[1994] OLRB REP. OCTOBER 1404
3782-93-JD International Brotherhood of Electrical Workers, Local 1788, Applicant v. Ontario Hydro and Electrical Power Systems Construction Association and Power Workers' Union, Responding Parties
BEFORE: D. L. Gee, Vice-Chair, and Board Members F. B. Reaume and H. Kobryn.
APPEARANCES: L. A. Richmond, J. Sprackett and H. Bartlett for the applicant; Scott T. Williams, Neil Donnelly, Finn Rimmier and Don Howat for Ontario Hydro and EPSCA; Chris Dassios, Willie Campbell, Mark Beaudette and Steve Reid for Power Workers' Union.
DECISION OF THE BOARD; October 19, 1994
This is an application concerning a jurisdictional dispute filed pursuant to section 93 of the Labour Relations Act (the "Act") by the International Brotherhood of Electrical Workers, Local Union 1788 (the "applicant" or "Local 1788") against the Electrical Power Systems Construction Association ("EPSCA"), Ontario Hydro and Power Workers' Union, CUPE, Local 1000 ("Power Workers' Union"). This application was filed on February 4, 1994.
The Board held a consultation with respect to this application on October 4, 1994. When the consultation concluded on that day, the Board advised the parties that it would reserve its decision in order to permit the panel members to review the materials filed in light of the representations made.
The work in dispute involves the refurbishment of an existing, operational, 115KV powerline running between the Hawkesbury Transmission Station and the Cumberland Transmission Station ("Line 79M1"). The work was performed in three stages during the winter months of 1991-92, 1992-93 and 1993-94. The refurbishment of Line 79M1 involved the replacement of approximately 800-900 wooden poles, 400 structures (insulators, cross arms, crossbacks, guys and hardware) and 65 km of skywire. Given that Line 79M1 is estimated to be 90 km in length, it is apparent that the refurbishment of Line 79M1 resulted in the replacement of a significant portion, but not all, of the Line's components. The new structures and skywire perform the same function at the same capacity as those they replaced. For safety reasons, the new poles are approximately five feet longer than those they replaced. The conductors were not replaced. Once the new poles and structures were in place, the existing conductors were simply transferred to the new poles and the old poles were removed. The work in question was performed live line, meaning the line remained energized while the work was done. It is estimated that it took 20,000 person hours to complete all three phases of the refurbishment.
Ontario Hydro assigned the work in dispute to members of the Power Workers' Union. Local 1788 claims that the work should have been assigned to its members.
In determining whether to allow the application the Board has considered those factors relied on by the parties in their materials and oral submissions, namely: collective bargaining relationships; the existence of trade agreements or jurisdictional conventions; past practice; skill and ability; and economy and efficiency.
Both Local 1788 and the Power Workers' Union argued that the other's collective agreement did not cover the work in dispute.
Article 2 of the Principal Agreement for Transmission System Construction in the Electrical Power Systems Sector between EPSCA and Local 1788 (the "Local 1788 agreement") provides, in part, as follows:
Scope of Agreement
EPSCA recognizes the Union as the exclusive bargaining agency for a bargaining unit as defined in Item B engaged in all construction industry work performed on transmission systems for Ontario Hydro on Ontario Hydro property in the Province of Ontario. This work includes the construction of Lines over 50KV....
Item B contains the following classifications:
Electrician Journeyman including Foreman and Subforeman
Electrician Apprentice
Lineman, Journeyman including Foreman and Subforeman
Communications Electrician
Lineman Apprentice/Learner
Electrical Welder
Ground Work Foreman and Subforeman
Groundman
Groundman Driver
Groundman Operator
Utilityman
Article 4 of the Local 1788 agreement, obliges ESPCA to advise Local 1788 of "new major Transmission Systems Division work". We do not read Article 4 as limiting or restricting the scope of the Local 1788 agreement. We find that the scope of the Local 1788 agreement is sufficiently broad to encompass all transmission systems construction work whether it is "new" (also referred to by the parties as "greenfields") or not. (We note that Local 1788 was not advised of the work in dispute.)
We further find that the work in dispute is transmission systems construction work. The refurbishment of Line 79M1 involved removing virtually all of the Line's old components, except for the conductor, and replacing them with new components. Line 79M1 was not preserved by the performance of the work in dispute, it was replaced. Further, when viewed in context, it is apparent that the refurbishment of 79M1 was a significant endeavour. None of the parties could point to a single similar refurbishment project which came close to the size and extent of the refurbishment of Line 79M1 either in terms of length or number of components replaced. The number of poles replaced in the course of refurbishing Line 79M1 equals or exceeds the total number of poles replaced by Ontario Hydro throughout the entire Province of Ontario during 1988 and represents 1.25 percent of all poles presently in existence throughout the Province of Ontario.
Thus, we find that the scope of the Local 1788 agreement is sufficiently broad to encompass the work in dispute.
The collective agreement between Ontario Hydro and the Power Workers' Union does not explicitly cover construction electricians. Employees represented by other bargaining agents are explicitly excluded from the scope of the agreement. A job description for the classification "Regional Maintainer, (Lines)" (the classification which primarily performed the work in dispute) forms an addendum to the collective agreement. The job description indicates that the primary function of the classification is to:
Construct and maintain transmission and distribution lines and associated apparatus. Maintain power service to electrical customers.
Given our determination of this matter on the basis of the remaining factors, we are willing to assume, without so finding, that the work in dispute is also covered by the collective agreement between the Power Workers' Union and Ontario Hydro.
The creation of a trade agreement or jurisdictional convention requires the knowledge and agreement of the trade unions alleged to be bound thereby. No such agreements or conventions were put before the Board. We find that there are no trade agreements or jurisdictional conventions in existence which govern the assignment of the work in dispute between these parties.
We note that none of the past practice evidence relied upon relates to the refurbishment of a powerline of the size or extent of the project in dispute. The parties are agreed that the refurbishment of Line 79M1 is, by far, Ontario Hydro's largest powerline refurbishment to date.
In the present case, virtually all of the past practice evidence relating to the refurbishment of powerlines relied on by the Power Workers' Union was unknown to Local 1788 and vice versa. There is no mechanism for Local 1788 to be advised of all work assignments made to the Power Workers' Union or vice versa. Further, it is not unusual for work similar to the work in dispute to be performed in remote, isolated areas where it would not be noticed. As a result, although Local 1788 was able to adduce evidence of its members having performed refurbishment work on powerlines to a greater degree than the Power Workers' Union, the work relied upon was not known to the Power Workers' Union and hence we do not view it as determinative.
The past practice evidence adduced which both unions were aware of does not relate directly to work of the sort in question here. It establishes that Local 1788 members have always performed greenfields construction of transmission lines. Members of Local 1788 have built virtually every transmission line of 50KV or over throughout the Province of Ontario. Such evidence establishes that members of the Power Workers' Union make up maintenance crews which continually check the transmission lines for signs of decay or deterioration. Where deterioration is discovered, replacement of a pole or other component is carried out by members of the Power Workers' Union. Accordingly, the past practice evidence of which both unions were aware establishes that members of Local 1788 build new transmission lines and members of the Power Workers' Union check and maintain them or, perhaps, do minor construction.
In our view, Local 1788's past practice more closely resembles the work in dispute and thus supports its claim to the work.
We find that members of both the Power Workers' Union and Local 1788 have the necessary skill and ability to perform the work in dispute such that skill and ability is a neutral factor. Local 1788 has 62 members who are certified as construction powerline workers and six apprentices. (The work in question did not require more than four to six powerline workers at any one time.) Construction powerline workers are trained in live line work.
The Power Workers' Union asserts that it is more efficient to use the travelling crews composed of qualified members of the Power Workers' Union to perform the work in dispute than it is to use a newly created crew of hiring hall based Local 1788 members. Local 1788 asserts that it is more efficient to assign performance of the disputed work to members of Local 1788 as the Local 1788 collective agreement maximizes the ability to hire, retain and lay-off qualified trades people on demand. As indicated above, the refurbishment of Line 79M1 was the first refurbishment of its size and the job more closely resembles work which members of Local 1788 typically perform than that performed by members of the Power Workers' Union. Local 1788 members have familiarity with performing work which most closely approximates the work in dispute. Thus, we are not persuaded that a crew of members of the Power Workers' Union would be able to perform the work more efficiently than a crew of members of Local 1788. We find that economy and efficiency appears to favour assignment of the work in dispute to Local 1788.
Having regard to the all of the relevant factors we find that the relevant past practice and economy and efficiency favour assignment of the work in dispute to Local 1788. The remaining factors are neutral. Accordingly, the Board has determined that the application should be allowed.
The Board declares that the work in dispute; namely electrical construction work performed on the 115KV transmission line between Hawkesbury Transmission Station and Cumberland Transmission Station including replacement of poles, skywire and structures (consisting of insulators, cross arms, crossbacks, guys and hardware) should have been assigned to members of the applicant and, to the extent such work remains to be completed, Ontario Hydro is hereby directed to assign such work to members of the applicant.