Lumber and Sawmill Workers' Union, Local 2995 v. Canadian Paperworkers' Union, Local 89, 1989 CanLII 3262

[1989] OLRB Rep. June 645

1285-88-JD Lumber and Sawmill Workers' Union, Local 2995, Applicant v. Cana­dian Papenvorkers' Union, Local 89, and Spruce Falls Power and Paper Company Limited, Respondents

BEFORE: Ken Petryshen, Vice-Chair, and Board Members G. 0. Shamanski and K. Davies.

APPEARANCES: James Fyshe, Norm Rivard, Raymond Boissonneault and Roger LePage for the applicant; J. James Nyman, Gerald T. McMeekin, R. Casson and Enzo Altobelli for Canadian Paperworkers' Union, Local 89; G. F. Luborsky, G. J. Boucher and P. Barrett for Spruce Falls Power and Paper Company Limited.

DECISION OF THE BOARD; June 5,1989

1. In this complaint made pursuant to section 91 of the Labour Relations Act, Lumber and Sawmill Workers' Union, Local 2995 ("Local 2995") complains that members of the Canadian Paperworkers Union, Local 89 ("Local 89") are being assigned certain work by Spruce Falls Power and Paper Company, Limited ("Spruce Falls") which Local 2995 considers the work of its mem­bers. The work in dispute concerns the transportation of heavy equipment on float trucks. At the time of the complaint, two float trucks and a spare float truck were assigned to members of Local 2995 while one float truck was operated by a member of Local 89 out of the Spruce Falls garage in the Town of Kapuskasing. Local 2995 requests that all of the floating work be assigned to its mem­bers while both Spruce Falls and Local 89 take the position that the status quo be maintained.

2. Before setting out the facts, the Board will deal with two evidentiary rulings it was required to make during the course of entertaining the evidence. These two rulings concern the application of Rule 60 of the Board's Rules of Procedure and Practice Note #15 (Jurisdictional Dispute Complaints) which was amended and became effective on August 2, 1988.

3. This complaint was filed with the Board on August 29, 1988. The complaint as filed did not indicate that Local 2995 intended to rely on area practice, nor did it contain two documents which we will refer to as C-i and C-2. The respondents were required to file their replies no later than 21 days from the date they were served with the complaint. A panel of the Board conducted a pre-hearing conference on November 28, 1988 and, at this stage of the proceeding, Local 2995 indicated that it intended to rely on C-i and C-2. There was some discussion of area practice at the pre-hearing conference and Local 2995 undertook to advise the Board and the respondents on or before December 30, 1988 whether it would be seeking to call evidence of area practice and, if so, the nature and scope of the evidence. Local 2995 sent letters dated January 30 and February 1, 1989 to the respondents and the Board which indicated it intended to rely on area practice and the nature of the evidence it intended to call. The first day of hearing before the present panel was on February 9, 1989. The respondents objected to the introduction of C-i and C-2 in addition to any evidence of area practice as a result of Local 2995's failure to comply with Rule 60 and Practice Note #15.

4. Counsel for Local 2995 advised the Board that he was not provided with C-1 and C-2 until the pre-hearing conference. The reason for this, as we understand it, was that his advisor, to whom C-1 was addressed and the individual who wrote C-2, did not review Local 2995's general correspondence file until immediately before the pre-hearing conference. Local 2995 provided vir­tually no explanation for failing to refer to area practice in its complaint or for failing to comply with the undertaking it gave at the pre-hearing conference. Counsel did note that Local 2995 expe­rienced some difficulty in complying with the undertaking due to the Christmas period. With respect to both matters, counsel for Local 2995 argued that the Board should exercise its discretion in favour of Local 2995 since the respondents were aware of the evidence Local 2995 intended to introduce prior to the hearing, they were not prejudiced and the respondents could request an adjournment if they felt they needed one. After entertaining the parties' positions concerning the evidentiary issues, the Board ruled orally at the hearing that it would not permit Local 2995 to call evidence of area practice, nor would it allow it to rely on C-1and C-2.

5. The relevant portions of Practice Note #15 are as follows:

6. The Board has adopted a pre-hearing conference procedure for jurisdictional disputes heard by the Board under section 91 of the Labour Relations Act. The Board will schedule a pre-hear­ing conference before a Vice-Chair and/or Board Members. The purpose of this pre-hearing conference is to settle the dispute or, in the absence of settlement, to narrow the issues in dis­pute.

7. The parties are required to file complaints, replies or interventions in accordance with the Board's Rules and this Practice Note, and, in particular in accordance with Rule 60. Rule 60 states:

8. A complainant shall file together with his complaint, and every person served with a notice of application shall file together with his reply,

(a) any union constitution;

(b) any collective agreement;

(c) any agreement or understanding between trade unions as to their respective jurisdictions on work assignment;

(d) any agreement or understanding between a trade union and an employer as to work assignment;

(e) any decision of any tribunal respecting work assignment; and

(f) any other document,

relating to the work in dispute which may be in his possession and upon which he pro­poses to rely in support of his claim for relief or his claim that the relief requested should not be granted, as the case may be, and a statement as to any area or trade practice relating to the work in dispute, and pictures, diagrams or drawings of the dis­puted work,

iN ADDITION, each party must, at the same time, file a brief which contains a concise state­ment of the issues in dispute, including a detailed description of the work in dispute, and the material facts upon which it intends to rely.

4. The complainant must file its complaint and the material referred to in paragraph 2 in qua­druplicate with the Board....

5. A reply and the material referred to in paragraph 2 must be filed in quadruplicate with the Board. The reply must be accompanied by a certificate of service as set out in paragraph 7 in respect of each other party. All respondents and others served with notice of the complaint must file their replies and other material referred to in paragraph 2 with the Board no later than twenty-one (21) days from the date service of the complaint was effected on them by the com­plainant. If the twenty-first day falls on a day on which the Board's offices are not open to the public, the reply with accompanying material must be filed no later than the next business day of the Board.

6. EXCEPT WITH LEAVE OF THE BOARD, PARTIES WILL NOT BE PERMITTED TO ADDUCE EVIDENCE AT THE HEARING OF ANY MATERIAL FACT NOT DIS­CLOSED IN THE MATERIAL FILED WITH THE BOARD PURSUANT TO THIS PRAC­TICE NOTE.

7. The Board's rules and practice concerning jurisdictional dispute complaints, particularly Rule 60 and Practice Note #15, are designed to assist the parties in the resolution and the adjudi­cation of jurisdictional disputes. Once the complaint and any replies are filed, the Board schedules a pre-hearing conference in order to assist the parties in settling the dispute or to narrow the issues in dispute. If it is necessary to have a hearing, which is often the case, compliance with the Rules, the Practice Note and the work of the pre-hearing conference should result in more productive and shorter hearings than would otherwise be the case. In order for the procedure to produce the intended results, it is crucial for the parties to comply with the requirement to file what is required to be filed by Rule 60 and the Practice Note in a timely fashion. In this matter, each party was obliged to file any documents it intended to rely on and the statement of the area practice it asserts is relevant with its complaint or reply, as the case may be. At the pre-hearing conference, each party and the Board should be aware of the issues in dispute, and the the material facts and the documents upon which each party intends to rely. The extent to which this does not occur will result in the failure to meet the objectives the procedure is intended to achieve.

8. Prior to the amended Practice Note, it was not uncommon for parties to fail to meet the filing requirements of Rule 60 and the previous Practice Note (see, for example Marine-Hamlyn Joint Venture, [1988] OLRB Rep. Feb. 158). The revision of Practice Note #15, which adopts pro­cedures similar to those contained in the Practice Notes on first collective agreement arbitration, should indicate to the community that the Board is serious in its efforts to adopt and follow proce­dures which will assist in the resolution and adjudication of jurisdictional disputes.

9. Paragraph 8 of Practice Note #15 provides that parties will not be permitted to adduce evidence at the hearing of any material fact not disclosed in the material filed with the Board, except with leave of the Board. The wording of the paragraph indicates that a party who fails to comply with the Rules and the Practice Note will not be permitted to introduce certain evidence unless that party can satisfy the Board that the circumstances warrant granting leave. Although the Board may consider any factors it considers relevant, particular significance will be given to the reason why a party has failed to comply with the Rules and Practice Note.

10. In reviewing the circumstances here, the Board notes that it is the complainant, the party which can choose the timing for filing the complaint, which has failed to comply with Rule 60 and Practice Note. #15 as well as its undertaking concerning area practice. In its complaint, Local 2995 did not indicate it intended to rely on area practice and it failed to comply with its undertak­ing concerning area practice. Local 2995 only advised the parties with respect to its intentions with respect to area practice a short time before the first day of hearing on the merits. With respect to this failure, Local 2995 did not provide us with any satisfactory explanation for why it did not com­ply with Rule 60 and Practice Note #15. Similarly, no satisfactory explanation was given by the Local 2995 for failing to include C-i and C-2 with its complaint. The fact that Local 2995's repre­sentative did not check the Local's general correspondence and discover C-i and C-2 until just prior to the pre-hearing conference does not constitute a satisfactory explanation. The evidence of area practice and C-i and C-2 were in the possession of Local 2995 when it filed its complaint and the failure to comply with Rule 60 and Practice Note #15 is attributable only to Local 2995. In exercising its discretion, the Board was satisfied, given all of the circumstances and particularly those referred to above, that it would have been inappropriate to grant Local 2995 leave to intro­duce C-i and C-2 or any evidence of area practice.

11. In determining the facts with respect to the merits of the complaint, the Board has con­sidered the evidence of the four witnesses called by Local 2995, the agreed-to facts as disclosed in the pre-hearing memorandum, the exhibits and the parties' submissions thereto. The Board notes that Spruce Falls and Local 89 elected to call no viva voce evidence.

12. Spruce Falls is in the business of manufacturing newsprint. It operates a mill in the Town of Kapuskasing which it supplies with trees harvested in its Woodlands operation. As one might expect, the Woodlands operation is highly mechanized and a considerable variety of heavy equipment is utilized to harvest trees in Spruce Falls' cutting area, commonly referred to as "the limits". In order to service and maintain its equipment, Spruce Falls operates a number of mainte­nance facilities which are within its Woodlands operation. Two rather large garages, which are not portable, are located in depots in the limits and in addition to these larger facilities, Spruce Falls has field garages on certain sites which are portable and move with the cutting. A large garage, which is considered a part of the Woodlands operation, is located on the mill site ("Town garage"). Given the nature of the operation, the majority of the maintenance work is performed at the facilities located on the limits. The Town garage is used to service equipment used at the mill site and any overflow of equipment requiring repair from the limits. The need to transport heavy equipment, primarily as a result of mechanical problems, arises frequently. As noted earlier, the equipment is transported by means of a float truck, a term which refers to a tractor that is attached to a flat-bed trailer. Float trucks are used to transport equipment used in the Woodlands operation both within the limits and between the limits and the Town garage.

13. Local 2995 and Local 89 have had a bargaining relationship with Spruce Falls since at least the 1950's. The collective agreement Local 2995 has with Spruce Falls recognizes Local 2995 as the bargaining agent for all of its employees engaged in woods operations on the limits and on the work sites of Spruce Falls. Local 89's collective agreement with Spruce Falls covers all employ­ees who are employed in occupations which have the rate of wages fixed for the term of the agree­ment. In essence, Local 89 represents certain employees engaged in production at the mill as well as certain trade groups, such as machinists, welders, millwrights, instrument mechanics, etc. Local 89 has jurisdiction for the Town garage while 2995 has jurisdiction for those maintenance facilities located on the limits. The Local 2995 and the Local 89 collective agreements both contain classifi­cations covering the floating of equipment and the members of both unions have performed float work since approximately the late 1950's.

14. The vast majority of the floating work is performed on Spruce Falls' limits, the area over which Local 2995 has jurisdiction. Yet, as noted above, Local 2995 has never had exclusive jurisdiction over the floating of equipment. The history of the floating work can be divided into essentially two periods, the pre-1978 years and the post-1978 years. In the pre-1978 period, Local 89 members operated at least one float, and sometimes two, which were located at the Town garage. Local 2995 members operated as many as three floats during this period which were located at Camp 86 and Camp 87, the sites for the two large garages referred to earlier. The fore­man of the Town garage and the foremen at Camp 86 and Camp 87 dispatched the floats as required. During this period, Spruce Falls assigned the floating work to members of both unions on the basis of what was most appropriate and not on the basis that certain floating work belonged to one union as opposed to the other. Beginning in approximately 1970 Spruce Falls centralized the float operation during the winter haul, which is essentially between December 15 and March 15, at Camp 16 and referred to as Control. All of the floats are located at Control, even the Town floats, and are dispatched by the Control foreman, a foreman within the Woodlands department.

15. The only material difference between the pre-1978 and post-1978 period is that Spruce Falls made a distinction between what floating work belonged to each union. In at least the set of negotiations prior to 1978, and perhaps even beginning with the 1974 negotiations, Local 2995's proposals contained the demand that all floating and transporting of material to woods operations be done by members of Local 2995. With this demand, Local 2995 attempted to obtain for its members jurisdiction over all floating of equipment, as well as all "toting". Toting is performed by five employees in the Spruce Falls' transportation department and consists of the transportation of supplies to the limits in small trucks. This demand was rejected by Spruce Falls. The collective agreement negotiated in 1978 gave Local 2995 jurisdiction over all inter-camp floating. In negotia­tions subsequent to 1978, except for the 1984 set of negotiations, Local 2995 continued to demand, and Spruce Falls continued to reject, that all floating and toting be performed by its members. When Local 2995 demanded all floating and toting in the 1987 negotiations, Spruce Falls took the position with Local 2995 that it could not take the issue to impasse. As a response to Spruce Falls' position, Local 2995 withdrew its demand and filed a grievance in December 1987. At the third step of the grievance held in March 1988, Spruce Falls took the position that the grievance was not arbitrable and that the jurisdictional dispute over floating was a matter for the Labour Relations Board. This led Local 2995 to file this complaint.

16. As a result of developments at the bargaining table in 1978, the floating work has been allocated since that time on the following basis. Members of Local 2995 perform all of the inter-camp floating or in other words, all floating from and to points within the limits. Member of Local 89 transport equipment from the Town garage to the limits and from the limits to the Town garage. In circumstances where a Town float was unavailable, Spruce Falls would assign the floating work normally performed by a Local 89 member to a member of Local 2995. With the allocation of all inter-camp floating to Local 2995 members, Local 2995 members acquired by far the largest per­centage of the floating work.

17. In 1987, Spruce Falls centralized the dispatching of the floats in effect to duplicate in the remaining 9 months of the year what it did since 1970 during the 3 months of the winter hauling period. Since 1987, all floats are dispatched by a Woodlands department foreman, rather than a Camp foreman or the Town garage foreman, from Camp 45, a facility within the Town of Kapus­kasing. All floats (2 floats and a spare) are located at Camp 45 except for the Town float which continues to be located at the Town garage.

18. The evidence indicates that members of both unions have had concerns over the years with respect to the way Spruce Falls assigned a particular load. Problems of this sort led to discus­sions between the parties and the resolution of the problem. The members of Local 2995, in partic­ular, have had concerns about a Local 89 float transporting equipment on the limits, an area viewed by them as their exclusive jurisdiction. This situation has resulted in some tension between the members of Local 2995 and Local 89, particularly during times when Local 2995 members are on lay off. Over the years, members of both unions have experienced lay-offs as a result of techno­logical developments and for other reasons. In 1987 and at a time when Local 2995 renewed its efforts to obtain all floating and toting, Local 2995 experienced significant lay-offs. If Local 2995 were to obtain jurisdiction for all floating, a member of Local 89 would be laid off.

19. In the pre-1978 period, Spruce Falls was able to manage its floating operation effi­ciently. One cannot say the same for the post-1978 period. Given that all inter-camp floating is to be performed by Local 2995 members and that the Local 89 float is to perform the floating to and from the Town garage when available, Spruce Falls cannot utilize the floats as efficiently as it once did. The Board heard evidence about the Local 89 float and a Local 2995 float passing empty on the road. As well, evidence was given about situations where it would take the Local 89 float a considerable number of hours to get to and transport a machine to the Town garage when a Local 2995 float was close by and would have been in a position to perform the job in a shorter period of time. Although the evidence did not disclose the extent to which the post-1978 restrictions affected the efficiency of the floating operation, particularly in the context of Spruce Falls' overall opera­tion, the Board is satisfied that the floating of equipment is performed less efficiently after 1978 than it was before that year.

20. Section 91(1) of the Act provides as follows:

91.-(1) The Board may inquire into a complaint that a trade union or council of trade unions, or an officer, official or agent of a trade union or council of trade unions, was or is requiring an employer or an employers' organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another trade union or in another trade, craft or class, or that an employer was or is assigning work to persons in a partic­ular trade union rather than to persons in another trade union, and it shall direct what action, if any, the employer, the employers' organization, the trade union or the council of trade unions or any officer, official or agent of any of them or any person shall do or refrain from doing with respect to the assignment of work.

20. In exercising its discretion under section 91 of the Act, the Board has used a variety of criteria. It is not unusual for the Board to consider collective bargaining relationships, skill and training, economy and efficiency, employer practice, area practice, the nature of the work and job loss, safety and employer preference. Given the circumstances in this case, a number of these crite­ria are not of much assistance. As a result of the Board's evidentiary ruling, the Board did not have any evidence before it relating to area practice. Little, if any, evidence was called with respect to safety, the nature of the work and skill and training. It is clear that the weight of these factors would not favour one party's position over the others. Therefore, the relevant criteria for our pur­poses in this case are the collective bargaining relationships, economy and efficiency, employer practice, employer preference, job loss and delay.

Collective Bargaining Relationships

21. Counsel for Local 2995 argued that when one viewed the collective bargaining relation­ships, particularly when combined with employer practice, one should conclude that this factor favoured Local 2995. Counsel emphasized the jurisdictional provisions contained in both union's collective agreements and the fact that the vast majority of the floating work is within 2995 juris­diction. In our view, this factor does not favour either union. Each union has within its respective collective agreement a classification that covers the disputed work and members of both unions have worked within those classifications for a considerable number of years.

Economy and Efficiency

22. Although the evidence concerning this element does not provide a complete picture, the Board is satisfied that this factor slightly favours Local 2995. The floating operation would be more efficient if Spruce Falls were free to use its discretion in allocating the float work between members of the two unions. The extent to which the floating operation is inefficient is attributable to the fact that Local 2995 demanded and obtained the right to have its members perform all the inter-camp floating.

23. In jurisdictional disputes, it is most often the employer that argues in favour of a partic­ular assignment for reasons of economy and efficiency. The application of this particular criteria in most cases, therefore, usually supports the employer's position. Here, Spruce Falls takes a position which appears to be to its disadvantage economically. However unusual this may be, the Board concludes that the economy and efficiency factor slightly favours Local 2995.

Employer Practice

24. What is striking about the history of this employer's floating operation is that Local 2995 has never had exclusive jurisdiction over the floating work. Prior to 1978. it appears that the floating work was essentially shared by the two unions and subsequent to 1978, although Local 2995 members performed most of the floating work, members of Local 89 continued to perform some. The employer's practice over a considerable number of years has been to assign floating work to members of both unions, even in the face of demands by Local 2995 that its members per­form all the floating work. This factor does not favour the position advanced by Local 2995.

Employer Preference

25. As noted earlier, Spruce Falls has taken the position in this matter that the status quo should be maintained. Local 2995 called some evidence concerning an approach made by Spruce Falls in 1987 with respect to floating which in its view should lead us to conclude that Spruce Falls recognizes the inefficiency of the present operation and that Spruce Falls would prefer Local 2995 members to do all the floating. We do not find it necessary to detail this evidence. Suffice it to say that Local 2995 advised Spruce Falls that it would not accept its proposal and the proposal, in any event, would not have given Local 2995 jurisdiction over all of the floating work. It was shortly after this discussion between Spruce Falls and Local 2995 representatives that Spruce Falls central­ized its dispatching of floats at Camp 45 as described earlier. We do not accept Local 2995's sub­mission that the discussions in 1987 disclose an employer preference contrary to the position it has taken before us in this proceeding. Spruce Falls' practice and its repeated resistance during negoti­ations to Local 2995's demand for jurisdiction over all floating, indicates that Spruce Falls prefers Local 89 members perform some floating.

26. One of the reasons Spruce Falls prefers to maintain the status quo relates to maintain­ing the integrity of the bargaining process. In its view, it has had "a deal" with Local 2995 since 1978 which provides that Local 2995 does not have exclusive jurisdiction over floating. The under­standing it has with Local 89 is that its members will perform a certain amount of the floating work. Spruce Falls prefers the status quo, or in other words, it prefers that the results of the bar­gaining process be maintained since it has concerns that the breaking of this deal will perhaps affect other deals regarding the allocation of work, not only between these unions but between other unions that have bargaining rights for its employees. There is an agreement, for instance, that Local 2995 members can unload in the mill yard, an area within Local 89's jurisdiction, during a certain time of the year. Spruce Falls is concerned that if Local 2995 succeeds in this matter in obtaining what it has been unable to get at the bargaining table, it may affect Local 89's willingness to continue with certain agreements of this sort. In our view, this concern, which is one of the rea­sons for the employer's preference, is a legitimate concern. The factor of employer preference does not favour Local 2995 but rather, it favours the position advanced by Spruce Falls and Local 89.

Job Loss

27. As noted earlier, the evidence discloses that one of Local 89's members will be laid-off if all the floating is performed by members of Local 89. Although it is the case that both unions have experienced a loss of members over the years, one's focus in determining the significance of this factor has to be with respect to the disputed work. In taking this approach here, the Board concludes that this factor slightly favours the position taken by Local 89 and Spruce Falls. We say slightly since we are not dealing with a considerable job loss and it is usually inevitable in resolving disputes of this sort that a decision on the assigning of work will have an impact on jobs performed by one union's members as opposed to another.

Delay

28. Counsel for Local 89 raised the issue of delay. As we understood counsel's position, he argued that the Board should at least not exercise its discretion in Local 2995's favour given its delay in filing this complaint. Local 2995's witnesses were asked why the complaint was filed when it was. It is clear that since the mid-70's and probably long before this time, Local 2995 had the view that all of the floating work was work belonging to its members. However, the grievance filed in 1987 referred to earlier and this complaint represents the only formal attempts on the part of Local 2995 to assert their rights. As one witness put it, Local 2995 felt it was time to bring the issue "to a head".

29. Most jurisdictional disputes arise in the context of an assignment of certain work to members of one union and another union quickly asserting that the work belongs to its members. If the matter cannot be resolved, a complaint to this Board is usually filed relatively quickly. In this matter, Local 2995 complains about a work assignment situation which has been present for at least ten years, and arguably a lot longer than that. Members of Local 89 have always been assigned some of the floating work and this fact has obviously not escaped Local 2995's attention. Although Local 2995 made attempts in bargaining to obtain for its members all of the floating work, it apparently was not prepared to make a legal challenge to Spruce Falls' assignment of floating work to members of Local 89. Where the Board has a discretion to grant the relief requested, it has in other contexts determined that it would not entertain a complaint because of unreasonable delay. Delay can also impact on the nature of the relief a party might obtain. In the circumstances of this case, the Board is satisfied that the delay on the part of Local 2995 is a factor which favours maintaining the status quo.

30. The evidence called by Local 2995 indicated that Local 2995 has continually received complaints over the years from its members about Local 89 members performing their work and that, particularly of late, there has been considerable tension between the Local 2995 and Local 89 float drivers. It was argued that this situation could be remedied by granting Local 2995 the relief it requests. However desirable it is to have labour peace among employees, it is difficult to adjudi­cate work assignment disputes on the basis of the extent of the complaints a particular union receives from its members. With respect to the tension between Local 2995 and Local 89 members, our sense of the evidence is that the tension is more than likely caused by Local 2995 members. In any event, it is unlikely that any tension that might exist between Local 89 and Local 2995 mem­bers will be eliminated by our granting Local 2995 all of the floating work. A decision on our part to do so would not change the fact that Local 2995 float drivers would have to transport equipment to the Town garage, a location within Local 89's jurisdiction. Although the basis of the tension would be altered, a decision in Local 2995's favour would not eliminate tension between Local 89 and Local 2995 members. These factors, then, are not in Local 2995's favour.

31. The criteria which we consider to be relevant in this case do not all point in one direc­tion. Most of the floating work is performed on the limits and it involves the transportation of equipment used by Local 2995 members. The floating operation would be more efficient if only members of Local 2995 performed the work. However, when we consider the employer's practice, employer preference, job loss and delay, these factors combined weigh heavily in favour of main­taining the status quo. After reviewing the evidence in light of the relevant criteria, the Board is satisfied that it should not exercise its discretion in favour of granting Local 2995 the remedy it seeks.

32. Accordingly, this complaint is dismissed.