The Printing and Graphic Communications Union (Newspaper Local N- 1) v. Graphic Arts International Union (Local 211) and Southam Printing Limited (Southam-Murray Division), 1984 CanLII 961

The Printing and Graphic Communications Union (Newspaper Local N- 1) v. Graphic Arts International Union (Local 211) and Southam Printing Limited (Southam-Murray Division)

[1984] OLRB Rep. January 117

0171-83-JD The Printing and Graphic Communications Union (Newspaper Local N- 1), Complainant, v. Graphic Arts International Union (Local 211) and Southam Printing Limited (Southam-Murray Division), Respondents

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members J. Wilson and E. G. Theobald.

APPEARANCES: Sheila R. Block, Barbara J. Greenwood, Paul D. Blundy, Don Oliver and Bob Watson for the complainant; J. J. Nyman, M. Zajac for the respondent union; R. Ross Dunsmore, Craig Slater, John Derosa and Angela Arkel for the respondent company.

DECISION OF THE BOARD; January 9, 1984

Reasons for Decision

1. This is a jurisdictional dispute complaint filed under section 91 of the Labour Re­lations Act by the Printing and Graphic Communications Union (hereinafter referred to as Lo­cal N- 1). The complainant seeks the assignment of its members to work on a Harris N-900 web offset press which the company was about to install at its Weston Road plant at the time of the filing of this complaint and which has since been installed. The manning of this Harris N-900 press has been assigned to members of the Graphic Arts International Union (here­inafter referred to as Local 211). Three teams of five men each (1st pressman, 2nd pressman, 3rd pressman, roliman and jogger) have been selected to operate the press.

2. The parties to the matter agreed on a number of statements of fact which, exclusive of the appendices, are set out below:

[Statements describing work in dispute, other presses of the company and the bargaining his­tory and provisions of the collective agreements of the two unions omitted.]

4. The constitution of the recently merged Graphic Arts International Union and the International Printing and Graphic Communications Union provides:

All parts or sections of a newspaper whether they be called music sup­plements, magazine or color sections, shall be considered to form a part and parcel of the work belonging to the newspaper craft when done on newspaper web presses and no technicality in reference to whether the same shall be done from a hard or soft packing, shall act as a waiver of the rights of the newspaper pressmen's union, and the pressmen hold­ing positions on newspaper web presses producing magazines, comic or colored supplements to newspapers, shall transfer their membership to the newspaper pressmen's union under whose jurisdiction they are work­ing; provided, that all work referred to in this Section is done on news­paper web presses.

The evidence is that this provision was taken from the constitution of the former International Printing and Graphic Communications Union (I.P. & G.U.C.) and that the I.P. & G.U.C. divisions referred to in the clause continue to exist. Mr. Ron Tozzi, the Canadian International Vice-President of the merged unions, when asked in cross-examination if the arrangements set out in the above clause pertained to disputes arising among divisions of the former I.P. & G.U.C., replied in the affirmative. However, when asked in re-examination if, following the merger, it was conceivable that these procedures are intended to deal with disputes between locals of the entire merged union, he also replied in the affirmative.

5. Mr. Don Oliver, the president of Local N-1 since January, 1980, testified. Local N-1 is a newspaper local with the singular exception of the rotogravure unit at Southam Mur­ray. It is his evidence that all of the Local N-1 members working at Southam Murray are familiar with web presses and would require only two weeks of training to operate the Harris N-900. He testified that 90% of the experience on rotogravure is applicable to offset with the difference being the water process versus the chemical process. He referred to the union train­ing programme and to the smooth transition to offset by members of Local N-1 at the Daily Racing Form and the Brampton Times as well as the move to offset by the Toronto Sun (a non-union operation). He admitted in cross-examination that there is nothing in the union training manuals that applies to offset printing. In explaining why Local N-1 had never claimed offset work at Southam Murray in the past, Mr. Oliver testified that until 1980 it had been shared by Local 10 (a sister local decertified in 1980) and Local 211. When asked why Local N-1 did not assert a claim to the second Baker Gurney offset press that was installed in 1981, Mr. Oliver testified that Local N-1 was entering into contract negotiations at the time and was told not to pursue the matter by the Council of Printing Industry spokesman who was rep­resenting the company. The evidence is that Local N-1 suffered significant layoffs following the loss of the Eaton's catalogue business in 1977 and was below 50 members, from a high of about 100 members, in 1981. Mr. Oliver testified that when he approached the company concerning the assignments to the Harris N-900 he was advised by Mr. Chase, a senior man­agement official, that the company would prefer to make the assignment to Local N-1 because of their excellent work and because under the N-1 agreement the machine could run through lunch breaks. It is Mr. Oliver's evidence that Mr. Chase stated that he feared vandalism by members of Local 211 if the assignment was made to Local N-1.

6. Mr. John Derosa, the company's manager of printing production, was called to tes­tify. It is his evidence that in making the assignment that it did the overriding criterion was offset experience. He testified that offset experience is critical because under the offset process the water is constantly attacking both the ink and the paper. If there is too much water, emul­sification results and if too little water, piling results. In addition, the offset operator is re­sponsible for regulating the supply of ink to the rollers and for obtaining the proper colour. While many of the facets of offset printing and rotogravure printing are similar, it is Mr. De­rosa's evidence that it would require six months for the best rotogravure operator to learn the offset process and one year for an average rotogravure operator to learn the offset process. In his opinion the company's offset pressmen were more qualified. He referred to the offset print­ing at the Daily Racing Form and the Brampton Times as not very sophisticated and testified that if that type of work was being done at Southam Murray it would be assigned to an ap­prentice working on a single colour press. The company, after making an agreement with Lo­cal 211 by which the Harris N-900 would run continuously, assigned the work to its members.

7. Mr. Mike Zajac, the executive vice-president of Local 211 for the past five years, testified. It is his evidence that Local 211 has several hundred members who work as offset pressmen within its geographic jurisdiction. He produced a list of web offset presses operated by Local 211 members which is reproduced below:

[List of presses omitted]

Local 211 runs a school in Toronto (one of six in Canada) with a $200,000 annual budget. The school employs 31 instructors and houses over $1 million worth of equipment. Although the school does not have a Harris N-900 press, it provides extensive, hands-on instruction in the offset process with complete lessons on dampening, inking and the packing and inter­change of plates. Mr. Zajac referred to the long-standing recognition clause in the Local 211 collective agreement and testified that Local 211 has never before, prior to this matter, been challenged by Local N-1 in respect of its jurisdiction to operate web offset presses at Southam Murray. He explained that in 1980 Local 211, which represents over 100 persons at Southam Murray, was approached by some of the 20 persons represented by Local 10 and decertifi­cation proceedings ensued.

8. Mr. Bill McGibbon, a former member of Local N-l who worked as a pressman in the rotogravure room for 15 years before being laid off in 1978, testified. He was rehired as a roiltender to work on the first Baker Perkins in 1978. He has only just advanced to a third pressman and testified that he was not qualified at the time, nor is he qualified now, to be a first pressman. It is his evidence that six months to one year would be required to be­come a third pressman and longer to be proficient. When asked what aspects of the offset process cause difficulty he replied, water, etching and plates to blankets. There is no damp­ening nor blankets used in rotogravure.

9. The complainant Local N- 1 submits that the primary factor to be considered by the Board in this matter is the loss of jobs to employees with 22 to 40 years' service with the company that will occur if the company's assignment to Local 211 is upheld. The complainant maintains that the recognition clause in its collective agreement, which is not restricted to ro­togravure, is broad enough to encompass the work. Local N-1 argues that where there has been a de facto agreement between itself and a sister local with respect to the work in dispute, and where Local N-1 raised the question of its jurisdiction over the work in 1981 (the only time that a claim could have been made following the decertification of Local 10) and did not withdraw its claim in a way that would allow the company to argue that it is estopped from doing so now, the recognition clause must be read as giving it a legitimate claim to the work in dispute. Local N-1 also relies on the provisions of the new International constitution which have been set out at paragraph 4 herein. Local N-1 maintains that in the face of only one prior assignment to a web offset press having been made by the company since the de­certification of Local 10 there is no persuasive employer practice and in the absence of any Harris N-900 presses in operation in any shop in this area there is no area or industry practice upon which the Board can rely. Local N-1, on the basis of the uncontradicted evidence of Mr. Oliver that Mr. Chase preferred Local N-1 on the basis of efficiency and economy but feared sabotage if it made assignment to Local N-1, asks the Board to find that the real pref­erence of the employer was to assign the work to Local N-1. Local N-1 asks the Board to discount the evidence of Mr. Derosa, who is not a rotogravure pressman, and Mr. McGibbon, who it maintains is a "backend" person, and find that the members of Local N-1 have the skills necessary to perform the work. Local N-1 maintains that it has the better waste and safety records and advises the Board that, given the work assignment, would negotiate com­petitive rates. Local N- 1 asks the Board not to be overly influenced by the training facilities of Local 211 but to focus on the fact that only 50 hours of training are devoted to the offset process at the Local 211 school and that there is no Harris N-900 press at the Local 211 school. In light of these factors and in the light of the potential job loss to Local N-1, Local N-1 asks the Board to award the work in dispute to it. At the very least, Local N-1 asks the Board to follow the approach taken in Boise Cascade Ltd. [1982] OLRB Rep. July 981 and make an order splitting the work, which, in its view, is appropriate where the two competing locals are now part of the same international union.

10. In making its decision the company asks the Board to find that Local 211 has had a shared jurisdiction over offset printing since 1969 and an exclusive jurisdiction since 1980. The company asks the Board to further find that Local N-1 has had jurisdiction over roll and sheet fed rotogravure only and was never party to the agreements between Local 211 and Lo­cal 10 with respect to the sharing of jurisdiction over offset. The company asks the Board to read the recognition clause of the Local N-1 collective agreement in the context of the agree­ment as a whole where numerous references are made to rotogravure and to conclude that the jurisdiction of Local N-1, as set out in its collective agreement, is limited to rotogravure. The company points to the work assignments made to Local 211 members on its two Baker Gurney offset presses in support of its position that employer practice favours Local 211. The com­pany argues that the number of high speed offset presses operated in this area by members of Local 211, as compared to the offset presses operated by members of Local N-1 at the Daily Racing Form and the Brampton Times, weigh heavily in favour of Local 211 under the heading of area or industry practice. The company argues further that when the evidence with respect to the difficulty in maintaining proper ink and water balance in the offset process and the fact that water and blankets are not used in the rotogravure process are taken into account, a distinct advantage, under the skill heading goes to the members of Local 211 who have extensive offset experience. Finally, the company argues that Mr. Derosa was responsible for making the assignment and having regard to the cost of training and the competitive need to get into production quickly, preferred Local 211. The company maintains that on an appli­cation of the factors which are usually applied by the Board in these matters there should be no hesitation in upholding the assignment to Local 211. In the absence of any agreement to share the work, as there was in the Boise Cascade case supra, the company asks us to reject the proposal of Local N-1 to share the work, as unworkable.

11. Local 211 adopts the submissions of the employer and, in addition, argues that if Local N-1 was making the claim which it is at arbitration, an arbitrator, with reference to the Local N-1 collective agreement and its historical lack of offset jurisdiction, would dismiss its claim. Local 211 asserts that Local N-1 should not be in any better position because the work in dispute has been assigned to the members of another union. Local 211 also argues that in assessing the impact upon Local N-1 of the assignment of this work to Local 211, the Board must be mindful of the fact that Local 211 negotiated collective agreement provisions which allow it to fund a school for the purpose of instructing its members in the latest technology. In contrast to the education of its members carried on by Local 211, Local 211 asks the Board to consider the failure of Local N- 1 to assert its jurisdiction to establish a school or to ne­gotiate amendments to its scope clause and to conclude, notwithstanding the possible loss of some Local N-1 jobs, that the equities are in favour of awarding the work to the union that has the stronger claim and has prepared its members to perform it. In the absence of any effort having been made to utilize the new constitution (which Local 211 maintains is not clear in any event), Local 211 argues that Local N-1 should not be permitted to rely on it. In con­clusion, Local 211 maintains that the work must be awarded to it on an application of the traditional factors and on consideration of the collective bargaining history and the current collective agreements.

12. Local N-1 argues firstly in reply that there is no evidence that it did not attempt to rely on the new constitution. Local N-1 argues secondly in reply that its collective agree­ment, wherein only two items of work in its jurisdiction clause are restricted to rotogravure, is clearly applicable. Local N-1 reiterates that it made a claim for the work at the first op­portunity following the decertification of Local 10 and should not be characterized as sitting on its hands. Local N-1 also reiterates that in the absence of any Harris N-900 presses in the shops in which Local members work, area practice does not assist Local 211. Local N-1, citing the work done by its members elsewhere, argues that the skills possessed by its mem­bers are transferable to the Harris N-900 web offset press. Local N-1 maintains that its mem­bers have an eye for colour, know how to put ink to paper and have had a great deal of experience on web presses with the result that the assignment should be made to Local N-1.

13. A synopsis of the factors taken into account by the Board and the emphasis that is given by the Board to the necessary skills is contained at paras. 18 and 19 of the Toronto Star Newspapers Limited, (1980) OLRB Rep. Apr. 565 as follows:

14. In assessing the merits of jurisdictional disputes in the construction industry, the Board has looked to 1) collective bargaining relationships, 2) skill and training, 3) consideration of economics and efficiency, 4) the employer's practice and 5) area practice. (See Anchor Shoring Limited [1974] OLRB Rep. Aug. 528, Urban Consolidated Construction Cor­poration Ltd. [1977] OLRB Rep. Feb. 41). In Kingston-Whig Standard Company Limited [1972] OLRB Rep. Nov. 959 the Board was asked to rule on a jurisdictional dispute between the photoengravers and the I.T.U. The paper had moved from a "hot metal" to a "cold metal" process and the dispute was in respect of the plate-making function. There were no sterotypers at the paper. In that case the Board considered 1) area and industry practice, 2) job loss, 3) collective agreements, 4) availability of craftsmen and skills, 5) awards, 6) employer preference. While each case must be decided on its own merits the factors referred to above and those used by the Board in construction industry disputes are useful guidelines to be used in assessing the merits of any jurisdictional dispute.

15. We accept the conclusion reached in both Pacific Press, [a decision of the British Columbia Labour Relations Board dated May 26, 1977] and La Presse, ra decision of the Quebec Labour Court Sitting in appeal (No. 500-28-00197-7727)] that the Board must look to the nature of the work done by the employees and not the use made by the employer of the end product of the work in dispute. If the end product was to be cast as a primary criterion the result would be to downgrade the importance of skills and ability, and efficiency, as primary criteria. Clearly the skills associated with performing a work process and the efficiency with which it is performed are inter-related factors. A craft union is one whose mem­bers "are distinguishable from the other employees and commonly bar­gain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or craft." When called upon to resolve competing work claims between craft unions the Board must look to the work and determine if the skills of one of the crafts are more closely related to the nature of the work in dispute and whether or not the use of these skills by persons trained in the craft will have a bearing on efficiency and economy. If we were to restrict ourselves to the end product these considerations, which must be central to the resolution of any jurisdictional dispute, would become irrelevant.

16. Offset printing involves a different process than rotogravure or the other types of printing referred to in the agreed statement of fact. The offset process requires as a precon­dition to the efficient operation of a sophisticated offset press, a knowledge and understanding of the interaction of water and ink and the balancing of the two. Local N-1 has not established that its members possess this skill (an almost fatal shortcoming) and, in dealing with the fac­tors of employer practice and industry and area practice have ignored the skills component by focusing on the Harris N-900 as simply a machine rather than as a sophisticated offset printing press.

17. When reference is had to the evidence of Mr. Derosa and Mr. McGibbon we are forced to conclude that the period of time required to make a good rotogravure pressman pro­ficient as a first or second man on a large offset press would be measured in months rather than weeks. Notwithstanding the changeovers that have occurred at the Brampton Times and the Daily Racing Form, we are not satisfied on the evidence that members of Local 211 could operate the Harris N-900 efficiently if assigned to it. Members of Local N-l may be very efficient when operating rotogravure presses but without the necessary skills in offset it cannot be reasonably argued that they could perform offset work as efficiently as those who have considerable experience on offset. They would require extensive training while crews com­posed of members of Local 211 have been assigned without the need for extensive training.

18. If we again focus on the process it can be seen that the factors of employer practice and industry and area practice weigh in favour of Local 211. Although Southam Murray has not, prior to installing the Harris N-900 with which we are concerned, assigned work on that machine it has been performing offset work since 1969 and throughout the period 1969 to the present members of Local 211 have been performing that work. The two Baker Gurney presses in place at the employer's premises are comparable presses to the Harris N-900 and these are manned by members of Local 21 1. Furthermore, the list of web offset presses manned by members of Local 211 as set out at paragraph 7 herein are comparable presses to the Harris N-900 and a great deal more sophisticated than the single colour offset presses operated at the Brampton Times and the Daily Racing Form. When reference is had to the process, there­fore, the factor of area practice must also be decided in favour of Local 211.

19. In addition to the foregoing, the claim of Local 211 is buttressed if we look to the respective collective agreements and to the historical work jurisdiction of the two competing unions. Jurisdiction over the work in question is expressly provided in the Local 211 col­lective agreement. The provision for the work is not surprising in light of the fact that mem­bers of Local 211 have been performing it since 1969 and have been performing it exclusively since the decertification of Local 10 in 1980. When we read the Local N-1 collective agree­ment in its entirety we are forced to interpret the recognition clause as limiting the scope of Local N-l's jurisdiction to rotogravure work. We come to this conclusion notwithstanding the expressly unrestricted reference to pressmen's work in article 4.01 of that agreement. This result is also not surprising given the fact that Local N-1 has never asserted a claim to offset work prior to launching this complaint and no member of Local N-1 has ever performed offset work for Southam Murray. Local 211 has a claim to the work in question that can be ref­erenced to its collective agreement while Local N- 1 cannot rely on its collective agreement in support of its claim to this work.

20. While there is some confusion as to the initial preference of the employer, there can be no doubt on the evidence of Mr. Derosa that the preference of the employer, as evi­denced by the assignment it has made, is in favour of Local 211. Whatever weight might be given to the evidence of Mr. Oliver that he was told by the company that it feared that it would be the victim of sabotage if it assigned the work to Local N-1 is overshadowed by the evidence pertaining to the skills of the Local 211 members on the offset process and the col­lective agreement which the employer has entered into with Local 211. This latter evidence lends substance to the assertion of Mr. Derosa that the true wish of the company was to have the work performed by members of Local 211.

21. In the absence of any evidence that Local N- 1 has attempted to avail itself of the constitution of the International union we are not prepared to give that document any weight in deciding the matter before us.

22. We now turn to the question of job loss. If the work in question is awarded to Local 211 and if the present shift away from rotogravure continues, there will be further job losses by members of Local N-1. The question for the Board is whether it should now protect the jobs of the Local N-1 members in circumstances where, on a consideration of all of the other relevant factors~ the work in dispute should be awarded to members of Local 211. The Board has made it clear in a number of cases that although the Labour Relations Act accords a special status to craft bargaining units, it does not guarantee their continued preservation when the craft basis for them has been eroded. (See Re Joseph Brant Mewmorial Hospital, [1981] OLRB Rep. Nov. 1598, Boise Cascade Canada Ltd. [1983] OLRB Rep. Feb. 194.) We do not accept that Local N- 1 can somehow claim a shared jurisdiction on the basis of the shared jurisdiction which existed between Local L- 10 and Local 211. Local N-1 has never asserted its claim to offset printing work and when reference is made to the weighing of the relevant factors discussed in the preceding paragraphs and to the steps taken by Local 211 to prepare its members to work as offset pressmen we must conclude that the potential job loss is not sufficient to sway the balance.

23. Having regard to all of the foregoing, we hereby exercise our discretion under sec­tion 91 of the Act and confirm the assignment of work on the Harris N-900 press to members of Local 211 as made by the employer.