[1999] OLRB REP. NOVEMBER/DECEMBER 1116
4093-98-JD Unimin Canada Ltd., Applicant v. United Steelworkers of America, Local 5383, and Communications, Energy and Paperworkers Union of Canada, Local 306-0, Responding Parties
Jurisdictional Dispute - Steelworkers' union and CEP disputing assignment of certain mining work in respect of ore sitting on or near dividing line between two mining properties -Board confirming employer's assignment to Steelworkers' union
BEFORE: Brian McLean, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
APPEARANCES: Douglas Gilbert, Andrew Bradley, Tom Harvey and Peter Cuff for the applicant; Robert Healey, Ron Varley and P. J. Hill for the USWA, Local 5383; E. Batten, Richard Taylor and Bob Post for the CEP, Local 306-0.
DECISION OF THE BOARD; December 9, 1999
- This is an application under section 99 of the Labour Relations Act, 1995 ("the Act"). The application is brought by Unimin Canada Ltd. ("the employer" or "Unimin") for a declaration that a work assignment made to employees represented by the United Steelworkers of America ("the USWA") is appropriate. The employer also requests that the Board declare that employees represented by the Communications, Energy and Paperworkers Union ("the CEP") have no right to the work at issue. A consultation was held in this matter on August 19, 1999. By decision dated August 30, 1999, the Board confirmed the employer's work assignment in a bottom-line decision. These are the full reasons for that decision.
Background Facts
This application concerns work in dispute at two adjoining mining properties, the Nephton mine and the Blue Mountain mine. Each mine property contains an open pit mine and a processing plant where ore is processed.
The employees at the Blue Mountain mine have for many years been represented by the USWA in their relations with their employer. The employees at the Nephton site have been for some time represented by the Energy and Chemical Workers Union (now the CEP). Many years ago, the two properties were owned by different mining companies. However, in 1985 both properties were owned by one company, Indusmin, a division of Falconbridge Ltd. Indusmin sold both properties to Unimin in September 1990. Unimin owns both properties as at the date of this application.
In the late 1970's and early 1980's Indusmin, which owned the Nephton site, mined near to the property line dividing the two properties. If Indusmin were to have extracted all of the ore right up to the property line it would have encroached (through erosion and otherwise) on the Blue Mountain mining property which it then did not own. Accordingly, and in accordance with industry standards and mining regulations, in order to remove as much ore as possible at the boundary line without compromising the abutting property, the company left narrow and steep benches 30 to 45 feet high in the Nephton mine up to the property line. In 1987 Indusmin ceased mining on the Nephton mine. All of the ore required to supply both plants was thereafter mined from the Blue Mountain mine. Unimin continued this practice except in 1994 and 1995 when it extracted a small amount of ore form the Nephton mine.
Over time, loose waste rock from blasting operations at the Blue Mountain property has come to rest on the benches on the Nephton property. The applicant provided the Board with pictures which show that there is a substantial amount of debris on the benches which makes it currently impassible to traffic. In addition, the Nephton property near the property line is filled with water.
In 1987 there was a jurisdictional dispute between Indusmin and the two unions when Indusmin ceased mining on the Nephton mine and sought to transfer miners, represented by the CEP, to the Blue Mountain site without changing the miners' union affiliation. The USWA grieved. Arbitrator Norris Davis heard the case and ruled that mining and processing ore on the Blue Mountain property was in the jurisdiction of the USWA and likewise, that mining and processing ore on the Nephton property was in the CEP's work jurisdiction. Mr. Davis' award rejected a jurisdictional distinction which would divide the mining of ore based on where the ore was to be processed. The award also recognized that moving ore by truck from the Blue Mountain property to any destination beyond the Blue Mountain property (i.e. to the Nephton plant) was not in the jurisdiction of the USWA.
This application arises because Unimin now wishes to mine ore that sits on or near the line dividing the two properties. Throughout the consultation, the area to be mined was referred to by the parties and the Board, in the mining sense, as "the pillar" because, if the employer were to mine only what it could mine on the Blue Mountain property without encroaching on the Nephton property, it would, as had been done previously on the Nephton property, leave narrow and steep benches on the Blue Mountain property near the property line. If that were to occur, a triangular pillar would be left on the border dividing the two properties.
Ore mined from different locations and elevations in the Blue Mountain mine contains varying amounts of mineral product. In order to maintain a consistent product grade which meets customer specifications, Unimin must extract ore from different locations in the mine. Mine crews are relocated on a shift by shift basis, and sometimes mid shift, in order to supply the processing plants with the required grades.
Because of this blending process the mining of "the pillar" will be performed over a number of years. In fact Unimin forecasts that there would be years when no mining at all would take place on the pillar. In addition, there was no dispute that the mining crew's daily work location cannot be predicted or scheduled as it depends on the mineral composition of the ore that is actually mined. Moreover, mining is likely to occur only intermittently on the pillar for up to 20 years.
The employer would like to have employees who are represented by the USWA mine "the pillar". CEP asserts that because work on "the pillar" inherently involves mining on the Nephton mine property and because Mr. Davis ruled that work on the Nephton property was in the CEP's jurisdiction, its members should be assigned to mine the Nephton side.
The Preliminary Issue
The CEP argued that this application was not a jurisdictional dispute at all. All of the parties understood that the CEP members had the right to mining work on the Nephton property and USWA has bargaining rights over mining work on the Blue Mountain property. There is no claim by USWA to mine in the Nephton property, and there is no claim by CEP to mine on the Blue Mountain property. Therefore, there was no competing claim to work.
There are two difficulties with the CEP's argument. The first is that it ignores the practical realities of the situation. It is impossible for the pillar to be mined from one side or the other without substantial encroaching on the other side. Even if Unimin could draw a line on the pillar and assign the work on one end of the line to the union and work on the other side to the other union, it is inevitable that blasted rock would cross the line leading to disputes about who owned the rights to work with such rock. Moreover, it would be inevitable that there would be occasions where access through the Blue Mountain property to the Nephton property would be safer and more efficient. In fact, the employer and USWA argued, and from the evidence presented to us we agree, that it would be extremely difficult and costly to safely mine the pillar from the Nephton side at all because the benches are covered in loose boulder and rock and the Nephton side is filled with water.
More importantly, a jurisdictional dispute arises where there is a dispute about which union work ought to be assigned to even on a shift by shift basis it would be difficult to know whether the mining would occur on the Nephton or Blue Mountain side of the pillar or on the pillar at all. In Boise Cascade, [1996] OLRB Rep. May/June 343) the Board held that a jurisdictional dispute exists when there is a "demand that the work assigned to one group of employees be assigned to other employees". That is clearly the case in the application before us: Uuimin has assigned work to the USWA which the CEP claims. Therefore, we have no hesitation in finding that this application concerns a jurisdictional dispute.
The Merits
The Board has to consider three possible alternatives for how the work should be assigned: to the CEP alone, to the USWA alone, or it could be shared between employees represented by the two unions.
The CEP did not strongly argue that it should have exclusive jurisdiction over the mining work on the pillar and we are unable to find under the circumstances, that this would be an appropriate remedy. That leaves either the USWA alone or a sharing arrangement.
In jurisdictional disputes the Board generally considers the following factors:
collective bargaining relationships
agreements between the competing unions
area practice
employer practice
safety, skill and training
economy and efficiency
employer preference.
Of the factors generally considered by the Board in jurisdictional dispute cases, the first four are either neutral or do not apply in this case. The last three, however, all favour granting the jurisdiction to the USWA exclusively.
Our primary reasons for coming to this conclusion are economic and practical because mining to be conducted at the pillar would be so erratic as to make it impractical to use CEP miners. There was no real dispute that because of the company's legitimate requirements to mine a standard grade of ore it was nearly certain that the company, over the course of a number of years, would only mine at the pillar sporadically when the quality of ore found at the pillar was needed to be added to other, different quality ore, to create ore with a specific grade. This means that in order to involve the CEP, a CEP crew, or member, would have to be called in on those relatively rare occasions when the company decided it needed to extract ore from the pillar. This would inevitably delay the mining process.
In coming to our conclusion, we were convinced that the ore could not be efficiently or safely mined from the Nephton Property. The materials presented convinced us that there was too much loose rock and water. Even clearing up the area so that it could be mined would appear to be hazardous. While the CEP disputed these facts, they provided no reports or other materials to suggest that their proposition was correct. Accordingly, since the mining had to be done primarily from the Blue Mountain property, it was natural and practical for the Company to use employees who work at the Blue Mountain mine.
Finally, while there is little doubt that the CEP miners were experienced, and had mined on the Nephton property for many years, it was equally true that these employees had been working in a plant environment exclusively since 1987, with minor exceptions in 1994 and 1995. We were satisfied, therefore, on balance, that the skills of the CEP miners might not be current. To the extent this is a relevant factor, and we believe it is, the problem is exacerbated by the small amount of mining CEP employees would do over the next 20 years. Quite simply, given the fact that the work is dangerous and that there is only a small amount of it, we found that it made sense for the employer to use employees whose mining skills are clearly current.
The CEP argued strenuously that if the Board were inclined to find that there was a jurisdictional dispute and that USWA had some right to mine on the Nephton side of the pillar, CEP employees should be assigned a share of truck driving in connection with the work equivalent to the lost man hours.
We are unable to find in favour of the CEP on the request that its employees be assigned truck driving as compensation for the CEP work "lost" on the Nephton side of the "pillar". In our view, we do not have the jurisdiction to make such an order, as truck driving was not work in dispute and was not work that was at issue before us. The CEP's request was in essence a request that the Board implement a settlement of the dispute (a settlement which was rejected by the USWA), but that is not our role.
As a result and for the foregoing reasons, we confirm that it is appropriate for the employer to assign the work at issue in this application exclusively to employees represented by the USWA as proposed.