International Association of Machinists and Aerospace Workers, Lodge 771 v. Boise Cascade Canada Ltd., 1989 CanLII 3475

International Association of Machinists and Aerospace Workers, Lodge 771 v. Boise Cascade Canada Ltd. and International Brotherhood of Electrical Workers, Local Union 1744

[1989] OLRB Rep. May 413

2747-84-JD International Association of Machinists and Aerospace Workers, Lodge 771, Complainant v. Boise Cascade Canada Ltd., and International Brotherhood of Electrical Workers, Local Union 1744, Respondents

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W. A. Correll and P. V. Grasso.

APPEARANCES: Robert Pollard and Lowell Paulson for the complainant; Peter J. Thorup, William B. Murray, Jim Gartshore and Ruse/i Westover for the respondent employer, and S. B. D. Wahl, D. Langrry and H. Fulton for the respondent union.

DECISION OF THE BOARD; May 19, 1989

1This is a complaint filed by the International Association of Machinists and Aerospace Workers, Lodge 771 ("IAM") pursuant to section 91 of the Labour Relations Act). The work in dispute affects 16 systems at the Boise Cascade Canada Ltd. (Boise) mill in Fort Frances. These systems are described in detail in Vice-Chair Herman's report dated September 19, 1988 and listed in Boise's brief on page 6. After the complainant completed its case and a procedural ruling was made with respect to the non-suit motion brought by the International Brotherhood of Electrical Workers ("IBEW"), the panel of the Board hearing the case was unable to continue due the untimely death of one of the Board Members. A different panel of the Board heard the submissions of the parties on how to proceed. By decision of February 25, 1988 the Board authorized Vice-Chair Herman pursuant to section 103(2)(h) of the Act to inquire into this complaint. Paragraph 17 of that decision states:

For the above reasons, the Board, pursuant to section 103(2)(h) of the Act, hereby authorizes Vice-Chair Herman to inquire into this jurisdictional dispute, to make findings of fact on the basis of the evidence which has been and will be adduced before him regarding this complaint, and to report to this panel with respect thereto.

2The procedure adopted by the Board, as outlined in the July 15, 1988 letter, was to first deal with the motion for non-suit. Pursuant to our direction, Vice-Chair Herman issued a comprehensive report containing 198 pages of evidence led by the complainant. The report detailed the evidence of seven witnesses called by the complainant during approximately 24 hearing days.

3At the outset of the hearing into the non-suit motion the complainant withdrew its request for reconsideration contained in a telegram dated October 25, 1988 with respect to the procedural ruling made by the earlier panel not to put the IBEW to its election to call further evidence.

4The Board heard the parties' submissions, which are summarized below, on whether the motion for non-suit should succeed based on the evidence contained in Vice-Chair Herman's report. No party asserted that Vice-Chair Herman's report of the evidence was inaccurate or incomplete in any respect.

5The respondent International Brotherhood of Electrical Workers, Local Union 1744 ("IBEW") submits that the evidence led by the complainant in no way supports the Machinists' contention in this complaint. The respondent IBEW urges the Board to view the evidence and determine the issue as if it were a complete jurisdictional dispute and come to a conclusion and make a ruling on the basis of the evidence that is before the Board. Rule 71 of the Board's Rules of Procedure allows the Board to dismiss for failure to show a prima facie case for the remedy requested prior to any hearing. Counsel for the IBEW submits there is even more compelling reason to dismiss for failure to show a prima facie case after a lengthy pre-hearing process and 24 days of hearing. The complainant had every opportunity to call the evidence it wanted to convince the Board of its case. The respondent IBEW submits the Board must look at the evidence adduced by the complainant and determine if the evidence at its highest and without any contradictory evidence, would entitle the Machinists to the remedy requested.

6The respondent Boise asks the Board to assume that the evidence before the Board is all the evidence and based on that evidence at its highest would the Board grant the complainant's remedy. If the answer is yes both parties would be leading further evidence. At the start of this lengthy and costly proceeding the IAM was asked what it was claiming, given that the proceeding started with two systems in the original complaint. The complaint was then amended to include sixteen systems at Boise's mill in Fort Francis.

7Boise submits there are two choices: granting the IAM's claim, which will result in numerous jurisdictional disputes; or preserving the status quo, the historical demarcation line of IAM performing pneumatic, fluidic and hydraulic instrumentation and the IBEW performing electronic instrumentation. The respondent Boise contends that IAM has not proved any of the essential elements necessary to establish its claim. There is no evidence with respect to IAM's claim of pneumatic controls being converted to electronic controls. The IAM collective agreement talks about "pneumatic, fluidic, hydraulic", not process control. The complainant's evidence does not show that the demarcation line is or has been process versus motor control. The IAM has unsuccessfully tried to obtain all instrumentation work, including electronic, during negotiations. There is no evidence before the Board that this work (electrical instrumentation) was done by members of the IAM.

8The IAM wants to carve out 16 systems from the numerous similar or identical systems throughout the mill but for which it is not seeking the work. In the respondent's view this would be totally unworkable. The evidence before the Board is that the historical demarcation line has been followed when making work assignments. Boise submits on the evidence contained in Vice-Chair Herman's report, the Board cannot grant the relief requested by IAM.

9The complainant rejects the IBEW's motion for non-suit and urges the Board to proceed with this complaint. The IAM's claim is in 2 parts,

1. work performed by Instrument Mechanics under clear jurisdictional guidelines spelled out in the collective agreement which was replaced through technological change, permitting the same function to be performed by different means, is work that falls within IAM's jurisdiction.

2. process control comes under IAM's jurisdiction.

10The complainant submits if there are any of the 16 systems where the evidence fails to establish that IAM members used to do the work which has been assigned to the IBEW the Board "may subtract that system from the total".

11It is the position of the IAM that another dividing line between the IAM and IBEW is the voltage used. If it is less than 110 volts it is the work of the JAM and if it's more than 110 volts its the work of the IBEW. On work above 110 volts an electrician's ticket is required.

12The IAM takes the position that the "historical demarcation of pneumatics vs. electronics only goes back to 1982 and is not a very long historical background". Prior to that, the JAM states, there was no clear demarcation but admits the technology was different. The complainant submits on the weight of the evidence there is a case for the IBEW and Boise to answer. The JAM contends while it may not have made a case for each of the 16 systems, not every case is a change in jurisdiction. Some are new systems. Some are ad-ons. It is IAM's position that the Board cannot make the ruling on the evidence to date.

13Section 91(1) of the Act states:

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.

14It is useful to set out the pertinent clauses in the collective agreement between IAM and Boise.

Article 300 - Union Recognition and 5ecurit~

301.2: Lodge No. 771 of The International Association of Machinists and Aerospace workers is also recognized as the exclusive bargaining agent for all employees engaged in installation, maintenance, dismantling, repairing and assembling all pneumatic, hydraulic and fluidic instrumentation in the Fort Frances mill.

[emphasis added]

Article 1400 Technological change

Article 1401 (a) and (b):

14.01: The Company has the right to adjust all or any of its crews as a result of change in process or a change in equipment, and to make such technical and other changes in its manufacturing processes as it deems necessary for efficient operation.

In recognition of the impact that such changes may have upon employees, and the concern of the parties regarding employees who may be affected, the following will apply:

(a) The Company undertakes to advise the Union as far in advance as is feasible of such changes which the Company has decided to introduce which will result in significant change in the employment status of employees.

(b) The Company agrees to discuss with the Union the effect of such changes on the employment status of employees and to consider practical ways and means of minimizing the adverse effect on employees displaced by such change. measures such as early retirement, retraining and transfers to other existing jobs will be considered.

OPERATION CHANGE5

Article 1800 -

18.01: The Company undertakes to advise the Union as far in advance as is feasible, of major changes in operating schedules, equipment installation, etc., which will result in significant change in the employment status of employees. The Company agrees to discuss with the Union the effect of such changes on the employment status of employees and to consider practical ways and means of minimizing any adverse effect on employees displaced by such changes. Measures such as retraining, transfers to other existing jobs and early retirement will be considered. The Company agrees to recognize established jurisdictional lines in the implementation of this Article 1800.

15Article 300 Union Recognition and Security clause contained in the collective agreement between IBEW and Boise states:

301 (a) The Union is recognized as the sole bargaining agent for all employees assigned to perform work such as that described in 301 (b).

(b) It is hereby agreed and understood that Local Union 1744, of the International Brotherhood of Electrical Workers, has jurisdiction over the work of installation, maintenance and repair and handling as presently practiced of all electrical, electronic and Company-owned communications equipment including the electrical portion of metering, control instruments, computer systems and refrigeration units; including the installation, operation, maintenance generation and distribution of electrical power. The Company further recognizes the foregoing jurisdiction applies to work within the paper mill premises, power houses and other paper mill and kraft mill operations associated directly with the Company's paper mill operations.

[emphasis added]

16The question put before the Board is whether the evidence, at the conclusion of the complainant's case, is sufficient such that the respondents should be called upon to respond. The IAM in its brief stated:

"The work in dispute is the servicing and maintenance of the 16 systems that have been assigned to the members of the International Brotherhood of Electrical Workers, Local 1744."

It is the IAM's claim that some of these systems have been converted from pneumatic and hydraulic instrumentation to electronic instrumentation and that these systems prior to the change were operated by the IAM.

17When reviewing the collective agreements between the IAM and Boise and between IBEW and Boise, and all of the other evidence led by the complainant, there is nothing in the evidence before us which would lead the Board to conclude that Boise is in violation of either agreement in the manner in which work was assigned to members of the IBEW or the IAM. The 1AM agreement speaks of "all pneumatic, hydraulic and fluidic instrumentation in the Fort Francis Mill". The IBEW agreement states, ... "the electrical portion of metering, control instruments, ..." Neither agreement refers to "process control" being the line of demarcation.

18The IAM agreement in Article 1800 addresses operation changes and include the words: "The Company agrees to recognize established jurisdictional lines in the implementation of this Article 1800". The IAM agreement also contains language on technological change in Article 1400 and recognizes the impact on employment.

19Accepting the evidence contained in Vice-Chair Herman's report the Board is satisfied that the relevant criteria for determining jurisdictional disputes, such as collective bargaining relationship and agreements, skill and training, considerations of economy and efficiency, impact on job security, employer practice and employer preference, would not favour the complainant and the Board would not grant the relief requested by the IAM.

20Having considered at length the extensive report of the complainant's evidence, the submissions of the parties and the cases cited, the Board finds the IAM has not produced evidence that might even arguably lead us to grant its claim in whole or part. The evidence indeed suggests the contrary, that the assignment to the IBEW was the most appropriate in all the circumstances. Therefore the motion for non-suit succeeds and this complaint is dismissed.