[1988] OLRB Rep. April 414
1017-87-G The Mechanical Contractors Association of Hamilton, Applicant v. The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 67, Respondent
BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members D. A. MacDonald and C. A. Ballentine.
APPEARANCES: C. E. Humphrey, R. Dunn and C. Nolan for the applicant; S. Simpson and F. Wilson for the respondent.
DECISION OF THE BOARD; April 27, 1988
I
- This is the referral of a grievance to arbitration pursuant to section 124 of the Labour Relations Act. The applicant, The Mechanical Contractors Association of Hamilton ("MCAH") contends that the respondent Local 67 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("Local 67"), has contravened Article 112 of the collective agreement by which it is bound. Article 112 reads as follows:
APPRENTICES
Article 112
112.1 To assure the Industry of an adequate supply of properly trained and qualified Mechanics, a Joint Apprenticeship and Training Committee has been formed. This Committee consists of six (6) members. Each of the parties to this Agreement has appointed three (3) members. The J.A.T.C. shall be responsible for the administration of local apprenticeship standards and for co-ordinating them with the Apprenticeship Act.
All applicants for apprenticeship must make application and be approved by the J.A.T.C., excepting U.A. members transferred from other areas. All apprentices must obtain a work referral slip from Local 67 before commencing work.
112.2 When an employer has been notified by the Industrial Training Branch that an apprentice has passed his Certificate of Qualification examination, he will be paid the journeyman's rate of wages retroactive to the date of completing his contract provided it can be shown that the apprentice made application and paid the necessary fee to the Industrial Training Branch at least sixty (60) days prior to completion of the hours required in his contract. The Secretary of the J.A.T.C. will notify Local 67, the apprentice and the Industrial Training Branch when an apprentice is approximately three (3) months from completion of his apprenticeship. If an apprentice fails his first Certificate of Qualification examination, the effective date of him receiving journeyman's rate of wages shall be the date on which he passes a future Certificate of Qualification examination.
112.3 No first year apprentices without a contract shall be hired while there are unemployed apprentices. This shall apply to each branch of the trade.
112.4 When an apprentice is to be laid off, he is to have one week's notice in advance to the time of lay-off. This shall apply to each branch of the trade.
112.5 When an apprentice is laid off the Employer may not hire a new apprentice in his place while that apprentice is still unemployed. This shall apply to each branch of the trade.
112.6 When lay-off occurs, apprentices with less than two (2) terms' service with the Employer shall be laid off first. For all other apprentices length of service with the Employer will be the prime consideration in determining lay-offs. This shall apply to each branch of the trade.
112.7 One (1) apprentice may be employed in the shop or on the job when there are from one (1) to three (3) journeymen employed, two (2) to six (6) journeymen, three (3) to eleven (11) journeymen, four (4) to sixteen (16) journeymen, and one (1) for each additional four (4) journeymen. This ratio shall apply to each branch of the trade and shall be maintained when lay-off takes place.
The employers' complaint is this:
The Mechanical Contractors Association of Hamilton grieves that the Union is violating the provisions of Article 112 of Appendix 9 and Appendix 9A of the Collective Agreement by:
maintaining the position that and directing its representatives of the Joint Apprenticeship and Training Committee (JATC) to maintain the position that the JATC has the right to determine the number of apprentices to be made available to contractors which are members of the Mechanical Contractors Association of Hamilton.
insisting that the Union and the Mechanical Contractors Association of Hamilton predetermine the number of apprentices to be approved contrary to Article 112 of Appendix 9 and Appendix 9A of the Collective Agreement.
through its own acts and the acts of its representatives on the JATC, limiting the number of applicants for apprenticeship which will be approved on a basis other than that provided for in Article 112.1 of the Collective Agreement.
maintaining the position and directing its representatives on the JATC to maintain the position that contractors do not have the right to select apprentices then have them approved by the JATC provided that they meet the standards properly established by the JATC.
maintaining the position that the JATC has the right to refuse approval to apprentices on the basis of the number of apprentices to be approved rather than whether or not the apprentice meets the standards established by the JATC.
making use of the JATC to control the number of apprentices available to contractors in a manner contrary to the provisions of Article 112.7 of Appendix 9 and Appendix 9A of the Collective Agreement.
A hearing in this matter was held in Toronto on December 7 and 9, 1987. The parties were agreed that the Board had jurisdiction, in a broad sense, to hear and determine the matters in dispute between them; however, the union's position was that the issues raised in this grievance are not arbitrable because they are not addressed by the terms of the current provincial collective agreement. Notice of these proceedings was given to both The Mechanical Contractors Association of Ontario ("MCAO") and the "Ontario Pipe Trades Council", which are, respectively, the employer and employee provincial bargaining agencies. Neither the MCAO nor the Pipe Trades Council intervened in these proceedings.
II
For many years (indeed, before the establishment of the current provincial bargaining scheme) Local 67 and MCAH have had a Joint Apprenticeship and Training Committee ("JATC"). The JATC is composed of representatives from the local union and the local contractors. The purpose of the JATC is to oversee the intake of apprentices into the trade, assess their qualifications, and monitor the disbursement of monies from training funds to which the contractors contribute.
In 1976 the representatives of the local contractors and Local 67 entered into what was described as a "trust agreement" governing the operation of the JATC, the disposition of "trust funds" and other related matters. That trust agreement was signed by representatives of both the local contractors and Local 67. The trust agreement included a mechanism for resolving disputes which might arise from time to time between the union and employer trustees. Such disputes were to be referred to arbitration. The trust agreement was not then, and is not now, a part of the collective agreement.
The evidence does not establish any occasion on which the parties have had to resort to that arbitration process. For a number of years there were no problems, and, accordingly, it has not been necessary to test either the legal validity, or the practical efficacy of the arbitration provisions of the "trust agreement". More importantly, the trust agreement really was a matter of "trust" in its commonly understood rather than its strict legal sense. Indeed, the trustees, from time to time, were not very careful about the legal niceties of their relationship or their successor-ship. They didn't have to be. At that time~ the system was working. It represented an accommodation to which the parties had agreed and were prepared to adhere.
Cameron Nolan became Executive Director of MCAH in December 1983. He decided that the trust agreement was not binding and that its terms need not be followed. The fact that it had been signed some years before by the then representatives of the local employers was not, in his opinion, determinative. Not surprisingly, Local 67 considered this to be a breach of faith, whatever the "strict legalities" of the situation. The trust agreement represented an agreed-upon means of resolving matters of interest to both MCAH and Local 67, and the union did not welcome Nolan's repudiation of the parties' previous understanding.
III
In 1978 there was a large intake of apprentices in the Hamilton-Brantford area, because of an anticipated expansion of work opportunities in the trade. Unfortunately, that prediction turned out to be wrong. Shortly thereafter, there was a significant downturn in the local economy and a very high level of local unemployment. As a result, many of the individuals earlier admitted to the trade had a very difficult time accumulating the number of hours necessary to qualify for "journeyman status" within the anticipated 5-year program.
In the union's view it was inappropriate and unfair to subject apprentices to years and years of sporadic training with only an uncertain prospect of final accreditation. The union asserted that the number of apprentices and their personal needs should be matched to the anticipated industry demand - bearing in mind that it was always easier to limit applicants at the entry point rather than later on in the training stream when they would have an investment in, and expectation of, eventual success. The result was a marked reluctance on the union's part, to agree to any further large intake of apprentices. In light of the unfortunate experience in the early 1980s, in the last few years the JATC has authorized only a relatively small increase in the number of individuals admitted to the trade.
The present dispute involves not only the number of individuals admitted to the trade, but also the terms or criteria for admission. There is an established procedure, agreed upon by the parties, which involves the evaluation of candidates based upon their educational background, their performance on a written test, and an interview by industry representatives. That process of evaluation has been in place for a number of years.
According to Cameron Nolan, however, the contractors are not satisfied with that procedure. As he puts it, the contractors want to inject more "subjectivity" into the process. The contractors are not comfortable with a "meritocracy" based upon the previously-agreed evaluation procedures. They want the JATC to admit as qualified and potential apprentices, all individuals who have satisfied the minimum standards of performance. The contractors assert that from this pool of persons who meet the minimum requirements, they should be able to choose to employ whomever they wish.
The union's position is that those approved by the JATC should be the best qualified of the potential applicants, not those who are only minimally qualified, and that however large the pool may be, selection should be on the basis of merit as determined by the JATC. Having agreed to the method of assessment, the union, through its representatives on the JATC, is prepared to live with the results and accept for admission only the most promising candidates. Insofar as the issue of "numbers" is concerned, the union asserts that the "numbers" should be selected from "the best" and be sufficient to meet the industry's established needs. It is the union which asserts, in effect, that "we want only the best", and the employers which assert that "second best will do" if the candidates meet our unspecified and unregulated minimum criteria and entirely subjective preferences. Indeed, while MCAH now quarrels with the position of the JATC, it appears from the JATC minutes that as late as June 18, 1987 the JATC, by a majority, itself agreed upon a process of apprentice intake based upon its own past practice and experience rather than the process of subjective selection that MCAH now urges upon us. In consequence, the position now taken by MCAH seems to be inconsistent with that taken by its own employer representatives on the JATC. We should also note that the evidence does not disclose any defect, bias or inadequacy in the evaluation process previously agreed upon and applied over the last several years.
IV
- The issue for us, though, is not what may appear to make sense from a trade enhancement or commercial point of view, nor is it the construction of the trust agreement, whatever its legal status may be. The question for us is what Article 112 of the collective agreement requires, since it is common ground that the so-called trust agreement is not incorporated by reference either into the master portion of the agreement or into the Local 67 appendix. Whatever the legal status of the trust agreement may be, it does not provide this Board with a jurisdictional foundation under section 124 of the Labour Relations Act. Our jurisdiction is limited to the interpretation of the provincial agreement and its provincially-authorized local appendices. But the collective agreement does not address or specify the standards which the JATC is to apply, it does not contemplate the possibility that the union or employers may disagree with the decisions of the JATC, and it provides no mechanism for resolving disputes among JATC members - even though the specified process of "co-determination" inevitably involves the possibility of deadlock.
V
Article 112 constitutes the JATC as a "bipartisan" body charged with the responsibility of ensuring that the industry has an adequate supply of properly-trained apprentices in accordance with locally-administered admission standards. The JATC has done that. On the evidence before us, we cannot conclude that the JATC has not properly fulfilled its responsibility to screen and approve the admission of an adequate supply of tradesmen to the local contractors in Hamilton. According to Mr. Nolan, there have been no productivity problems, and, on the evidence, there is no indication that the contractors have not been able to employ apprentices in accordance with the permitted ratio set out in Article 112.7 of the agreement. There is evidence of their desire to hire more first-year apprentices while there are still apprentices unemployed, but that is expressly prohibited by Articles 112.3 and 112.5 of the agreement, so it deserves no further comment. What is missing from this case is any real indication of a trade problem other than Mr. Nolan's assertion that the contractors wish to inject more "subjectivity" (on the part of the employers rather than the JATC) into the process of approving available apprentices. However, those wishes are not reflected in the language of Article 112 of the agreement which does not regulate the internal workings of the JATC and certainly does not mandate the selection process which the MCAH urges upon us, and which, it says, must be adopted or Local 67 will be in breach of its contractual obligations.
Had we been persuaded that the JATC has not assured an adequate supply of properly trained apprentices in accordance with its contractual mandate under Article 112.1 of the agreement, the employer's case might well have been on a firmer legal foundation; however, on the evidence before us, we cannot conclude that that is the case. It is clear that the JATC has carried out that mandate, and has applied standards which, insofar as possible, avoid considerations of favouritism, nepotism, subjectivity or personal preference. And the result has been an intake of qualified apprentices which (on the evidence before us, at least) has met the industry's needs. Further, we are constrained to note that, apart altogether from the workings of the JATC, and the number or qualifications of the apprentices which the JATC approves from time to time, Article 112.1 also contemplates a second requirement: a referral slip which is, in itself, an additional condition precedent for any approved apprentice commencing work. To this extent, Article 112 itself contemplates an implicit trade union veto, because, apart altogether from the JATC's verification of an individual's qualifications, there is an additional requirement of a work referral slip from Local 67, indicating its willingness to expand its membership - although, in practice, the trade union has not previously denied membership to apprentices duly approved by the JATC. There is nothing in Article 112 which prevents a trade union limiting its membership in ways which will ensure that members are fully employed or that new apprentices will complete their training within a reasonable period of time - particularly where, as here, the union, and even the JATC proposed a system of admitting the "most" as opposed to the "minimally" qualified candidates. In our view there is nothing in Article 112 which gives specific content to the terms "administration of local apprenticeship standards" or forecloses a system in which only the best candidates are admitted.
The question before us, then, is whether the JATC's present position of admitting only the most qualified candidates in accordance with the JATC's past practice and best estimate of industry requirements, and affirmed (albeit by a majority) as late as a month before the filing of this grievance, can be said to constitute a breach of the collective agreement on the part of Local 67. We do not think so. Article 112 does not, on its face, govern the internal workings of the JATC and the established policy of admitting only the most qualified candidates is not inconsistent with the spirit, intent, or language of Article 112. We find no foundation in the language of the agreement for the employers' present assertion that the JATC is obligated to recommend all potential applicants who demonstrate minimum qualifications for entry into the trade, nor, we repeat, is there any requirement that such individuals be issued a work referral slip which, on the language of the agreement is a necessary work requirement controlled by the trade union in any event.
The agreement does require the JATC to "assure the industry of an adequate supply of properly trained and qualified mechanics". But, on the evidence before us, it has met that obligation. If there are issues between the parties which are not amenable to resolution under the terms of their collective agreement, as presently drafted, those matters must be resolved through direct negotiations or by some kind of third-party mechanism for resolving disputes of the kind contemplated by the trust agreement which MCAH now rejects.
For the foregoing reasons, this application is dismissed.