Canadian Union of Public Employees, Local Union Number 1393 v. University of Windsor, 1999 CanLII 20166

[1999] OLRB REP. NOVEMBER/DECEMBER 1120

3932-98-JD Canadian Union of Public Employees, Local Union Number 1393, Applicant v. University of Windsor, Responding Party v. The Canadian Power Engineers and Skilled Trades Unit of the Service Employees International Union, Local 210, Intervenor

Jurisdictional Dispute - CUPE plumbers and Operating Engineers' union disputing assignment of certain work related to replacement of liquid heating valves, installation of eye wash stand and shutdown and relocation of heating components - Board determining that replacement of liquid heating valves should have been assigned to composite crew, installation of eye wash stand should have been assigned to plumber, and shutdown and relocation of heating components properly assigned to Operating Engineers

BEFORE: Janice Johnston, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.

APPEARANCES: Edward W Ducharme, Leo Lariviere, Tracy Ringrose, Bert Bastien, Ken Paltridge and Eduard Scherer for the applicant; Marilee Marcotte, Dennis Hastings, Bob Bamberry and Rita LaCrita for the responding party; Brendan Morgan, Nick Sajatovich, Darrell Hennessy, Tullio Porco and Kevin Desmarais for the intervenor.

DECISION OF THE BOARD; December 8, 1999

This is an Application Concerning Work Assignment filed pursuant to section 99 of the Labour Relations Act, 1995 (the "Act"). The Board by decision dated June 29, 1999 dealt with some aspects of the work jurisdiction in dispute. In that decision, we did not deal with the dispute between the applicant, the Canadian Union of Public Employees, Local Union Number 1393 ("CUPE") concerning work which CUPE claims should have been assigned to the Plumbers in its bargaining unit, and the intervenor, The Canadian Power Engineers and Skilled Trades Unit of the Service Employees International Union, Local 210, (the "Operating Engineers"), who also claim jurisdiction over the work.
Before dealing with this aspect of the dispute we asked the parties to file written submissions detailing specific examples of past practice or work assignments supportive of their respective positions. We have received and reviewed these additional submissions.
The parties are in dispute concerning the University's assignment of work to the Operating Engineers which the applicant claims should have been assigned to the Plumbers. The work breaks down into three broad categories:

the replacement of liquid heating valves:

(a) September 2, 1998 - replacement of liquid heating valves in the Human Kinetics mechanical room

(b) May 1, 1998 - replacement of liquid heating valves in the Laurier Hall mechanical room

the installation of an Eye Wash Stand; and
the shutdown and relocation of heating components.

On September 2, 1998, the Operating Engineers removed six hot water heating valves in the Human Kinetics mechanical room and replaced them with five re-built valves and one new valve. The liquid heating and cooling system ("HVAC system") was shut down. The work was performed by two Operating Engineers and took approximately 3.5 days to complete.
On May 1, 1998 the Operating Engineers removed the pump isolation valves in the Laurier Hall mechanical room. The Operating Engineers shut the HVAC system down and drained it so that the valves could be removed. These valves were replaced using re-built valves. This work was performed by three Operating Engineers and took approximately two days to complete. On August 12, 1997 the Operating Engineers removed and replaced the heating valves in the MacDonald Hall mechanical room which houses the heating and cooling system valves. Asbestos insulation had to be removed from the valves and part of the pipes to complete the work. This work was performed by three Operating Engineers and took approximately 14 days to complete.
On May 21, 1998 an Eye Wash Station was assembled by an Operating Engineer. However, the Eye Wash Station was not installed and at the time of the consultation was not functional. A written work order has been submitted requesting that a plumber install the unit. The employer does not dispute that the installation of an Eye Wash Station is Plumbers' work.
On April 3, 1996 the employer assigned to the Operating Engineers the job of shutting down and relocating various heating components in the mechanical room in the Faculty of Law. The work included the relocation of a condensate receiver, the removal of a convertor, the installation of a new flash system vessel and the installation of a vent line through the roof with related piping.
Article 24(20) of the collective agreement in place between CUPE and the University provides:

24:20 (For Trades positions in the Maintenance Department Only)

The parties agree to transfer the current Maintenance Department Job Descriptions of the Mason, Painter, Carpenter, Electrician and Plumber and the work jurisdiction from C.U.P.E. Local 1001 to C.U.P.E. Local 1393. Change to current Job Descriptions (as of April 1990) that may occur, will be done bearing in mind the need to be certified by the Province to work at the University of Windsor as a Plumber, Carpenter, Mason, Painter, or Electrician. Said changes will be within the scope and jurisdiction of the particular Trade that the Job Description needs amending and should not result in deskilling of the above Trades.

Persons employed in CURE. Local 1001 shall be allowed to continue the present practice of assuming some of the duties (for example welding, Mason work, carpet and ceramic work) of the Plumber, Carpenter, Painter, Electrician, and Mason for which they are qualified, even though these duties belong to C.U.P.E. 1393. If such employee assumes some of these duties on a temporary basis, she/he shall be paid at the minimum rate of the applicable classification as provided for in Schedule "A" of the within Collective Agreement.

The foregoing shall not apply where an employee is required only to assist or work as a Helper to a member of the above mentioned trades.

Counsel for CUPE argues that this provision is important because it incorporates by reference the job description of Plumber into the collective agreement. The Plumbers' job description provides the following:

Repairs to a steam hot water, glycol and chilled major component (i.e. such things as convertors, connectors, fin tube radiation, forced flow units, coils, terminals, reheat or cooling coils, circulating pumps, booster pumps, and/or units similar to any of the above that are used for the purpose of heating, cooling, and/or ventilating) are the responsibility of the Operating Engineers. If a repair to the piping of the above systems can be made without shutting the system down, the repairs will be done by the Operating Engineers. If the repairs require shut down or isolation, the Operating Engineers will be responsible for the shut down and the plumbers will effect the repairs. The system will then be turned back to the Operating Engineers for start-up and control.

Language identical to that set out above is also found in a document entitled "Memorandum of Agreement Between the University of Windsor, The Canadian Union of Public Employees, Local 1001, and the Canadian Union of Operating Engineers, Local 102, as entered into this 15th day of March, 1972" (the "Memorandum"). Counsel on behalf of the Operating Engineers and the University argue that the language in the Memorandum, which is identical to the language set out above, was intended to apply only to new construction work not repair work. They assert that since the installation of the HVAC system, the maintenance and repair of it has been the responsibility of the Operating Engineers.
In support of its position that the work on April 3, 1996 involving the shutting down and relocation of various heating components in the Faculty of Law should have been assigned to the Plumbers, CUPE referred the Board to a portion of the Plumbers' job description which provides that the following is to be Plumbers' work:

The installation of all mechanical work involved in the setting and erecting of all boiler feeders, water heaters, filters, water softeners, purifiers, condensate equipment, pumps, condensers, coolers and all piping for same in distributing and boosting stations, for liquid refrigeration and liquid heating, ventilating and air-conditioning systems.

It is the position of the employer that all of the work outlined above has always been performed by the Operating Engineers. For operational reasons based on economy and efficiency, the University has always assigned this work to Operating Engineers. The employer points out that the Operating Engineers have the capability to shut down the system, drain the system, replace the valves and re-start the system. The Plumbers on the other hand do not have the skill and ability to shut down and drain the system, nor can they re-start the system. Therefore, the only component of the work which they are able to perform is the valve replacement work. Accordingly, in the view of the University, it makes more sense to assign all of the work to the Operating Engineers as they can safely and efficiently perform it all.
The parties agree that skilled trade workers, including plumbers, steamfitters, welders, and pipe fitters were required when the original HVAC system was installed on the employer's premises. Where they diverge concerns the responsibility for the maintenance and repair of the UVAC system. CUPE points to the collective agreement and the Plumbers' job description as support for the contention that when the system is shut down, the plumbers are to perform the repair work. The University argues that since the installation of the system, all of the maintenance and repair work on the system, regardless of whether or not the system is shut down or not, has been performed by the Operating Engineers.

Decision

As was noted in our June 29, 1999 decision, the Board has developed a number of criteria for evaluating competing claims for the jurisdiction to perform certain work. In Ecodyne Limited, [1997] OLRB Rep. March/April 197, the Board stated:
In jurisdictional dispute complaints, the Board will consider everything which is relevant. Accordingly, it is neither possible nor appropriate to describe an exhaustive list of factors, or to construct or mechanically apply some formula or "checklist" in that respect. Nevertheless, the Board has developed a general practice, which has been accepted by the construction industry, of referring to several broad overlapping categories and factors which it will consider. These were first set out some 30 years ago in Canada Millwrights Ltd., [1967] OLRB Rep. May 195, as follows:

trade union constitutions and collective agreement;
skill, training and safety;
economy and efficiency;
employer practice and preference;
area practice.

The criteria set out above are traditionally utilized by the Board in the context of a construction industry application. Although the case before us is not a construction industry application but one made in the "industrial context", it nevertheless bears some similarity to a construction industry application as the work in dispute is skilled trades work. As we noted in the June 29th decision, in the industrial context the Board places more emphasis on employer preference provided that there are no contractual provisions preventing the employer from making the work assignment it did. Given the unique facts before us we are of the view that it is helpful to look at as many of the criteria as are relevant. In assessing the work in dispute we will look carefully at such factors as: past practise at the university; employer preference; the collective agreements in place and the 1972 Memorandum; skill and training, and economy and efficiency.

Past Practice

In response to our request for additional submissions, CUPE provided us with a variety of examples of work which had either been performed by the Plumbers or had been performed by the Operating Engineers but successfully grieved by the Plumbers. The employer responded to each of these examples and the Operating Engineers adopted the employer's submissions. We will not set out in detail the submissions of the parties. Suffice it to say that some of the examples provided by CUPE were helpful and some were not. However, what emerges is a less than clear picture concerning the practice of the University in assigning the type of work we are dealing with. It appears that on occasion the work has been performed by the Plumbers, on occasion by the Operating Engineers and that mixed crews have also been utilized. Therefore, although we thank the parties for the time and effort spent preparing their submissions, unfortunately they do not establish a clear past practice.

Employer Preference, Skill and Training and Economy and Efficiency

The employer made it clear that it prefers to use Operating Engineers to perform the work at issue in this case. They argue, and this was not disputed, that the Operating Engineers have the training, skills and ability to perform all of the work claimed by the Plumbers in this case. In the employer's view, it is simply more efficient to have the one trade perform the work rather than establishing mixed crews.

Collective Agreements and the 1972 Memorandum

Counsel for CUPE argues that the Plumbers' job description has been incorporated by reference into the collective agreement between CUPE and the University. A careful analysis of Article 24.20 does not support that assertion. All Article 24.20 does is transfer the current job descriptions for various trades and the work jurisdiction for their trades from CUPE Local 1001 to CUPE Local 1393. There is nothing in Article 24.20 or anywhere else in the collective agreement that counsel pointed to that incorporates the job descriptions themselves into the collective agreement.
Accordingly, we are left with the Plumbers' job description and the Memorandum from 1972, which in identical language appear to indicate that when the system is shut down repairs to piping shall be done by the Plumbers. All other repairs, both when the system is shut down or operating, are to be done by the Operating Engineers. Both the employer and the Operating Engineers took the position that the 1972 memo was intended to deal with the construction of new facilities and did not apply to ongoing maintenance and repair. CUPE disputes this.
Leaving aside the 1972 Memorandum, the terms of the Plumbers' job description does support the claim of the Plumbers that when the system is shut down, repairs to piping are to be performed by the Plumbers. CUPE asserted that the reference to "repairs to piping" includes the repair and replacement of valves such as took place in this case. This was not disputed by the employer.
Therefore in this case we have employer preference, which includes arguments of efficiency, balanced against long standing and agreed to job descriptions and the 1972 Memorandum. The past practice does not establish a clear pattern and is therefore a neutral factor. While we are satisfied that the University had sound operational reasons for assigning the work to the Operating Engineers, a review of the language in the Plumbers' job description and the 1972 Memorandum makes it clear that some of the maintenance and repair work on the HYAC system was intended to be, in certain very limited circumstances, performed by the Plumbers. In other words, if repair to the piping is to be performed on the system which requires the entire system to be shut down, a composite crew made up of Plumbers and Operating Engineers should be used by the University.
In our view the work which fell under the heading "replacement of liquid heating valves" referred to in paragraphs four and five in this decision, should have been assigned to a composite crew. It was not. Accordingly, the portion of this application dealing with the replacement of liquid heating valves is hereby granted and the Board declares that this work ought to have been assigned to a composite crew made up of Plumbers and Operating Engineers. This issue is referred back to the parties to determine how the work should have been apportioned.
To date, the work which has been performed with regard to the Eye Wash Station consists of assembling it. It is not clear whether the assembly of an Eye Wash Station in the past has been done by the Plumbers or the Operating Engineers. However, counsel for the Plumbers asserts that the installation, repair and maintenance of eye wash stations is the work of a plumber. We agree. Therefore, assuming that assembling an eye wash station is part of the "installation" phase, then it is the work of the Plumbers and should have been performed by a Plumber. If the employer only ever assembles the station and never installs it (for whatever reason) then the work would not necessarily be part of the installation of an eye wash station and could be performed by an Operating Engineer. However, for the sake of deciding this issue we will assume that the employer intends to make the eye wash station functional. Accordingly, the portion of this application dealing with the work surrounding the eye wash station is hereby granted and we declare that the work should have been performed by a Plumber.
The shutdown and relocation of various heating components was alleged by CUPE to the Plumber's work based on the Plumber's job description. However, a careful review of the language relied upon by CUPE makes it clear that the Plumbers' job description refers to "installation" not repair or maintenance". As the work referred to involved repair and maintenance as opposed to installation, the job description is not applicable. In our view this work was properly assigned to the Operating Engineers.
The HVAC system has been in place for a long time. Up to now, the parties appear to have been able to work out their differences and effect repairs and maintenance on the system without getting into a jurisdictional dispute. In the context of the jurisdictional dispute before us, we have dealt with some specific situations and provided some short term answers. In the interest of sound labour relations, we would urge the parties to meet and bargain a longer term solution to a problem that will no doubt re-surface.
In the event that the parties should have any difficulty implementing this decision, we will remain seized.