2594-00-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: Timothy W. Sargeant, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
APPEARANCES: Scott T. Williams and Bruno Iannacito for the applicant; Heather Alden, Henry Urban and Mike Bragan for Amalgamated Transit Union, Local 113; Sheilagh Turkington, David Ritchie, Paul Mitchell, Gary King and Steve Priem for the responding party.
DECISION OF THE BOARD; May 16, 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, 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 “IAM”) claim the work should have gone to its members and not to those of the ATU.
By way of background the TTC’s maintenance centres fall into three categories: carhouses, garages and shops. There are currently 6 carhouses, one being the Wilson Carhouse. Carhouses are responsible for servicing rail vehicles (i.e. subways and streetcars).
The work in dispute involves the maintenance, repair and inspection associated with a newly installed piece of equipment, a Pfaff screw hoist at the TTC’s Wilson carhouse. This hoist is used to raise vehicles off the ground so they can be serviced by maintenance staff. The issue is whether ATU or IAM millwrights should be assigned the work to maintain, repair and inspect the Pfaff screw hoist at the Wilson carhouse.
The Board is prepared to accept the following facts for the purpose of argument.
Prior to the installation of the Pfaff screw hoist, at the Wilson carhouse there was what is known as a Whiting hoist. The maintenance and repair work on this Whiting hoist was carried on consistently by the IAM millwrights.
The Whiting hoist prior to the installation of the Pfaff screw hoist operated across three parallel tracks. Subway vehicles to be serviced could be brought in on tracks and lowered for service and hoisted back up. There was capacity across the three tracks to bring in three subway vehicles at once. Both the lifts and hoists of the Whiting hoist operate on a screw mechanism.
The new Pfaff hoist was installed at this location and handles two of the three tracks previously mentioned. The Pfaff is a two vehicle hoist so that two subway cars may be serviced at the same time.
The Whiting hoist is now confined to one track, limiting its previous use so that now the Whiting hoist cannot fully perform the functions it carried out before. One subway vehicle must remain until fully serviced. The Whiting hoist, as admitted by the TTC, is now being used primarily for different types of functions than it was used prior to Pfaff hoist being installed. The IAM millwrights still do the maintenance repair and inspection work on the Whiting hoist.
The repair maintenance and inspection work of the new Pfaff hoist was assigned to the ATU by the TTC
The Wilson carhouse opened in 1976-1977. From its opening the IAM millwrights maintained, repaired and inspected the equipment at this location until 1994.
In a prior jurisdictional dispute the Labour Board in a decision dated March 3, 1967, restricted the jurisdiction of the IAM to the Harvey Shops. As part of a directive by TTC it was determined that millwrights from the IAM would be responsible at the Harvey (Hillcrest) Shops and ATU millwrights at the Greenwood location.
In 1994 a wheel turning device was installed at the Wilson carhouse. The work was assigned to the ATU millwrights. This was disputed by the IAM which ultimately withdrew its claim. This wheel turning device replaced one previously located at the Greenwood location. The IAM held discussions with the ATU. For the purpose of this decision the Board is prepared to assume an understanding was reached that the ATU at the Wilson carhouse would not be making claims to any other work the IAM was performing at such location (it is to be noted that the ATU does not agree with this assumption and in any event takes the position that such understanding did not apply to new equipment). On this basis the IAM asserts it withdrew its challenge to such assignment. The wheel turning device at the Wilson carhouse is not a lifting device.
For the purpose of this decision the Board will assume that the new Pfaff hoist is doing much of the work previously done by the Whiting hoist. For the purpose of this decision, the Board will also assume (thought this is disputed by the TTC) that the ad hoc assignments of millwright members of the IAM, for repair at the Wilson carhouse have been reduced as a result of the installation of the Pfaff machinery. The millwright members of the IAM, however maintain the regular schedule of maintenance on the Whiting hoist. The IAM does not make any claim that there has been a layoff of any of its members as a result of the installation of the Pfaff hoist at the Wilson carhouse.
In relation to the other two car hoists that the TTC had operating, prior to the installation of the Pfaff hoist at the Wilson carhouse, the ATU millwrights maintained such hoists. These hoists were located at the Greenwood location. Millwright members of the IAM have never maintained two car hoists.
Millwright members of the ATU, scheduled to work at the Wilson carhouse would be assigned from the Greenwood location. Millwright members of the IAM scheduled to work at the Wilson carhouse would be assigned from the Harvey location.
The Greenwood carhouse and the Wilson carhouse fall under the jurisdiction of the same General Superintendent at the TTC. The ATU staff at these locations are covered by the same budget. IAM staff at the Harvey Shop fall under the jurisdiction of a different General Superintendent and a different payroll budget.
There was also a submission made by counsel for the ATU supported by counsel for TTC that often an electrician’s skills are required for the care and maintenance of a two car hoist. Thus sometimes ATU electricians are sent as a team with ATU millwrights from the Greenwood location. Both classifications have the same rates of pay and the same supervisor. It is contended that IAM represents no electricians therefore if co-ordination with electricians was necessary it would involve more difficulty in arranging an appropriate work schedule involving the two trades. Counsel for the IAM points out that electricians are not always necessary and in any event IAM millwrights have worked alongside ATU electricians when necessary at the Wilson location for years with no difficulty.
Neither Collective Agreement, in the Board’s view, gives exclusive jurisdiction to the disputed work to either the ATU or the IAM at the Wilson location. Though the ATU submits that the IAM has no jurisdiction to operate at the Wilson location, for the purposes of this decision it is unnecessary to consider such submission.
Counsel for the IAM relies primarily on past practice. In her view though recognizing that “efficiency and economy” is the primary factor considered by the Board in a jurisdictional dispute outside of the construction industry, counsel submits that in this instance the “efficiency and economy” factor is neutral. Further counsel submits that the past practice factor in this instance so outweighs the employer preference factor, that the work in dispute should be awarded to the IAM. Counsel contends outside of an administrative structure pleading (and administrative structure is what it is), there is nothing pleaded that demonstrates any inefficiency in the previous assignments of IAM millwrights to the Wilson carhouse. There are no pleadings that any problems have resulted from such assignments and these assignments have been going on since the creation of the Wilson carhouse.
Counsel for the IAM contends at the end of the day the most persuasive evidence is past practice and that all the other factors are neutral or without substance. In this instance there is an extensive and consistent past practice since 1967 that IAM millwrights have done all the maintenance repair and inspection of equipment at the Wilson carhouse, with one exception, the wheel turning device. This is truly an exception as the work on such device had been previously performed by the ATU at the Greenwood location, until the device was installed at the Wilson carhouse. Thus counsel does not agree there is a mixed practice of assignment of millwrights at the Wilson carhouse. The assignment of the work on the Pfaff hoist would be an expansion of work for ATU members. The Pfaff hoist obviously replaced work previously done by the Whiting hoist, which hoist was and is serviced by members of the IAM. To assign work on the Pfaff hoist to the ATU would obviously result in less work at the Wilson carhouse for members of the IAM. There is just no substantive basis for assigning this work to the ATU and no basis for changing the assignment of IAM work at the Wilson carhouse. Therefore counsel submits the work in dispute should be assigned to the IAM.
Both counsel for the TTC and the ATU take the position that there is a mixed practice of assignment of millwrights at the Wilson carhouse since 1994. Counsel for the TTC points out that any understanding between the ATU and the IAM in regards to the wheel turning device was not binding on the TTC (in fairness Counsel for the IAM did not argue that it was) as the TTC was not a party to such understanding. In this instance it was the TTC that made the assignment for reasons of economy and efficiency (same management structure; ATU Machinists had prior experience on two car hoists). The other factors are neutral, so at the end of the day employer preference should hold sway. Counsel for the ATU supports such position and points out that the Pfaff hoist is a complicated piece of machinery, so that it makes sense to assign such disputed work to millwright who have had training and experience on two car hoists. Further if an electrician is necessary for a repair it would administratively be more efficient if such an assignment came under the same Superintendent.
Decision
As has been set out may times 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. In non-construction industry jurisdictional disputes the Board has primarily looked at the economy and efficiency factor.
In this instance there is no question that the millwrights in either bargaining unit would be qualified to do the work in question.
Clearly the factors of skills, training, safety and collective bargaining are relatively equal in these circumstances.
The primary issue is the argument concerning past practice. The Board would note that millwrights work in this context is generic. We are not dealing with craft unit considerations. There is no right to work on any specific machine. Millwrights’ work is millwright work. This is an important principle to keep in mind as counsel for the IAM argues that the assignment of ATU millwrights to the Wilson carhouse is an exception relating to one piece of equipment. In the Board’s view such distinction is without merit. In fact both millwrights from the ATU and from the IAM have been assigned to the Wilson carhouse location since 1994. The Board thus finds that in this case the factor of past practice is not determinative of the issue.
The TTC made the assignment to members of the ATU based on its members’ prior experience with the two car hoists and based on the corporate structure of a common Superintendent and payroll at the Greenwood and Wilson locations. While these considerations in themselves may not be determinative in considering the economy or efficiency factor, it does justify the employer’s preference in this instance.
Having considered this matter, the Board is not persuaded that it should interfere with the employer’s preference in this instance. The Board will therefore not alter the assignment of the work in dispute. The work has properly been assigned to members of the ATU.
“Timothy W. Sargeant”
for the Board