[1988] OLRB Rep. July 708
0186-84-JD Spruce Fails Power and Paper Company Limited, and Kimberly-Clark of Canada Limited, Complainants v. International Brotherhood of Electrical Workers, Local 1149 and Local 89, Canadian Paperworkers Union, Respondents
BEFORE: R. A. Furness, Vice-Chair, and Board Members R. Montague and W. H. Wightman.
APPEARANCES: G. F. Luborsky, D. R. Richard and M. Batty for the complainants; S. B. D. Wahl, G. Ryan, K. Van Rassel, William Moore, M. Micallef and J. King for the International Brotherhood of Electrical Workers, Local 1149; G. Nyman, W. Dubinsky, P. Fellow, R. Fellow, L. Wood and B. Casson for Local 89, Canadian Paperworkers Union.
DECISION OF THE BOARD; July 20, 1988
1This is a complaint which has been filed pursuant to section 91 of the Labour Relations Act. The complaint concerns a dispute between the International Brotherhood of Electrical Workers, Local 1149 ("Local 1149") and Local 89, Canadian Paperworkers Union ("Local 89"). The dispute arose as a result of a decision by the complainants to assign to members of Local 89 certain work in connection with the repair and maintenance of new computer technology known as the "Moore Mycro Stock Proportioning System" ("Moore system") which was installed on the complainants's premises towards the end of 1982. The work in dispute was assigned by the complainants to instrument mechanics who are represented by Local 89. Local 1149 filed a grievance dated August 24, 1983. The hearing of this grievance was adjourned sine die on consent in order to allow the parties to refer this matter to the Board. The instant complaint was filed by the complainants on April 18, 1984. The matter came on for hearing before a differently constituted panel of the Board. During the course of the hearing, one of the members of the panel became indisposed and when the parties were unable to agree upon a proper constitution of the panel after the indisposition, the Board terminated the proceedings and directed the parties to begin the complaint again before a differently constituted panel of the Board. The present panel of the Board was assigned to this complaint and hearings commenced on May 20, 1986 and concluded on April 5, 1988. In all, the hearing of the evidence and argument on this complaint by the present panel consumed some 45 days in Toronto and Kapuskasing.
2In order to understand the facts of this complaint, it is helpful to briefly refer to the background of the complainants' business. The complainants are manufacturers of newsprint in the Town of Kapuskasing. The operations of the complainants are totally integrated. The complainants harvest trees in their Woodlands operations and move them to their mill. The complainants generate their own hydro-electric power at their Smokey Falls Hydro Electric plant and transmit the power by means of high voltage transmission lines to their mill in Kapuskasing. The power is distributed and used throughout the mill. The complainants are what may be referred to as a highly unionized operation. In their Woodlands operations there are approximately 450 unionized employees. Within the mill, approximately 200 employees are represented by Local 256, Canadian Paperworkers Union. These employees operate the papermaking machines located throughout the mill. Local 1149 represents maintenance and construction electricians and electrical operators who work not only in the mill but also at the complainants' Smokey Falls generating station. Local 89 represents all other employees engaged in production at the mill and all other trades groups which include machinists, welders, blacksmiths, millwrights, pipefitters, carpenters, masons, painters, tinsmiths and instrument mechanics. A local of the Office and Professional Employees International Union represents approximately 100 office workers, while a Foremen's Association represents approximately 50 foremen. Local 1149's bargaining unit varies between 77 and 85 employees and Local 89's bargaining unit is somewhere between 800 and 900 employees. This complaint concerns a jurisdictional dispute over work between the instrument mechanics represented by Local 89 and the maintenance electricians represented by Local 1149.
3The complainants have operated a mill in Kapuskasing since the early years of the century. The concern of the complainants over the years have been to optimize their product in terms of quantity and quality. This, in turn, has meant constantly improving and innovating in its processes which produce pulp and paper. In order to optimize their product, the complainants have been concerned with the concept of process control. Process control is the control of various physical and chemical variables which are monitored and varied in order to maintain quality and quantity and also to intentionally vary the type of product to be manufactured on any given machine during any particular period of time.
4The complainants called as witnesses Michael Batty, Thomas McElhanney, Robert McCartney and Robert Holmes. Local 89 called as witnesses Peter Pellow and Robert Pellow. Local 1149 called as witnesses Garry Ryan, Kenneth Van Rassel, Karl Lurz and Michael Micallef. Mr. Batty has a degree in mechanical engineering and has been employed with the complainants since 1965. He has held a variety of senior positions, including, manager of engineering, maintenance and construction (between 1982 and 1984), paper mill superintendent (from 1984 til 1985) and manager of newsprint and mechanical pulp, commencing in July of 1985. As manager of engineering, maintenance and construction, he was responsible for the activities of the mechanical, electrical and trades groups, which included responsibility for instrument mechanics and maintenance electricians. Mr. Batty participated in the planning for and the implementation of the Moore system and had input into the decision by the complainants to assign maintenance and repair work on the Moore system to instrument mechanics. Mr. McElhanney was a forester by training and commenced full-time employment with the complainants in 1949. Between 1956 and 1962, he was the labour relations supervisor for the complainants' Woodlands operations. After 1962 he spent four years as the superintendent of industrial relations at the Kimberly-Clark St. Catharines mill. In addition, between 1966 and 1969, Mr. McElhanney was the manager of industrial relations at Kimberly-Clark's offices in Toronto. He returned to the complainants' operations in Kapuskasing in 1969 as the director of industrial relations and held that post until his retirement in 1984. As the director of industrial relations for the complainants, Mr. McElhanney was responsible for overall labour relations, negotiations with trade unions as well as the administration of collective agreements, including benefit and salary provisions. Mr. McCartney commenced employment with the complainants in 1946 as a railway brake man. In 1950, he became a helper in the welding shop and was transferred in 1951 to the instrument shop as a junior tradesman. Mr. McCartney completed what was then a two-year apprenticeship programme and became an instrument mechanic in 1953. He held this position until 1967, when he became the relief head instrument mechanic for approximately three and a half years. He was then promoted to the position of head instrument mechanic and occupied that post for five years. In 1975, Mr. McCartney became the instrument foreman, which is a position outside the bargaining unit he previously belonged to, and he occupied this position until January of 1982, when he spent a period of one year as the assistant maintenance superintendent. Between December of 1982 and March of 1983, Mr. McCartney again held the position of instrument foreman and was then permanently promoted to the position of assistant maintenance superintendent at the mill. Mr. McCartney had, in terms of the witnesses before the Board, an unmatched experience and knowledge of the skill and training of instrument mechanics. In terms of continuity and depth of knowledge, Mr. McCartney's evidence was of great assistance to the Board. Robert Holmes commenced employment with the complainants in 1946 as an electrician. In that position he was a member of Local 1149 and held the position of vice-president of that Local in the late 1950's. In 1969, he was promoted to the position of electrical foreman. He held that position until 1975, when he became the sawmill superintendent for one year and was subsequently promoted to the position of electrical superintendent in 1977. Mr. Holmes held this position until his retirement in June of 1986. In his capacity as electrical superintendent, Mr. Holmes was responsible for supervising all of the maintenance electricians. He has also had considerable experience in the education of electricians. During his earlier years of employment with the complainants, he was a union representative on the Trades Training Committee which was responsible for establishing and monitoring the training of electricians' apprentices at the mill. In 1984, he was appointed to the Provincial Advisory Board which considered the qualifications and training of electricians. He also held a position on the Board of Directors of Northern College. As electrical superintendent he had input into the decision to assign maintenance and repair work on the Moore system to instrument mechanics. Peter Pellow commenced his employment with the complainants in 1965 as a millwright helper. Some six months later he successfully applied for a position in the instrument shop. After successfully passing a mechanical aptitude test, he commenced his training as an apprentice instrument mechanic and completed the training in November of 1969. Thereafter, Mr. Pellow worked as an instrument mechanic for the complainants with the exception of a two-month period in 1971 and 1972. In 1980, he was promoted to the position of head tradesman and relief foreman of the instrument shop. During his employment with the complainants, he was a member of Local 89's Trades Training Committee between 1979 and 1985. This Committee had responsibility for designing courses and monitoring the progress of apprentices employed at the mill. The next witness, Robert Pellow, was unique in terms of the perspective he was able to give to the Board. Mr. Pellow had been both an electrician and was currently an instrument mechanic in the employ of the complainants. He commenced employment with the complainants in 1965 as a spare oiler at the Smokey Falls generating station. He progressed through a series of jobs at the generating station to the position of oiler and then operator. During that time, he was a member of Local 1149 and he was therefore governed by the collective agreement between the complainants and Local 1149. In 1969, Mr. Pellow transferred from the Smokey Falls generating station to the mill electrical department as an electrical helper in construction and maintenance. At that point, he became an apprentice electrician and commenced a course of study and training of some three years' duration in order to become an electrician at the mill. He received his certificate of apprenticeship and a provincially-issued certificate in electronics in 1971. In 1973, Mr. Pellow left the employment of the complainants and returned in the following year as a millwright helper, which was and is within the bargaining unit of Local 89. After a period of time on the millwright crew, Mr. Pellow transferred to the instrument shop in May of 1976, as an apprentice instrument mechanic. He was given one year's credit towards the completion of the four year apprenticeship programme for instrument mechanic because of his previous experience as an electrician. Upon completing his apprenticeship, Mr. Pellow was employed as an instrument mechanic and has been so employed since 1979. Garry Ryan began his employment with the complainants in 1956, and held a variety of positions within the bargaining unit of Local 89. He became a member of Local 1149 when he was transferred to the filter plant. He commenced his training as an electrical apprentice in 1961. He completed the training in 1964, and held positions as electrical maintenance helper, relief shift electrician, field construction electrician and shift electrician. He became a maintenance electrician in 1977 and has continued in that position up to the time of the giving of his evidence. With regard to participation in the activities of Local 1149, Mr. Ryan has held elected positions with the Executive, including recording secretary from 1970 to 1975, vice-president from 1975 to 1981, and president from 1981 to 1987. As a member of the Executive, he has participated tn negotiations for collective agreements with the complainants on behalf of Local 1149 in 1973, 1975, 1978, 1980, 1982 and 1984. Kenneth Van Rassel became regularly employed with the complainants in May of 1965, as a timekeeper for field construction crews. At that time he was within the bargaining unit of the Office and Professional Employees International Union. Later on in 1965, he transferred to the field construction electrical department as a helper and began his apprenticeship training. He completed the training in 1969 and he received a 309D certificate from the Ministry of Labour. This meant that he was qualified as an electrician in construction and maintenance work. Karl Lurz at the time of his testimony had been employed by the complainants for more than 19 years. His present position was that of electrician. Michael Micallef was employed by the complainants as an electrician. While he started in the electrical department in March of 1975, he did not start his apprenticeship until May of 1976. He completed his three years of training and became qualified as an electrician in the mill.
5The Board has carefully reviewed the evidence and has considered the questions asked and the answers given. The Board notes the tendency from time to time of counsel to ask compound questions which consist of more than one question. The Board has considered the questions in context and the variations in testimony between the evidence given during examination-in-chief and the answers supplied in cross-examination. The Board does not propose to go into the evidence in great detail. Much of the evidence was extremely technical and other aspects of the evidence were often repetitive. The witnesses who gave evidence on behalf of the complainants and Local 89, gave their testimony to the best of their recollection and in the view of the Board they were reliable witnesses. Their credibility and their recall of events was not significantly shaken on cross-examination. Of the witnesses called by Local 1149, the evidence of Mr. Lurz and Mr. Micallef added very little to the evidence which was given by Mr. Ryan and Mr. Van Rassel. Mr. Ryan was examined at length in cross-examination. It appeared to the Board that he resented having to respond to the searching questions which were put in cross-examination. In addition, both Mr. Ryan and Mr. Van Rassel were frequently not responsive to the questions which were put to them in cross-examination. In reviewing the lengthy written submissions which were requested and received by the Board, it is noted that Local 1149 based its principal arguments upon its cross-examination of the witnesses who were called by the complainants and Local 89 and upon the examination in-chief of the witnesses which were called by Local 1149. The Board, of course, must consider both the examination in-chief, the cross-examination and the re-examination of all of the witnesses who testified before it. When there is a conflict in a testimony between the witnesses called by the complainants and Local 89 on the one hand and the witnesses called by Local 1149 on the other hand, the Board has accepted the evidence given by the former witnesses in preference to the evidence given by the latter witnesses.
6It appears on the evidence that commencing in the early years of the operation of the mill, process control was probably effected largely, if not exclusively, by means of the use of pneumatic or hydraulic equipment. It also appears that during the same period of time electrical equipment was inspected and maintained by the maintenance electricians. However, commencing in the 1950's, the complainants began to introduce into its mill electrical equipment for the purpose of process control. It is clear that the inspection and maintenance of this equipment had been assigned to instrument mechanics. This evolutionary development is confirmed by the evidence of Mr. McCartney who stated that in the 1950's and 1960's, he analyzed the situation on the basis of the number of man-hours as well as the number of instruments being as follows:
Pneumatic 84%
Hydraulic less than 1%
Electric 5%
Electronic 10%
The evolutionary nature of the changes in the types of instrumentation caused the complainants to issue and publish guidelines with respect to a definition and application of the concept of process control instruments. These guidelines were issued in February of 1958, and were issued again in February of 1964. These guidelines confirmed and reconfirmed the understanding of the complainants and Locals 1149 and 89 of the distinction between process control and motor control in the mill. Although it may not be said that these guidelines were clearly accepted by Local 1149, they were nevertheless adhered to by the parties to this complaint over the years that followed up to an including the time of the filing of this complaint. The guidelines read as follows:
INSTALLATION, INSPEUI'ION AND MAINTENANCE OF PROCESS CONTROL
INSTRUMENTS
- Definition - Process Instrument
A device which performs by any means any combination of the following functions in connection with a process variable: measures, indicates, warns, records, controls. Typical process variables are pressure, level, temperature, pH, electrical conductivity, density, consistency, etc. The definition of a process instrument would include two or more of the following parts:
a) measuring means - detects process variable.
b) indicating means - displays information on the value of the measured variable.
c) error detecting means - measures difference between the measured variable and some desired value of the measured variable.
d) controller mechanism - provides an output signal which is some predetermined function of the error.
e) final control element - controls the flow of energy or material to the process in response to the controller output signal.
The definition of process instrument also includes the following:
Small 2-way and multi-port valves commonly used to provide directional control of pneumatic and hydraulic power, where these valves are mechanically operated.
The definition of process instrument does not include the following:
Those instruments which measure, indicate, warn, record, control purely electrical variables. Typical electrical variables would be voltage, current, power, frequency, etc.
Those instruments used to measure speed which receive their signal from any electrical device. Such instruments and devices are the responsibility of the Electrical group.
Those photoelectric devices which provide a switching action on interruption of a light source.
- Scope of Instrument Mechanic Responsibility
The Instrument Mechanics will be responsible for the installation, inspection and maintenance of all process instruments as defined above with the following qualifications:
Installation:
a) The Instrument Mechanics will rely on other trades to install the primary measuring element where a connection into a process vessel or pipe line must be made. Such installations should be audited by the Instrument Mechanic.
b) Where two or more Instruments are required to be connected by electrical wiring, such wiring will be performed by the Electricians.
c) Where two or more Instruments are required to be connected by piping or tubing such piping or tubing will be performed by the pipefitters except where the instruments are contained within a panel or other enclosure. Piping inside such an enclosure or panel will be performed by the Instrument Mechanics.
d) Installation of the secondary elements described under section 1, b) c) & d) above where such instruments are to be mounted individually or installations of a panel containing one or more of such instruments will be made by other trades. Installation of these instruments within or on a panel will be made by the Instrument Mechanics.
e) Installation of the final control element described in Section 1, e) above will be made by other trades.
Inspection & Maintenance:
a) Inspection and maintenance of primary measuring elements are the responsibility of the Instrument Mechanics. They will rely on other trades for assistance as required for removal and repair.
b) Inspection and maintenance of all secondary elements as described in Section 1, b) c) & d) above, will be the complete responsibility of the Instrument Mechanics.
c) Inspection and maintenance of all Final Control Elements as described in Section 1, e) above, will be shared by the Instrument Mechanics and the other trades. The Instrument Mechanics will be responsible for that portion of the Final Control Element which receives the actuating signal and positions a mechanical link up to the point where this link joins the rest of the Final Control
Element. viz: In a control valve this would include the valve operator and upper stem but not that portion of the valve below the packing In a variable resistor this would include again the operator but not the resistor portion or subsequent electrical devices. In a metering pump this would include the operator which adjusts the pump stroke but not the pump.
The proper operation of the final control element of course requires that the whole device responds correctly to the actuating signal and usually the maintenance on such equipment will require one or more trades to work together to accomplish this end.
d) Inspection and maintenance of solenoid valves will be shared by the Instrument Mechanics, Electricians and Pipefitters. Electricians will be responsible for the valve coils. Instrument Mechanics will be responsible for solenoid valve bodies 1/2 inch and under in size. Pipefitters will be responsible for solenoid valve bodies in sizes over 1/2 inch.
7The Board proposes to very briefly review the relevant events which unfolded since the middle of the 1960's. At the beginning of this time frame instrument mechanics were assigned by the complainants to repair and maintain a Data Logger, Tracer Lab and pneumatic "computers". The evidence supports a finding that the Data Logger and Tracer Lab are digitally-based computers. By 1968, the maintenance of certain components of the Robert Morse Magna Printer in the shipping area of the mill was assigned to electricians under service contracts. Most of the troubleshooting of errors and faults in the computer were done by electronic technicians who are not included in the bargaining unit represented by Local 1149. By the beginning of 1970, the maintenance electricians represented by Local 1149 became increasingly opposed to the state of affairs with respect to work on computers. It had long been an ideal of the electricians in the mill to have jurisdiction over "anything with a wire attached to it". This led to a work stoppage on January 29, 1970 over the assignment of work in the mill in accordance with the guidelines of 1958. In the months of February and March of 1970, the complainants, Local 1149 and Local 89 met and endeavoured to write a mutually satisfactory agreement on new guidelines. The meetings proved to be fruitless and in March of 1970, the complainants reaffirmed the guidelines of 1958. At that time, Local 1149 did not file a grievance with respect to the conduct of the complainants. In 1971, the Robert Morse Magna Printer was replaced by the Herco Automatic Label Printing ("Herco") system. The maintenance on certain components of this system was assigned to electricians. In addition, there was also a service contract with respect to the Herco system. The evidence supports a finding that the Herco system is a multi-control system.
8The Board now considers the chronology with respect to collective bargaining and the collective agreements between the complainants and the respondents. There was a joint collective agreement between the complainants, Local 1149, Local 89 and Local 256, Canadian Paperworkers Union. This agreement expired in 1973. In April of 1973, the joint bargaining between the complainants and these three locals concluded with separate collective agreements for each of the respondents. During that round of bargaining, Local 1149 endeavoured to secure a provision in the collective agreement for exclusive jurisdiction over computer systems. Local 1149 also endeavoured to secure a provision in the collective agreement that the line of demarcation between its jurisdiction and the jurisdiction of other trade unions in the mill should be in accordance with established jurisdictional lines. In September of 1973, the complainants and Local 1149 concluded a collective agreement effective May 1, 1973 until April 30,1975. Local 1149 had been unsuccessful in its request for exclusive jurisdiction over computer systems. However, the collective agreement did contain for the first time a provision in the recognition clause language which stated "in accordance with existing jurisdictional lines". Two years later, in 1975, Local 1149 submitted a bargaining proposal to the complainants which contained a request for jurisdiction over computer systems in accordance with existing jurisdictional lines. Local 1149 was unsuccessful in securing such language. In a further collective agreement between the complainants and Local 1149, which was effective from May 1, 1975, to April 30, 1978, the recognition clause was expanded to include power and telephone wiring. However, there was no change in the language with respect to "in accordance with existing jurisdictional lines". During 1978, the complainants installed an M.D.D.C. system in its finishing room office. This system was used by product planners and was serviced under a service contract. It was not serviced or maintained by the complainants' electricians. In April of 1978, Local 1149 again unsuccessfully requested in a proposed collective agreement jurisdiction over computer systems in accordance with existing jurisdictional lines. In September of that year, a new collective agreement between the complainants and Local 1149 was entered into effective May 1, 1978 to April 30, 1980. During 1979, the complainants installed an Atmospheric Services Incorporated Equipment (ASI digital equipment) in its sawmill in connection with certain chip'n'saw machinery. Some of the service work in connection with this equipment was performed by the complainants' electricians and the repair and maintenance of the equipment was covered by a service contract. The evidence established that it was generally the practice of the complainants when installing its new systems to have the equipment covered by a service contract. The system in this equipment consisted of a series of electronic relays, latching relays and solenoids. Mr. Batty in his evidence described this system as motor control. In April of 1980, it was again bargaining time and Local 1149 submitted a bargaining proposal which requested jurisdiction over computer systems in accordance with existing jurisdictional lines. Local 1149 was unsuccessful in this regard. A new collective agreement was effective from May 1, 1980 to April 30, 1982. While there were no changes in the recognition clause of the collective agreement, Local 1149 achieved a measure of satisfaction in that the memorandum of agreement provided that discussions regarding the maintenance of computers could be initiated by either the complainants or Local 1149 at any time as the need arose.
9For some years prior to 1981, the complainants had used a mechanical stock proportioning system known as the Trimbey system. In May of that year, the complainants proposed to replace this system with the Moore system. The instrumentation on the Trimbey system had been serviced and maintained by instrument mechanics represented by Local 89. Between September of 1981 and September of 1982, the complainants held a series of separate and joint meetings with the respondents with a view to discussing and resolving jurisdiction over computer work in the mill. The Board does not propose to review the intricacies and the various versions of what did and did not happen during that year. Suffice it to say, the Board will state its findings in this matter. Concurrently with these meetings, collective bargaining was again proceeding during 1982. By September of 1982, the complainants had prepared a letter of intent in which the work on each computer system was assigned on the basis of whether its prime function was process control or motor control. This had the effect of assigning the Moore system to instrument mechanics represented by Local 89. The complainants, Local 1149 and Local 89 executed this letter of intent. The letter of intent reads as follows:
LETTER OF INTENT
BETWEEN
LOCAL 1149 OF THE I.B.E.W.
LOCAL 89 OF THE C.P.U.
AND
THE COMPANY
RE: ADVISORY COMMHTEE ON COMPUTER CONTROL SYSTEMS
A six-person Advisory Committee comprised of two representatives from each of Local 1149, Local 89 and the Company, will be formed to investigate and advise on the installation and maintenance of computer control systems with particular emphasis on areas where jurisdictional responsibilities may be obscure.
It is further understood that primary jurisdiction of each installation of computer controls will be assigned after meaningful consultation with the Advisory Committee according to existing jurisdictional lines. The functional action of the equipment (i.e. where the equipment is primarily motor control or process control) will be the normal basis of assignment. This assignment, however, may not exclude allocating joint responsibility for work in one computer system.
In September of 1982, Local 1149 and Local 89 each concluded collective agreements with the complainants which were in effect from May 1, 1982 to April 30, 1984. In October and December of 1982, and again in May of 1983, the Advisory Committee on Computer Control Systems met to no avail and no result was reached on an agreement under the Committee. During the late summer and early autumn of 1982, the Moore system, which was essentially pre-wired, was installed by the complainants' electricians under the supervision of a representative of the manufacturer Moore Instruments Ltd. of Brampton, Ontario. As was previously mentioned, on August 24, 1983, Local 1149 filed a grievance regarding the assignment of work on the Moore system to instrument mechanics represented by Local 89. On April 18, 1984, the complainants filed the instant complaint under section 91 of the Act. It appeared that the complainants and Local 1149 intended to proceed to arbitration with respect to the grievance filed in August of 1983. However, there is no evidence before the Board that Local 1149 ever commenced a proceeding under either its earlier collective agreements or under the provisions of the Labour Relations Act with respect to any assignment of work by the complainants.
10The complainants made a distinction between process control and motor control. It is fair to say that generally speaking, with the exception of pieces of equipment like the Modicon PLC computer system, Local 89's views on the distinction between process control and motor control coincided with the views of the complainants on this subject. Local 1149, on the other hand, as the result of years of being unable to claim what it believed to be rightfully its work jurisdiction, from time to time before the Board referred to the distinction between motor control and process control as being that process control was anything the complainants said it was. As the Board understands the evidence, and there was a great deal of evidence on this point, there is a distinction which may be made between process control and motor control. On the basis of all the evidence before it, including the exhaustive description of the various types of systems which were assigned on the basis of the function performed, particularly by Mr. McCartney, there emerges a consistent and objective definition for process control and motor control. The Board now sets forth its findings with respect to what constitutes motor control and what constitutes process control. With respect to motor control, there are two types. There is stop/start and variable speed. In the case of stop/start motor control, the circuitry is either closed in which case the motor is switched on and is running at a constant speed, or, alternatively, when the circuitry is broken, the motor is off. With variable speed motor control, the speed of the motor may be varied to meet a desired set point. In this case the variables measured, recorded, and controlled are electrical variables such as current, voltage, power and frequency.
11Process control involves the controlling of a chemical or physical process. The concept of process control may be considered in the context of the complainants's operations. The production of paper involves various chemical and physical processes. A process may be controlled by controlling the chemical or physical constituents of a process. Those constituents identify themselves in the form of measurable chemical or physical properties. These measurable chemical or physical properties vary from time to time in the process. However, by controlling these measurable properties, control of the process is achieved. In the context of the complainants' operations, common measurable production variables include acidity/alkalinity (pH), colour, consistency, density, flow, level, temperature, pressure, electrical conductivity and thickness/weight. By controlling these variables, control may be exerted over the process. In controlling the process, quantity and quality of the final product having the properties desired by the complainants and its customers are maximized. Clearly, certain means are necessary in order to achieve control of the process. Firstly, the variables must be measured. Accordingly, there must be a measuring element and a means to indicate the measured value of the variable. Secondly, there must be a means of ascertaining whether the measured value of the variable is reflective of the value necessary to produce the interim or final product. Thirdly, there must be a mechanism to control the value of the variable in the event that the value of the variable as measured deviates from the value of the variable required to produce the desired product. Fourthly, there must exist a means to achieve a change in the value of the variable if its value as measured deviates from the required value or beyond th range of desired values. Such functions may be performed manually and initially were performed manually at the mill. However, in the complainants' high technology mill such functions are performed by the use of various types of equipment. Equipment used to perform these functions when linked constitutes what is known as a control loop. In a complex control loop in order to maximize control and ensure effective, efficient monitoring and prompt restoration of a process which has been experiencing problems, additional equipment may be used in the control loop. Additional equipment may, for example, be used to record the present value of a variable over a period of time and equipment may be added to record variations, both present and past, of the desired values and deviations from desired values in a permanent form such as on a strip graph. In the 1958 guidelines, the complainants defined process control and defined various components in a control loop. As was stated earlier, the guidelines defined the components of a control loop to consist of a measuring means, an indicating means, error detecting means, controller mechanism and a final control element. The guidelines assigned to instrument mechanics, the responsibility for the maintenance and inspection of all components associated with process control regardless of whether these components were linked in a control loop. With respect to the measuring means and the final control element, although responsibility for inspection and maintenance was assigned to instrument mechanics, under these guidelines the instrument mechanics were to "rely on other trades for assistance as required for removal and repair". For example, the removal and re-installation of a valve or a pipe might require the services of a millwright or a pipefitter. The same was not true in the case of an indicating means, the error detecting means and the controller mechanism. The inspection and maintenance of these components were described in the guidelines as the complete responsibility of the instrument mechanic. The reality is that process control and process control loops have a massive presence at the mill. It was the evidence of Peter Pellow that there were 2,963 process control loops in the complainants' operations in Kapuskasing. As instrument mechanics assumed the responsibility for process control loops that were assigned to them by the complainants, blueprints for these loops were and are maintained in separate files in the shop used by the instrument mechanics.
12The complainants, on their interpretation of the guidelines, made certain assignments of work with respect to the computers in the mill. The Robert Morse Magna Printer system was installed by electricians in accordance with the guidelines and was partially serviced and maintained by electricians with a service contract. This system is primarily a motor control system. Pneumatic computers were assigned to the instrument mechanics, again in accordance with the guidelines. The Tracer Lab and Data Logger systems are digitally-based computer systems and are process control systems and were assigned with respect to repair and maintenance to instrument mechanics, again in accordance with the guidelines. When the Herco system replaced the Robert Morse Magna Printing system it was assigned to the electricians because the system is a motor control system. With respect to the Trimbey system, the instrumentation was serviced and maintained by instrument mechanics. When, in 1982, the Moore system replaced the Trimbey system, the complainants assigned the work on the Moore system in accordance with the traditional guidelines. The evidence established that the Moore system consists of ninety-two per cent process control and eight per cent motor control. However, the electrical motors have no feedback to the computer. The computer controls of the Moore system, that is to say, the cathode ray tube, the keyboard, the printer, the satellite station, the process control interface cabinets, the low level link, the high level link and the microprocessors constitute recording, monitoring and control instrumentation for process control loops involved in stock proportioning. The main function of the computer controls of the Moore system is process control. Accordingly, as stated before, the prime responsibility for the Moore system was assigned to instrument mechanics represented by local 89 in accordance with the guidelines of 1958.
13The A.S.I. digital system in the sawmill, the MDDC system in the finishing room and the Modicon PLC system in the chip loft were assigned to the electricians on the basis that they were primarily motor control systems. The assignment of these four systems was popularly referred to during the hearings as the three for one assignment, with the Moore system being assigned with respect to primary responsibility to the instrument mechanics and the other three systems being assigned to the electricians. The Board finds that, in fact, the complainants made such an assignment which was accepted by Local 89 and Local 1149.
14The Board's jurisprudence with respect to the exercise of its discretion under section 91 has also followed an evolutionary process in setting forth relevant criteria. Criteria were set forth in the first complaint filed with the Board following the amendment to the Act in 1966, which gave the Board jurisdiction to entertain jurisdictional disputes. See: Canada Millwrights Limited, [1967] OLRB Rep. May 195. The tentative criteria set forth in that case were narrowed in Anchor Shoring Limited, [1974] OLRB Rep. Aug. 528, when the Board considered collective bargaining relationships, skill and training, economic considerations, employer practice and area practice. Subsequently, the Board in Boise Cascade Canada Ltd., [1979] OLRB Rep. Sept. 850 and in Southam Murray Printing, [1984] OLRB Rep. June 868, adopted a broader set of criteria in order to resolve jurisdictional disputes. A variety of criteria is considered by the Board in the exercise of its discretion under section 91. The criteria which the Board finds useful in the instant complaint are: employer preference, employer practice, area or industry practice, collective bargaining relationships, skill and training and considerations of economy and efficiency. The Board notes that, on agreement, the parties did not call any evidence with respect to area or industry practice.
15With respect to the criterion of employer preference, the complainants have clearly and unequivocally assigned the work in this jurisdictional dispute to instrument mechanics represented by Local 89. It was the position of Local 1149 that the criterion of employer preference ought to have no bearing on the Board's deliberations in this complaint. Local 1149 referred the Board to the case of J. R. Seguin et Fils Limitee, which is an unreported decision of the Board in File No. 1718-76-JD, decision dated June 28, 1977. In that decision Local 1149 referred to a passage wherein the Board stated that employer preference was not to be given weight where the project in dispute was the first installation of its type undertaken by the employer. The Board does not agree with the assertion by Local 1149 that the preference exercised by the complainants in this case reflects a first or initial assignment. The evidence clearly establishes that prior to 1982, the complainants had installed digitally-based computer systems which effected the process control in the form of the Data Logger and the Tracer Lab. Therefore, in our opinion, the preference of the complainants in this case in awarding the work in dispute to instrument mechanics represented by Local 89 is not the first or initial assignment in this regard made by the complainants. The criterion of employer preference therefore favours the assigning of the work to instrument mechanics represented by Local 89.
16With respect to the criterion of employer practice, it has been the complainants' practice to assign work similar to the work in dispute to instrument mechanics represented by Local 89. The Moore system is a process control computer system and the functions performed by the computer components in the system are quite clearly functions in the nature of process control. The components of the Moore system function simultaneously as a controller, an error detecting means and an indicating means within the meaning, scope and application of the guidelines first set forth in 1958. The practice of the complainants in this regard is illustrative of the fact that the recording, monitoring and controlling instrumentation in the Trimbey system is now being performed by the Moore system. The instrument mechanics repaired and maintained the Trimbey stock proportioning system and were responsible for troubleshooting that system. The instrument mechanics are quite clearly continuing the practice of the complainants in this matter. This criterion therefore also favours the assigning of the work to instrument mechanics represented by Local 89.
17With respect to the criterion of collective bargaining relationships, the Board notes that both Local 1149 and Local 89 have and have had collective agreements with the complainants over a period of many years. It should be noted, however, that unlike the collective agreement between the complainants and Local 89, the collective agreement between the complainants and Local 1149 contains language and a jurisdictional provision which qualifies work assignments to "in accordance with existing jurisdictional lines". In each round of bargaining for a new collective agreement since 1973, Local 1149 has endeavoured to gain jurisdiction over computer systems in accordance with existing jurisdictional lines. However, these endeavours have not been successful. In our view, the words "in accordance with existing jurisdictional lines" is clearly understood by the parties to be a reference to the guidelines of 1958 where there is a demarcation between the work of instrument mechanics and maintenance electricians. The Board finds that the assignment of work which has been made by the complainants is in accordance with the provisions of the collective agreements to which they are bound. The criterion of collective bargaining relationships therefore supports an assignment of the work to instrument mechanics represented by Local 89.
18The criterion of skill and training is obviously a critical matter in terms of the operation of the complainants' mill. Clearly, if a class or group of employees is unable to perform work to the satisfaction of the complainants, then it is only to be expected that the complainants will assign particular work to the class or group of employees in whom it has confidence that the work will be well performed. The evidence before the Board establishes that instrument mechanics, by reason of their acquired skills and ongoing training, have developed the abilities which are necessary in order to effectively carry out work in the field of process control in the mill. A knowledge of process control is essential to the requirements of troubleshooting the Moore system. Electricians do not receive training in process control. Indeed, it was the evidence of Mr. Lurz that he had no knowledge of process control. A verification of this statement by Mr. Lurz is to be found in the evidence of Robert Pellow. It will be recalled that Mr. Pellow qualified as an electrician with a certificate of qualification and then decided that he would qualify as an instrument mechanic. It is the undisputed evidence before the Board that he required an additional two years of training in apprenticeship as an instrument mechanic before he could perform. with the necessary skill and ability required in an instrument mechanic to troubleshoot process control in the mill. While electricians represented by Local 1149 clearly possess certain skills and abilities, it is quite clear that those skills and abilities do not equip them to work in the area of process control in the mill. This criterion therefore supports the assignment of the work to instrument mechanics represented by Local 89.
19With respect to the criterion of considerations of economy and efficiency, the Board refers to a decision in F. D. V. Construction Limited, which is an unreported decision of the Board in File No. 2084-81-JD, dated October 29, 1982. In that decision, the Board indicated that with respect to considerations of economy and efficiency such considerations must be weighed in the broader context of an employer's operations. That approach is particularly applicable to the facts of this complaint. It appears to the Board that the broader context of the complainants's operations require the efficient and economical operation of its production of paper and that, as a necessary and vital part of this consideration, the location and elimination of unacceptable variations and breakdowns in the manufacturing system have to be not only carefully monitored, but tracked down and eliminated as quickly as possible. The evidence clearly establishes that instrument mechanics are competent to accurately and expeditiously troubleshoot the process control matters in the complainants' mill. On the evidence before it, the Board is satisfied that a division of responsibility between instrument mechanics and electricians in the troubleshooting of process control would cause a lowering of the economy and efficiency presently expected and enjoyed by the complainants in their mill with respect to the manufacture of paper. It appears also to the Board that the problems related by Peter Pellow with respect to the Measurex system would occur in the event of a division of responsibility for troubleshooting between instrument mechanics and electricians. It will be remembered that Mr. Pellow testified that there had been conflicts and delays caused by the split in jurisdiction between instrument mechanics employed by the complainants and employees of the Measurex system who were under a service contract with respect to that system. Throughout the evidence heard by the Board there was a constant theme which underlined much of the testimony given by the witnesses who were called by the complainants and Local 89 that a split in jurisdiction would be wasteful and deleterious to the complainants' operations. On the basis of the evidence before it, the Board does not disagree with that assessment. The criterion of considerations of economy and efficiency therefore favours the assignment of the work to the instrument mechanics represented by Local 89.
20The criteria which have been referred to by the Board clearly and overwhelmingly favour an assignment of the work in dispute to instrument mechanics represented by Local 89. The performance of process control work by instrument mechanics in the complainants' mill has evolved over a period of three decades. Instrument mechanics have acquired by training and experience a record of troubleshooting process control systems which has been satisfactory to the complainants. The approach of Local 1149 to the work in dispute seeks to ignore three decades of work and experience in the complainants' mill. The assignment of the work in dispute to instrument mechanics represented by Local 89 has led to a situation where electricians represented by Local 1149 are not able to undertake by reason of their training and experience.
21Having regard to the foregoing, the Board issues a direction pursuant to section 91(1) of the Labour Relations Act that the work in dispute shall continue to be assigned to Local 89, Canadian Paperworkers Union. Accordingly, the Board directs, pursuant to section 91(1) of the Labour Relations Act, that Spruce Falls Power and Paper Company Limited and Kimberly-Clark of Canada Limited shall continue to assign to Local 89, Canadian Paperworkers Union:
I primary responsibility for the Moore Mycro Stock Proportioning System; and
II all work in connection with the repair and maintenance of the computer components of the Moore Mycro Stock Proportioning System, including and without limitation of the generality of the foregoing, the cathode ray tubes, printers, keyboards, computers, disc drives, high and low level data links, and all other equipment located in the Process Control Interface cabinets no. 1 and 2, the satellite and operator consoles; with the exception of
III the thirteen "380 cards" located in the Process Control interface cabinet no. 1 on which the motor stop/start relays are mounted.