[1999] OLRB REP. JULY/AUGUST 732
0304-99-JD Communications, Energy and Paperworkers Union of Canada, Local 89, Applicant v. Spruce Falls Inc., International Brotherhood of Electrical Workers Local 1149, Responding Parties
BEFORE: John M. Lewis, Vice-Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD; August 23, 1999
This matter is an application concerning a work assignment under section 99 of the Labour Relations Act, 1995. A consultation took place on August 12, 1999. While the application is properly identified as a complaint concerning a work assignment, the underlying dispute between the parties is the composition of the union affiliation of workers in the department out of which employees are assigned to perform the work in dispute.
The work in dispute consists of the following:
The installation, maintenance and repair of all pneumatic, hydraulic, electronic and electrical instrumentation equipment including but not limited to:
(i) the Bailey Distributed Control System;
(ii) instrumentation in connection with variable speed AC and DC drives;
(iii) Programmable Logic Controllers and similar equipment.
The work in dispute has long been a source of friction between the instrument mechanics represented by Communications, Energy and Paperworkers Union of Canada, Local 89 ("Local 89") and the electricians represented by International Brotherhood of Electrical Workers, Local 1149 ("Local 1149"), which culminated in a lengthy dispute before the Board. In its decision in Spruce Falls Falls Power and Paper Company Limited, [1988] OLRB Rep. July 708, the Board held, inter alia, that the jurisdictional demarcation between instrument mechanics and electricians was not based on the manner in which the equipment was powered; i.e., whether it was pneumatic, hydraulic, electrical or electronic but rather whether the equipment was properly characterized as process control or motor control. Jurisdiction over the maintenance and repair process control equipment fell to instrument mechanics represented by Local 89. The maintenance and repair of motor control equipment was encompassed by the jurisdiction of electricians represented by Local 1149.
That determination by the Board in 1988 is neither particularly helpful nor relevant to this application because other events impacted on the parties in the late 1980's requiring them to structure their relationship in an entirely different manner. In 1990, the owners of Spruce Falls Power and Paper Company Limited decided to divest themselves of the Kapuskasing operation. Through the intervention of the provincial government, the assets were sold to Spruce Falls Inc. (the "employer"). As a condition to the sale taking place, the employer was able to obtain the agreement of Local 1149 and Local 89 to Multi-Trade Skills Work Assignment and specifically the merger of the Electrical and Instrument Mechanic Trades to form a single Electrical/Instrumentation Department (the "E/I Department"). The key aspects of the agreement are as follows:
(i) the Electrical and Instrument Mechanic Trades would be merged;
(ii) all past practices with respect to trade jurisdictional lines of work assignment were null and void;
(iii) maximum efficiency and utilization of employee skills would govern all work assignment;
It was the common understanding of the employer, Local 1149 and Local 89 that the work jurisdiction in the E/I Department would be shared. But there was no agreement as to a specific ratio and further there was no agreement as to absolute numbers of instrument mechanics as members of the E/I Department. Individuals working in the E/i Department could freely choose to be a member of either Local 1449 or Local 89 as long as they were qualified to perform the work. Prior to the formulation of the E/I Department, there were apprenticeship programs for both instrument mechanics and electricians. In the pursuit of creating a multi trade E/I Technician, instrument mechanics working in the E/I Department were required to undergo additional electrical training and likewise, electricians working in the E/I Department were required to undergo additional instrumentation training.
In March of 1997, the employer indicated that it was upgrading the Electrical Apprenticeship Program (the "program") by incorporating instrumentation training in the curriculum. It is this decision Al of the employer, which is the real dispute between the parties. Although this program is available to all employees of the employer, and is not restricted only to members of Local 1449, counsel for Local 89 argues that this upgrading will result in all future postings for positions in the E/I Department being filed by members of Local 1449 as they will be the only employees who are qualified to perform the work currently being performed by the E/I Department. The explanation given for this result is that the program is under the direction of Local 1149 and therefore only members of Local 1449 will take part in the program.
In the summer of 1997 an employee in the E/I Department retired. This employee was an instrument mechanic and a member of Local 89. The employer posted for the position in the E/I Department. The position was awarded to a member of Local 1149. Local 89 filed a grievance, which was referred to arbitration. By a decision dated February 23, 1999 Susan Tacon sitting as a Sole Arbitrator concluded that the issue raised by the grievance was a jurisdictional dispute and ought to be remitted to the Board.
The employer and Local 1449 argue that Local 89 cannot make any claim to the work as jurisdictional claims were waived upon the creation of the merged E/I Department. The employer was simply filling the posting by selecting the most qualified individual who could choose to be represented by either Local 89 or Local 1449. Further, there was no requirement that the position had to be filled by a member of Local 89. Local 89 takes the position that by augmenting the program, the employer has not acted in a neutral manner but has ensured that no member of Local 89 could ever successfully fill a posting in the E/I Department.
Having carefully reviewed the materials filed and after considering the representations made by the parties at the consultation on August 12, 1999, the Board confirms the employer's assignment of the work in dispute. While there was an agreement to share the work jurisdiction of the E/I Department, there was no guarantee that either Local 89 or Local 1449 would maintain its respective number of members. The parties agreed that the employer would consider only the factor of efficiency to fill a posting. That is exactly what the employer did. While the effect of augmenting the program may be determinative of which workers will successfully fill a posting in the E/I Department, nothing prevents members from Local 89 from participating in the program nor is there anything preventing individuals who have successfully completed the program and who have accepted a position in the E/I Department, from joining Local 89.
This application is hereby dismissed.