[1986] OLRB Rep. October 1448
2389-85-JD Canadian Union of Operating Engineers and General Workers, Local 101, Complainant, v. The Municipality of Metropolitan Toronto, and The Canadian Union of Public Employees, Metropolitan Toronto Civic Employees Union, Local 43, Respondents
BEFORE: Robert D. Howe, Vice-Chairman, and Board Members J. Wilson and W. F. Rutherford.
APPEARANCES: Michael O'Malley, Graydon Cress well and Bob Sleva for the complainant; H. W.0. Doyle for The Municipality of Metropolitan Toronto; L. A. Richmond and J. Mele for The Canadian Union of Public Employees, Metropolitan Toronto Civic Employees Union, Local 43.
DECISION OF THE BOARD; October 9, 1986
1The names of the respondents are amended to "The Municipality of Metropolitan Toronto" and "The Canadian Union of Public Employees, Metropolitan Toronto Civic Employees Union, Local 43", respectively.
2This is a complaint under section 91 of the Labour Relations Act.
3During the course of their opening submissions, the parties agreed that the Board should determine, as a preliminary matter, the issue of whether the complainant (also referred to in this decision as "Local 101") has abandoned its bargaining rights in respect of persons employed by The Municipality of Metropolitan Toronto ("Metro").
4Having regard to all of the evidence and the submissions of the parties concerning that issue, the Board, for the reasons set forth below, finds that Local 101 has abandoned those bargaining rights.
5On December 2, 1960, the complainant's parent body was certified by the Board as the bargaining agent for all stationary engineers and their helpers in the employ of Metro, save and except engineers-in-charge and persons above that rank. It appears that those bargaining rights were subsequently assigned to the complainant, which entered into a series of collective agreements with Metro, the most recent of which is dated September 15, 1981. Article 28 of that agreement provided that it would remain in force from January 1,1981 to December 31, 1981, and from year to year thereafter, subject to termination by notice, or alteration through negotiations following written notice of proposed changes.
6Over the years, the number of persons employed by Metro as stationary engineers (and their helpers) declined substantially. In the early part of 1979, Patrick L. Schmidt, Metro's Director of Labour Relations, met with the Local 101 Committee and V. McManus, who was then the Business Manager of Local 101, to advise them that later that year, or in the following year, Metro planned to introduce at its main sewage treatment plant a heat treatment operation which would eliminate the need for stationary engineers at that location. A process involving Martin boilers, which required an operating engineer with a class 2 "ticket" as chief operator, and operating engineers with class 3 "tickets" as shift engineers, was to be replaced by a heat treatment process involving coil tube boilers, which did not require a stationary engineer for their operation as they could be operated by a person who possessed a certificate of qualification as a compressor operator.
7It was Metro's position that the new classification of heat treatment operator created to operate that equipment fell within the scope of the bargaining unit of "outside" workers represented by The Canadian Union of Public Employees, Metropolitan Toronto Civic Employees 1Jnion, Local 43 ("Local 43"). During discussions with Local 101 concerning that matter, Mr. Schmidt offered to contact Mr. McManus if Metro required stationary engineers in the future.
8Mr. McManus initially took the position that heat treatment operators fell within Local 01's jurisdiction and, in discussions which occurred during 1980, threatened to initiate proceedings before the Board to substantiate that claim. As contended by counsel for Local 43 in the instant proceedings, Local 101 clearly had an arguable case regarding that matter. The job calls sued by Metro in respect of that position listed as one of its qualifications possession of a certificate of qualification as a compressor operator or a stationary engineer (fourth class or better). Moreover, all of the initial job calls for that position were filled by persons who were qualified as fourth class (or better) stationary engineers. However, no such proceedings were launched, and by he summer of 1981 Local 101 had acquiesced in Metro's position that heat treatment operators fell within Local 43's bargaining unit.
9In October of 1981, Metro notified Local 101 of certain "proposals for change in the renewal Collective Agreement" by letter dated October 15, 1981 to Mr. McManus. Although Metro was still checking off dues for at least three members of Local 101 at that time, and continued to do so until May or June of 1982, Local 101 did not respond to that letter and has not engaged in any collective bargaining with Metro since the time of that letter.
10In early 1985, Mr. Schmidt contacted Local 101's business office. Upon discovering that Mr. McManus was no longer the Business Manager of the Local and that business representative Michael O'Malley was in charge, Mr. Schmidt spoke with Mr. O'Malley and advised him that Metro had decided to introduce a heat recovery operation at its main sewage treatment plant. That operation required a heat recovery operator with a certificate of qualification as a stationary engineer, second class or better, and an assistant heat recovery operator with a certificate of qualification as a stationary engineer, third class or better. Mr. Schmidt also advised Mr. O'Malley that Metro was of the view that the work to be performed by the persons in those classifications was not similar to the work which stationary engineers had previously performed for Metro, as it involved a substantial amount of maintenance work similar to the type that had traditionally been performed by members of Local 43. However, Local 101 did not share that view and claimed jurisdiction over the positions in question.
11It is Mr. O'Malley's position, on behalf of Local 101, that the classifications of heat recovery operator and assistant heat recovery operator fall within the scope of the bargaining rights which, he submits, continue to exist under the aforementioned collective agreement between Local 101 and Metro. A grievance was filed by Local 101 prior to filing this complaint on December 20, 1985, and was referred to arbitration. However, the arbitration hearing has been adjourned. Counsel for Local 43 advised the Board that the basis for the adjournment was that his client had not been given adequate notice of the arbitration hearing. He further advised the Board that in granting the adjournment, the arbitrator expressed doubt that arbitration was the proper forum for resolving the matter of whether Local 101 or Local 43 is entitled to represent the workers in the classifications in question.
12It is questionable whether Metro's bargaining notice dated October 15, 1981 had the legal effect of terminating Local 101's collective agreement as of December 31, 1981, as contended by Local 43. However, it is unnecessary to determine that matter in these proceedings.
For the purposes of this decision, we are prepared to assume, without deciding, that the bargaining notice did not terminate the collective agreement and that it remained in effect by virtue of the "automatic renewal" clause contained in Article 28.01. It is well established in the Board's jurisprudence that the presence of such a clause does not preclude a finding that bargaining rights have been abandoned. See, for example, Nordic Hotel, [1975] OLRB Rep. June 495, at paragraph 16:
The automatic renewal clause in no way affects this conclusion. In fact, the existence of the clause is not unusual. In the Belleville and District Builders' Exchange case [1963] OLRB MR. May 114 the Board outlined its general approach to such clause, in writing:
"In situations of this kind the Board has said that as a general rule it will have regard to a second automatic renewal but thereafter the onus is on the union to satisfy the Board that it has not abandoned its bargaining rights. This it may do by showing that it retained an interest through contact with the other party to the agreement. Just what contact is necessary depends on the facts in each particular case. In this case there was none.
In these circumstances the Board finds that the applicant has abandoned its bargaining rights which it has under the said collective agreement with the respondent."
See also President Motor Hotel, [1985] OLRB Rep. Sept. 1414; 0. & W. Electronics Limited, [1970] OLRB Rep. Jan. 1213; and Barrie Tanning, Limited, [1966] OLRB Rep. May 128, in which the Board wrote, in part, as follows at paragraph 2:
…. While it may be that an automatic renewal clause will preserve a collective agreement in a state of suspended animation in perpetuity, an agreement which is permitted to renew itself from year to year without any attempt being made at improvement, particularly during times of general betterment of wages and working conditions, can become by its stagnancy, evidence of abandonment of the very bargaining rights upon which it was originally based....
13In the present case, there is no evidence that in the period from 1982 to 1985 Local 101 retained an interest in the bargaining rights which it now seeks to assert through this complaint. As noted above, it initially claimed jurisdiction over heat treatment operators but, in spite of having an arguable case in that regard, subsequently acquiesced in Metro's position that they fell within the scope of Local 43's bargaining unit. Local 101 failed to respond to the notice to bargain given to it by Metro in October of 1981, despite the fact that there continued to be bargaining unit employees from whom it was receiving dues for at least seven months thereafter. No grievances were filed prior to the aforementioned grievance which preceded this complaint, and that grievance was itself prompted by a contact which Metro, through Mr. Schmidt, made with Local 101, rather than by any efforts on the part of Local 101 to maintain the bargaining rights which it had earlier possessed. Under the circumstances, we are unanimously of the view that Local 101 had abandoned its bargaining rights prior to the time at which that grievance was filed.
14Mr. O'Malley, who represented Local 101 in these proceedings, advised the Board that 1451 if local 101 was found to have abandoned its bargaining rights, this complaint should be dismissed. Accordingly, the Board hereby dismisses the complaint.