2835-00-JD The Toronto Transit Commission, Applicant v. Amalgamated Transit Union Local 113 and International Association of Machinists and Aerospace Workers Lodge 235, Responding Parties.
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: Scott Williams and Bruno Iannacito for the applicant; Heather Alden and Paul Callaghan for Amalgamated Transit Union Local 113; Sheilagh Turkington, Paul Mitchell, Gary King and Jim Allen for International Association of Machinists and Aerospace Workers Lodge 235.
DECISION OF THE BOARD; April 24, 2001
This is a jurisdictional dispute concerning the assignment of work filed pursuant to the provisions of section 99 of the Labour Relations Act, 1995, R.S.O. 1995, c.1, as amended (“the Act”). The applicant (“the employer”/”the TTC”) assigned certain work to the Amalgamated Transit Union Local 113 (“the ATU”). The International Association of Machinists and Aerospace Workers Lodge 235 (“the Machinists”) claim the work should have gone to its members and not to those of the ATU.
The work in dispute involves the operation of a sandblasting machine at the D.W. Harvey (also known as Hillcrest) shop. The sandblaster is used for two purposes: primarily to prepare components for painting and secondly to remove corrosion from various bus and streetcar components. The machine was purchased in the summer of 1998 and brought into the Hillcrest shop and installed in about May 1999 in the ATU section of the shop. Work on the new machine was assigned to the members of the ATU.
The work in the new machine is described by the Machinists as follows:
… the new machine requires that the operator place the component on the turn table inside the chamber of the sandblaster. The operator seals the chamber. He inserts his arms into glove compartments built into the machine so that the operator remains outside of the machine but his arms may move within the machine to manipulate or turn the component and to use the hose gun inside the chamber to spray the blast media under air pressure. …
The parties accept the work could fall under the collective agreements of either the ATU or the Machinists. Neither union has exclusive jurisdiction in respect of the work. Sandblasting work falls within both the ATU’s and the Machinists’ bargaining units, through job classification descriptions which include reference to sandblasting. The only difference in the positions of the ATU and the Machinists in this regard is that the Machinists’ collective agreement has an actual classification for Sand Blast Operator, while the ATU agreement does not. But that position has not been filled by any individual since about 1986. As in the ATU agreement, sandblasting falls within the job description of other positions, and it is persons in those positions who perform the work.
Prior to acquiring the machine, the members of the ATU were using hand tools and equipment for sanding the vehicle components which are now going into the new machine. The TTC acquired the new sandblaster for the following reasons. Firstly, use of the existing sanding tools was leading to injuries, including repetitive strain injury. Secondly, an increasing number of vehicles which had passed through the refurbishment program were showing early paint flaking. The TTC attributed the lack of paint adherence to inadequate sanding. Thirdly, the panels which fit into the new machine were too large for the existing sandblasting machines. That is why they had to be sanded by hand previously. The new machine was intended to address these problems.
In their submission, the Machinists make much of the distinction between sandblasting and sanding. Their case is substantially built on the notion that sanding work was what the ATU members did, and sandblasting is what the Machinists do, and have always done in the large, stationary sandblasting machines at the Hillcrest shop. The Machinists’ position is that the ATU members have performed sanding work, not sandblasting work. The other parties take the view that the Machinists make too much of the distinction. Sanding and sandblasting are just two methods for doing the same thing, and the effect of some of the hand tools used for sanding by the ATU members was not very different from sandblasting. The other parties take the position that the ATU members have done sandblasting work as well.
The TTC and the ATU say that the work being done on the new machine is in very large measure the same work which was done previously by the ATU members, although by a different method. Whereas previously the method was to use hand tools, now the work is done in a sandblasting machine. The TTC points out (though disputed by the Machinists) that there is no reduction in the volume of work performed by the Machinists as a consequence of the introduction of the new machine and the assignment of its operation to the ATU members.
Unexpectedly, since the assignment of work on the new machine to ATU members, the overall volume of sandblasting required in that machine has diminished significantly. That is because the new panels acquired for use on TTC vehicles are now pre-prepared for the most part. In fact, about 90% of the replacement parts are now new parts. This means there is no need to sand and paint them. Now, only about 10% of the time must the TTC (through the ATU members) remove vehicle panels and structural components, refurbish them and return them to the bus. The machine is in use for only about 4 hours a day. That does not warrant the employment of a full-time person to operate it, as would be required if the work went to the Machinists. At present the ATU members are able to do the work interspersed among their other duties. There is no sandblast operator of the Machinists who is assigned to the evening or night shifts at the Hillcrest shop. If the work were assigned to the Machinists, someone would need to be so employed at additional cost to the TTC.
The assignment of work in the Hillcrest shop is done under different lines of managerial authority. One superintendent assigns work to the ATU members, another superintendent does so in respect of the Machinists. Hence the assignment of work on the new machine is done by the superintendent who assigns the work to the ATU members.
There is no dispute that the new machine, although bigger, is to all intents and purposes the same type of sandblasting machine which has been operated by the Machinists at the Hillcrest shop. It is located separately, being where the ATU members work in the shop, rather than with the other sandblasting machines, where the Machinists work.
The differences in the work done by the ATU members before the acquisition of the new machine and since are that the blasting is now done in the machine and not by hand-held vacuum hoses and the whole surface area of the component is dealt with at once in the machine while, when done by hand, it was done bit by bit.
What is involved in this case is the following: the actual work now being done by the ATU members was done by them previously (although by a different method) and the method of the work on the new machine is what the Machinists always did previously, although not on the work that is now being done by the ATU members.
From the TTC’s perspective, the Machinists want the work to be taken out of the process it has hitherto been part of (and done by the ATU members), and transferred to its members. It wants the TTC to move one of its members to the new machine. This, says the TTC, would be disruptive and inefficient. It argues that the Machinists are effectively seeking to expand its work, rather than preserve it. An additional machinist would need to be employed if the work is assigned to the Machinists. There would also be inefficiency in that there are two reporting chains within the shop and the machinist employed to work on the machine would be subject to a different reporting chain from that from which the work originates. This would, in the TTC’s submission, be organisationally disruptive.
The TTC and the ATU contend there has been no actual loss of work by the Machinists as a result of the introduction of the new machine. This is disputed by the Machinists, who claim that there has been a decline in the assignment of components from the body shop for sandblasting by the Machinists since the introduction of the new machine. The Machinists say the reduction in sandblasting work has indirectly resulted in the layoff of some of its members. The Machinists have not gained work as a result of the introduction of the new machine (as they might have expected because they were accustomed to doing the sandblasting work before). There has been a reduction of work for the ATU members. That is not the consequence of the introduction of the machine, rather the fact that the panels no longer need to be prepared, as was required previously. This fact has affected the use of the machine, which as stated, is now less in demand than was anticipated at the time of its acquisition.
Past practice favours the Machinists in respect of the type of work, or in the method of performing the work. For many years only the Machinists have operated the three sandblasting machines which pre-dated the introduction of the new machine. Yet, past practice favours the ATU in respect of the content of the actual work. The method of the ATU members performing the work has changed, but for over twenty years it has been with the ATU and it has remained there.
The factors considered in jurisdictional disputes include past practice, skills, training, safety, employer preference, economy and efficiency, the existence of trade agreements or arrangements as to jurisdiction and collective bargaining relationships. Outside of the construction industry (where past practice is the principal consideration: Electrical Power Systems Construction Association, [1992] OLRB Rep. Aug. 915, at 934, ¶95), of these the Board tends to look primarily at economy and efficiency. In this case skills, training, safety and collective bargaining agreements and relationships are relatively equal, regardless of how the assignment is made. However, what is plain is that employer preference, and economy and efficiency considerably favour the assignment which has been made by the TTC, to ATU members. Taking the work from the ATU members will disrupt an integrated production process and increase the TTC’s costs. Past practice, in respect of the actual content of the work being performed, and the retention of the work, also favours an assignment to the ATU members.
In these circumstances I will not change the assignment of the work in dispute. That work belongs to the ATU.
“Christopher J. Albertyn”
for the Board