[1994] OLRB Rep. September 1208
2761-93-G International Union of Elevator Constructors Local 90, Applicant v. Dover Corporation (Canada) Ltd., Responding Party
BEFORE: Lee Shouldice, Vice-Chair, and Board Members S. Laing and H. Kobryn.
APPEARANCES: Stanley Simpson and Robert Crosby for the applicant; Ross Dunsmore and Bob Dunn for the responding party.
DECISION OF LEE SHOULDICE, VICE-CHAIR, AND BOARD MEMBER S. LAING;
September 21, 1994
I. Introduction
1This is an application pursuant to section 126 of the Labour Relations Act.
2This grievance raises two substantive issues for consideration. First, the applicant (hereinafter "the union" or "Local 90") alleges that the layoff of Mr. Murray Cope by the responding party (hereinafter "the employer" or "Dover") on July 5,1993 violated Article 10 of the Ontario Provincial Agreement (hereinafter "the collective agreement") between the National Elevator and Escalator Association (the designated Employer Bargaining Agency) and the International Union of Elevator Constructors (the designated Employee Bargaining Agency). This issue requires the Board to determine, for the first time, the proper interpretation of a somewhat unusual seniority provision which requires six months service with an employer before the employee can rely on his industry-wide seniority for purposes of layoff. Secondly, and as an alternative argument, the union alleges that the employer acted in bad faith when determining that Mr. Cope should be laid off in July, 1993. In essence, the union states that Mr. Cope was laid off so that he would not achieve six months service with Dover, which had the effect of ensuring his layoff. Both of these issues were addressed in evidence and argument.
II. The Facts
3The grievor, Murray Cope, is a member of the union and first became employed in the elevator industry in the London, Ontario area on January 14, 1987. Mr. Cope's work record was entered into evidence without objection. It discloses that since January, 1987, Mr. Cope has worked, on different occasions, for a number of elevator companies in the London area. For the purposes of this grievance, the most significant two separate periods of employment with Dover were July 23, 1992 to January 7, 1993, and January 15, 1993 to July 5, 1993. It is to be noted that each of these two periods of employment is approximately two weeks short of 6 months duration, a fact of great significance, as will be described in more detail below.
4In the London area, there are four major employers in the elevator industry: Dover, Otis Canada Inc. Montgomery KONE Elevator Company Limited & Schindler Elevator Corp. Mr. Cope's work record indicates that, with the exception of Schindler Elevator Corp., he has worked for each of these companies, but predominately (both in terms of number of times of employment and total length of employment) with Dover. The union operates a hiring hall and, in order for unionized elevator companies to obtain employees for maintenance or construction work, Local 90 must be approached for workers. There is no dispute that at all relevant times Mr. Cope's services were obtained by Dover by way of the hiring hall.
5As noted above, Mr. Cope was employed by Dover on July 23, 1992 (he had previously worked for Dover on 3 separate occasions dating back to March, 1987). At the time of Mr. Cope's layoff from Dover on January 7,1993, he was working for Dover on a modernization project at the Victoria Hospital in London, Ontario, and had been at that project for approximately 3 or 4 weeks. He was engaged on that project as a helper rather than as a mechanic. Mr. Cope testified that on January 7 he received a telephone call from Mr. Don Smith, the employer's London Superintendent, at which time he was advised that he was to be laid off, effective that night. Mr. Cope was, at the time of his layoff, working on the "Stores" elevator, changing the door's hardware, controllers and wiring. He testified that the construction work on the job had just started at the time of his layoff. Mr. Cope told the Board that he remarked to Mr. Smith at the time of the layoff that he had been expecting it because his 6 month probationary period was soon to be completed. According to Mr. Cope, Mr. Smith denied that the upcoming 6 month anniversary with Dover was a factor in the decision, but, according to Mr. Cope, Mr. Smith also suggested that Mr. Cope would likely be returning to work shortly.
6Mr. Robert Crosby, Business Representative of Local 90, testified that he had had a discussion with Mr. Smith around the time that Mr. Cope was laid off in January, 1993. He, too,
suggested to Mr. Smith that Mr. Cope's layoff was due to his forthcoming 6 month anniversary with Dover. Mr. Smith assured Mr. Crosby that the layoff was due to lack of work.