International Union of Elevator Constructors, Local 50 v. National Elevator and Escalator Association, 1980 CanLII 811

[1980] OLRB Rep. August 1222

1759-79-M International Union of Elevator Constructors, Local 50, Applicant, v. National Elevator and Escalator Association, Respondent.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. A. Ronson and W. F. Rutherford.

APPEARANCES: Pamela Sigurdson and Win. Morran for the applicant; R. R. Dunsinore and Ian Saint for the respondent.

DECISION OF THE BOARD; August 25, 1980

1. The name "Otis Elevator Company Limited and National Elevator and Escalator Association" appearing in the style of cause of this application as the name of the respondent is amended to read "National Elevator and Escalator Association

2. The applicant has referred to the Board a grievance concerning the interpretation, application or alleged violation of a collective agreement for final and binding arbitration. It is a referral made under section 1 12a of The Labour Relations Act.

3. The applicant and Otis Elevator Company Limited ("Otis"), at all material times, were bound to a collective agreement entitled the Ontario Provincial Agreement ("the Agree­ment") between the respondent and The International Union of Elevator Constructors ("the Union") which expired April 30, 1980. The agreement is a provincial agreement within the meaning of section 125(3) of the Act insofar as it applies to the industrial, commercial and institutional sector of the construction industry referred to in section 106(e) of the Act. The respondent is the designated employer bargaining agency for Otis and the other employers bound by the Agreement and the Union is the designated employee bargaining agency for the applicant and Locals 50, 90 and 96 of the Union.

4. The applicant alleges that Otis violated the Agreement when, during a shortage of work, it retained in employment two elevator constructor mechanics ("mechanics"), Messrs. R. Crawford and J. Wenzel, while mechanics having greater seniority were laid off. At the time this matter first came on for hearing, all of the mechanics alleged to have been affected had been recalled to work. The applicant is seeking to have them reimbursed for all compensation lost and to have their seniority credited with the time lost from the alleged, wrongful lay-off. The applicant agrees that they were recalled from lay-off in the correct order.

5. Otis, as a result of a shortage of work, laid off 16 mechanics out of a group of 18 between October 3, 1979 and November 8, 1979. Two of these mechanics had more seniority than Crawford and all of them had more seniority than Wenzel. One mechanic, Mr. M. Heaney, obtained employment with another employer in the elevator industry during the lay­off and was not recalled, the other 15 were recalled by Otis between November 20, 1979 and January 7, 1980. The applicant contends that the lay-offs were conducted contrary to the provisions of clause 10.15 of Article 10, Training—Qualification—Employment— Lay-off-Recall of the Agreement which reads as follows:

"In the event that lack of work requires a reduction in the number of employees in the employ of an employer, employees shall be laid-off in the following order:­

(a) Probationary Helpers I, without regard to seniority, (1st block to be laid off).

(b) Probationary Helpers 11, without regard to seniority. (Second block to be laid off.)

(c) Helper 1, without regard to seniority. (Third block to be laid off.)

(d) Helper II, without regard to seniority. (Fourth block to be laid off.)

(e) Improver Helpers without regard to seniority. (Fifth block to be laid off.)

(f) Mechanics in seniority, provided the Employers remaining Mechanics have the necessary skill and ability to do the work that remains.

The mechanic facing lay-off may accept assignment as an Improver Helper or take a lay-off.

There shall be no industry-wide bumping except that Mechanics may bump Temporary industry-wide basis. Helpers may bump Probationary Helpers on an industry-wide basis.

Notwithstanding the foregoing provisions of 10.15, an employee has no seniority rights with an employer for a period of six (6) months after commencing work with that employer. After the six (6) month period, full seniority rights will be credited with the new employer. In the event of a reduction in the work-force with that employer during this six (6) month period this employee will be the first to be laid-off with the excep­tion of Probationary Helpers."

6. Other relevant sections of the Agreement read as follows:

"Article 2

RECOGNITION CLAUSE

2.01 The Employers recognize the Union as the exclusive bargaining representative for all Elevator Constructor Mechanics and Elevator Constructor Helpers, in the employ of the Employees engaged in the installation, repair, maintenance and servicing of all equipment referred to in Article 4.02 and Article 4(A).

2.02 The Union recognizes that it is the responsibility of the Em­ployers, in the interest of the purchaser, the Employers and their em­ployees, to maintain the highest degree of operating efficiency to obtain better quality, reliability, and cost of is product, provided, however that this provision is not intended to affect the work jurisdiction specified in Article 4 and Article 4(A), and the work jurisdiction as specified in other Articles of this Agreement.

2.03 Without limiting the generality of the foregoing, and subject to the other provisions of the Agreement, the Employers shall have the right to:

(a) Select personnel, hire, assign work or duties, transfer, layoff and recall employees;

(b) discipline or discharge for just cause;

(c) establish and enforce reasonable rules or conduct to be observed by employees.

Article 4

WORK JURISDICTION

4.01 It is agreed by the parties to this Agreement that all work specified in Article 4 shall be performed exclusively by Elevator Con­structor Mechanics and Elevator Constructor Helpers in the employ of the Employers.

Article S

WAGES

5.01 Hourly wage rates in effect from time to time in each locality throughout the life of this Agreement shall be determined in accordance with the provisions of this Article.

5.02 The hourly wage rate for each classification of employees shall be derived from the hourly wage rate for the Mechanic in each locality and the hourly wage rate for the said Mechanic shall be derived from the wage rates for the principal building trades in each locality, all as provided for herein.

5.09 When four (4) or more employees, including the Mechanic-in-charge, are employed on a New Construction or Modernization job, the Mechanic-in-charge of the job shall have his hourly rate increased twelve and one half per cent (l2iA%) for each hour worked by him.

5.10 The hourly wage rate for a local representative shall be one hundred and twelve and one-half per cent (I 12½%) of the Mechanic's rate, as per Article 9.09.

5. 12 Wage rates as established by the provisions of this Article shall apply to all Mechanics and Helpers engaged in construction, repair, modernization and contract service work as defined in and covered by this Agreement.

Article 7

CONSTRUCTION WORK

7.01 Construction work is hereby defined as erecting and assembling of apparatus as enumerated in Article 4 of this Agreement, except general repairs and modernization as defined in Article 8.02 and 8.05. It is hereby agreed that all Construction work as above defined shall be performed exclusively by Elevator Constructor Mechanics and Helpers.

Article 8

REPAIR WORK

8.01 Repair work is hereby defined as general repairs and modern­ization work on apparatus enumerated in Article 4 and Article4(a) of this Agreement. Repair work shall be exclusively performed by Elevator Constructor Mechanics and Helpers.

8.03 An Employer may assign an Elevator Constructor Mechanic without a Helper to repair work where such repair work may not require two (2) men and no factor of safety is involved in a one-man operation, provided that the Area Employer Committees agreed to a list of such one man repair work.

8.05 A modernization job is hereby defined as any work performed on apparatus enumerated in Article 4 and Article 4(A) in any existing or occupied building to bring equipment up to date, except general repairs and Contract Service work.

Article 9

CONTRACT SERVICE

9.01 Contract service is hereby defined as any contract obtained by an Employer for regular examination or care of apparatus enumerated in Article 4 and Article 4(A) of this Agreement, for a period of not less than one (I) month. Contract Service work shall be exclusively performed by Elevator Constructor Mechanics and Elevator Constructor Helpers.

9.02.01 One (I) Helper to each four (4) Mechanics may be employed. Such a Helper may work alone under the supervision of a Mechanic in the district. When working alone, he shall be employed on cleaning, oiling, and greasing work only. The word "district" means the regular contract service route of the Mechanic or contract service route of the Mechanic or contract service route of the Mechanic or Mechanics to whom the Helper has been assigned that day.

9.02.02 When an Employer obtains a contract that requires a Mechanic and Helper to be on the job and/or in a building at all times during the regular weekly working hours, such Helper shall not be considered as part of the one (1) to four (4) agreement mentioned above, provided no Probationary Helper is assigned to such regularly scheduled work.

9.08 .01 It is mutually agreed that, for the benefit of the elevator in­dustry, and having particular concern for the safety of the using public, a special obligation exists on the part of employees engaged in Contract Service to answer call-backs outside of regular working hours. To ensure that the needs of the industry along these lines may be adequately covered, a voluntary standby list shall be established by mutual accord of each Joint Employment Committee, the Local Union Business Repre­sentative, the Employer and the maintenance personnel concerned with the responsibilities recognized in this Article.

9.08 .02 The Employer shall have the option of paying standby under one of the following three (3) methods if a standby list is necessary:

c) - Mechanics assigned a duty period of seven (7) days will receive standby at the rate of I 12¼% of the Mechanics rate for all hours worked whether straight time or the overtime rate for that period of time that he is on standby.

Article 10

TRAINING—QUALIFICATION - EMPLOYMENT

LAYOFF - RECALL

10.01 It is agreed by the Union that there shall be no restrictions placed on the character of work which a Helper may perform under the direction of an Elevator Constructor Mechanic. (However, a Helper on Contract Service work is subject to the provisions of Article 9.)

10.02 The total number of Helpers employed shall not exceed the number of Elevator Constructor Mechanics on any one (1) job, except on jobs where two (2) teams or more are working, one (1) extra Helper may be employed for the first two (2) teams and an extra Helper for each additional three (3) teams.

Further, the Employer may use as many Helpers as best suits his convenience under the direction of a Mechanic in wrecking old plants and in handling and hoisting material; and on foundation work. When removing old and installing new cables on existing elevator installations, an Employer may use two (2) Helpers to one (I) Mechanic.

10.03.01 Probationary Helper 1: A newly hired Employee without elevator experience shall be classified as a Probationary employee in the status of Probationary Helper I for a period or periods totalling six (6) months within the aggregate period of not more than nine (9) months.

The probationary period may be worked with more than one Em­ployer. He shall be at least 18 years of age, physically fit and possess a high school certificate or its equivalent education. He shall receive 55% of the Mechanic's rate.

10.03.02 Probationary Helper 11: Upon completion of six (6) months in the industry, to the satisfaction of the Employer and the Union, a Probationary Helper shall be reclassified as a Probationary Helper 11. For.. . , if available.

He shall receive 60% of the Mechanic's rate and shall be entitled and be required to participate in the make contributions to the Welfare Plan and the Pension Plan as provided for in this Agreement. He.. . this.

10.04 Helper 1: Upon Completion of twelve (12) months in the industry the employee will be re-classified as a Helper I.

The Helper 1, shall remain in this classification for a further twelve (12) months in the industry. He shall receive 70% of Mechanic's rate.

10.05 Helper 11: Upon completion of twenty-four (24) months in the industry the Helper I shall be re-classified as a Helper 11.

He shall receive 75% of Mechanic's rate.

The Helper 11, shall remain in this classification for a further period of twelve (12) months in the industry.

10.06 Improver Helper: Upon completion of thirty-six (36) months in the industry, a Helper 11 shall be re-classified as an Improver Helper.

The Improver Helper shall remain in this classification for a further period of twelve (12) months in the industry. He shall receive 80% of Mechanic's rate.

10.07 MECHANIC: Upon completion of forty-eight (48) months in the industry and successful completion of the C.E.1.E.P., and Improver Helper shall write the Mechanic's exam as set out by the C.E.I.E.P. Trustees.

10.09 Temporary Mechanic: Shall mean the Improver Helper who may be raised to the status of Temporary Mechanic under agreement of his Employer and the Union Representative.

If an Improver Helper is raised to the status of Temporary Mechanic he may remain as a Temporary Mechanic as long as satisfactory to the Employer and the Union, provided that there are no Mechanics unem­ployed.

Helper 11 and then Helper I may be raised to Temporary Mechanics, provided that all Improver Helpers are working as Temporary Mecha­nics, under Agreement of the Employer and the Union.

10.10 (in part)

It is understood that probationary employees as mentioned in Article 10.10 may during the probationary period be discharged or laid off by the Employer at any time with or without cause, and no reason need be assigned therefore and no such discharge shall be construed as a grievance.

10.13 An Employer shall use the Local Union as a first source of job applicants. In the event that the Local Union is unable to satisfy satis­factorily the Employer's request within three (3) working days, the Employer may obtain applicants from any other available source. Before commencing work such applicants will obtain a referral slip from the Local Union which shall be granted by the Local Union. The Employer has the right to reject any applicant referred to him by the Local Union, however, a claim that the Employer has unreasonably rejected such an applicant may be the proper subject matter of a grievance.

10.14 Seniority of an employee is his total length of service in the industry in Ontario. Seniority shall not accumulate during a lay-off and seniority shall be deemed to be broken if the employee does not work under covered employment for nine (9) consecutive months.

Seniority shall accumulate if an employee is sick and covered by the Welfare and Pension Plan for a period of up to one (1) Year. Following an illness in excess of twelve (12) months an employee's seniority date shall be adjusted in accordance with the provisions of Article 10.14.

Seniority shall accumulate if an employee is disabled and is on Workmen's Compensation and is receiving weekly compensation bene­fits.

Seniority shall not be broken but shall not accumulate while an em­ployee is on an official leave of absence.

Seniority shall not be broken but shall not accumulate if an employee is promoted to a supervisory position (supervising bargaining unit em­ployees). A Union Representative elected or appointed, during the term of office, shall maintain and accumulate seniority.

Seniority shall not be deemed to be broken or may be deemed to accu­mulate if the Joint Employment Committee agrees that any circum­stances not covered by this paragraph shall not be grounds for breaking an employees' seniority.

Seniority shall accumulate for any period a bargaining unit employee is assigned to work for the Employer outside the Province on Ontario.

10.16 The recall of employees laid off by an Employer(or Mechanics assigned to the Improver Helper rate) shall be in the reverse order of the lay-offs made in accordance with this Article. The Employer shall be obligated to recall laid-off employees and the recall rights shall be limited to a period of six (6) months. An employee shall at his option accept or reject a recall to his former employer. A rejection of recall terminates an employee's recall rights.

10.17 The lay-off provisions of this Article shall not apply to an employee appointed as a Local Representative as long as the employee is carrying out the duties of a Local Representative."

7. The parties are agreed on the elementary facts of the lay-off: the names of the 16 mechanics involved; their seniority; the dates of lay-off and recall for each; and that, when the lay-offs commenced, there were only mechanics employed. In other words, sub-clauses (a), (b), (c), (d) and (e) of clause 10.15 to the extent that they were applicable, had been complied with. When the lay-offs started, there were some mechanics affected who already had accepted assignments as an improver helper pursuant to the provision in clause 10. 15 which states: "The mechanic facing lay-off may accept assignment as an Improver Helper or take a lay-off.". That situation does not signify that those mechanics are not grieving the conduct of the lay-off.

8. The applicant contends that, since there were only mechanics employed at the time the lay-offs began, sub-clause (f) of clause 10.15 governed Otis' conduct of the lay-off and required it to lay-off the most junior mechanic or mechanics needed to accomplish the reduction and permitted it to depart from strict seniority only if the mechanics remaining did not have sufficient skill and ability to do the work which remained to be done at the time of the lay-off. Counsel for the applicant argues that the clause does not distinguish between mechanics by reference to the type of work they do (such as construction mechanic, repair mechanic or contract service mechanic), nor does the language set up a contest between the remaining mechanics such that seniority would govern only if their skills and ability were relatively equal. Counsel argues further that the modifying adjective "necessary" in the clause means that it is the skill and ability which is needed by a reasonable standard to do the "work that remains and the reasonable standard is sufficient skill and ability to do the work. This argument implies that "the work that remains" is any of the work of mechanics regardless of who is doing it, which kind of work it is (see paragraph 10) or what is the seniority of the employee doing it. In other words, if a senior mechanic does not have the necessary skill and ability to do the work of a junior mechanic whom the employer is proposing to retain, but has the necessary skill and ability to do any of the work remaining to be done by mechanics as of the date of lay-off, that mechanic has a right to be assigned to that work and the employer must make the work reassignments necessary to make that work available and to eliminate the junior mechanic. Counsel maintains that because Otis was dealing only with persons who were classified as mechanics, it was dealing with persons who are qualified to do the work of mechanics which remained. Thus it should have conducted the lay-off by strict seniority producing the results indicated below under the date of lay-off heading "By Strict Seniority" instead of the result shown under the heading "Actual". Counsel acknowledges that some re­assignment of mechanics may be necessary to accomplish this but maintains that is a require­ment implicit in the language of 10.15(f).

Seniority

Date of Lay-off

Name

Yrs./Mos./Days

Actual

By Strict Seniority

Wenzell, J.

7 – 3 – 0

Retained

Oct. 3, 1979

O’Neill, T.

7 – 7 – 1

Oct. 3/79

Oct. 3/79

Fletcher, M.

7 – 8 - 0

Oct. 18/79

Oct. 3/79

Briscoe, W.R.

7 – 10 – 12

Oct. 3/79

Oct. 18/79

Duggan, M.

8 – 0 – 3

Oct. 3/79

Oct. 18/79

Smith, R.

8 – 3 – 1

Oct. 18/79

Oct. 18/79

Power, A.

8 – 6 – 0

Oct. 18/79

Oct. 18/79

Langan, P.

8 – 6 – 0

Nov. 8/79

Oct. 18/79

Roy, M.

8 – 8 – 0

Oct. 22/79

Oct. 22/79

Heaney, M.

8 – 8 – 0

Oct. 18/79

Oct. 25/79

Poole, D.

8 – 8 – 1

Oct. 18/79

Oct. 25/79

Connell, G.

8 – 8 – 1

Oct. 25/79

Oct. 25/79

Busato, J.

8 – 9 – 2

Oct. 25/79

Oct. 25/79

Piper, D.

8 – 10 – 3

Oct. 2/79

Nov. 2/79

Racz, T.

8 – 11 – 0

Oct. 25/79

Nov. 2/79

Crawford, R.

8 – 11 – 1

Retained

Nov. 8/79

Price, C.

9 – 0 – 2

Nov. 2/79

Retain

Donegan, M.

9 – 2 – 0

Nov. 2/79

Retain

9. Counsel for Otis maintains that clause 10.15(0 must be viewed in the context of the entire Agreement and particularly clauses 2.02 and 2.03, the latter one being a management rights clause which, amongst other things, gives Otis the right to "Select personnel, ... assign work or duties,.. .;". That language, in the absence of any restricting language in the Agreement, counsel further maintains, gives Otis the unfettered right to select personnel and assign work or duties within the mechanic classification and to do that, pursuant to its respon­sibility under clause 2.02, in a manner which will...., maintain the highest degree of operating efficiency. . .". Thus according to counsel, a mechanic who is subject to lay-off while other mechanics with less seniority are being retained can only require Otis to retain him if he can do immediately all of the work remaining to be done by mechanics and do it to the highest degree of efficiency. Counsel argues that it is not just the work which is being done by the lower seniority mechanics which he must have the necessary skill and ability to do, nor is it just the work which remains on the date of the lay-off, he must have the necessary skill and ability to do all of the work that remains to be done by mechanics after the lay-off. This proposition is at the opposite pole to that of the applicant and, if applied to the situation on November 1, 1979 when the two most senior mechanics, Donegan and Price, were laid off, it would seem to produce the following results. Since three employees with less seniority, Wenzel, Langan and Crawford, were being retained, Donegan and Price in order to displace two of them, would not only have to possess the necessary skill and ability to do the work that remained to be done by those two, but would have to have the necessary skill and ability to do all of the work that remains to be done by mechanics following their lay-off. Counsel argues that such application of clause 10.15(f) is essential to the maintenance of a flexible workforce of mechanics; that flexibility is critical to Otis' ability to meet its responsibility under clause 2.02 to maintain the highest degree of operating efficienc; and, that the maintenance of flexibility becomes increasingly important as the size of the workforce reduces.

10. Articles 7, 8 and 9 of the Agreement define three major kinds of work: construction (Article 7), repair (Article 8), which is further sub-divided into general repairs and modern­ization, and contract service (Article 9). Thus the Agreement recognizes that four kinds of work exist in the industry and, according to those three articles, that work is to be performed exclusively by Elevator Constructor Mechanics and Helpers". In addition, the evidence reveals that Otis has organized its work to use mechanics to do what it terms "adjusting" work and mechanics who are assigned to it are termed "adjustors". For ease of reference, the term of "adjustor" will be used in this decision to refer to mechanics who are assigned to adjusting work. While the parties are agreed that this situation does exist and has for many years, the applicant correctly contends that the Agreement contains no reference to adjustors or adjusting or to mechanics doing this type of work, but only to mechanics without differentiation as to the type of work which they perform. Therefore, according to the applicant, Otis cannot make a distinction between a junior mechanic who is an adjustor and a more senior mechanic who is not in order to justify retaining the junior one in preference to the other when one of them must be laid off. The applicant does not dispute that adjustors are paid at the premium rate of 112¼ per cent of the mechanic rate, notwithstanding that the agree­ment makes no provision. The Agreement does provide for that same premium to be paid to mechanics-in-charge on construction or modernization jobs and to mechanics who are appointed local representatives for employers or who are on seven-day stand-by call.

11. Although adjustors are used primarily on new construction, they also work on major repair and modernization jobs and sometimes do trouble shooting for contract service, so they cross over all four kinds of work in the Agreement. Their task, generally stated, is to get the equipment to operate the way it was ordered by the customer. More particularly this involves such tasks as assuring that the programs which determines the sequences and speed of operation of the equipment are functioning according to plan; that safety mechanisms are working; that the equipment is operating up to the designed speed and assuring that the installation is ready for and passes inspection as required by the relevant regulations. This work involves diagnosing the cause of problems in the operation of the equipment and resolving the problems. In the words of one mechanic, David Young, a witness for the applicant who was an adjustor for Otis for 10 years, it is "the most sophisticated job in the industry". This witness has not worked as an adjustor for the past two years and when he started 12 years ago it took him four months training before he could begin to work alone, although by then he had 12 years experience in construction and contract service work. It is clear from the evidence of Young and two other witnesses, Robert Alldis, previously a working foreman in adjusting for Otis, who testified for the applicant and Norman Hartley, construction superintendent for Otis and the manager whose responsibility for construction includes the management of the adjustors, that mechanics are carefully selected to become adjustors based on their all round ability in the elevator industry, the quality of their work in construction installation and/ or contract service work, personal aptitude for the work and particularly their knowledge of electrical circuitry. It is not possible to accurately ascertain from the evidence how long it takes to train an adjustor to the stage when he can work alone on all of the different types of equipment. Young said it was four months before he worked by himself, but his evidence does not indicate the range of equipment which he could handle. Alldis, who has done adjusting and/ or supervised the work for twenty-five years, made reference to one mechanic, who had training as an adjustor, needing two to three months training on one kind of equipment to round out his training. While this was Otis' most sophisticated in an extensive range of equipment, Alldis' evidence suggests that four months training is just a foot on the ladder. Hartley maintained that a new mechanic with the aptitude for the work, who has studied advanced electrical circuitry, would need six years to develop into an adjustor capable of working alone on all Otis equipment and to perform all aspects of the work.

12. At the time of the lay-off, all but one of the laid off mechanics had come from construction work. Construction activity was almost non-existent so that, for all practical purposes, the work that remained was general repair, modernization and contract service work. There are 17 to 18 repair crews scheduled for two months work, and 57 contract service routes in operation within Local 50's territorial jurisdiction at the time of the lay-off. Crawford was employed as a contract service mechanic on the CN Tower throughout the lay­off and Wenzell was working as an adjustor on a modernization project in Montreal. The applicant put little evidence before the Board as to the ability of any of the 16 employees who were laid off to replace either Crawford or Wenzell. None of the grievors testified and what little evidence there is came from Alldis and from William Morran, business manager for Local 50, who worked in the elevator industry from 1956 until 1972, including having worked for Otis as a mechanic on contract service work and as an adjustor. Most of the mechanics with whom Alldis had worked within the past two years had been working as improver-helpers in construction. Except for Donegan, whom he believed would be satisfactory as a contract service mechanic, Alldis did not know the ability of the others well enough to say whether they could perform satisfactorily in that work or replace Wenzell. Donegan could not replace Wenzell. Morran was of the opinion that G. Connell, M. Fletcher, P. Langan and M. Roy, as qualified mechanics, could replace Crawford on the CN Tower. He thought C. Price could also replace Crawford but would be less efficient than Crawford. He was uncertain where Donegan might be placed because most of his experience was in construction and he was best there, although his first assessment of Donegan was the same as his assessment of Price. Paul Meyer, who was contract service mechanic on the CN Tower for three and one-half years prior to Crawford, said it would take approximately a day for a new mechanic to familiarize himself with where the equipment is. It would take substantially more time to get up to full or normal efficiency. Since the elevators are a source of revenue for this client of Otis, it was important that the mechanic be able to quickly solve problems which put elevators out of operation. Meyer also testified that the selector drivers on the elevators were one of six of that kind in use in North America. This and some other differences in the equipment required somewhat different problem solving skills than other elevator installations. David Young was an adjustor on the CN Tower during its construction and also testified that the equipment in the CN Tower was different from other installations, but not in respect of the programs controlling the operation of the elevators. He stated that it was a difficult building for getting to know where the various equipment and controls are located. It would depend on what changes had been made since he last worked on the CN Tower as to how long it would take him to become familiar with the operation again.

13. James MacLean, who, when the lay-off started, had been service superintendent for Otis for 18 years and in that capacity is responsible for general repairs, modernization and contract service work testified as to the skill and ability of the laid off mechanics. His general assessment was that none of them was qualified at the start of the lay-off to work as a mechanic on a contract service route. Some could qualify in three months after working with a contract service mechanic to learn routines followed in that work. None, in his assessment, was qualified to do adjusting work. His evidence in examination-in-chief and cross-examination as to the skill and ability of the individual mechanics on the lay off list to work as mechanics on contract service routes was consistent with his general assessment. In respect of the contra­dictions between his assessment and that of Morran as to the skill and ability of the laid off mechanics, the Board prefers MacLean's evidence. Morran has not worked in the trade since 1972 and, although his full-time employment by Local 50 since then has required that he remain current in his general knowledge of the trade and the capabilities of the members for whom he is responsible, MacLean is responsible for the on-going management of the mechanics performing contract service work for Otis. Moreover, MacLean's evidence was more specific as to the actual experience on contract service work, or the absence of it and, of course, he is responsible for the maintenance routines which they must carry out and is in a better postion to know whether they have the skill and ability to do so. For the same reason, the Board prefers MacLean's evidence to that of Alldis' in respect of Donegan. While AlIdis' evidence deserves weight because of his long experience in the industry, his knowledge of Donegan comes from working with him on construction. Furthermore, while Alldis once had supervisory responsibility for contract service work, he has not had any direct responsibility for more than 10 years and his knowledge of the current work routines would be limited compared with MacLean who is wholly responsible for them. The Board, therefore, finds that none of the laid off mechanics were, at the time of their lay-offs, able to replace Crawford or any other contract service mechanic without further training.

14. The Board heard significantly more evidence about the ability of mechanics who were not on the lay-off list to replace Crawford and Wenzell, evidence which is relevant to the applicant's interpretation of clause 10.15(f). On that evidence, the Board finds as follows.

15. During the past six years in Toronto, Otis has used electronic systems to control the programs which operate some of its new elevator installation which employ "solid state" electronic technology. The first major installation using this technology is First Canadian Place in the downtown core of Toronto. The present state of skill development on solid state technology of the adjustors is such that only Wenzell and one other mechanic, Mr. W. Bowler, could work alone on control equipment employing that technology. Even Alldis excludes himself from having that skill. There were six mechanics on the current seniority list of Otis employees working as adjustors in November, 1979: R. Alldis, R. Boag, W. Bowler, M. Brauer, C. Nagy, F. O'Neil and D. Robinson. Except for Robinson, all could replace Wenzell on the project on which he was employed in Montreal during the period of the lay-off allowing no more time for familarizing themselves with the project than Wenzell took. There were three other mechanics (in addition to Young) who have experience on adjusting but who were not capable at the time of the lay-off of working alone on all types of equipment handled by Otis. One would require at least two to three months additional training, the other two substantially more. Young is not skilled to work on solid state technology and, after two years away from working as an adjustor (although, because of his experience, he does some adjusting of the equipment on his contract service route), would not have the skill and ability to adjust on new equipment on which he has had no prior experience.

16. In respect of contract service work, the evidence on balance indicates that either Meyer or Young could replace Crawford as mechanic on the CN Tower, although they would need at least a day to re-familiarize themselves with the premises. The more difficult question is who would replace the one that replaced Crawford. MacLean testified that there were some 20 to 30 contract service mechanics who would replace Young, but he would have to make four or five sequential moves to accomplish the replacement over a period of two to three weeks. Yet the Board is satisfied on the evidence of Meyer, Morran and Young that Otis has from time to time transferred mechanics from repair work to contract service or from one contract service route to another without having them work along with another mechanic for a period of familiarization. In fact Meyer was transferred to his present route from the CN Tower without anyone showing him around the buildings for which he is responsible. This is not to say that every mechanic could be similarly deployed, but where Otis assesses this skill and ability to permit such a move, the move is made. While the Board has no evidence that Mayer could be replaced in the same manner as Young, it is satisfied from MacLean's evidence on replacing that it could be done.

17. Although MacLean testified as to the experience of some of the laid off mechanics on general repair or modernization work, the applicant did not call any evidence which might support a claim that general repair or modernization mechanics could be transferred to contract service work in order to provide a place for two grievors with the requisite skill and ability to do the modernization or general repair work that remains.

18. The Board, in turning to the task of determining whether Otis violated clause 10.15(f) of the Agreement by retaining Crawford and Wenzell while it laid off more senior mechanics, is constrained to observe that the language of the clause bears a close resemblance to seniority language dealing with lay-offs which for many years has been found in collective agreements outside of the construction industry. It is not unusual language, but seniority language, perhaps more than other provisions of collective agreements, becomes imbued as it matures, with a meaning that is "personal" to the parties to the particular agreement. Thus applications of the language which once would have raised a dispute between the parties becomes accepted practice. In the instant case, the language has not had a chance to mature for the provisions contained in Article 10 of the Agreement (particularly clause 10. 15) are, for the most part, the first such provisions negotiated by the parties. Some similar provisions were contained in Article X (A) of the predecessor collective agreement. That collective agreement was the product of an arbitration award, colloquially referred to as the "Anderson Award", rendered on February 28, 1974, pursuant to The Elevator Constructor Unions Disputes Act, 1973, which was enacted by the legislature of Ontario because of a labour dispute between the predecessor of the Association and the Union. Some of the provisions of Article X (A) were later modified by an unreported decision of O.B. Shine, Q.C., sole arbitrator, who was appointed pursuant to terms of the Anderson Award. In view of that history and while it is reasonable to conclude that the parties put their minds to the task at hand when they negotiated the language of Article 10, the Board believes that it must be cautious to balance its obligation to resolve the dispute before it with the need to leave the parties sufficient latitude within which to apply this new language to new situations as they arise and to do so within the context of the other provisions of the Agreement with which they have the benefit of long experience not enjoyed by any arbitrator.

19. Clause 10.15 of Article 10, the one giving rise to this referral, standing alone clearly provides for a sequential system for laying off employees of an employer "In the event that lack of work requires a reduction in the number of employees in the employ of [that] employer, ". Items (a) through (e) call for each one of five grades of helpers to be laid off before mechanics are to be laid off pursuant to clause 10.15(f). That is the point in the lay-off sequence which Otis had reached when the lay-offs which are the subject of this referral started. The fact that some of the mechanics named on the list referred to in paragraph 8 above had already accepted assignments as an Improver Helper in accordance with clause 10.15(f) by the time these lay-offs began infers that clause 10.15(f) had already been applied in an earlier lay-off. Turning then to the language of clause 10.15(f), in spite of the apparent ambiguity of the phrase "Mechanics in seniority,. . ." which begins the clause, the parties do not dispute that it means the order of lay-off for mechanics in the reverse of their seniority; that is, the mechanic with the least seniority is the first to be laid off. It is the qualifying proviso of the remainder of the clause which is the source of the dispute. On its face the qualification is simply one which requires that the most senior mechanics who ". . . have the necessary skill and ability to do the work that remains are to be retained. That language, as so often is the case in seniority clauses in collective agreements, places a limitation on the application of straight seniority to (in our case) lay-offs by the requirement of ability to perform the work. That requirement is distinct from the one which sets up a competition between two or more claimants for the remaining work. See, for example, the often cited observations of Professor Laskin, as he then was, in Re U.A.W. and Westeel Products Ltd. (1960), 11 L.A.C. 199:

"Two alternative themes are generally found in seniority articles. Under one, seniority is qualified in greater or lesser degree by a requirement of ability or competence to do the required work. In such case, a senior man who is equal to the job is entitled to it, although there may be a junior applicant who can do it better. The other theme involves a contest between competing applicants, and seniority governs only when their competence or ability is relatively equal."

The problem with the definition of the ability qualification in clause 10.15(f) is the question of what constitutes "the work that remains". The problem, which is evident from the polarized arguments of the parties, is that the language reasonably bears more than one interpretation. The Board must decide the proper interpretation before it can determine whether Otis has violated the Agreement by retaining Crawford and Wenzell.

20. Before turning fully to that task, there is a problem with the word "Employers" appearing in clause 10.15(f); it obviously is meant to be a possessive adjective and is missing the apostrophe. Since the Agreement is for multiple employers and it refers in various articles as required to employer and employers, it is necessary to settle whether the 10.15(f) reference is intended to be singular or plural. On the basis that the opening phrase of the clause is clearly referring to a single employer, the remainder of the clause refers to employer in the singular and the second paragraph following 10.15(f) excludes bumping between two or more employers, the Board concludes that the word "Employers" in clause 10.15(f) should read "Employer's".

21. Applicant counsel relies primarily upon the wording of clause 10. 15 standing alone for support of the applicant's interpretation. It does not stand alone in the Agreement, however, and must be read subject to the other provisions of the Agreement. Quite apart from any other inherent management rights which may reside with the employers bound to the Agreement, item (a) of clause 2.03 specifically recognizes the employers' right to "Select personnel, hire, assign work or duties, transfer, lay-off and recall employees;", subject to the other provisions of the Agreement. Clause 2.03 begins with the words "Without limiting the generality of the foregoing," which refers at least to the preceding clause 2.02 in which "The Union recognizes that it is the responsibility of the Employers, in the interest of the purchaser, the Employers and their employees, to maintain the highest degree of operating efficiency.. Thus when a single employer, Otis, is assigning work or duties, or laying off and recalling employees, it must do so subject to Article 10, amongst other provisions of the Agreement, and it must do so without limiting the generality of its recognized responsibility to maintain the highest degree of operating efficiency. The assignment of work and duties is further subject to Article 4— Work Jurisdiction and Article 4-A — Systems, Modular and Industrial Structures, as well as by Articles 7, 8 and 9 as referred to in paragraph 10.

22. Clauses 10.15 and 10.16 are the only clauses in Article 10 which deal with the application of seniority and, except for limited reference elsewhere in the Agreement to certain rights or obligations which accrue upon an employee completing his probationary period, there are no other references in the Agreement to the application of seniority. Therefore, it is only Otis' right to lay off and to recall employees in clause 2.03(a) that is limited by seniority. Its right to select personnel, hire, assign work or duties and transfer employees is not restricted by seniority, nor is it restricted in any material way by Article 4, 4-A, 7, 8 and 9 except insofar as those articles define the work that is included within the scope of the Agreement and require it to be performed by employees who are bound by the Agreement or set certain limits on the use of helpers or temporary mechanics. For all practical purposes, these few limits excepted, Otis has an unrestricted right, then, to select, hire, assign work or duties to, and transfer mechanics. It follows, therefore, that as long as Otis lays off mechanics "in seniority" and recalls them from lay-off pursuant to clause 10.16".. .in the reverse order of the lay-offs made in accordance with this Article", its right to assign work or duties to mechanics or to transfer them at the time of a lay-off or recall is not otherwise restricted. Hence Otis has the right to make transfers and/or change work assignments, or not to do so, in order to discharge its responsibilities under clauses 10.15 and 10.16.

23. Furthermore, if applicant counsel's "make room" argument was to prevail it would result in the senior mechanic who is claiming the work relying not on his seniority but on Otis exercising its right to assign work and transfer mechanics to enforce the higher seniority of one or more other mechanics by having them claim the job or jobs of other mechanics so that the initial claimant could ultimately claim the job of a junior mechanic. In the absence of any spe­cific requirement to that effect in the Agreement, there is no support for the proposition that the grievors' seniority rights operate to cause Otis to restructure its work assignments in the manner contended by the applicant. Nor, in the absence of any specific requirement in the agreement, is there any support for the proposition that Otis has to "make room" by providing a training period at the time of lay-off to enable an employee who is claiming a job to acquire the requisite skills to do it. That sort of proposition has long been rejected by arbitrators, un­less the agreement provides to the contrary, because to require that to be done would pose an unrealistic burden on the employer. (See Canadian Trailmobile Ltd., 1975 CanLII 2095 (ON LA), 10 L.A.C. (2d) 92 (Adams) at pp. 101 and 102 and the cases cited therein).

24. Notwithstanding that conclusion, Otis' right in clause 2.03 to lay off mechanics has been tempered by clause 10.15(f), as has the responsibility placed upon it by clause 2.02".. . to maintain the highest degree of operating efficiency.. ." and they cannot be relied upon by Otis to override the undertaking in clause 10.15(f) to lay off mechanics by seniority. That obliga­tion, though, is tempered in turn by the qualification that Otis' remaining mechanics ". . . have the necessary skill and ability to do the work that remains." And it is this qualification that is at the heart of the dispute. What does it mean? Whose responsibility is it to apply in this Agree­ment?

25. In respect of the first question, the Board has already determined that the clause 10.15 (f) qualification does not operate to require Otis to restructure its work assignments of mechanics who are senior to those being laid off. As a corollary of that finding it can be said also that respondent counsel's proposition that mechanics who are exercising their seniority to avoid lay off must be able to do all of the work remaining for mechanics has no merit. Notwith­standing, the responsibility in clause 2.02 of Otis to ..... maintain the highest degree of oper­ating efficiency.. ." and its right to assign work, to allow the proposition would be to make clause 10.15 (f) a nullity. For example, the proposition infers that the respondent has an un­limited right to lay off out of order of seniority any mechanics at the time of a lay-off who cannot perform all of the work that remains for all mechanics and effectively defeat their right to seniority protection on lay-off. (The Board hastens to add that there is no evidence in the in­stant situation that Otis has done so, even inadvertently). The right to assign work and the clause 2.02 responsibility cannot be applied in a manner that purposely or inadvertently cir­cumvents clause 10.15 (f) rather it must be applied for valid business and operating reasons. This is not to say that Otis cannot rely on clause 10.15 (f) at the time of a lay-off to be able to retain junior mechanics to assure retention of a work force of mechanics which has the neces­sary skill and ability to do the work that remains. Quite the contrary, Otis has the right first to determine what work remains to be done in a global sense, and next, to determine what work force of mechanics must be retained so that it has a work force with the necessary skill and ability to perform the work as assigned by Otis to individual mechanics for valid business and operating reasons. In the first determination, the work that remains is the sum of the work to be done by all mechanics. In the second determination, the work that remains is the integral parts of the sum which are to be done by individual mechanics as assigned by Otis. When any of those assignments are to mechanics who were retained out of seniority order, they are sub­ject to challenge by a senior mechanic who has been laid off. Therefore, the work that remains which he must have the necessary skill and ability to do is the work which has been assigned to the junior mechanic whose job he is claiming. Precisely what that work is would be subject to a finding of fact in the particular lay-off situation.

26. In respect of the second question, a firm consensus exists amongst arbitrators that management has the responsibility to determine which employee or employees amongst others has the requisite skill and ability under a seniority clause, but management's assessment of the skill and ability component are subject to arbitral review. That consensus extends as well to the standard of arbitral review to be applied to management's assessment, which is generally held to be whether it was reasonable, honest and unbiased in all the circumstances, including and subject to the terms of the collective agreement. While there have been many arbitration awards which have dealt with the scope of arbitral review and the standard to be applied to management's assessment of the skill and ability factor in promotions, lay-offs and recalls since the award in Re U.E.W., Local 523, and Union Carbide Canada Ltd. (1967), 1967 CanLII 1026 (ON LA), 18 L.A.C. 109 (Weiler), Prof. Weiler's statement at p. 117 remains a concise expression of the underlying rationale for the scope and standard of arbitral review:

"It should be noted that this does not mean (as the company appeared to advocate in its brief) that the employer's responsibility to decide on em­ployee ability and qualifications is untrammelled and completely un­reviewable. Rather, the company's decision must be non-discriminatory, and subject to the terms of the contract (including the seniority clause) in two senses: first, the judgment of the company must be honest, and un­biased, and not actuated by any malice or ill will directed at the particular employee, and second, the managerial decision must be reasonable, one which a reasonable employer could have reached in the light of the facts available. The underlying purpose of this interpretation is to prevent the arbitration board taking over the function of management, a position which it is said they are manifestly incapable of filling. Yet the managerial discretion to decide has been limited by the terms of the agreement and it is the duty of the arbitration board to ensure that it is exercised in the light of proper principles and criteria, that all relevant considerations have been adverted to, and that all in relevant factors have been excluded from the process of decision." [emphasis added]

In Canadian Food and Allied Workers Union, Local 175 v. Great Atlantic and Pacific Company of Canada Limited, 76 CLLC 14,056 (Div. Ct.) the court has made it clear that the standard to be applied includes ensuring that the employer has complied with the provisions in a collective agreement for the selection of employees for promotion (and in our view this would apply equally to lay-off and recall), wherein it stated at pp. 334-5:

"The board as a creature of the collective agreement must then see to it that the provisions of the collective agreement have been complied with; its role cannot be more or less than this. The honesty and the lack of malafides in making the decision are factors to be taken into account. So, too, is the question of whether or not the employer has acted unreason­ably. Indeed, in determining the "reasonableness" of the employer's decision, the board may go a long way to determine the issue submitted to it. However, once the collective agreement makes provisions as to the method of selection of employees for promotions, then the board must see to it that those provisions have been complied with and in so doing, it cannot restrict itself in determining whether the employer acted honestly and reasonably. If the board is not to make such a decision, then the parties in the collective agreement should ensure that management's right in this regard is unfettered."

27. Thus management makes its decision on the ability factor and, if challenged, that decision must stand the test against the standard referred to above. Accordingly, in this case, if the facts reveal that Otis has acted reasonably, honestly and free of bias and has properly applied the provisions of the Agreement, its decision should be undisturbed. Conversely, if its decision fails to satisfy that standard, the Board has the authority to substitute its decision for that of Otis. The onus of proof in challenges of this sort is with the applicant and in this respect see Re Textile Workers Union and Lady Galt Towels Ltd. (1969), 1969 CanLII 1498 (CA LA), 20 L.A.C. 382 (Christie).

28. Having regard to that onus of proof, the task remains to apply the standard outlined above to the facts in this case. The facts in respect of Wenzell are that Otis retained him out of order of seniority and assigned him to do the work of an adjustor as referred to herein. The facts dealing with the nature of adjusting work lead overwhelmingly to the conclusion that Otis selects mechanics for assignment to this work based on their all round ability in the elevator industry and, at least as they are used by Otis, they are a special skill group amongst mechanics. Wenzell was retained because he had the necessary skill and ability to do that work and the 16 mechanics who were laid off did not. There is no evidence to suggest that Otis acted unreasonably, dishonestly or with bias in its assessment of the skill and ability of Wenzell or the grievors and the facts are abundantly clear that none of the 16 mechanics who were laid off had the necessary skill and ability to do the work of a mechanic for which Wenzell had been retained. Therefore, none of the grievors are entitled to exercise their higher seniority to displace Wenzell. Crawford was retained as a mechanic to perform the contract service work on the CN Tower. As was the case with Wenzell, there was no evidence to suggest that Otis acted unreasonably, dishonestly or with bias in its assessment of the skill and ability of Crawford or the grievors, Price and Donegan who are senior to him. Again, the facts as set out herein reveal that these two grievors do not have the necessary skill and ability to do the work of a mechanic for which Crawford was retained and, therefore, they are not entitled to exercise their higher seniority to displace Crawford.

29. Price and Donegan both have greater seniority than Langan who was retained after they were laid off on November 2, 1979, until November 8, 1979. Except for the general argument that all 18 employees involved in the grievance were mechanics and therefore, the lay-off of the 16 mechanics should have been in strict order of seniority, no argument was advanced as to the entitlement of either Price or Donegan to have been retained instead of Langan. Having regard for that circumstance and in the absence of any evidence that Langan was retained for reasons inconsistent with a proper application of clause 10.15(f) by Otis or evidence that Price or Donegan had the necessary skill and ability to do the work of a mechanic for which Langan was retained, Price and Donegan are not entitled to exercise their higher seniority to displace Langan.

30. In the result, the Board concludes that Otis' conduct of the lay-off was proper and consistent with the provisions of the Agreement and its decisions in respect of the 18 mechanics should be undisturbed. The grievance in this referral is, therefore, dismissed.