International Union of Operating Engineers Local 796 v. The Municipality of Metropolitan Toronto, 1987 CanLII 3010

[1987] OLRB Rep. February 278

2629-86-R International Union of Operating Engineers Local 796, Applicant, v. The Municipality of Metropolitan Toronto, Respondent, v. Canadian Union of Public Employees, Metropolitan Toronto Civic Employees Union, Local 43, Intervener

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.

APPEARANCES: Susan Ursel and Mike Cameron for the applicant; H. W. 0. Doyle and Harold Ball for the respondent and L. A. Richmond and J. Mele for the intervener.

DECISION OF THE BOARD; January 29, 1987

I

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. For ease of exposition, the parties will be referred to, in abbreviated fashion, as follows: the International Union of Operating Engineers Local 796 will be referred to as "The I.U.O.E"; 'he Municipality of Metropolitan Toronto will be referred to as "Metro"; and, the intervener, Canadian Union of Public Employees, Metropolitan Toronto Civic Employees Union, Local 43 will be referred to either as "C.U.P.E." or "C.U.P.E. Local 43".

4. Pursuant to section 6(3) of the Act, the I.U.O.E. seeks a "craft" bargaining unit framed .s follows:

All employees of the respondent employed at the main sewage treatment plant at 1091 Eastern Avenue, Toronto, as stationary engineers, helpers and trainees, save and except the superinten­dent

Section 6(3) provides:

Any group of employees who exercise technical skills or who are members of a craft by reason of which they 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 crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to such skills or craft, and the Board may include in such unit persons who according to established trade union practice are commonly associated in their work and bargaining with such group, but the Board shall not be required to apply this subsection where the group of employees is included in a bar­gaining unit represented by another bargaining agent at the time the application is made.

[emphasis added]

Metro and C.U.P.E. both oppose the application. They urge the Board not to "sever" or "carve out" approximately a dozen stationary engineers from the established C.U.P.E Local 43 bargain­ing unit, which, we were told, encompasses some twenty-eight hundred employees, including quite a number of skilled tradesmen. The I.U.O.E. replies that "craft severance" is not an accurate characterization of its objective. It merely seeks to "reconstitute" a craft unit which was, until recently, represented by the Canadian Union of Operating Engineers ("C.U.O.E.").

5. The facts are not in dispute. Some of the background was reviewed in a Board decision dated October 9, 1986, in File No. 2389-85-JD, [1986] OLRB Rep. Oct. 1448. The parties do not contest that panel's findings. The rest of the factual material was put before this panel of the Board, on the agreement of counsel, at a hearing on January 16, 1987.

II

6. In 1960, the Canadian Union of Operating Engineers ("C.U.O.E."), was certified to r present a "craft" bargaining unit consisting of stationary engineers and their helpers in the ploy of Metro. At the time, there were quite a few of them working in several locations and Metro facilities. However, over the years, their numbers dwindled, as old boilers and steam generat­ion equipment were replaced by more modern heating systems which did not require the attention on of provincially licensed stationary engineers. Eventually, the complement of stationary engi­neers shrunk to a small group working at Metro's sewage treatment plant at 1091 Eastern Avenue. Initially, in 1979, changes in both the equipment and licensing requirements for the sewage treat­ment plant, all but eliminated the need for qualified stationary engineers at that location as well. or practical purposes, the "craft unit" ceased to exist and the employees were absorbed into the broader C.U.P.E. bargaining unit.

7. It is not disputed that between 1979 and 1985 C.U.P.E. has purported to represent the stationary engineers who are the subject of this application, nor is the quality of that representation being challenged. All of the subject employees are eligible to participate, fully, in the affairs of Local 43. There is no discrimination or favouritism. They have the same rights as any other member of the Local. Their terms and conditions of employment are established by the Local 43 Agreement which includes, inter alia, provisions giving them full seniority rights, pension benefits, access to sick pay, etc. Those provisions have been applied in the same manner and to the same degree as to other bargaining unit members. The stationary engineers have access to the grievance procedure, and C.U.P.E. has processed a number of grievances on their behalf. They are among the higher paid members of the Local 43 unit.

8. The ambiguous position of the C.U.O.E. after 1979 was considered, at length, in the Board decision mentioned above. It was styled as a "jurisdictional dispute" but was triggered by the apparent disappearance of the C.U.O.E.'s "craft" bargaining unit and/or, an abandonment of the C.U.O.E.'s bargaining rights in respect of that unit and the merger of the employees into the broader C.U.P.E. unit. After 1979 union dues continued to be remitted for a period of time, but after 1980 the C.U.O.E. did not take an active interest in, nor purport to represent, the stationary engineers working on equipment or performing functions which, by then, did not require their for­mal qualifications. They were treated by Metro and C.U.P.E. as part of the latter's unit; and, for several years neither the employees nor the C.U.O.E. raised any concern.

9. In a decision dated October 9, 1986, the Board concluded that the C.U.O.E. had aban­doned its bargaining rights. Accordingly, it was beyond doubt that in law as well as in fact, the employees had become part of the C.U.P.E. bargaining unit and covered by the C.U.P.E. collec­tive agreement. (We might note parenthetically that there are, in fact, classifications in those agreements pertaining to the jobs the subject employees are performing. We should also observe that if the employees had not been treated as part of the C.U.P.E. unit they would have had no clearly protected right to job opportunities in that unit and might have faced layoff).

10. The technical situation at the sewage treatment plant altered once more in 1985. Changes to the system and a re-designation of the plant under the regulations, created a need, once again, for a small number of employees with stationary engineers' licences. We should note, however, that the I.U.O.E. does not seek to represent all of the licensed stationary engineers working in the sewage treatment plant. For the purposes of this application, the I.U.O.E. only seeks to represent those stationary engineers engaged in steam generation and what it claims to be related functions. The union wishes to exclude certain other licensed stationary engineers working with equipment or processes using steam, but not directly engaged in steam generation. The appli­cant union explained that the heat treatment process-albeit involving licensed stationary engineers - did not exist prior to 1979, and is not part of the historical employee grouping of stationary engi­neers represented by a craft union. The I.U.O.E. only seeks to represent the "historical unit" for­merly represented by the C.U.O.E. That is why the I.U.O.E. claims that the traditional craft bar­gaining unit has been "reconstituted".

11. We heard much interesting detail about the design and functioning of the Eastern Ave­nue sewage treatment plant. We do not think it is necessary to record that detail here. Of more interest are the characteristics of the employee complement working at the plant.

12. As we have already mentioned, the Local 43 bargaining unit encompasses approxi­mately twenty-eight hundred employees. Approximately two hundred and eighty-three of them work at the Eastern Avenue sewage treatment plant. About one hundred and ten work as "opera­tors" of various classes, and some one hundred and seventy-three employees are engaged in main­tenance functions. Fifteen supervisory, laboratory, office or "stores" employees are members of C.U.P.E Local 79.

13. There is no doubt that the sewage treatment plant is a fully integrated operation. The employees are required to work in co-operation with, and proximity to one another. The stationary engineers are not isolated geographically, functionally, or administratively, and if one considers such factors as the nature of the work performed, the conditions of employment, the skills of the employees, the ease of administration, proximity to other workers, and functional coherence or independence, we could not find that the stationary engineers, whom the I.U.O.E. here seeks to represent, have a separate community of collective bargaining interest. Nor do economic factors, the structure of managerial authority, or the source of work dictate a separate bargaining unit.

[4. The possession of trade skills or provincial qualifications is not unique in the C.U.P.E. Local 43 bargaining unit as a whole, or at the Eastern Avenue sewage treatment plant. At the plant, the maintenance group includes quite a number of tradesmen with provincial certificates of qualification (mill wrights, fitters, welders, machinists, etc.), as well as "technicians" of various finds who require considerable amounts of post secondary training. There are many other provin­cially certified tradesmen in the C.U.P.E. Local 43 bargaining unit (who, as might be expected, work in classifications at the "high end" of the wage scale) and some of those workers are more highly skilled trained than the stationary engineers. While we do not doubt the skills or abilities of the individuals whom the I.U.O.E. seeks to represent their situation is not unique. It is not at all unusual for an "industrial bargaining unit" to number among its members employees with equal or greater qualifications. But that does not mean that each of these groupings of skilled employees is entitled to a separate unit for collective bargaining purposes. Indeed, were it not for the I.U.O.E.'s reliance on section 6(3), and the prior history of "craft representation" by the C.U.O. E., this application would be summarily dismissed, because the unit sought does not consti­tute an appropriate bargaining unit.

III

15. Outside the construction industry, craft bargaining units are exceptional both in prac­tice, and as a deliberate matter of legislative policy. That policy was recently reviewed in Kidd Creek Mines [1984] OLRB Rep. March 481, where the Board commented:

16. Section 6(3) is an exception to section 6(1) and does have deep historical roots. Its origins can be traced to federal wartime collective bargaining regulations which, in turn, borrowed heavily from American experience in the 1930's. In both cases, the legal framework sought to accommodate the diverse interests of a labour movement which, at the time, was deeply divid­ed. Traditional craft unions found themselves in fierce competition with aggressive new indus­trial unions bent on organizing workers in the mass production industries. These new unions rejected the notion of craft exclusivity and sought to organize employees on a broader industrial basis, regardless of whether they were skilled or unskilled.

17. By the late 1930's, craft and industrial unions had split into rival federations, each espousing its own preferred model of organization. When the process of organizing became the subject of state regulation, craft unions demanded recognition of their historical role and legal protection for the special interests which they feared would be submerged without it. Craft employees were primarily interested in the preservation and advancement of their craft. In their view, this could only be achieved by bargaining separately, rather than as a minority in a much larger bargaining unit comprising both skilled and unskilled employees. The result of their lobbying was the pre­decessor of section 6(3) (see generally: J.A. Willes, The Craft Bargaining Unit: Ontario and U.S. Labour Board Experience, Industrial Relations Centre, Queen's University, 1970).

18. Legislative protection for craft bargaining units was initially based upon the bargaining struc­tures and rivalries of the 1930's and 1940's and after the war similar provisions crept into provin­cial legislation. However, requirements such as section 6(3) are now relatively uncommon. Because of problems associated with the proliferation of bargaining units in industrial enterpris­es, federal policy has now shifted away from craft units. In fact, the trend is in the opposite direction. It has been recognized that in a modern industrial context craft units will generally be inappropriate. Following the recommendations of the Woods Task Force in 1968, federal legis­lation was amended to delete the provisions protecting craft bargaining units, and the circum­stances in which an existing unit will be splintered are now closely confined (see Feed-Wright Ltd., [1979] 1 Can. L.R.B.R. 296; Atomic Energy of Canada Ltd., [1978] 1 Can. L.R.B.R. 92; and Cablevision Nationale Ltee, [1979] 3 Can. L.R.B.R. 267 and cases referred to therein). In British Columbia craft units will be certified only if they are "otherwise appropriate" for collec­tive bargaining, and the British Columbia Labour Relations Board has shown a marked disincli­nation to endorse craft bargaining units in manufacturing. As we have already noted, while this case was being litigated the British Columbia Labour Relations Board was considering whether to merge an I.B.E.W. bargaining unit at MacMillan-Blodell into an existing industrial bargain­ing unit, thereby eliminating alleged industrial relations instability. Thus, while section 6(3) has deep historical roots, it is now something of a historical anomaly.

19. Nor are the protections offered by section 6(3) absolute. An examination of the statutory language indicates that it has been carefully drafted to preserve the status quo. It is a recogni­tion of historical organizing patterns, rather than any general endorsement of craft bargaining units. Those historical criteria are built right into the section itself, and must be satisfied before it has any application. Section 6(3) is available only if the group of employees whom the union seeks to represent already commonly bargain separately and apart from other employees; and only if the applicant trade union has traditionally represented employees with those skills. Both conditions require the Board to look to the collective bargaining system for historical precedent to establish that the separate bargaining is already "common", and that the union's representa­tion of these employees is in accordance with "established practice". These conditions effec­tively preclude the development of new craft unions and, in our view, limit the extension of craft bargaining patterns beyond their traditional boundaries. It is also interesting to note that even if these criteria are met, the section need not be applied where the union seeks to "carve out" a craft group from an existing bargaining unit. This latter qualification is legislative recognition of the bargaining problems which might result from multiplying the number of bargaining units in an industrial enterprise; and whether fragmentation arises because the system grows in a piecemeal fashion or is subsequently carved up, the industrial relations problems are the same.

20. What are the collective bargaining problems mentioned in Kidd Creek? The reason for the concern about fragmentation and the desire to promote broader bargaining units is explained in Bestview Holdings [1983] OLRB Rep. Aug. 1250:

21. Self-determination and community of interest often favour relatively small units, but these are not the only relevant factors in bargaining unit design. The Board must also strive to create a viable structure for ongoing collective bargaining and, to this end, undue fragmentation must be avoided. Consolidated bargaining offers several advantages over a fragmented structure. A proliferation of small units may result in unnecessary work stoppages. Each time one group goes on strike, other employees performing jobs that are functionally dependent upon the work nor­mally done by strikers are brought to a halt. Even in the absence of functional integration, strik­ers may erect picket lines that keep other employees away from work. The likelihood of a strike occurring increases as the number of rounds of bargaining grows, and is further enhanced by competition among bargaining agents. Secondly, each of several units typically becomes a sepa­rate seniority district, enclosed by walls which impede the movement of employees between jobs. In addition, broader-based structures may lower the cost and thereby increase the availa­bility of insurance schemes and benefit plans. A multiplicity of bargaining units also inevitably spawns jurisdictional disputes over the assignment of work and entails the cost of negotiating and applying several collective agreements. Finally, the existence of a single bargaining unit facilitates equitable treatment of employees doing similar jobs.

A patch work quilt of bargaining units is a recipe for industrial unrest - if only because, in an inte­grated enterprise, it takes only one collective bargaining breakdown to start the whole system unravelling. Thus, in Kidd Creek the Board was not inclined to (and eventually did not) accept a bargaining unit of one hundred maintenance electricians, working in a maintenance department of eight hundred tradesmen and a mine which employed, in total more than two thousand employees. The concerns of the employer in that case are quite similar to those expressed here:

53. The employer stresses the statutory objective of orderly collective bargaining which, it argues, requires a bargaining unit structure which will minimize industrial conflict. In the employer's submission, fragmentation of its work force would create artificial barriers inhibiting cross-trades training, promotion, flexible work practices, and the introduction of necessary tech­nological change. With an integrated work force of employees working in co-operation with one another, it makes no sense to treat one trade as if it were a watertight compartment, or to ignore the real problems - jurisdictional disputes, picketing problems, strike-induced layoffs, etc. -which would inevitably follow the creation of an island of collective bargaining in a sea of employees with overlapping or functionally related skills. The employer asserts that craft unions and units are obsolete in a modern industrial society, and "as proof of the pudding" points to the evidence in this case which was replete with examples of common bargaining with other skilled and unskilled employees, and diluted craft bargaining units. In the employer's submis­sion, section 6(3) is a historical anomaly and an exception to section 6(1) which should be strictly construed. The employer argues that harmonious employer - employee relations demand it. In the employer's submission, the Board should not establish a unit which is inappropriate for collective bargaining if a plausible interpretation of section 6(3) will avoid that result, nor should it lightly extend balkanized bargaining structures beyond those industries in which they have his­torically existed.

(See also Ryerson Polytechnical Institute [1984] OLRB Rep. Feb.371, Board of Education for the City of Toronto [1986] OLRB Rep. June 900, and Insurance Corporation of British Columbia [1974] 1 CLRBR 403 (B.C.)).

17. Those concerns underlie the Board's reluctance to sever a craft unit from an established industrial one. In the years following the 1960 amendment making such "carve-outs" discretionary, the Board routinely refused applications by the I.U.O.E. or the C.U.O.E. to "carve out" a craft bargaining unit of stationary engineers (see for example Religious Hospitallers of Saint Joseph's (Cornwall) [1961] OLRB Rep. Jan.370; Darling and Company of Canada, Limited [1961] OLRB Rep. Nov. 273; Fairhaven Home for the Aged [1961] OLRB Rep. Jan.359; American Standard Product (Canada) Ltd. [1962] OLRB Rep. Jan. 348; Dominion Fabrics Limited [1962] OLRB Rep. Jan. 347; Maxwell Limited [1961] OLRB Rep. Dec. 323; Cluett Peabody and Company of Canada Limited [19611 OLRB Rep. Dec. 314; and Automatic Electric [1961] OLRB Rep. Nov. 272.) In the Fairhaven case the stationary engineers had been part of a composite unit represented by NUPSE (a predecessor of C.U.P.E.) for only a year, but the Board still refused to grant a craft carve out.

18. In determining whether to exercise its discretion in favour of an applicant's request to carve out a craft unit, the Board has considered a variety of factors, including: the history of repre­sentation by the industrial union; whether there has been a consecutive chain of collective agree­ments; whether such collective agreements adequately accommodate or, conversely, discriminate against the skilled employees in respect of wages or seniority rights; whether the skilled group has adequate access to shop stewards, union committees, or officials; whether there has been a proper presentation of grievances, and so on (see generally the summary and cases referred to in J. Sack and C. M. Mitchell Ontario Labour Relations Board Law And Practice 1985 Butterworths at pages 173-175). Here, in our view, none of those factors point very strongly in favour of carving out the proposed bargaining unit, and the policy considerations mentioned above, point strongly in the opposite direction. Indeed, while the I.U.O.E. seeks to rely upon the previous presence of a craft bargaining unit represented by the C.U.O.E., that history reveals the fragility and instability of a craft unit which contracted and, for a time disappeared altogether, with the vagaries of government regulation and technological change. And how did the problem crystalize before the Board? As a jurisdictional dispute in which the C.U.O.E. claimed certain work which Metro had assigned to members of the C.U.P.E. bargaining unit. That is precisely the kind of problem which the Legisla­ture sought to avoid when it authorized the Board to refuse a craft severance. The applicant here even wants to limit the number of stationary engineers in the bargaining unit it seeks to represent.

19. In our opinion it makes no collective bargaining sense to re-create a tiny island of col­lective bargaining comprising only part of Metro's complement of stationary engineers working at the Eastern Avenue sewage treatment plant. There are good collective bargaining policy reasons not to accept the proposed unit and in the absence of clear and compelling evidence of inadequate representation we decline to do so. In the exercise of our discretion under section 6(3) we are not prepared to permit the carve out of the proposed craft unit.

20. For the foregoing reasons, this application is dismissed.