Thunder Bay Typographical Union, Local 30004 of Communications Workers of America v. The Chronicle Journal
1892-01-U Thunder Bay Typographical Union, Local 30004 of Communications Workers of America, Applicant v. The Chronicle Journal, Responding Party.
2018-01-JD The Chronicle-Journal, A Division of Horizon Operations (Canada) Ltd., Applicant v. Thunder Bay Typographical Union, No. 44 (“TBTU, No. 44”) and the Communications, Energy and Paperworkers Union of Canada, 191 (“CEP, Local 191”), Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; November 13, 2001
1These files consist of a complaint by the Thunder Bay Typographical Union, Local 30004 (TBTU) that the Chronicle Journal (the employer) has committed an unfair labour practice in eliminating all of the jobs and work of the bargaining unit and giving it to others, in order to avoid its responsibilities under the collective agreement. The TBTU alleges that the employer has taken this course of action to penalize employees for exercising their right to belong to and to participate in the lawful activities of the trade union.
2The employer denies any wrongdoing, but in particular points out that it has assigned the work to members of the Communications Energy and Paper workers Union of Canada, Local 191 (the CEP) with whom it also has a collective bargaining relationship. The employer alleges that the CEP employees are able to do the work better, more efficiently, and at lower cost. The employer further indicates that the TBTU has filed grievances with respect to the terminations of the employees in its bargaining unit.
3Board File 2018-01-JD is a request for a determination of a jurisdictional dispute. The employer asserts that the collective agreement it has with the TBTU permitted it to lay-off the staff of the composing room and assign the work to the graphic artists represented by the CEP, and that for proper business reasons it made that decision. The TBTU has brought grievances, seeking reinstatement of the composing room employees. The employer submits that these circumstances give rise to a jurisdictional dispute. Further, the employer seeks an interim order deferring the hearing of the unfair labour practice complaint and an order requiring TBTU to “cease and desist” from pursuing grievances in respect of the termination of the composing room employees.
4At this point, the Board only has the employer’s views on the nature of the jurisdictional dispute. However, it appears to the Board that the bringing of the jurisdictional dispute is premature. At the risk of oversimplifying the facts as the employer has articulated them, for many years both composing room employees represented by the TBTU and graphic artists represented by CEP have been creating and designing advertising copy. The employer is of the view that the graphic artists have better, and more flexible skills, and cost less both in terms of wage rate and in the time needed to perform the tasks. In June of 2001, the employer laid off the composing room staff, with the effect of eliminating all the employees represented by the TBTU, and assigned all the work to the graphic artists.
5The employer relies on the Special Protection language in the TBTU’s collective agreement to justify its actions. The employer says that the Special Protections specifically anticipate “the elimination of jurisdiction in the Composing Room” and provide for the laying off of composing room employees with enhanced severance where the composing room staff are not “competent to do the work” that remains. The employer asserts that the composing room employees are not competent to do the work being performed by the graphic artists.
6For there to be a jurisdictional dispute, both bargaining units must be able to assert a claim to the work performed, based on the scope of the bargaining rights they claim. At this point, the employer asserts that TCBU has no right to assert the work because its collective agreement anticipated the disappearance of the work jurisdiction it had previously enjoyed, and in consequence, set up mechanisms to protect employees in that event. But the end result, according to the employer, is that the work of the composing room has gone. I appreciate that the TBTU has quite a different view. It asserts that the employer has improperly eliminated its work. However, the issue about whether or not the work has been eliminated in a manner that violates the collective agreement, is a dispute for an arbitrator to resolve because it requires a determination under the collective agreement. Or put another way, unless and until an arbitrator finds that the TBTU has a claim to continue performing the advertising work, it cannot be said that there is a jurisdictional dispute between the TBTU and the CEP. In the Board’s view, at least initially, this jurisdictional dispute ought to be adjourned pending the outcome of the grievance and arbitration proceedings.
7The Board is also considering whether the unfair labour practice complaint brought by the TBTU should be adjourned pending the outcome of the grievance and arbitration proceedings. In deciding whether to adjourn an unfair labour practice complaint pending an arbitration, the Board considers whether the dispute is, at its heart, a contractual dispute whose resolution through arbitration will essentially resolve the unfair labour practice complaint, or whether the dispute requires the elaboration or important principles under the Act, in which case the Board should not defer to arbitration (Valdi Inc., [1980] OLRB Rep. Aug. 1254).
8However, before the Board makes any decision about adjourning either the unfair labour practices complaint or the referral of the jurisdictional complaint, I would like to have the submissions of all the parties. The parties must deliver and file their submissions by no later than November 23, 2001. The parties may deliver and file responses to the submissions by no later than December 7, 2001.
9The Registrar is directed to place the submissions before this panel of the Board if convenient.
“Mary Ellen Cummings”
for the Board