Ontario Labour Relations Board
1296-01-JD Unimin Canada Ltd., Applicant v. United Steelworkers of America, Local 5383 (“USWA”) and Communications, Energy and Paperworkers of Canada, Local 306-0 (“CEP”), Responding Parties.
BEFORE: Christopher J. Albertyn, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
APPEARANCES: Douglas Gilbert, Tom Harvey and Brian MacDonald for the applicant; Robert Healey, Ron Varley, Rich Hischer and P.J. Hill for United Steelworkers of America, Local 5383; Eric Batten, Robert Post and Ralph Datoc for Communications, Energy and Paperworkers of Canada, Local 306-0.
DECISION OF THE BOARD; December 3, 2001
1This is an application concerning work assignment (a jurisdictional dispute) under section 99 of Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (“the Act”).
2Generally the Board deals with jurisdictional disputes in an expedited fashion, under section 110(18)2. We were satisfied that the factual disputes were not of such weight as to warrant our hearing evidence. We took the written and oral submissions of the parties and we have drawn what we believe to be reasonable conclusions from the information conveyed to us.
3The applicant (“the employer”) does not seek a variation to the terms of the collective agreements it has with the responding parties (“the Steelworkers” and “the CEP”), although the parties accept that both agreements cover the disputed work. The employer seeks only an order that it has assigned the work correctly, and may continue to do so, without challenge.
4The assignment was to members of the CEP. The Steelworkers dispute the assignment, claiming the work for their members. The work involves the haulage of waste rock from one part of the employer’s property to another—from its Blue Mountain to its Nephton site in the Havelock area of Peterborough County.
5The Blue Mountain and Nephton sites are both owned by the employer. Prior to July 1, 1985 the sites were separately owned. Both had operations which included mining and ore processing. Blue Mountain employees were represented by the Steelworkers, Nephton employees by the CEP’s predecessor. On that date Indusmin, a mining company which owned the Nephton site, acquired the Blue Mountain site. It decided to rationalize its operations. On July 29, 1987, Indusmin announced that mining at Nephton would cease. All of the ore would be extracted from the Blue Mountain site, but the ore processing would be done at both sites.
6Indusmin moved some CEP employees (quarry truck drivers and workers in other classifications) to the Blue Mountain site. The truck drivers drove ore to the Nephton site and they hauled waste rock onto the Nephton property. The waste rock was used to maintain and improve the haulage road between the Blue Mountain and Nephton sites. The Steelworkers grieved, claiming that the CEP employees were performing bargaining unit work.
7The grievance was referred to arbitration. Arbitrator E. Norris Davis issued an award on December 14, 1987. He said quarry work at Blue Mountain belonged to the Steelworkers. The use of CEP employees (other than the truck drivers for some purposes) at the Blue Mountain site violated the Steelworkers’ collective agreement. The qualified use of the quarry truck drivers was found not to be a violation. Arbitrator Davis said, at p. 12 of the award:
There was no evidence that [Steelworker] truck drivers had ever done work beyond the boundaries of the Blue Mountain property, and on the other hand, there was evidence that when raw ore was sold to customers the movement of such from the Blue Mountain quarry to its ultimate destination was done by non-bargaining unit persons. It is my finding that truck driver duties directly involved in moving raw ore to the mill [on the Blue Mountain site], or waste to a designated [Blue Mountain] dump site, fall within [the Steelworkers’] bargaining unit but that the transporting of raw ore from the Blue Mountain mine, be it to the Nephton mill or any other destination, has never been work performed by employees in [the Steelworkers’] bargaining unit and cannot therefore be said to fall within that bargaining unit.
Arbitrator Davis concluded, at p. 21, that the employment CEP truck drivers “whose duties are restricted to solely transporting raw ore from the Blue Mountain quarry to the Nephton mill and/or transporting waste rock from the Blue Mountain quarry for improvement and maintenance of Nephton haulage roads” [our emphasis] did not violate the Steelworkers’ collective agreement.
8A meeting occurred between Indusmin and the Steelworkers on January 5, 1988. Its purpose was to discuss the consequences of the Davis award. A Memorandum of the meeting was prepared. The minutes contains this entry:
Union interpretation of award
All work performed at Blue Mountain except trucks hauling solely from Blue Mountain quarry to Nephton mill or trucks hauling waste to the haulage road is U.S.W.A. work.
Company agrees with interpretation.
The minutes goes on at greater length to deal with the calculation of the compensation due to the Steelworkers’ members under the award.
9The employer acquired Indusmin on September 25, 1990. It maintained the integrated operation of the two sites. It accepted Arbitrator Davis’s decision and, in its view, sought to comply with it. The ore destined for the Nephton site continued to be conveyed by drivers from Nephton who were members of the CEP. The parties accept that CEP drivers are entitled to convey ore for processing from Blue Mountain to the Nephton site. Their dispute lies elsewhere. They differ on the implications of Arbitrator Davis’s award as regards the haulage of waste rock.
10The employer and the CEP say that, at the time the Davis award was issued, the waste rock transported from the Blue Mountain quarry off the Blue Mountain property was used only to maintain or improve the Nephton haulage roads. Arbitrator Davis’s reference to that use was merely descriptive of the use which was then applied to the waste rock removed from the Blue Mountain site. There is no stipulation in the award that the haulage of waste rock from Blue Mountain for another purpose belongs to the Steelworkers. Arbitrator Davis was not carving out an exception, but describing the practice at that time. As a consequence, any cartage of waste rock off the Blue Mountain property does not belong to the Steelworkers.
11The Steelworkers take a different view. They say Arbitrator Davis was creating an exception to the general rule that work on, and from, the Blue Mountain property belongs to the Steelworkers. The exception restricts the CEP’s cartage to transporting ore to the Nephton site and removing waste rock for the sole purpose of improving or maintaining the haulage road. The Steelworkers say the minutes of the meeting of January 5, 1988 supports their interpretation of the award. Waste rock transported for any other purpose is not excepted, and so should be Steelworkers’ work.
12These contradictory views were upheld in two arbitration awards issued recently. The first involved the employer and the Steelworkers: Unimin Canada Ltd. and U.S.W.A., Local 5383, unreported interim award of November 13, 2000 (Simmons). The CEP did not participate. The Steelworkers had filed a grievance on Sept 2, 1998, against the employer’s practice of using CEP drivers for all waste rock haulage off the Blue Mountain site. The arbitrator interpreted the Davis award and supported the construction given to it by the Steelworkers. The haulage of waste rock from Blue Mountain for purposes other than repair or improvement of the haulage road was assigned to the Steelworkers. The employer complied with the award. The CEP grieved. The second award involved the employer and the CEP, without the Steelworkers: Unimin Canada Ltd. and CEPU, Local 306-0, unreported award of March 6, 2001 (Saltman). The Saltman decision commented on the Simmons decision and found it erroneous. It adopted the employer’s and the CEP’s view of the Davis award, described above. All haulage of waste rock from Blue Mountain was assigned back to the CEP, as had been the employer’s practice. Faced with these contradictory decisions, the employer brought this application before the Board.
13Since the employer took ownership of the Blue Mountain and Nephton sites in 1990 it has adhered to its interpretation of the Davis award. It has not restricted its use of CEP truck drivers for conveying waste rock only to maintain and improve the haulage road between the Blue Mountain and Nephton sites. It has had them transport waste rock for other purposes. That has been the employer’s practice for some ten years. Before the Simmons’ award, the Steelworkers’ members did not cart waste rock off the Blue Mountain site. The past practice clearly favours the employer’s assignment to the CEP.
14The Steelworkers claim to have no knowledge of the employer’s practice of using CEP drivers to carry the waste rock from Blue Mountain for purposes other than improving or maintaining the haulage road. They say that throughout the past decade they have been under the impression that the CEP drivers were taking waste rock used solely on the haulage road. This lack of knowledge is disputed by the employer and the CEP, but, as we said at the consultation, no knowledge of the practice will be attributed to the Steelworkers.
15The practice of assigning the hauling of waste rock off Blue Mountain to the CEP is undisputed and so established. No estoppel arises, though, because the Steelworkers were unaware of its occurrence.
16The Steelworkers say that the employer has breached the agreement contained in the minutes of the January 5, 1988 meeting. It should not be able to rely upon its past practice to justify that breach.
17The difficulty with the minutes is the same as the difficulty with the Davis award. Both the employer’s (and the CEP’s) and the Steelworkers’ constructions of the award are plausible. The minutes retains the ambiguity of the award. It could be referring descriptively to the work which was being done at time (as the employer and the CEP contend) or it could be referring to that work prescriptively (as the Steelworkers contend). The minutes does not serve to clarify the ambiguity. It maintains it. In our view the award is capable of both interpretations. This means that the employer was not necessarily in breach of its (predecessor’s) agreement of January 5, 1988 when it expanded its use of the waste rock taken from Blue Mountain by CEP drivers. Consequently the award and the minutes are not determinative of the result in this matter and the employer’s past practice is not nullified by them.
18The employer has used the CEP’s drivers because that has been more efficient than the Steelworkers’ alternative. The employer says a split of the waste rock haulage, on the difference in its use, would create scheduling problems. It is easier for the employer to have only the CEP drivers carry all of the waste rock than to share that carriage with the Steelworkers. This conclusion requires some explanation.
19The distance from Blue Mountain to Nephton is about 8 km. The distance from the Blue Mountain pit to its mill is approximately 400 metres. More drivers are required to do the Nephton haul. There are a total of six CEP drivers who transport the waste rock and the ore for Nephton and only two Steelworkers’ drivers who take ore to the Blue Mountain mill. The employer has five trucks. It uses four trucks at any time. One is out for repair or servicing. CEP members drive three of the four, a Steelworker drives the other. The CEP drivers work two shifts a day, seven days a week. The Steelworkers’ drivers work two shifts a day, six days a week. If the assignment of waste rock loads were to be made on the basis of the rock’s use, then, the employer says, more Steelworkers’ drivers would need to be scheduled. The one driver on shift at present could not cope with the additional work.
20Ore haulage is the employer’s priority, yet the conveyance of ore can be interrupted for various reasons. For example, there may be an equipment failure at the Nephton plant; a section of rock mined may produce little or no ore and all of the rock is then waste; there may be a break in production at the mill for maintenance work. When there are such breaks the CEP drivers use the time to haul waste rock. The expected ratio of ore to waste rock is approximately three to one. Ore and waste haulage can be, and are, done during the same shift. The loads of the waste rock fit into the CEP drivers’ ore transport schedule, when convenient. The switch from the one to the other is done relatively easily. That ease would end if part of the waste rock haulage were given to the Steelworkers. The employer says the number of CEP drivers would have to be reduced, or one of them would have to be laid off part-way through a shift. An additional Steelworkers’ driver would need to be “called out” or, if assigned to a full shift, could be unoccupied at times. The layoff of CEP drivers would cause a series of bumps across the CEP’s membership, which would be disruptive of operations in the Nephton site.
21The Steelworkers dispute the necessity of laying off any CEP drivers and hiring any more Steelworkers’ drivers if its interpretation of the Davis award were to prevail and we were to assign the work to the Steelworkers. They suggest generally that scheduling could be adjusted to accommodate the transfer of the work. We are not persuaded this is so. We accept the employer’s contention that it would face some inefficiency and there would some adverse impact to the CEP bargaining unit if the work were assigned to the Steelworkers.
22We look at the factors which the Board considers in jurisdictional disputes. The collective agreements are of no assistance. The disputed work falls within both. There are no jurisdictional agreements which clarify or determine the issue. The arbitration awards which interpret the Davis award do not assist. They give the two constructions which are implicit in it. There is no area practice of any relevance. The employer’s practice is clear, though. The long standing practice overwhelmingly favours the CEP retaining the work. The employer clearly favours keeping the work with the CEP. It has persuasive reasons of efficiency for doing so. The maintenance of stable labour relations also favours the CEP keeping the work. In our view a change in the assignment would be disruptive of labour relations.
23For these reasons we conclude the disputed work should remain with the CEP. Accordingly, we make the following declaration and orders:
the assignment of the haulage of waste rock from Unimin’s Blue Mountain site to the CEP is upheld;
the Steelworkers shall refrain from requiring Unimin to assign that work to its members.
“Christopher J. Albertyn”
for the Board