Ontario Allied Construction Trades Council v. Ontario Hydro, 1993 CanLII 7890

[1993] OLRB Rep. July 625

0144-93-G Ontario Allied Construction Trades Council and Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, and The United Brotherhood of Carpenters and Joiners of America, Applicants v. Ontario Hydro and Electrical Power Systems Construction Association, Responding Parties

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members W. A. Correll and H. Kobryn.

APPEARANCES: N. L. Jesin, J. Lewis, John Marchildon and D. Manson for the applicant; John Saunders and Mama Shecter for the responding parties.

DECISION OF THE BOARD; July 27, 1993

1. The title of proceedings is amended to include "The United Brotherhood of Carpenters and Joiners of America" as an applicant, and to identify the responding parties as: "Ontario Hydro and Electrical Power Systems Construction Association".

I

2. This is the referral of a grievance in the construction industry under section 126 of the Labour Relations Act (the "Act"). The applicants (the "union") allege that the responding parties (the "employer") breached article 14.1 of the Carpenters Appendix to the master portion of the collective agreement by not following the correct project lay-off procedure. The parties agreed to the following facts set out in the employer's response to the application:

3. On or about May 26, 1992, Mr. Robert Bellows (Bellows) allegedly experienced an injury to his lower back while employed for Ontario Hydro as a construction carpen­ter. He was absent from work from this date until approximately August 31, 1992, during which time he received benefits from workers' compensation.

4. On or about August 31, 1992, Bellows returned to perform the essential duties of his pre-injury job. See Exhibit "A" for the "Notice of Worker's Fitness to Return to Pre­Injury Work" from the Workers' Compensation Board.

5. On or about September 8, 1992, Mr. Tiziano Borgolotto (Borgolotto) allegedly experienced a sore back while employed by Ontario Hydro as a construction carpenter. He was absent from work from this date until approximately November 9, 1992, during which time he received bene­fits from workers' compensation.

6. On or about November 9, 1992, Borgolotto returned to perform the essential duties of his pre-injury job. See Exhibit "B" for the "Notice of Worker's Fitness to Return to Pre-Injury Work" from the Workers' Compensation Board.

7. During the past two years, Ontario Hydro has been party to five decisions by Rein­statement Officers appointed pursuant to the Workers' Compensation Act: RB.

21/92; RB. 26/92; RB. 65/92; R.B. 25/93 and RB. 27/93.

6. Decision 21/92 has been appealed to the Workers' Compensation Appeals Tribunal and the outcome of that appeal will influence whether the other four cases are appealed or not.

7. While these cases were decided on slightly different fact situations and under different collective agreement language, a decision was reached by the Respondent that these cases, at a minimum, stood for the proposition that they were unable to lay-off Bel­lows and Borgolotto until they had completed at least six months of re-employment with the Respondent.

8. Due to the completion of the rehabilitation work on Units One and Two at the Lake-view Thermal Generating Station, the number of carpenters has decreased substan­tially over the last year to the current six tradespersons.

9. On January 28, 1993, twelve carpenters were notified of their permanent lay-off.

10. The seniority of Bellows and Borgolotto was such that, but for the above conclusion which the Respondent has formed based upon the Reinstatement Officer decisions, these two persons would have been permanently laid off. Instead, grievors M. Adams and T. Hewitt, both of whom had more seniority than Bellows and Borgolotto, were permanently laid off.

11. The parties agreed not to call any evidence and, in the event of a finding of liability, asked the Board to limit its remedy to a declaration that the agreement had been breached. The parties would then seek to resolve any monetary and employment issues arising out of the declara­tion, with the Board remaining seized to resolve any disagreement.

II

4. Article 14.1 of the Carpenters Appendix states:

ARTICLE 14 - PROJECT LAYOFF PROCEDURE

14.1 The layoff of employees covered by this Appendix shall be governed by the following:

a) For the purpose of this Article, there shall be three (3) groups of employees:

(i) Employees working under a Union Work Permit.

(ii) Employees who are nonmembers of the appropriate Local Union.

(iii) Employees who are members of the appropriate Local Union.

The Union will be responsible for advising an Employer regarding the group status of individual employees.

b) During a reduction of staff, layoff will commence with category (i) and progress through cate­gories (ii) and (iii) respectively.

In established cases of compensable accident, or long term sickness*, an employee will be main­tained on the employer's payroll until fit to return to normal duties or until his normal date of layoff, whichever occurs first.

*A long term sickness is that which is 30 calendar days or more in duration. In order to remain eligible, an employee on long term sickness will provide the employer with medical evidence before this period has expired and for every subsequent 30 day period indicating the expected date of return to work.

REV (C) Within category (iii) layoff will be carried out on a project seniority basis for employees having 3 months or more project service providing the remaining employees can perform the work yet to be completed.

For the purpose of this Article, project seniority shall be defined as the length of continuous ser­vice at the project in the bargaining unit classifications covered by this Appendix only.

5. The parties agreed that there were no employees falling within the provisions of Article 14.1(a)(i) and (ii) on January 28th and that Article 14.1(a)(iii) is the only relevant provision, thus bringing into play Article 14.1(c). For purposes of this latter provision, the parties also agreed that all employees in issue had "3 months or more project service" and that "the remaining employees [could] perform the work yet to be completed".

6. Further, the employer agreed that but for its understanding of the requirements of the Workers' Compensation Act (the "WCA"), as translated by the reinstatement officer decisions listed in paragraph 2 above, Messrs. Bellows and Borgolotto would have been laid off on January 28th, 1993. The employer admitted, therefore, that the retention of Messrs. Bellows and Borgo­lotto in employment after January 28th was in breach of Article 14 unless a defence could be found within the requirements of the WCA. The only issues before the Board, therefore, were whether the WCA required the employer to retain Messrs. Bellows and Borgolotto in employment after January 28th and, if so, whether this requirement relieves the employer of a prima facie breach of the collective agreement.

III

7. The Labour Relations Act has recently been amended to grant collective agreement arbitrators, including the Board when sitting as an arbitrator under section 126 of the Act, the express authority "to interpret and apply the requirements of human rights and other employment related statutes, despite any conflict between these requirements and the terms of the collective agreement": section 45(8). Thus, assuming that the WCA is an employment related statute, the employer submitted that if its requirements differ from those of the collective agreement, the Board would be empowered to interpret and apply them. This, the employer appeared to assume, would mean that the statutory provisions would take precedence over the contractual ones and either provide a complete defence to an alleged breach of the agreement or relieve against its con­sequences. On the view we take of the matter, however, this is an issue that need not be resolved.

8. The parties directed our attention to the following provisions of section 54 of the WCA:

OBLIGATION TO RE-EMPLOY

54.-(1) The employer of a worker who as a result of an injury has been unable to work and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section.

(4) Upon receiving notice from the Board-that a worker is able to perform the essential duties of the worker's pre-injury employment, the employer shall offer to reinstate the worker in the position the worker held on the date of injury or offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker's employment on that date.

(14) If this section conflicts with a collective agreement that is binding upon the employer and if the obligations of the employer under this section in respect of a worker afford the worker greater re-employment terms in the circumstances than the terms available to the worker under the collective agreement, this section prevails over the collective agreement.

(15) Subsection (14) does not operate to displace the seniority provisions of a collective agree­ment.

As we understand it, Messrs. Bellows and Borgolotto were reinstated in employment in compli­ance with subsections (1) and (4) and were retained in employment after January 28th in accor­dance with subsection (14) and the employer~ s view of the reinstatement officer decisions referred to in paragraph 2 above. The difficulty with the employer's approach, however, is that it fails to take account of subsection (15) and certain decisions of the Workers' Compensation Appeals Tri­bunal (the "WCAT") to which we were also referred.

9. In decision numbers 605/91, 173/92 and 296/921, in particular, the WCAT appears to have taken the position that, by virtue of subsection 54(15), the statutory reinstatement obligations were not intended to confer upon employees a form of "super-seniority" or to insulate them from normal fluctuations in employment unrelated to their status as injured workers. Indeed, in Deci­sion no. 173/92 the WCAT addresses one of the issues before this Board viz, whether section 54 provides an injured worker with greater rights to continued employment than would have been available through the strict application of a seniority based lay-off regime set out in a collective agreement. The WCAT commented on the objects of section 54 [formerly section 54b] as follows:

The goal of the section, in the view of this Panel, is to ensure that the injured worker who suf­fers from a compensable injury, is placed in the position, as far as is reasonably possible, that she would have been in had the injury not temporarily removed her from the workplace. The intent does not appear to be one of creating a category of worker who is, by creation of some sort of "super seniority", one who is insulated from the usual contingencies and uncertainties inherent in that workplace. In this respect, the Panel agrees with much of the reasoning found in Appeals Tribunal Decision No. 605/91 (p. 9).

10. With respect to subsections (14) and (15), the WCAT continued:

Particularly in cases where the injured worker is a member of a bargaining unit, one limitation upon her protection is clear. Subsections 14 and 15 of section 54b of the Workers' Compensa­tion Act specifically provide that the seniority provisions of a collective agreement are not to be displaced by the provisions of section 54b.

Both parties to this appeal agree that the purpose of subsection (14) and (15) of section 54b is to ensure that the seniority protections of the collective agreement are not diminished by the Workers' Compensation Act. The statutory obligation to re-employ may not be implemented in such a way as to displace those seniority provisions.

The parties also agree that there was no intent on the part of the Legislature to create, for injured bargaining unit members, a status of "super seniority", which provides them with greater seniority over co-workers in the bargaining unit who were not injured. Subsection (15) makes that intent clear. (pp. 9-12)

Applying that analysis to the economic lay-off of an injured worker who had earlier been reins­tated in accordance with subsection 54(4), the WCAT concluded:

(d) The worker's lay off: January 25, 1991

Finally, the Panel must consider the implications of the January 25, 1991, lay-off. At this point in time, the evidence reveals that a labour surplus was again declared, and the worker was bumped out of her position by a worker with greater seniority. Having exhausted her seniority rights at this point, the worker was laid off. She applied for and received unemployment insur­ance benefits.

Again, in the view of this Panel, the fact that the worker was laid off in January of 1991, is an event which occurred as the result of the application of the seniority provisions of the collective agreement to the situation of a labour surplus. There is no aspect of this lay-off which was rele­vant to considerations pertaining to the compensable accident or any continuing disability.

It is our view that the intent of the Workers' Compensation Act reinstatement provisions is to insure that the worker is returned, as far as is reasonably possible, to the position she would have been in, had the accident not taken place. We are satisfied that that goal was met. In this case, it was not the worker's accident and disability, but the usual contingencies of the work­place, and the effect of the collective agreement seniority provisions, which resulted in the worker's demotions and lay-off. (p. 18)

11. The Board agrees with the WCAT's approach to section 54(15) and sees nothing in the decisions of the reinstatement officers to which we were referred that would lead to a different result. While it would certainly be open to the Legislature to place the status of injured workers ahead of seniority based lay-off and recall regimes, this would undo much of what has been achieved by the labour movement in the last fifty years. The principle of seniority in matters as fundamental as the right to continued employment is now so firmly entrenched in the law and lore of collective bargaining in this province as to require both compelling policy reasons and a clear expression of legislative intent to overcome it. Neither, and indeed the opposite, appear to be present in section 54 of the WCA.

12. On the question of whether Article 14.1 is a "seniority provision" within the meaning of section 54(15), we are of the view that this is an issue that needs to be resolved on the facts of each case. In some cases, Article 14.1(b) may apply. This article provides for lay-off, in the first instance at least, of employees in accordance with their status as (i) working under a Union Permit or (ii) a non-member in the appropriate Local Union. Employees falling within either of these categories may have greater project seniority than members of the appropriate Local Union i.e. category (iii), but would still be required to be laid off first. Had Messrs. Bellows and Borgolotto, for example, been members of either categories (i) or (ii) but possessed of greater project seniority than those in category (iii), their lay-off in accordance with Article 14.1 might not be protected by section 54(15). However, this is not the present case and we see no reason why this possibility should affect the characterization to be given to the operative provision, Article 14.1(c). Similarly, in our view, the fact that Article 14.1(c) is a mixed seniority and ability clause should not alter the result where, as here, ability is not in issue.

13. What we are left with then is a provision which, on the facts of this case, would deter­mine the individuals to be laid off strictly in accordance with seniority. In this respect, the provi­sion appears to be no different from that which was found by the WCAT to be a "seniority provi­sion" in Decision no. 173/92. On the basis of the foregoing analysis, and in light of the apparent purpose of section 54 generally and section 54(15) in particular, we have no difficulty in concluding on the facts of the present case that Article 14.1(c) is a "seniority provision" within the meaning of section 54(15).

14. Accordingly, and having regard to the employer's admissions, the Board declares that the responding parties breached the collective agreement on January 28, 1993 by retaining Messrs. Bellows and Borgolotto in employment while laying off more senior employees. The matter is remitted to the parties to fashion a remedy, failing which the Board remains seized to resolve any disputes.