Power Workers Union, CUPE Local 1000 v. Ontario Hydro, 1994 CanLII 9956

Ontario Labour Relations Board

[1994] OLRB Rep. June 765

3758-93-U Power Workers Union, CUPE Local 1000, Applicant v. Ontario Hydro, Responding Party

BEFORE: S. Liang, Vice-Chair, and Board Members R. W. Pirrie and C. McDonald.

APPEARANCES: Richard P. Stephenson and Geoff Holland for the applicant; Douglas K. Gray and Nicole Mailloux and T. Goldie for the responding party.

DECISION OF THE BOARD; June 29, 1994

1. This is an application made pursuant to the provisions of section 91 of the Labour Rela­tions Act, in which the applicant alleges a violation of section 41.1, which provides:

41.1- (1) This section applies in each of the following circumstances:

1. If the employer is required to give notice of termination in accordance with subsection 57(2) of the Employment Standards Act (termination of fifty or

more employees) to employees who are represented by a bargaining agent.

2. If any employees are to have their employment terminated because of the permanent discontinuance of all or part of the business in respect of which

a trade union holds bargaining rights.

3. In such other circumstances as the Lieutenant Governor in Council may prescribe.

(2) The employer shall notify the trade union that a circumstance described in subsection (1) exists not later than the first date on which the employer is required to give any affected employee in the bargaining unit a notice of termination under section 57 of the Employment Standards Act.

(3) Upon the request of the trade union, the employer and the trade union shall bargain in good faith and make every reasonable effort to make an adjustment plan.

(4) The employer and the trade union shall meet for the purpose of bargaining within seven days after the trade union makes the request.

(5) An adjustment plan may include provisions respecting any of the following:

1. Consideration of alternatives to terminating employees' employment.

2. Human resource planning and employee counselling and retraining.

3. Notice of termination.

4. Severance pay and termination pay.

5. Entitlement to pension and other benefits including early retirement bene­fits.

6. A bipartite process for overseeing the implementation of the adjustment plan.

7. Such other matters as the parties may agree upon.

(6) An adjustment plan is enforceable as if it were part of the collective agreement, if any, between the employer and the trade union.

(7) If there is no collective agreement in effect, the employer or the trade union may request that the Minister refer to a single arbitrator under subsection 46(1) a difference related to the interpretation, application or administration of an adjustment plan.

2. For ease of reference, the parties will be referred to as "the union" or "the PWU" and "the employer" or "Hydro". At the time this matter came before this panel, on March 8, 1994, the parties were engaged in negotiating a renewal to a collective agreement which expired on March 31, 1994. At the outset of the case, the employer objected to the labour relations wisdom of inquir­ing into this complaint, when the parties were already engaged in collective bargaining, and enter­ing into conciliation. Among other things, it was submitted that to the extent that the mischief addressed by section 41.1 is the lack of a mechanism by which parties can bargain adjustment plan issues during the currency of a collective agreement, this mischief is lacking where the parties are already engaged in collective bargaining and have the opportunity to negotiate everything which would be the subject of adjustment plan bargaining.

3. It was not disputed that at the time this objection was made, the parties had not placed adjustment plan issues on the bargaining agenda, and neither party indicated to the Board that it was intending to negotiate or agree to negotiate adjustment plan issues during their collective bar­gaining negotiations.

4. The Board ruled that the circumstances before it did not warrant the exercise of its dis­cretion to decline to inquire into the complaint on its merits, and proceeded to hear the evidence and representations of the parties on all issues. The complaint, in a nutshell, relates to the employ­er's refusal to negotiate an adjustment plan pursuant to section 41.1. The applicant asserted that certain impending layoffs were the result of the "permanent discontinuance of.. .part of the busi­ness" of this employer. The union focused on five distinct job classes or operations whose staff reductions it alleged arose out of the permanent discontinuance of an aspect of this employer's business. In response, Hydro maintained that with respect to some of these, in fact, there will be no involuntary terminations. With respect to others, there is no "part of a business" which has been discontinued, and in any event, the changes are not permanent. Essentially, it took the posi­tion that to the extent the obligation to negotiate an adjustment plan pursuant to section 41.1 only arises upon the happening of certain specified events, these events have simply not occurred.

5. After the hearing in this matter, and while the decision of this panel was pending, the Board was informed by the employer that the parties had reached a collective agreement which in its view renders the current application moot. In the alternative, it was submitted that the agree­ment reached between the parties should cause the Board to exercise its discretion to decline to grant any relief in the application. As there was disagreement on these issues, the Board convened a hearing to receive the parties' submissions.

6. Since we have decided that there is merit to the employer's submissions, this decision does not determine whether, prior to the hearing before us, the employer violated section 41.1 in refusing to negotiate adjustment plan issues with the union. The following are our reasons for our determination that the Board should decline to inquire further into this matter.

The Evidence

7. For the purposes of this decision, therefore, we will outline only the general back­ground of the events which form the basis of this complaint, and the events which form the basis of the employer's "mootness" arguments.

8. On March 9, 1993, the Chairman of Ontario Hydro announced a major cost reduction and restructuring program. It was announced that as a result of this program, the Hydro work force would be reduced by 6,000 employees, out of a total of about 29,000. Of the 6,000 target, approximately 1500 employees had already left the corporation under earlier voluntary separation incentive programs. The announcement also indicated that Hydro expected that the reduction in the work force would be effected mainly through a range of options for voluntary departure, although considerable redeployment and some surplusing would also likely be necessary.

9. Two programs were offered to employees over the summer of 1993, the Special Retire­ment Program ("SRP")and the Voluntary Separation Program ("VSP") (references hereinafter to "voluntary separation" are intended to include both of these programs). The deadlines for accept­ing these programs were August 31 and September 30, respectively. Employees choosing to take these programs left the corporation by November 1. In all, approximately 4500 employees have left Hydro under voluntary separation.

10. Once it was clear which, and how many, employees opted to accept one of the above programs, Hydro issued surplus notification letters. Between November 8 and December 6, 1551 employees received surplus notification letters. Of this number, 1377 were members of the appli­cant, 139 members of the Society, and 35 were not represented by a union.

11. About the same time, 1100 PWU vacancies were posted. Some of these were vacancies which were unconnected with the downsizing program, and some of these vacancies were necessi­tated by the voluntary departure of their incumbents.

12. There is no necessary correspondence between the employees receiving surplus notices, and the employees who may eventually be laid off. This is because of the operation of two aspects of the collective agreement between Hydro. and the PWU, the "search notice" provisions, and the "displacement" provisions. The receipt of a surplus notice means that for a specified period of time (known as the "search notice period"), surplus employees are given selection priority in the filling of vacancies. Thus, many of the employees given surplus notices end up with other jobs within Hydro. Further, at the end of the search notice period, a displacement process begins under which surplus employees have the opportunity to displace other, more junior employees. There is a first round of displacements, whereby surplus employees are given an opportunity to displace other employees. There may be further rounds of displacements if displaced employees are themselves eligible to displace other employees.

13. We do not need to provide a comprehensive description of the vacancy selection proce­dures and displacement procedures for surplus employees under the collective agreement. It suf­fices at this point to simply observe that the parties have negotiated elaborate procedures for dealing with layoffs which are administered in part by Hydro and in part through a joint management-union displacement team.

14. On December 20, 1993, the PWU sent written notice to Hydro of its desire to bargain an adjustment plan under section 41.1 of the Act. Hydro responded on December 23, stating its position that the provisions of section 41.1 did not apply to its downsizing activities.

15. Since the fall of 1993, the parties had been engaged in collective bargaining. On March 30, 1994, after the hearing in this matter, the parties reached settlement on the terms of a new col­lective agreement, to be effective from April 1, 1994 to March 31, 1996. This agreement was rati­fied by the union's members on May 2.

16. The new collective agreement includes provisions which affect those surplus employees who still remain with the corporation. Most important of all is an agreement to continue the employment of these persons until March 31, 1996, the expiry date of the collective agreement. In addition, there are changes to the provisions governing the placement of surplus staff in vacancies, and the provisions governing displacement procedures. It is clear from the Memorandum of Agreement which was placed before us that the parties have, during the course of collective bar­gaining, put their minds to the very issues which would have been the subject of adjustment plan negotiations. More than this, they have agreed upon some provisions, both general and detailed, which deal with the rights of surplus employees. Whether or not the parties characterize the collec­tive agreement as an "adjustment plan" for the purposes of section 41.1, it is clear that the parties have negotiated adjustment plan issues during the course of their collective bargaining.

17. As we have indicated, Hydro takes the position that the issues before the Board in this application are now moot as a result of the provisions of this new collective agreement. Mootness has been applied in the judicial context to situations where because of events subsequent to the ini­tiation of an action, a live controversy or concrete dispute has disappeared: see, for instance, Borowski v. Attorney-General of Canada, 1989 CanLII 123 (SCC), 57 D.L.R. 231 (S.C.C.), to which the Board was referred by the parties. A court may choose, for reasons of judicial economy, not to proceed with cases that have become moot. Or, where an issue of public importance is raised or the case raises issues which are recurring, a court may decide that it is justified to proceed to determine an issue even after it has become moot.

18. Often, it is not difficult to determine whether a live controversy has ceased to exist. In the case before us, the parties disagree on this. In particular, the applicant disagrees that the nego­tiation of adjustment plan issues by the parties during collective bargaining has resolved all of the matters which would be the subject of adjustment plan bargaining. This, however, is too narrow a view of the matter, for it ignores the fact that the remedies sought in the current complaint relate precisely to a process of negotiations, and not to an end result. In other words, to the extent that the applicant's purpose in bringing this application is to compel the employer to engage in negotia­tions towards an adjustment plan, the fact that the parties have negotiated adjustment plan issues and have had the full opportunity to negotiate adjustment plan issues informs the Board as to whether the parties have in a practical sense resolved the issues which underlie this application. The fact that the agreements arrived at by the parties do not cover all of the matters which could be the subject of an adjustment plan is not relevant.

19. We are therefore satisfied that the parties have resolved in a practical way the issues which were the subject of this application, in that they have decided, during the course of collec­tive bargaining, to negotiate provisions relating to the rights of the surplus employees at issue. Applying the judicial notion of mootness, the "substratum of the applicant's case" disappeared when the parties negotiated and agreed upon matters which were the very matters the applicant sought to have the Board direct Hydro to negotiate. This is so whether or not the parties actually canvassed all of the potential subjects of adjustment plan bargaining, and whether or not the par­ties call the agreement reached an "adjustment plan". What is important is that they have had the opportunity to negotiate on these matters.

20. Under the judicial doctrine of mootness, a court may still decide to proceed with a case where there are other reasons, such as an issue of general importance, which make it desirable for a decision to be rendered. We find no such compelling reasons in the case before us. Although this is the first case concerning section 41.1 which the Board has considered, that in itself is not a suffi­cient reason to decide the matter. Further, the desirability of obtaining the Board's reflections on the application of section 41.1 is outweighed in this case by other labour relations considerations, referred to below.

21. For apart from the doctrine of mootness, the Board also has the discretion to refuse to order remedial relief under section 91(4) of the Act. The circumstances which lead us to view the issues as moot, and decline to render a decision on the merits, also militate against the granting of relief in this case. Where the parties have had the full opportunity to negotiate over the issues which would be the subject of adjustment plan bargaining, and have even reached agreement on some of these issues, it would be contrary to good labour relations sense and would undermine the agreements reached and the give and take in which the parties have engaged, to order further bar­gaining on these issues. This is particularly so where the parties have engaged in negotiations over adjustment plan issues as part of a process of collective bargaining which provides greater incen­tives to engage in meaningful negotiations (by way of economic sanctions and the possibility of imposition of terms by the Board) than the process provided for under section 41.1. Even assuming therefore, without deciding, that Hydro has violated section 41.1 of the Act by refusing to negoti­ate an adjustment plan, we are satisfied that no remedial relief ought to be granted in this case, since to the extent that the remedy sought is a direction to compel the employer to negotiate, this end has already been achieved.

22. There is no question that section 41.1 adds an additional and possibly independent duty to bargain to the parties' pre-existing obligations under section 15. In reality, the addition of sec­tion 41.1 to the Act has most meaning where the parties face the circumstances described in that section at a time when they are not engaged in collective bargaining. When the circumstances arise during or near collective bargaining, there is no reason why the same issues could not be addressed during those negotiations. In fact, we would expect that where the union wishes to bargain about these issues during collective bargaining, an employer has an obligation to address them. In such a case, it is difficult to see that section 41.1 adds anything more to the obligations under section 15 than already exist.

23. When we ruled against the employer's motion at the outset of the case, to decline to inquire into the complaint on the basis that the parties were engaged in collective bargaining, it was not apparent to us that either party had any desire to deal with adjustment plan issues at the bargaining table. It was not apparent that there could not be a situation where the parties might engage in both collective bargaining, and adjustment plan bargaining. The situation today is quite different, however, and as we have discussed above, the incorporation of discussions over adjust­ment plan issues into the parties' collective bargaining is a concrete course of events which influ­ences the wisdom of remedial relief in this case.

24. For the reasons above, the Board dismisses the application on the grounds that it is moot, and on the grounds that it would serve no labour relations purpose to inquire further into the application because no remedial relief would be ordered.