International Union of Elevator Constructors, Local 50 v. Otis Canada, Inc., 1994 CanLII 9900

[1994] OLRB Rep. 469

0924-93-G; 0925-93-U International Union of Elevator Constructors, Local 50, Applicant v. Otis Canada, Inc., National Elevator and Escalator Assoc., Responding Parties

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members G. O. Shamanski and H. Kobryn.

APPEARANCES: B. Chercover, T. McCann, R. Baxter, C. Murray and K. Ridley for the applicant; M. Patrick Moran, Ed Wyzykowski and Andy Reistetter for the responding parties.

DECISION OF VICE-CHAIR, INGE M. STAMP AND BOARD MEMBER H. KOBRYN; April 29, 1994

1. The application under section 91 of the Labour Relations Act and the Referral of Grievance to Arbitration Under section 126, Construction Industry rely on the same material facts as pleaded in Schedule A of each application.

2. The applicant alleges the responding party has violated sections 3, 65, 67 and 71 of the Act and Article 10 of the collective agreement. The above mentioned sections of the Act provide as follows:

3. Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.

4. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

5. 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;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

71. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

3. The relevant articles in the collective agreement are:

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 of conduct to be observed by employees.

3.01 All Mechanics and helpers covered by this Agreement shall as a condition of employment, obtain and maintain membership in a Local Union of the International Union of Elevator Constructors following completion of the probationary period as defined in Article 10.

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 Maintenance 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 (1) Mechanic.

10.03.01 PROBATIONARY HELPER I: 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 II: Upon completion of six (6) months in the industry, to the satisfaction of the Employer and the Union, a Probationary Helper shall be re-classified as a Probationary Helper II. For further advancement in the industry, he shall be obligated to successfully complete the recognized courses of training as designated by the local area committee under the direction of the National Board of Trustees of the C.E.I.E.P., if available.

10.03.02 He shall receive 60% of the mechanic's rate and shall be entitled and be required to participate in and make contributions to the Welfare Plan and the Pension Plan as provided for in this Agreement. He shall also be entitled to enroll in the Canadian Elevator Industry Educational Program. The Trustees of the Plans and the Program shall be requested to make any and all amendments or arrangements necessary to accomplish this.

A Helper who fails the test twice at the same level will be reduced to and paid as a Helper I. A Joint Education Committee shall be appointed consisting of three representative from the Employers and three Representatives from the Local Union. This committee shall develop and periodically up-date standardized Helpers and Mechanic's exams under the direction of the National Board of Trustees of the C.E.I.E.P.

No Helper may qualify to be raised to the next classification until he has worked the prescribed periods and passed the examinations administered by the Joint Education Committee.

The periods mentioned in the foregoing shall be aggregate periods and may be worked with more than one Employer.

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 II 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 An individual with previous elevator experience may be hired as a Helper or Mechanic by agreement with the Union and the Employer.

10.11 A Joint Employment Committee comprised of an equal number of employer representatives from the industry and from the Local Union shall be appointed in each locality.

10.12 The primary purpose of the Committee shall be to establish and keep current an open list of individuals who are fully qualified to perform the work required in the industry, or who are being trained in the work of the industry, or who have apparent potential for such training, this open list shall be established and kept current on a non-discriminatory basis and without regard for membership in the Union. The Joint employment Committee (co-ordinating its work with the Education Committee, the joint Examining Committee and with governmental and outside agencies as it deems advisable), shall develop policies and procedures designed to attract and retain a competent and stable workforce in the industry.

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.

ARTICLE 18

EDUCATION FUND

18.01 The parties to this Agreement do hereby agree to maintain an Educational Trust Fund to be administered by a Board of six (6) Trustees; three (3) appointed by the Employers and three (3) appointed by the International Union of elevator Constructors. The Education Trust Fund shall be known as the "Canadian Elevator Industry Educational Program" and shall provide a program for educating and training Elevator Constructor Mechanics and Helpers.

18.02 The Board of Trustees shall have full authority and discretion to adopt an Agreement and Declaration of Trust and an educational and training program which shall become part of this Agreement and binding on all parties signatory to this Agreement.

4. The applicant alleges the responding party sought to avoid the union hiring hall and to interfere with the administration of the union and the representation of employees by the union. After eight days of hearing evidence from a number of witnesses the core facts are not in dispute. The dispute arose out of a disagreement over the interpretation of the collective agreement as to who controls the point in time when an apprentice who has passed his written exam and otherwise has fulfilled the necessary requirements is eligible to work as a mechanic. In other words can the employer assign "mechanic's" work to the person who has successfully completed all the required stages without that person first obtaining a card or referral from the union.

5. Keith Ridley had been working for the responding party for approximately four and a half years when he had completed the various stages necessary to write his mechanic's exam. Upon successfully completing his exam the employer assigned Ridley to perform mechanic's work. Ridley went to the union to get his "mechanic's card" in order to perform mechanic's work. The union refused to issue such a card because of its policy that while qualified unemployed "card" mechanics were out of work no new "cards" would be issued. In other words persons who would be entitled to be elevated to the status of "mechanic" had to wait to be referred out as mechanics until the list of unemployed mechanics cleared the hiring hall. The term "card mechanic" does not appear in the collective agreement.

6. The union clearly takes the position that it controls the issuance of the "Card" without which Keith Ridley cannot work as a mechanic. The employer is equally certain that it can assign mechanics work to a person who is already in its employ provided he/she has complied with all the necessary requirements and passed the mechanic's exam. Ridley was caught in the middle of this dispute over the interpretation of the collective agreement. The employer advised Ridley that there was no longer any helper work available and if he did not work as a mechanic he would be deemed to have quit. The union's constitution provides for fines of $2,000, expulsion, or suspension of membership, etc. if members do not obey "all directives and orders of the International and Local Union" or to "obey the Constitution and By-Laws" of the union. This was a "no-win" situation for Keith Ridley, a "Catch 22".

7. Ridley went back and forth several times between the employer and the union. Neither the responding party or the applicant were able or willing to resolve this situation in order to assist Mr. Ridley. Ridley, a conscientious employee, was put in a very difficult position through no fault of his own. He gave his evidence in a forthright manner under very difficult circumstances.

8. On June 9,1993 Keith Ridley received a letter from A. Jensen stating:

Dear Keith:

This is to confirm our phone conversation on June 9, 1993, as to Otis' request that you return to work at the North Toronto Office on June 10, 1993 as a mechanic.

I informed you that you qualify to work as a mechanic under the agreement that if you did not return to work, Otis would consider that you have resigned from your job. You were also informed that Northern Elevator has (4) men in the same circumstance as you, working as mechanics and that the union was aware of it.

Yours truly,

OTIS CANADA, INC. "

A. Jensen"

A. Jensen

Maintenance Sup.

9. Counsel for the responding party submits there are two distinct allegations. One, the company violated sections 3, 65, 67 and 71 of the Labour Relations Act by deeming Ridley to have resigned when he did not accept work as a mechanic. Second is the grievance under the collective agreement dealing with Ridley's assignment to mechanic's duties and alleging the violation of the collective agreement and his deemed resignation is a termination without just cause. Counsel asserts the unfair labour practice does not merit the Board's attention based on the allegations and the evidence.

10. It is clear that the employer and the union disagree about when an improver helper becomes a mechanic under the agreement. Counsel for the responding party submits the transition from improver helper is governed solely by the collective agreement and that the language is not ambiguous. Article 10.07 of the collective agreement refers to the completion of two items, 48 months in the industry and the mechanic's exam. Those are the only requirements in the agreement to become a mechanic under the agreement. There is no reference to "card mechanic" in the collective agreement.

11. Counsel referred to Articles 10.04, 10.05, 10.06, 10.07 and 10.08. There is no reference to any local area committee. There is no dispute that Ridley satisfied the requirement of 10.07 and pursuant to Article 2.03 the employer has the right to assign mechanics work to Ridley. Counsel submits the language in the agreement is clear and unambiguous.

12. Counsel for the responding party reviewed Schedule A of the the complaint/grievance and asserts there is no evidence before the Board with respect to a number of the allegations set out in paragraphs 4, 5, 6, 7 and 12.

13. It is the responding party's position that it did not interfere with the administration of the union and the representation of the employees by the union nor was there any coercion. The employer did not stop Ridley from going and talking to his union. There was and continues to be a real difference between the bargaining agents and between the company and the local in terms of the union attempting to hold on to its control using the term "card mechanic". Counsel submits that Mr. Baxter acknowledged the employers and the bargaining agent have not accepted the continued existence of the category of "card mechanic".

14. Counsel referred to the requirements of establishing an unfair labour practice as set out in Beckett (unreported decision dated June 25, 1986 Board File Nos. 0393-84-U and 2603-84-U) Counsel reviewed the evidence surrounding the incident with respect to Ridley's deemed quit. There was no evidence from Local 50 as to what advise they gave Ridley. Counsel submits Ridley could have worked and grieved later.

15. The responding company asks the grievance and the section 91 be dismissed.

16. Counsel for the applicant submits the issue before the Board is a case of how you become a mechanic once you are in the system. Counsel reviewed the evidence, exhibits and the relevant articles in the collective agreement and in particular Article 10. Counsel pointed out that there is no provision to reclassify to mechanic as it is for helper 1, helper II and improver helper. In order for the responding party to move Ridley to mechanic would require wording in Article 10.07 to the effect that upon successfully completing the various steps as set out a improver helper will be reclassified as a mechanic. However the agreement says "... an improver helper shall write the mechanics exam as set out by the CEIEP trustees." Counsel goes on to say that even if it is argued that it is implicit if you write the exam you get the next step there are documents that contradict that. One cannot ignore the history of the industry or Exhibit 15, the Manual of Standard Operating Procedures (SOP) of the Canadian Elevator Industry Educational Program (C.E.I.E.P.).

17. Counsel submits the examination is one of the factors considered when elevating successful candidates to "mechanic" in addition to the needs of the industry and the number of unemployed mechanics in the hiring hall.

18. Counsel contends there was manipulation by the employer which demonstrated a total lack of good faith. What should have happened is that Mr. Jensen and Mr. McCann should have agreed to disagree and find a way to deal with Ridley. While one might be critical in some ways of the union it is a two way street. It was the employer who made the decision to proceed the way it chose and this decision impacted on Ridley.

19. Counsel for the applicant submits the primary issue in this case is whether or not the company could reclassify Keith Ridley and make him a mechanic before any of the others who had written and had passed the exam had been reclassified. It is the applicant's position that the evidence of manipulation and misrepresentation of the facts by the employer demonstrates Otis had no real belief in their case. The applicant asserts that the employer's position and its suggestion to Ridley that he could be hidden on small one-man jobs where the union would not be told of the circumstances of the assignment was an attempt to interfere with the representation of employees by the union. Counsel further submits the work now, grieve later cases referred to by the responding party are not relevant as this employer denies it has disciplined Ridley and that in their view Ridley quit.

20. Counsel for the applicant states the Anderson Award dealt with rejecting a card or permit system for entry into the workforce and not a system which dealt with the manner in which one will become a mechanic once in the industry. The Anderson Award did not interfere with the process under which one becomes a mechanic.

Decision

21. The evidence suggests the timing as to when a successful improver helper can work as a mechanic did not become an issue until recently when there was unemployment among the mechanics.

22. The employer attempted to get Ridley to work as a mechanic in a less than forthright manner. It is unfortunate that the union and the employer were unable to find a solution to this dispute. The surreptitious approach used to put Ridley in the middle of an issue which the parties ought to have sorted out themselves does not contribute to good labour relations. The letter from Jensen to Ridley suggesting that "4 men in the same circumstance as you are working as mechanics at Northern Elevator" was based on unreliable information and no direct evidence was led that this had actually occurred.

23. Article 2.03(a) gives the employer the right to select personnel, hire, assign work or duties, transfer, layoff and recall employees; Article 10 sets out the progression from probationary helper I through to improver helper. Article 10.07 sets out the conditions for writing the mechanic's examination.

24. The agreement provides for joint committees to ensure a supply of qualified persons to the industry. Article 10.08 provides for a joint committee to develop and update the mechanic examination. There are provisions for temporary mechanics and the layoff provisions allow for a mechanic to work as an improver helper or take a layoff due to lack of work.

25. Trades in the construction industry are covered by the Apprenticeship and Tradesmen Qualification Act of Ontario for each trade. The exception are the elevator mechanics. The parties have made their own agreement with respect to the apprenticeship program to supply the industry with qualified elevator mechanics. The thrust of Article 10 is one of co-operation for the benefit of the industry as a whole.

26. Article 10.13 requires a referral slip from the union before commencing work. In the context of the hiring hall provisions in the construction industry and specifically Article 10.13 of the Elevator's Agreement Ridley was required to have a referral before commencing work as a "Mechanic". Whether using the term "Mechanic" or "Card Mechanic" does not affect the requirement of a referral from the hiring hall.

27. The issue before us is not when an improver helper is eligible to become a mechanic but whether the employer can promote or reclassify an improver helper to a mechanic's position (once the improver helper has complied with all the necessary requirements) without first requesting a mechanic from the hiring hall and obtaining a referral from the union. If there are qualified unemployed mechanics on the out of work list they would be referred out before any improver helpers who have become eligible to be reclassified as mechanics. If the employer requires a mechanic, pursuant to Article 10:13, the employer must "use the Local Union as a first source of job applicants". Article 2:03 does not include the right to reclassify or promote.

28. Having regard to all of the evidence, submissions and cases cited we find that the employer has violated the hiring hall provisions of the collective agreement. The employer's request that Ridley work as a mechanic without a referral from his union is a violation of the collective agreement. As a result Ridley did not resign from his job and was terminated without just cause. The Board will remain seized of this matter in the event the parties are unable to agree on the issue of redress and damages with respect to Mr. Ridley.

29. With respect to the application under section 91 of the Act we do not find a violation and this matter is dismissed.

DECISION OF BOARD MEMBER G. O. SHAMANSKI; April 29, 1994

1. I dissent.

2. On the basis of the evidence before this panel, I am not at all convinced the company has contravened the collective labour agreement or the Labour Relations Act. I would therefore dismiss the grievance.