[1984] OLRB Rep. November 1584
0424-84-U Redvers C. Butler, Complainant, v. Inco Limited, Respondent
BEFORE: Ian C. Springate, Vice-Chairman, and Board Members M. Eayrs and N. A. Wilson.
APPEARANCES: Redvers C. Butler and Robert Tracy for the complainant; Paul Jarvis and W. Gret ton for the respondent.
DECISION OF THE BOARD; November 15, 1984
The name of the respondent is amended to read: "Inco Limited".
This is a complaint under section 89 of the Labour Relations Act alleging that the respondent has violated section 66(a) of the Act.
Section 66(a) of the Act provides as follows:
"66. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act."
The complainant, Mr. Redvers Butler, is a security officer employed by the respondent Inco Limited ("Inco") in the Sudbury area. Mr. Butler comes within a bargaining unit of security officers represented by the Canadian Guards Association, Local 105. Mr. Butler is not, however, simply a rank and file bargaining unit employee. He is also a senior union official, having held various offices in both the Canadian Guards Association and its Local 105. At the present time, Mr. Butler is the president of the Canadian Guards Association. Although Mr. Butler alleges that he has been discriminated against by Inco, he does not contend that this discrimination was the result of his activities on behalf of the union or his position as president of the Canadian Guards Association. Rather, he contends that he and all other security guards employed by Inco in its Sudbury District operations are being discriminated against because they are in a bargaining unit represented by a trade union.
There appears to be three major groupings of employees engaged at Inco's Sudbury District operations, namely production employees represented by the United Steelworkers of America, security officers represented by Local 105 of the Canadian Guards Association and salaried employees not represented by any trade union. There is very little evidence before us with respect to the terms of employment of employees represented by the United Steelworkers of America. We do know, however, that security officers represented by Local 105 of the Canadian Guards Association and the unrepresented salaried employees receive most of the same "fringe" benefits, such as a pension and various medical insurance plans. The benefits available to the security officers are enumerated in a subsisting collective agreement between Inco and Local 105. As might be expected, not all of the terms and conditions of employment of the unorganized employees and the security officers are the same. For example, the collective agreement covering security officers provides that no security officer can be discharged except for just cause, and that any layoffs are to be in order of reverse seniority. Further, laid off employees retain certain rights of recall. The unorganized staff do not enjoy any of these protections. There is, however, one benefit available to the unorganized employees which is not now available to employees represented by either the United Steelworkers of America or Local 105 of the Canadian Guards Association, namely the ability to receive benefits under an involuntary severance plan.
Inco's involuntary severance plan has been in effect since 1971. Benefits under the plan are made available to non-bargaining unit employees who are terminated by the company. The plan involves the payment of a severance allowance based upon a terminated employee's years of service. The payments are made over a period of time. In cases where a terminated employee is also entitled to a company pension, the severance payments are "stacked" on top of his pension payments. There is nothing in the evidence to indicate that Local 105 of the Canadian Guards Association has ever sought through collective bargaining to have the severance plan apply to security officers.
In 1982, Inco decided to drastically reduce its workforce. One of the methods by which the company sought to do so was by encouraging employees to take early retirement. To this end, in early 1982 the involuntary severance plan was temporarily extended to cover early voluntary retirements. Further, coverage of the plan was unilaterally extended by Inco to cover employees represented by Local 105 of the Canadian Guards Association. In line with these temporary changes to the plan, the company advised all staff with over thirty years' service, including security officers, that if they opted to retire they would receive not only the pension due them, but also additional payments pursuant to the severance plan. Mr. Butler, who has been employed by Inco since 1948, was one of those to whom this offer was made. Mr. Butler testified that he was advised that if he accepted the offer, he would receive about sixty-five per cent of his normal retirement pension. Mr. Butler decided not to take the offer of early retirement.
Approximately 250 employees voluntarily agreed to accept early retirement, including nine security officers. In June of 1982, the original restrictions were imposed on the operation of the severance plan, so that once again it covered only unrepresented employees who were terminated against their wishes. Mr. Gretton, the manager of employee relations for Inco's Ontario Division, indicated that in certain instances where the company had decided that a redundant non-bargaining unit employee was to be let go, and an employee advised the company that he would like to be the one terminated, if it suited the company's needs, the company did select the individual in question.
As noted above, in 1982 approximately 250 employees, including nine security officers, agreed to take voluntary early retirement along with the severance payments. As far as Inco was concerned, this did not sufficiently reduce the workforce. Accordingly, a number of employees were involuntary terminated and paid under the involuntary termination plan. Five security officers were laid off, the individuals being selected in accordance with the provisions of the applicable collective agreement. Although not obliged to do so under the collective agreement, Inco made severance payments to the laid-off security officers. Since that time, the company has continued to gradually reduce the size of its workforce. Some of this reduction has been by way of the termination of redundant employees, who have received payments under the involuntary termination plan. Most of the reduction, however, has been by way of attrition. When an employee has retired or voluntary left the company's employ, Inco has generally redistributed the work so as to be able to avoid hiring a replacement. In testifying before the Board Mr. Gretton acknowledged that if a security officer were to leave the company's employ, he likely would not be replaced.
In March or April of 1984, Mr. Butler requested that he be allowed to retire early and receive not only the pension due him but also a severance allowance. This request paralleled the offer which Mr. Butler had rejected in 1982, although now with his greater service, under such a scheme he would be entitled to receive more money. Inco denied Mr. Butler's request, explaining that it was no longer open for employees to elect to retire early and receive the severance payments. When Mr. Butler protested that certain employees had recently left the company's employ and received severance payments on top of an early retirement pension, it was explained to him that these were employees who had been terminated by the company because their jobs had become redundant. Mr. Butler's response was that if he were to take early retirement, he would not be replaced, which demonstrated that he too was redundant.
Mr. Butler contends that if he were not in a bargaining unit he would be entitled to receive the benefits of the company's severance plan, and thus would be able to retire early and receive severance payments in addition to his pension. It is his contention that since he is not eligible to receive the severance payments, he is being discriminated against because he is represented by a trade union. Mr. Butler bases this submission on the general proposition that while employees represented by a union may enjoy benefits not received by unrepresented employees, it becomes a form of improper discrimination under section 66(a) of the Act for an employer to give benefits to unrepresented employees that are not also being received by employees represented by a trade union.
We are unable to accept Mr. Butler's general proposition. A trade union in negotiations with an employer may well decide to concentrate on certain matters, such as increased wages or seniority rights, and do so at the expense of other benefits which are enjoyed by unrepresented employees. The result does not necessarily mean that the employer is discriminating against employees represented by the trade union. In the instant case, Local 105 of the Canadian Guards Association negotiated a number of collective agreement clauses which limit the right of Inco to terminate security officers, restrict the company's ability to select who is to be laid off and give laid off employees certain rights of recall. Presumably, Local 105 has also negotiated wage increases for the employees it represents. There is no evidence, however, that the union has ever sought to bargain for a scheme of severance pay. Given these circumstances, the fact that the involuntary severance pay scheme does not apply to employees represented by the union does not, in our view, constitute a form of discrimination proscribed by section 66(a). We recognize that in certain instances a refusal by an employer to agree to provide unionized employees with benefits enjoyed by unorganized employees may be indicative of discrimination against employees because they have chosen to be represented by a trade union and/or a failure to bargain in good faith. The facts of this case, however, do not raise these concerns.
Our views set out above are sufficient to deal with this matter. We would note, however, that even if Mr. Butler was correct in his contention that the involuntary severance scheme should apply to bargaining unit employees, Mr. Butler would still not be entitled to payments under the plan. The reason for this is that he has not been involuntarily terminated, but rather continues to work for Inco. It is not up to Mr. Butler to declare himself redundant to the company's requirements. That is a matter for the company to decide. Further, even if Inco were to decide that it had one too many security officers, the company would be required to follow the terms of the collective agreement in deciding which security officer would be laid off. It would not be open to Mr. Butler to unilaterally decide that he should be the one.
Having regard to the foregoing, we are of the view that no breach of section 66(a) of the Act has been made out. The complaint is accordingly dismissed.