2818-98-M Enwave District Energy Limited, Applicant v. Canadian Union of Operating Engineers and General Workers, Responding Party v. Canadian Union of Public Employees, Local 416, Interested Party.
3527-98-U Canadian Union of Operating Engineers and General Workers, Applicant v. Enwave District Energy Limited, and Canadian Union of Public Employee, Local 416, Responding Parties.
3586-98-JD Enwave District Energy Limited, Applicant v. Canadian Union of Operating Engineers and General Workers and, Canadian Union of Public Employees, Local 416, Responding Parties.
0166-99-U Canadian Union of Public Employees Local 416, Applicant v. Enwave District Energy Limited, and Canadian Union of Operating Engineers and General Workers, Responding Parties.
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: Steve Lavender, Z. Grgar and Steve Karikas for the Canadian Union of Operating Engineers and General Workers; Brian Sheehan, B. Cochrane, N. McKenzie and D. Styles for the Canadian Union of Public Employees, Local 416; James B. Noonan and Graham Harding for Enwave District Energy Limited.
DECISION OF THE BOARD; April 28, 2000
The style of cause is amended to reflect the new name of the Toronto District Heating Corporation which is “Enwave District Energy Limited”.
Board File Nos. 0166-99-U and 3527-98-U are unfair labour practice complaints filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”). Both these applications are withdrawn with leave of the Board on the parties’ agreement and understanding that the pleadings filed in each application can be relied upon by the Board to the extent necessary to reach its decisions in the remaining applications.
Board File No. 2818-98-M is a ministerial reference to the Board made pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act (“HLDAA”) which poses the following question to the Board:
Does the Hospital Labour Disputes Arbitration Act govern the relationship between the Toronto District Heating Corporation and the Canadian Union of Operating Engineers and General Workers?
- Board File No. 3586-98-JD is an application concerning work assignment filed by Enwave District Energy Limited (“Enwave” or the “employer”) in which it requests that the Board decide which of the Canadian Union of Operating Engineers and General Workers (the “CUOE”) or the Canadian Union of Public Employees, Local 416 (“CUPE”) represents the worker(s) at the Chilled Water Plant.
JURISDICTIONAL DISPUTE
The Board will first address the application concerning the work assignment. The Board notes at the outset that Enwave takes a neutral position with respect to the question of whether the work at the Chilled Water Plant (“CWP”) should be assigned to either the CUOE or to CUPE. It simply wants the Board to decide which union should have the jurisdiction for that location.
In reaching a decision the Board has relied on undisputed facts as outlined in the documents before the Board, and in the parties’ pleadings.
Enwave’s mandate is to provide heating and cooling services to Toronto’s downtown district which includes the area from the waterfront to Queen’s Park/College Street, and from University Avenue to Church Street. In order to provide these services it operates three steam plants in downtown Toronto on Walton Street, Pearl Street and at Queen’s Park. Enwave also operates a Chilled Water plant and chilled water lines from the Metro Toronto Convention Centre. When first operational the CWP was an unstaffed operation.
The CUOE is the undisputed bargaining agent for Enwave’s employees at the Walton Street plant, and at the Queen’s Park plant when staff are needed at that location. The CWP monitoring equipment is located at the Walton Street plant and the CWP location was serviced on an “as needed” basis by employees from the Walton Street plant between June 1997 and January 18, 1999. The CUOE recognition clause also includes the CWP.
CUPE is the bargaining agent for Enwave’s employees at the Pearl Street plant. Prior to February 26, 1998 the International Union of Operating Engineers (“IUOE”) represented the Pearl Street employees. CUPE displaced the IUOE by way of a successful certification application.
On November 5, 1997 representatives of Enwave, the IUOE and the CUOE met to discuss staffing of the CWP. There is some dispute about what was verbally agreed to at that meeting. Enwave believes that it agreed, along with the CUOE, to negotiate an extension of the CUOE’s jurisdiction to include the CWP and the Queen’s Park plant, and that the IUOE would be informed about the results of the negotiations. Enwave further believed that the IUOE conceded that CUOE would have jurisdiction over the CWP. The Enwave recollection of the meeting is consistent with CUOE’s recollection. According to CUPE, the IUOE representatives indicated that if the parties were simply discussing who would be performing the work on an as-needed basis, that it did not oppose the CUOE members performing the work. CUPE claims that this was consistent with the IUOE’s previous position that if it was not granted exclusive jurisdiction over the CWP operation, it did not want its members even temporarily assigned to the CWP.
On March 4, 1998 Enwave and CUOE agreed to amend the CUOE collective agreement by way of Minutes of Settlement. The scope clause of the CUOE collective agreement was extended to include jurisdiction at the CWP and the Queen’s Park plant.
In late September 1998, during the course of collective bargaining with CUPE, the employer advised that union that it intended to employ regular full-time personnel to operate the CWP. At that point CUPE took the position that such work would be within its jurisdiction. By a letter of understanding dated October 15, 1998 the employer acknowledged, without agreement, CUPE’s claim to any permanent work at the CWP. Enwave also confirmed that it was neutral about whether either union had jurisdiction, but agreed to make an application to the Board for a determination of the jurisdictional issue.
Edward da Silva, a union steward for the IUOE and later for CUPE, was present on behalf of the IUOE at the November 5, 1997 meeting at which the parties had discussed the CWP. On October 6, 1998 Mr. da Silva wrote a letter to Sam David, the CUOE union steward. Although CUPE now claims that Mr. da Silva did not have its authorization to write the letter, he was the CUPE union steward and his letter states as follows:
I would like the opportunity to sit down with you and Doug Talbot to discuss some issues that may [be] of benefit to both Pearl and Walton street bargaining units, concerning the chilled water plant.
I understand that the chilled water plant is part of the Walton street collective agreement and I am not questioning your jurisdiction.
(emphasis added)
On October 28, 1998 a job was posted for a Second Class Engineer at the CWP. Although the posting was made at both the Pearl and Walton Street plants, only Pearl Street employees applied and the successful applicant was therefore from the CUPE bargaining unit. Since that time a second posting has also resulted in a CUPE member being the successful applicant. Union dues collected from these individuals have been held in trust pending the outcome of this application.
The scope clause in the collective agreement between CUOE and Enwave reads as follows:
The Corporation recognizes the Union as the bargaining agent for all employees classified as Stationary Engineers and their Helpers and all other classifications listed in Article 27.01 employed by the Corporation in Metropolitan Toronto at the Walton Street Steam Plant, the Queen’s Park Steam Plant, and the Chilled Water System, save and except Chief Engineers and persons above the rank of Chief Engineer.
- The scope clause in the collective agreement between CUPE and Enwave reads as follows:
1.01 The Corporation recognizes the Union as the sole collective bargaining agent for all stationary engineers, millwrights and persons primarily engaged in the generation of steam at the Corporation’s Pearl Street Plant, save and except Chief Operating Engineers and persons above the rank of Chief Operating Engineer.
The Board notes that the predecessor union, the IUOE, had the same recognition clause in its collective agreement with the employer.
CUPE claims that there has been an historic split between the two unions such that CUPE (or its predecessor the IUOE) maintained the lines emanating from the Pearl Street plant (with the exception of one line running down the west side of Simcoe Street) and the CUOE maintained the lines emanating from the Walton Street plant. This has effectively meant that CUPE has covered the area south of Dundas Street, with the one exception; and, the CUOE has covered the area north of Dundas Street. The CWP lines are south of Dundas Street and are close to the Pearl Street plant. Despite CUPE’s claim, however, it is agreed that the split is no longer recognized by any of the parties.
The relevant portions of section 99 of the Act states:
(1) This section applies when the Board receives a complaint,
(a) that a trade union or council of trade unions, or an agent of either was or is requiring an employer or 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;
(b) that an employer was or is assigning work to persons in a particular trade union rather than to persons in another; or
In jurisdictional disputes the Board generally considers the following factors: The collective bargaining relationships; the agreements between the competing unions; area practice; employer practice; safety, skill and training; economy and efficiency; and employer preference.
In this case consideration of a number of the usual factors is of little assistance. The employer has expressed no preference as between the two unions. There is no difference between the skills and training of the individuals in each of the bargaining units as they are all trained operating engineers. For the same reason there is no argument being made regarding the factor of economy and efficiency. Given the nature of the business, there is no evidence of area practice. That leaves for the Board’s consideration the factors of the collective bargaining relationships, the agreements between the competing unions and the employer’s practice.
The recognition clauses of the two pertinent collective agreements have been outlined above. It is clear that the CUOE has bargained the inclusion of the CWP and the Queen’s Park Steam Plant in its recognition clause. CUPE has conceded that its recognition clause does not cover any location except the Pearl Street Plant. It would therefore appear to the Board that the collective agreement recognition clause favours CUOE.
In considering the agreements between the competing unions the Board has before it the employer and CUOE’s understanding of the November 1997 meeting at which time the IUOE was apparently aware that Enwave and the CUOE were undertaking to discuss the latter union getting jurisdiction for the CWP. While CUPE does not agree with this characterization of the November meeting, CUPE concedes that its predecessor union had agreed that all “as needed” work to be done at the CWP would be done by the CUOE and it specifically had no interest in this work.
Furthermore, the Board has before it Mr. da Silva’s letter of October 1998. In that letter Mr. da Silva, as the union steward for CUPE, indicated he was not questioning the CUOE’s jurisdiction regarding the CWP. CUPE argues that it was not aware of the letter, and that its steward had no authority to write the letter. However, Mr. da Silva was present at the November 1997 meeting where the issue of CUOE’s jurisdiction was discussed and he was aware that CUOE and the employer had agreed in March 1998 on an extension of the CUOE recognition clause to include the CWP. In light of that knowledge he appears to have accepted that CUOE had jurisdiction over the CWP.
In the Board’s view once IUOE indicated it was not interested in staffing the CWP on an “as needed” basis, it exhibited a lack of interest in that operation. It is immaterial that it took that position because it believed there was no permanent position at the plant. It is interesting to note that CUPE argued that there is an historic split regarding the areas in which the two unions maintain the steam lines, and that it should therefore get jurisdiction over the CWP, whose lines fall within the CUPE area. However, that does not appear to have been the IUOE’s view in 1997 when it refused to do the required work at the CWP. In any event, the CWP has cold water lines, and is the only such operation run by the employer, so there is no historical precedent for such lines. The CUOE took on the work, and it ultimately also bargained, with the IUOE’s knowledge, an extension of its recognition clause to include the CWP. CUPE is the successor union to the IUOE, and is bound by the decisions that union made in this instance.
The employer practice in this case was to give work at the CWP to CUOE as and when work needed to be done because that union had agreed to do the work. The IUOE had no interest in the work.
To the extent that there is evidence before the Board regarding which union should have the jurisdiction to perform the work at the CWP, the Board finds that the evidence supports the CUOE’s claim to the work and jurisdiction. The IUOE may have made a tactical error in its decision not to do the work in the early days at this location or to seek an amendment to its recognition clause, but that is what CUPE has inherited. While CUPE has tried to assert jurisdiction over the CWP, it simply arrived too late by which time the die had been cast.
For all of the above reasons the Board finds that the CUOE has the jurisdiction over the work in dispute at the Chilled Water plant.
MINISTERIAL REFERENCE REGARDING THE APPLICATION OF THE HOSPITAL LABOUR DISPUTES ARBITRATION ACT
- As noted earlier, the Minister of Labour has referred the following question to the Board for its advice:
Does the Hospital Labour Disputes Arbitration Act govern the relationship between the Toronto District Heating Corporation and the Canadian Union of Operating Engineers and General Workers?
The parties have agreed that the Board may address this question based on the written submissions and documents already filed with the Board. The Toronto District Heating Corporation’s name has changed to Enwave District Energy Limited.
Enwave is of the view that the Walton Street plant is governed by HLDAA because the Toronto District Heating Corporation Act (“TDHCA”) which created the corporation, states that persons employed at the Walton Street plant are deemed to be hospital employees for the purposes of HLDAA. It further argues that the Walton Street plant is a stationary power plant that is operated principally for one or more hospitals and is therefore deemed to be a hospital. The CUOE disagrees and argues that the Walton Street plant should not be designated a hospital and nor the employees as hospital employees subject to HLDAA.
Section 26 of TDHCA states:
The steam plant of the Corporation located on the steam plant site described in the trust deed referred to in subsection 2 of section 2 and all related equipment and facilities and any other site used to generate the supply of steam are deemed to be a hospital and persons employed thereat are deemed to be hospital employees for the purposes of the Hospital Labour Disputes Arbitration Act as long as the steam supplied therefrom is being supplied to the Hospitals and Participating Institutions or any of them.
The “Corporation” referred to is what is now known as Enwave and the parcel referred to is the land on which the Walton Street plant is located. The “Hospitals” referred to are defined in the TDHCA as including the Toronto General Hospital, the Hospital for Sick Children, Mount Sinai Hospital and Women’s College Hospital. The “Participating Institutions” are defined in the TDHCA as including the Nightingale School of Nursing, the Queen Elizabeth Hospital and the Toronto Institute of Medical Technology. The names of some of these institutions have changed since the legislation was enacted. In addition to these institutions steam generated at the Walton Street plant is also supplied to St. Michael’s Hospital and the Princess Margaret Hospital.
Section 1(4) of the HLDAA states:
A stationary power plant as defined in the Operating Engineers Act that is operated principally for one or more than one hospital shall be deemed to be a hospital for the purposes of this Act.
The Walton Street plant is a stationary power plant as defined in the Operating Engineers Act and it is operated for a number of hospitals. The CUOE argues that it does not operate “principally” for the hospitals. It states that the steam lines emanating from the Walton Street plant form an integrated system of common steam lines with the Pearl Street and Queen’s Park plants’ lines. It therefore also disputes that the plant is the sole provider of steam to all of the hospitals named above. CUPE states that it is only on the rare occasion that steam from the Pearl Street plant would be “sent” to the area normally served by the Walton Street plant, i.e. the area where the hospitals are generally located.
The steam provided to hospitals is utilized for the hospitals’ domestic water and food services; for heating, cooling and humidification of the hospitals; and for sterilization purposes in the operating rooms. If the Walton Street plant employees went on strike the hospitals would likely be without steam.
Enwave concedes that it sells steam to the public and private sector too. However, the hospitals are its largest customer group and it claims that all of the steam generated for the hospitals comes from the Walton Street plant given its proximity to the hospitals. Enwave states that at any time 30 to 40% of the total steam generated from Walton Street is purchased by the hospitals. CUOE disputes these figures and is of the view that 20% of all of the steam produced by Enwave is sold to hospitals, so the hospitals are not a major customer.
CUOE has a mature bargaining relationship with Enwave. There has never been a strike or lock out at the Walton Street plant. The parties have either negotiated a collective agreement or sent outstanding issues to binding arbitration. It is worth noting that the Pearl Street employees have been on strike or been locked out, most recently in 1998.
A review of the various documents suggests that the hospitals’ needs have been an integral element in the mind of the Legislature when enacting legislation for the provision of steam to hospitals. In 1980 the Legislature passed An Act to revise The Toronto Hospitals Steam Corporation Act, 1968-69 (what has been referred to as the TDHCA above as that is the short form title of the legislation). As is suggested by the title of the legislation, there was an earlier Act dealing with this subject. In fact the 1980 enactment mandated the set up of the Toronto District Heating Corporation, the predecessor to Enwave. Section 2(2) of the 1980 Act stipulated that the name change did not affect any of the rights or obligations of the original corporation. Section 13(2) of the TDHCA states:
Notwithstanding section 55 of The Public Utilities Act, the Board shall conduct the business of the Corporation so that the requirements of the Hospitals for steam throughout the year for their existing facilities and any new expansion of or modification to such facilities will be given priority over any other users of steam supplied by the Corporation.
The TDHCA mandated the new corporation to enter into long term contracts for the supply of steam to the hospitals and participating institutions, contracts that could be for terms in excess of 20 years. Specific provisions dealt with the transfer of employees from the Toronto General Hospital who had been involved in the operation of the steam plant and distribution system of the Toronto Hospitals Steam Corporation.
It is obvious from a review of the TDHCA that it was designed to create a larger and more inclusive steam heating corporation, while still ensuring that the hospitals were assured continuing uninterrupted long-term services. That would appear to be why sections 13(2) and 26 were included. The Legislature considered the very issue of whether the location at which steam was produced for hospitals should be considered a “hospital”, and the persons working at the steam plants which supplied the hospitals should be considered “hospital employees”, and enacted section 26. It decided that that the locations are to be deemed to be hospitals, and the people working at the locations are deemed to be hospital employees, for the purposes of HLDAA, so long as the steam supplied from the locations is being supplied to hospitals and participating institutions. Pursuant to section 13, even if the Walton Street plant is not primarily providing the hospitals with steam and is providing other customers too, the hospitals have priority over any other users supplied by the employer.
CUOE suggests that the parcel of land referred to in the trust deed is not where the Walton Street plant is. The Board has insufficient information to make this determination. However, the Board notes that the section 26 refers to “any other site” so the provision is not site-specific.
Having considered the history of the organization, the legislation, and the purpose for which the steam produced at the Walton Street plant is used, the Board is of the view that the Walton Street plant is a “hospital” and that the employees of Enwave employed at that location are “hospital employees” for the purposes of the Hospital Labour Disputes Arbitration Act.
The Board therefore advises the Minister of Labour that in its view the Hospital Labour Disputes Arbitration Act governs the relationship between Enwave, formerly known as the Toronto District Heating Corporation, and the Canadian Union of Operating Engineers and General Workers, at the Walton Street plant.
SUMMARY
- To summarize the Board’s conclusions on all of the matters before it:
(a) Board File Nos. 0166-99-U and 3527-98-U, the unfair labour practice complaints are withdrawn with leave of the Board;
(b) the Board finds that the CUOE has jurisdiction over the work in dispute at the Chilled Water plant; and,
(c) the Board advises the Minister of Labour that in its view the Hospital Labour Disputes Arbitration Act governs the relationship between Enwave, formerly known as the Toronto District Heating Corporation, and the Canadian Union of Operating Engineers and General Workers, at the Walton Street plant.
“Gail Misra”
for the Board```