1.03 Inasmuch as the Union accepts the responsibility of collective bargaining for all employees, including students and temporary help, in the bargaining unit, with the exceptions hereinbefore stated. All employees shall be required to become members of the Union as a condition of employment and sign an authorization for Union initiation fees, monthly union dues deductions and assessments; such authorization shall be in the form shown in Schedule "A" attached hereto, and shall be supplied by the Union.
The explanation given for the description of the bargaining unit in those terms is that the company at that time operated essentially two divisions out of the same location, one being a scrap-yard operation as at present, and the other involving shop-fabrication and field-erection. The company at that time had one crane which it used to service both operations. For that purpose it employed one crane operator, as well as one oilman who was required for the occasions when the crane was moved into the field for erection work. The company indicated to the Steelworkers that it did not wish to create problems with the building-trades unions, and so it was agreed to exclude these crane-related employees from the Steelworkers' certificate. From that point, the crane operator and oilman were treated as falling at all times under a collective agreement with the International Union of Operating Engineers, and received the rate under that collective agreement whether working in the fabricating or the scrap-yard side of the business. The Engineers subsequently negotiated an additional premium to that rate to apply when its members were required to engage themselves in field-operations away from the shop.
4In about 1965, the respondent employer entered into an arrangement with a second company, Modern Iron and Steel, to take over at the second company's own location the fabrication and erection side of the respondent's business. That arrangement was dissolved a short time later, and the respondent has not subsequently carried on any fabricating or erecting of its own. The crane that the respondent retained continued to be used in its scrap-yard operation only, and the respondent ceased to negotiate with any union with respect to the rate of pay and working conditions of the operator. The operator generally picks up the conditions of work and benefit programs of the scrap-yard employees with whom he works, but it is conceded that no rate was ever negotiated for him in the Steelworkers' agreement, nor any dues ever checked off to the Steelworkers in accordance with the provisions of Article 1.03. That has been the situation now for some 20 years, the only change being the addition relatively recently of a second crane and part-time operator.
5There is, of course, no issue of "abandonment" arising in the present case with respect to the applicant Local 793. Local 793 has not taken the position that it has maintained bargaining rights for the operators in question, but rather has filed an application for certification, together with freshly-signed cards indicating that those operators now wish Local 793 to represent them in collective bargaining. The intervener, on the other hand, does seek to assert bargaining rights on the basis of its 27-year old collective agreement. It argues that the phrase "all hoisting engineers operating cranes ... employed by the Company" can only be read in conjunction with the words "and its erection department or structural steel division", and that the exclusion clearly has no application to hoisting engineers employed in the respondent's scrap-yard operation, which is the subject of the Steelworkers' collective agreement.
6The Board is of the view, however, that the use of the word "and" after "employed by the company", rather than, for example, "in", creates an ambiguity on the face of Article 1.01 of the agreement, and that in any event, there is a latent ambiguity in Article 1.01 as to what is meant to happen with respect to hoisting engineers employed by the company should a separate erection department or structural steel division cease to exist. And the unbroken evidence of practice for the twenty years since that eventuality became a fact is that the hoisting engineers continued to be treated as an exclusion from the scope of the Steelworkers' "all-employee" collective agreement.
7This situation has some interesting parallels with what was before the Board in the recent case of Silverstein's Bakery, [1983] OLRB Rep. Dec. 2095. There the existing collective agreement between the employer and the incumbent union contained an exclusion only for "drivers", and the applying trade union sought to organize those persons whom it considered to fit the description of "drivers". In doing so, it approached only those individuals regularly employed to take the company's trucks out on the road. There were, however, a number of employees who performed functions tangential to the actual driving of the trucks, such as shipping and receiving, and who were also called upon to serve as relief drivers on a sporadic basis, as required. Both the employer and the incumbent union took the position that the incumbent's collective agreement had never been meant to apply to persons in these tangential driving categories, and that in fact it never had been. The majority of the Board ruled, in light of the use in the scope clause of the ambiguous term "driver", that it was the unequivocal interpretation placed on that word in practice by the two parties who had used it which governed its meaning, and that the "newcomer" union was accordingly required to take the situation as it found it. In coming to that conclusion with respect to at least the latent ambiguity present in that case, the majority of the panel was not necessarily in disagreement with the basic principle espoused by Board Member Armstrong in his dissenting opinion that:
I am of the view that employees and third parties place considerable reliance on the clear words contained in the scope and recognition clause of a collective agreement. This Board should encourage, rather than discourage, such reliance.
8In the present case the Board has found that the collective agreement governing the relationship between the respondent employer and the intervener does not contain "clear words" as to its scope; rather, it can be seen to contain a latent, if not a patent ambiguity, and resort to the longstanding practice of the parties is therefore admissible. That practice establishes unequivocally that hoisting engineers operating cranes were considered to be excluded from the scope of the intervener's collective agreement, even after the disappearance of a separate erection department and structural steel division. We therefore find that hoisting engineers are not covered by the Steelworkers' collective agreement, and the application for certification is accordingly timely with respect to the bargaining unit of hoisting engineers now sought by the applicant.
9The intervener argues, in the alternative, that such a bargaining unit would not be accepted by the Board on an initial certification, out of a concern for undue fragmentation, and ought not to be accepted in circumstances such as the present either. The Board finds that submission wholly without merit. The fact is that it is the employer and the intervener themselves who have "carved out" this group as the only exclusion (outside of foremen and office staff) to the intervener's "all-employee" unit, and it is now the only unit left open for organization (any accretions to the respondent's work force beyond this excluded group will fall into the Steelworkers' bargaining unit by virtue of its "all-employee" designation). Any time the parties to a collective bargaining unit agree to the exclusion of categories capable of being organized, they run the risk that that organization will be carried out by a trade union other than the incumbent.
10The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
11Having regard to the meaning which the Board has found the scope clause of the intervener's collective agreement presently bears, and in order to minimize any ambiguity in the future, the Board finds all hoisting engineers operating cranes, crawlers, or mobile-type derricks, oiler-drivers, or mobile cranes employed by the respondent in the Province of Ontario to be a unit of employees appropriate for collective bargaining.
12The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on September 4, 1984, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
13A certificate will issue to the applicant.