2526-97-G International Union of Elevator Constructors, Local 50, Applicant v. Dover Corporation (Canada) Limited, Responding Party.
BEFORE: Gail Misra, Vice-Chair, and Board Members J. Knight and G. McMenemy.
APPEARANCES: B. Chercover, Tom McCann, Rick Baxter, George James, Tim Desgrosseilliers for the applicant; M. Patrick Moran, Bob Dunn, David Connors, Brian Cotton, Andy Reistetter for the responding party.
DECISION OF THE BOARD; September 7, 2000
This is a referral of a grievance in the construction industry to arbitration pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”).
On September 26, 1997 the applicant (the “union”) filed a grievance against the responding party (the “employer” or “Dover”) claiming that the employer had improperly laid off seven employees contrary to Article 10.15 of the Provincial Collective Agreement. By way of remedy the union was seeking to have the seven individuals reinstated without loss of wages or benefits. The seven persons the union grieved about were: Nenad Spoljaric, Timothy Desgrosseilliers, John Perry, Phil Guthrie, George James, Norm Duquette, and Peter Petersen. Mr. Tom McCann, the Business Manager for the union at that time, filed the grievance.
By a letter dated October 1, 1997 Mr. McCann again wrote to the employer to inform it of the employees it believed should have been laid off, and the order in which the layoff should have occurred. The order of layoff should have been: Robert Domus, William Kurt Craig, Normand Hector Bechamp, Peter L. Petersen, Ross Berry, Milan Gajic, and Phil Guthrie. The union indicated that Messrs. Spoljaric, James, Desgrosseilliers, Duquette and Perry, who were senior to those who should have been laid off, wished to exercise their seniority rights and bump a junior employee in accordance with their rights under the collective agreement.
The responding party denied the grievance. It takes the position that in municipalities in the territory of the International Union (i.e. areas outside of the primary or secondary jurisdiction of the three Ontario Locals) there is a practice of hiring mechanics and helpers who are resident in those municipalities. Five of the persons the union claimed should have been laid off were resident in and working out of Sudbury, which is located in the territory of the International Union. The employer is of the view that mechanics may only exercise their seniority rights with respect to other members of the same Local, working in or based in the territorial jurisdiction of that Local.
In the alternative, and in the event that the Board is of the view that the collective agreement language does not support Dover’s position, the responding party argues that there is an estoppel. It suggests that the union led the employer and members of the union resident in Sudbury to believe that there was a local “bench” in northern Ontario and that members resident in Sudbury were therefore safe from being bumped by Local 50 members if there were layoffs in Toronto. Dover therefore argues that the union is estopped from enforcing the strict language of the collective agreement as the employer relied, to its detriment, on the union’s assertions.
The hearing was a long and drawn-out process that began on October 22, 1997 and ended on August 3, 2000 after six days of hearing. The parties and the Board adjourned a number of days in the course of the intervening years. The Board heard from seven witnesses, three for the union and four for the employer, and received eight exhibits. This decision has been reached based on the Board’s review of the testimony of the witnesses, the exhibits filed, and the submissions of the parties. It is worth noting that Dover recalled all of the affected persons to work as of February 2, 1998. Further, Peter Petersen’s claim could, at best, only be until December 22, 1997 as Mr. Petersen took other employment as of that date and declined to be recalled to Dover in February 1998.
There is no dispute that Dover was bound to the Ontario Provincial Agreement between the National Elevator and Escalator Association (the employer bargaining agency) and the International Union of Elevator Constructors (the employee bargaining agency), effective July 20, 1995 to April 30, 1998. The employee bargaining agency bargains on behalf of Locals 50, 90 and 96 of the International Union of Elevator Constructors, the three affiliated Locals in Ontario.
In early September 1997, prior to a layoff being announced, Mr. Joe Hackett, a supervisor at Dover, attended at the Local 50 office in Toronto to discuss the impending layoffs. Dover needed to reduce its workforce in Toronto by seven people. He had a discussion with Mr. Charlie Murray, a Local 50 Business Representative, and with Mr. Tom McCann. Mr. McCann was the Business Manager for Local 50 at the time, but in the course of this hearing was promoted to the position of Regional Director for Canada for the International Union. He is now therefore no longer responsible for Local 50 alone. On the day that Mr. Hackett visited the union office he appeared to be working from a different seniority list than was the union and Mr. McCann advised him that there was only one seniority list for the province. Mr. Hackett apparently indicated that he had been told there was a different seniority list for the north, so those people had not been included in the list the employer was working from.
Thereafter Mr. McCann also spoke to Mr. Bob Dunn, Mr. Hackett’s supervisor at Dover, about the layoff list to advise him that there was only one seniority list for Local 50 members employed by Dover in the province.
On September 26, 1997 the union received a facsimile transmission from Dover indicating that due to a lack of work Messrs. Petersen, Guthrie, Spoljaric, James, Desgrosseilliers, Duquette and Perry were to be laid off effective that day. Also due to the work shortage, three other employees were to be reassigned to 80% status effective that day. The grievance was filed immediately thereafter. After the layoff had taken place and the grievance filed, Mr. McCann spoke to Mr. Connors, Dover’s manager in Sudbury about the union’s view that the northern Local 50 members should be laid off in order of seniority with the Toronto members. Mr. Connors advised Mr. McCann that he could hire who he wanted as he was operating in International territory, and that the people in the north were exempt from the Local 50 seniority list. Mr. McCann reiterated that there was only one seniority list for Ontario.
Mr. McCann conceded at the hearing that there have been layoffs in the past in the Toronto area when people in the north have been retained. He further conceded that while Mr. Domus, a permit helper, was working in the north there were unemployed members on the bench in Toronto. However, he believed that those on the bench must not have asked to bump Mr. Domus. Both Mr. Baxter (a Business Representative for Local 50 at the time the grievance was filed, and now the Business Manager) and Mr. McCann conceded that people working in Toronto do not want to relocate to the north to work, so there is generally little interest in bumping northern members of Local 50. Nonetheless, Mr. McCann testified that the employer should have laid off five of its eight northern mechanics as a result of the 1997 layoff in Toronto. Further, he was of the view that the employer should then have sent people from Toronto to do the work in Sudbury, and should have paid them a travel allowance and living expenses that would have amounted to $2,500 a week for five mechanics.
Article 15 of the agreement addresses the jurisdictional territory of the three Locals. For Local 50 the primary and secondary jurisdictions are as follows:
15.03The primary jurisdiction of Local 50 of the City of Toronto shall include the territory within the area bounded by Royal York Road on the west, north to Wilson Avenue and York Mills Road, then east along Wilson Avenue and York Mills Road to Birchmount Road, then south to Lake Ontario.
15.04The secondary jurisdiction of Local 50 shall be that area beyond the primary jurisdiction bounded by a line drawn on the west from Lake Ontario to Oakville, north on Third Line to Highway No. 5, east on Highway No. 5 to the Halton County Line, north to Highway No. 7, then east on Highway No. 7 to the intersection of Highway No. 7 and Highway No. 10, then a line north to Collingwood, then east through Bracebridge to Maynooth, then south to Brighton.
The collective agreement has similar provisions outlining the primary and secondary jurisdictions of Locals 90 and 96. Local 90 generally speaking covers the Hamilton, Port Colborne, Niagara Falls, Fort Erie, Waterloo and Windsor areas in southwestern Ontario. The jurisdiction of Local 96 encompasses Ottawa, a 65-mile radius around that city, and includes Pembroke.
Any area outside of the geographically defined areas of the three Locals is considered to be in the jurisdiction of the International Union and is commonly referred to as International territory. Article 15.10 states:
15.10In areas outside the jurisdictional territory of a Local Union, in International territory, the Employer may use members from any Local but shall endeavor to employ members from a Local that is suffering unemployment.
- Article 15.12 addresses the jurisdiction over the members of a Local and where the members have a right or preference of employment. It states:
15.11It is agreed that the Local Union has jurisdiction over the men working in it’s jurisdiction and the members of the local Union shall have prior right and preference of employment to all work covered by this Agreement within the primary and secondary jurisdictions of that Local Union.
(Emphasis added)
Based on the language of Article 15.11 the employer argues that while members of Local 50 have “prior right and preference of employment” to bargaining unit work within the primary and secondary jurisdictions of Local 50, they have no such rights in the International territory. There is no reference to preferential rights for Local union members in International territory in the collective agreement, except for Article 15.10 which permits Dover to utilize the members of any of the Locals, but to endeavor to employ people from a Local suffering unemployment.
The union argues that had the parties wanted to give the Sudbury area workers any particular preference, they would have crafted language in the collective agreement to do so. It points out that there is just such a preferential hiring clause with respect to Local 90 in the Hamilton area. Part of Article 12.05.02(b) states:
It is agreed that Local 90 of the City of Hamilton has jurisdiction over the men now resident in the Cities of Windsor, London and Sarnia, and all men who might be permanently stationed in these cities shall have local preference whenever possible on any work covered by this Agreement.
It is however noteworthy that Windsor, Sarnia and London are within the primary or secondary jurisdiction of Local 90, so it is not entirely surprising that there is a residency preference within the Local’s jurisdiction. The Board has therefore not found this provision of much assistance in reaching its decision as Sudbury is in International territory.
Although the collective agreement states in Article 10.14.01 that seniority is comprised of an employee’s total length of service in the industry in Ontario, it is clear from the evidence that the accepted practice is somewhat more refined. The International Union does not appear to maintain a seniority list of all its members in Ontario and operate off that list. Rather, each Local keeps its own seniority list of its Local members and keeps track of each member’s total industry-wide seniority in Ontario. Further, the Local maintains a seniority list by employer. Thus the union maintains a seniority list that notes the industry-wide seniority for each member employed at Dover in Ontario. The exception is for a permit person who the union has permitted to work for the employer, but who has not been accepted into the Local, and is therefore not on the seniority list.
In the event of a layoff being announced, a Local would first rescind any permits. Thus, permit holders would be let go from employment, as they would have no ongoing authorization to work for the employer. Also, any new employee of Dover who has not yet been employed at the company for six months has no seniority. Only after the six months have elapsed with a company does a person’s industry-wide seniority become operational. Thus, in the case of a layoff being announced, the permit holders and those with less than 6 months of service with that employer are the first to go. In this case, Local 50 referred to its own seniority list of Local 50 employees of Dover when deciding who it believed should have been laid off. That list included all of its members working in its jurisdiction or in International territory.
The union’s seniority list includes information about what percentage of the wage rate each member is at. Thus, a member with mechanic status is a 100% person. An Improver Helper is at 80% of the mechanic rate; a Helper 11 is at 75% of the mechanic rate; a Helper 1 is at 70%; a Probationary Helper 11 is at 60%; and a Probationary Helper 1 is at 55% of the rate.
Article 10.15 of the collective agreement outlines how layoffs are to be conducted. The relevant provisions are as follows:
10.15In the event that lack of work requires a reduction in the number of employees in the employ of an employer, employees shall be laid off in the following order:
(a) Probationary Helpers 1, without regard to seniority. (First block to be laid off.)
(b) Probationary Helpers 11, without regard to seniority. (Second block to be laid off.)
(c) Helper 1, without regard to seniority. (Third block to be laid off.)
(d) Helper 11, without regard to seniority. (Fourth block to be laid off.)
(e) Improver Helpers without regard to seniority. (Fifth block to be laid off.)
(f) Mechanics in seniority, provided the Employers’ remaining Mechanics have the necessary skill and ability to do the work that remains.
Any Mechanic in the Employer’s workforce, affected by a lack of work, may accept assignment to Improver Helper, or take a lay-off.
Notwithstanding the foregoing provisions of 10.15 an employee has no seniority rights with an Employer for a period of six (6) months after commencing work with that Employer. After the six (6) month period, full seniority rights will be credited with the new Employer. In the event of a reduction in the workforce with the Employer during the six (6) month period this employee will be the first to be laid-off with the exception of Probationary Helpers.
- Article 10.17 provides a form of super seniority to Local Representatives as follows:
The lay-off provisions of this Article shall not apply to an employee appointed as a Local Representative as long as the employee is carrying out the duties of a Local Representative.
Based on the union’s information and seniority list on September 26, 1997, Mr. Domus should have been the first to go. The union believed he was a permit holder living and working in Sudbury, in International territory. It subsequently came to light that he should have been a card-carrying member of the Local, and should not have been a permit holder at the time of the layoff. Mr. Domus should have had the status of a 70% Helper 1.
In light of the later information regarding Mr. Domus, the union argues that Mr. Craig should have been the first to be laid off, as he was a Dover employee with less than 6 months’ service, so his industry-wide seniority had not yet become operational. Mr. Craig lives in and works out of Sudbury.
Thereafter, blocks of employees in each of the five helper categories would have to be laid off. There is no seniority consideration within a block. Mr. Bechamp and Mr. Domus should have been laid off next. They were in the 70% Helper 1 category, and lived in and worked out of Sudbury. They would be followed by Mr. Petersen as an 80% Improver Helper. Mr. Petersen was living and working in Toronto.
After each block classification below the mechanic classification has been exhausted, the employer must lay off mechanics in order of seniority. Therefore, Mr. Berry, Mr. Gajic and then Mr. Guthrie would have gone next in that order to complete the seven-person layoff. Both Messrs. Berry and Gajic were living in and working out of Sudbury. Mr. Guthrie lived and worked in Toronto.
In all, according to the union, five of the seven persons to be laid off should have been persons who lived and worked out of Sudbury for Dover. The union further contends that even within the group of employees laid off in Toronto, the employer made a mistake as it failed to lay off Neil Jagger, a relatively junior mechanic, while it laid off persons more senior to Mr. Jagger. The employer claims that Mr. Jagger had specialized skills that Dover needed, so Mr. Jagger was not laid off, while more senior people who did not have those skills were laid off. The Board did not have any evidence regarding Mr. Jagger’s special skills. This matter is discussed below.
There was some evidence about how several of the Dover employees who work in the Sudbury area came to be employed with the company. David Connors is the Dover Manager in Sudbury. He took that position in April 1991 and is responsible for sales, marketing, and the field personnel in the north. Since that time he has tried to hire people to live and work in northern Ontario so that Dover can be competitive in its pricing in that area. If mechanics and helpers have to travel from southern Ontario to work in the north, Dover would have to pay travel expenses. Those expenses add dramatically to the cost of a bid. In the course of hiring personnel in the International territory Mr. Connors deals with the union representatives for Local 102 out of Winnipeg, Local 50 out of Toronto, and the Hamilton and Ottawa Locals. For the most part he would deal with Mr. Baxter from the Toronto Local and Mr. Terry Diaphniu from the Winnipeg Local.
In March 1992 Mr. Connors hired Ross Berry in Sudbury. Mr. Berry has never worked in the industry in Toronto. He started as a permit helper after talking to Mr. Baxter about getting a permit to work in the north. Mr. Berry recalls that he was once laid off while still working on a permit in his first year with Dover. At that time Mr. Baxter came up to see him and said that Mr. Berry’s permit would be pulled as there were unemployed members on the bench in Toronto who had heard that there was a permit man working. Mr. Berry was laid off for about one month before Mr. Baxter called and asked if he wanted to return to work. Mr. Berry returned to work. As far as he knows, no member from Toronto came up to take the job he had been doing.
Mr. Berry recalls that Mr. Baxter told him that he had little worry about being bumped as he lives and works in the Sudbury area. He was told this on two occasions, once in person at a job site and once over the telephone. In and around May 1997 Mr. Berry got his mechanic license after sitting for the final exam in Toronto. Following the exam he recalls that Mr. Charlie Murray, a Business Representative from the Local 50 hiring hall in Toronto, called to tell him he had passed the exams. In the course of the conversation Mr. Murray told him he had no more worries about being laid off because he was a mechanic now and therefore had more security. It is clear from the evidence that no union official told Mr. Berry that because he was living and working in the north he would not be bumped.
Milan Gajic has been a member of the Local 50 in Toronto since 1989. Mr. Gajic had been working for some weeks for Dover in 1994 when he was laid off. He talked to Bob Dunn, of Dover, about when there may be work available. Mr. Dunn told him Mr. Connors was looking for a man in Sudbury. Mr. Gajic contacted Mr. Baxter at the union to ask about the potential for work in Sudbury. Mr. Baxter and Mr. Connors discussed the job, but Mr. Connors said he wanted a local mechanic and would not pay expenses. Mr. Baxter later called Mr. Gajic and told him there was a job in Sudbury for him if he wanted it but that he would not get the daily travel expenses if he took the work, and that he would have to get himself up to Sudbury. Further, Mr. Baxter told Mr. Gajic that if he was laid off in the Sudbury area he could not bump back into Toronto to work. In August 1994 Mr. Gajic voluntarily and at his own expense moved up to work in Sudbury for Dover.
Norm Bechamp was hired by Dover in January 1997 after Mr. Baxter called Mr. Connors and told him Mr. Bechamp was out of work and had worked for Otis Elevator in northern Ontario. Dover hired Robert Domus as a permit helper in June 1997. Both men worked and lived in the Sudbury area.
In the spring or summer of 1997 Mr. Connors contacted Mr. Baxter because he wanted to hire Mr. Glen Unsworth, a former elevator inspector who had retired and was living in the North. Mr. Baxter told Mr. Connors that Mr. Unsworth was not a member of the union, and that he would not accept a new member of the union up north when there were two Local 50 members on the bench (i.e. out of work) in the north. They were Messrs. William Craig and John Keigan, and Mr. Baxter suggested that Mr. Connors take them first. In particular, Mr. Baxter drew Mr. Connors attention to John Keigan who was living in North Bay. Mr. Keigan apparently had a poor employment reputation and Mr. Connors did not want to hire him in a position where he would have contact with the public. Subsequently, Mr. Connors hired Mr. Keigan to do a short assignment on a service elevator in a building that was under construction that summer as it did not entail much contact with the public. From this conversation Mr. Connors took that there was a “northern bench” and that the people working for him were being treated separately from the Local 50 members in Toronto.
Mr. Connors requested that Mr. Domus do some work for Dover in the north in 1997. Mr. Baxter recalls that initially Mr. Domus was needed for a two-week assignment doing service repair work and filling in for someone on vacation in the early summer of 1997. The union gave Mr. Domus a permit to work. Mr. Domus was apparently kept working by Dover in the north, and the union did not revoke the permit even though there were allegedly persons on the bench in Toronto. Mr. Baxter was asked why the union would not have revoked the permit if the work in the north was of a more permanent nature. He simply answered by saying that members from Toronto would not relocate to the north for short duration work.
In the summer of 1997 William Craig was out of work and living in Timmins. When Mr. Connors needed a vacation replacement for another mechanic (Milan Gajic) in August or September 1997, he asked Mr. Baxter if he could hire Mr. Craig locally for four days. Mr. Baxter suggested that Dover get Mr. John Keigan, who was living in North Bay, and was unemployed. For the reasons already outlined above, Mr. Connors did not want to hire Mr. Keigan. Mr. Baxter claims to have called all of the persons on the Local 50 unemployed list and told them there was four days work in Sudbury, but they would have to take it without being paid expenses. As no one was interested from the Toronto area, Mr. Baxter agreed that Mr. Connors could hire Mr. Craig for the temporary assignment. Mr. Craig began to work for Dover on September 2, 1997 and was kept on after the temporary assignment was completed, as Dover needed another mechanic.
There was some conflicting evidence regarding the issue of payment of expenses to Mr. Craig when he was hired for the four-day job. When Mr. Baxter testified before the Board the first time, he testified to a different version of what had happened with respect to Mr. Craig and the issue of expenses, than when he was recalled in the union’s reply evidence. The first time on the stand Mr. Baxter claimed in his testimony that Mr. Connors had told him there would be no expenses paid for the work. Nonetheless, Mr. Baxter called Mr. Craig and offered him the work with expenses. Mr. Baxter claims that Mr. Craig called and told Mr. Baxter later that he would be paid daily expenses. When on the stand again in reply, Mr. Baxter testified that he had called Mr. Craig about the work in Sudbury, and that Mr. Craig had indicated he was willing to do the work for Dover without being paid expenses.
Mr. Connors testified there was no discussion about paying expenses, and none were paid. The Board does not accept Mr. Baxter’s first version of events around the expense issue. If he had really believed that expenses would be paid, he would have so informed the Toronto members on the bench and out of work. He specifically indicated in his evidence that he told persons he called that no expenses would be paid, and no one wanted to go from Toronto. Further, throughout his testimony, both the first time he gave evidence and when he was recalled in reply, he maintained that persons in the north worked without expenses, and he would tell people on the bench in Toronto that they could go to replace people in Sudbury, but without expenses. Therefore, the Board does not accept that Mr. Baxter believed that expenses were going to be paid to Mr. Craig for the apparently short-term job with Dover. In any event, in his reply evidence Mr. Baxter was clear that he knew that any work Mr. Connors wanted done in the Sudbury area was only available on a without expenses basis.
About every two months Mr. Baxter would go up to the North to meet with the Local 50 members working in the area. He would hold a meeting in Sudbury, and if some people could not attend the meeting, he would visit them in their own towns of North Bay, Timmins, etc. Mr. Baxter would also visit job sites, administer exams, and answer questions from northern members by telephone. He denies that he ever told any Local 50 member living and working in the north that the person would be safe from being bumped if there was a layoff in Toronto, or that there was a “northern bench” comprised of the members based in the north. He also denies ever telling Mr. Connors that.
In October 1997, after the union had filed the layoff grievance, a conversation took place between Messrs. Connors and Baxter that was the subject of testimony by a number of witnesses. It appears that Mr. Baxter had come to a job site at the Northeastern Secondary School in Garson to administer an exam to Norm Bechamp over a lunch break. Mr. Mike Cox, Dover’s Local Representative in Sudbury, was working with Mr. Bechamp as his helper at the school. Mr. Connors arrived at the site about 20 minutes after Mr. Baxter had got there. As a result of Mr. Connors’ discussion with Mr. McCann about one week previous, he knew that the union had filed the grievance regarding the layoff of the Toronto men, and was seeking to have five Sudbury-based men laid off instead. Mr. Connors confronted Mr. Baxter about the fact that five of his men were going to be laid off because of the union grievance. Mr. Baxter indicated he thought it was just two, the permit person (Mr. Domus) and Mr. Craig, who did not yet have six months of service with Dover. Mr. Connors told Mr. Baxter that Mr. McCann had said five men were to be laid off from Sudbury, and that the Toronto members were to be moved north and paid their travel expenses of $70 per day. He told Mr. Baxter that he had lied to the men in the north for years by telling them that they were safe from bumping when apparently they were not. Further, he argued that his staff lived and worked in the north, they had paid their taxes in that area, and had established lives and families up there. Mr. Baxter was not aware of Mr. McCann having spoken to Mr. Connors about the union’s view of the layoff, nor was he apparently aware of the position the union was taking with respect to the northern workers. He therefore told Mr. Connors to call and speak to Mr. McCann about the issue.
DECISION
From the evidence led through various witnesses it is obvious that the northern members of Local 50 had an ongoing concern about being laid off as a result of bumping by Toronto members. They appear to have asked Mr. Baxter and Mr. Connors about it on numerous occasions over the years. The Board finds that Mr. Baxter did not give them any definitive assurance that they were safe from being bumped. However, he intimated that they were safe in northern Ontario by telling them that it was unlikely that Toronto members would bump them because those members did not want to have to move up to Sudbury. Further, he suggested that it would be costly for a Toronto member to come up to Sudbury temporarily since he would not be paid travel expenses for the duration of the work availability in the Sudbury area. Finally, Mr. Baxter indicated that he was not aware of any Toronto Local 50 member who was interested in relocating to Sudbury permanently.
There is little doubt that the northern members wanted to hear that they were safe, but the fact that they kept asking Mr. Baxter about this issue is proof in itself that they never had any assurance that they could not be bumped. All that Mr. Baxter appears to have done is to have attempted to allay their fears by pointing out to them the unlikelihood of anyone from Toronto wanting to move up to Sudbury, or of working in the north temporarily without expenses.
With respect to Mr. Baxter’s discussions with Mr. Connors on this subject, it appears that Mr. Baxter intimated that there might be separate treatment of those in the north. Mr. Baxter’s suggestion that Mr. Connors should consider two Local 50 out-of-work members located in the north before hiring anyone else is indicative of this. It is not surprising that Mr. Connors took that to suggest that there may be a separate seniority list or “bench” operating in the north. However, this is far short of any union assurance that the employer could have relied upon that there was a separate seniority list for those members working in northern Ontario. It was simply a union suggestion to management that it look to available Local 50 members in northern Ontario before it asked the union to consider offering membership to someone who was not in the union.
As with the northern Local 50 members, the Board is of the view that Mr. Connors wanted to believe that the union would leave his workforce untouched in the event of a layoff in Toronto. That however was not what Mr. Baxter or anyone else in the union ever explicitly told Mr. Connors. The Board notes that Mr. Baxter de facto ensured that the Sudbury people were unaffected by the bench in Toronto by advising those in Toronto that Dover would not pay any travel expenses if they chose to bump into a job up north, thus making it less attractive to them. It was not until Mr. McCann filed this grievance that the union claimed that five people in the north should have been laid off and that Toronto members who had greater seniority should have got those jobs and should have been paid travel expenses. The union’s position on the issue of travel expenses therefore changed with the filing of the grievance in September 1997.
The union argued that the Board should rely on Articles 10.14.01 and 10.15 in particular in reaching its decision. Article 10.14.01 states that an employee’s seniority is his total length of service in the industry in Ontario. However, how this appears to be effective in practice is that an employee has portable service across the province. Thus, an employee takes his or her cumulative service in the province in the industry to a new employer and that service translates into seniority after the employee has been with the new employer for six months. Until that time, the employee is like a probationary employee without any seniority. Following the expiration of six months, accumulated seniority is of use in the particular company in the event of a layoff.
Which brings one to Article 10.15 which outlines how a layoff is effected in the event that a lack of work requires a reduction in the number of employees in the employ of an employer. Permit holders are let go first as the union withdraws the permit. Next are those with less than six months service with the employer, and therefor no seniority. Employees are then laid off in blocks from within the employer’s workforce, starting with the most junior category of workers (Probationary Helpers 1) and working up to the Improver Helpers classification. Mechanics are laid off in order of seniority, provided that the employer can retain mechanics with the necessary skill and ability to do the work remaining. The text of this Article has been outlined earlier at paragraph 22 of this decision.
The union argues that these provisions stand on their own, and that Dover would therefore have to lay people off in accordance with them. The problem is that the union is only suggesting that Dover should conduct its layoff within the Local 50 membership because the lack of work was within the Toronto area, in Local 50’s jurisdiction. It is unclear why this would be the case on a straight reading of these provisions of the collective agreement. Surely if the agreement is province-wide, and includes all of the Ontario Locals, one would think that if Dover wanted to lay off people it would have had to start with the most junior group from across the province, notwithstanding what Local was affected.
Of course that is not how the parties have actually structured their affairs. To do so would be quite disruptive as the following example shows. Relying only on the province-wide seniority provision and the layoff provision, if Dover in Hamilton needed fewer people and had to layoff on a province-wide basis, it may end up that someone from Dover in Ottawa with less seniority would be displaced by a more senior Hamiltonian who would have to move his or her family to Ottawa in order to take advantage of his or her superior seniority. What it appears the parties have negotiated in order to avoid massive dislocation is that the Locals have defined primary and secondary jurisdictions, and pursuant to Article 15.12, a Local union has jurisdiction only over the people working in its jurisdiction. Furthermore, the members of the Local union have a right and preference of employment to all bargaining unit work within the primary and secondary jurisdictions of that Local Union. Thus, while there is ostensibly province-wide seniority, each Local maintains its own seniority list of its members, and has its own further seniority list for each employer.
The Local 50 seniority list for Dover has on it all members working for Dover in both its primary and secondary jurisdictions and in International territory. In this case the Local is asserting that those working in the International territory are affected by the layoff in Toronto simply because of the province-wide nature of the seniority provision and the general nature of the layoff provision. It is a position inconsistent with the tenor of the collective agreement and the parties’ practices in this industry.
Pursuant to Article 15.10, the area outside the jurisdictional territory of a Local is International territory. In that area an employer may use members from any Local, but must endeavor to employ members from a Local experiencing unemployment. There is some dispute between the parties about what “any Local” means, as Dover believes it includes the Winnipeg Local 102. That is not an issue before this panel and is not dealt with in this decision.
It seems obvious that if each Local party to this collective agreement has a defined primary and secondary jurisdiction, and all else falls into the International’s territory, no particular Local can seek to extend its jurisdiction into the International territory. One may consider an example again. If Mr. Connors had employed members of Local 50 and Local 96 in Sudbury, on the union’s theory of this case if there was a layoff in Toronto a senior Local 50 Sudbury person may be bumped by a more senior Local 50 Toronto person, while a more junior Local 96 person was maintained in employment in Sudbury. Such a situation would make no sense, not to speak of making a mockery of the concept of the province-wide seniority each member purportedly has. It therefore seems clear to the Board that the parties never intended that a Local could extend the reach of its seniority list into International territory.
Otherwise, one would see the same problem as was manifest in the Hamilton/Ottawa example. People living and working in Sudbury would be put out of work, even though they did not work in one of the Local’s jurisdictions, while someone in Toronto would have to uproot his or her family and move to Sudbury in order to take advantage of his or her seniority. In our view the parties did not anticipate such disruptive and massive shifts of personnel in the event of a layoff. That is why the Local jurisdictions are relatively discrete areas. It is one thing to travel within 35 to 65 miles of ones’ home base in the event of a layoff and bumping situation, and quite another to move hundreds of miles. Indeed, it is noteworthy that Article 15.14 of the agreement specifically notes that nothing in the rest of Article 15 (which defines jurisdictions) is to be construed as meaning the jurisdictional radius of the Locals has been extended to a maximum distance of 300 miles.
The Board is of the view that Article 10.15 of the collective agreement (re layoffs) must be read in conjunction with Article 15 regarding jurisdictional territory. Hence, a Local has jurisdiction over the men working only in its own jurisdiction, which includes both the Local’s primary and secondary jurisdictions. The Local’s jurisdiction does not extend to include International territory. We are bolstered in our view by the evidence that Mr. Baxter told Mr. Gajic when the latter man wanted to move to Sudbury that he would not be able to bump back into Toronto once he moved up north. Further, Mr. Baxter on a number of occasions indicated to Mr. Connors that he had to use persons on the bench in northern Ontario before he could seek to hire anyone from outside the union. Finally, whenever there was work available in the north, Mr. Baxter told Toronto Local 50 unemployed persons on the bench that they would have to work up north without getting travel expenses, because the work was considered local area work. These actions are consistent with an understanding that the northern Ontario Local 50 members, who lived and worked in the north, were being treated as if they were a “local” themselves. They apparently lived and worked in a particular catchment area (Sudbury and surrounding area); if unemployed, they would not be able to bump a Toronto Local 50 member; and if there was work to be had, the employer had to offer it to unemployed Local 50 members resident in the north before going elsewhere to hire.
The Board has reviewed the jurisprudence the union relied upon in its argument. However, we have found the five cases presented to be of limited assistance in determining this case as none of the cases involved the construction industry and hiring hall provisions. There is no dispute that, as a general proposition, seniority rights are important to employees and the Board adopts the sentiments as expressed by the board of arbitration in Tung-Sol of Canada Ltd. (1964), 1964 CanLII 1021 (ON LA), 15 L.A.C. 161, at page 162:
Seniority is one of the most important and far-reaching benefits which the trade union movement has been able to secure for its members by virtue of the collective bargaining process. An employee’s seniority under the terms of a collective agreement gives rise to such important rights as relief from lay-off, right to recall to employment, vacations and vacation pay, and pension rights, to name only a few. It follows, therefore, that an employee’s seniority should only be affected by very clear language in the collective agreement concerned and that arbitrators should construe the collective agreement with the utmost strictness wherever it is contended that an employee’s seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement.
However, even in the context of this collective agreement, where union members can accumulate industry-wide seniority, there are limitations on the use of that seniority. Thus, in the context of Article 10.15 and a layoff situation, within any block of a classification other than that of mechanic, individual seniority is of no consequence at all. Further, when a very senior mechanic joins a new employer, no matter what his industry-wide seniority may be, for the first six months of his employment he is treated as having no seniority. According to Article 10.17, anyone designated as a Local Representative who carries out the duties of a Local Representative cannot be laid off, no matter what his or her seniority is. That would result in a more senior person being laid off when a junior Local Representative may be kept in employment. While there is industry-wide seniority, pursuant to a clause of Article 10.15, there is no industry-wide bumping except that mechanics can bump temporary mechanics and probationary helpers on an industry-wide basis, and helpers can bump probationary helpers on an industry-wide basis. These are just some examples where accumulated seniority may be of little assistance to an individual employee.
In this case the Board finds that Local 50 could not insist that the employer utilize a composite seniority list including persons working outside its own primary and secondary jurisdictions. The persons the union believed should have been laid off before Toronto members were living and working in International territory and the Toronto members had no employment preference extending there.
We do not agree with Dover’s view that in the International territory Local 50 members cannot exercise their seniority in the event of a layoff. Clearly Article 10.15 has meaning for all union members covered by the scope of this collective agreement. However, that is not an issue that we must decide at this juncture, and is best left until the matter is squarely raised in a particular grievance.
There is one other matter to be dealt with. The union’s grievance of September 26, 1997, and its follow-up letter of October 1, 1997, made no mention of the union taking issue with Dover’s decision to maintain the employment of Neil Jagger while laying off persons more senior to Mr. Jagger. Not surprisingly, Dover’s response to the grievance application made no mention of Mr. Jagger. It was not until October 22, 1997 on the first day of hearing and at the end of Mr. Baxter’s examination-in-chief that there was a reference to Mr. Jagger as someone who was not laid off in order of seniority as he should have been. Dover did not cross-examine Mr. Baxter on this matter. In final submissions the union again referred to Mr. Jagger as someone who should have been laid off in Toronto. However, neither the grievance nor the subsequent letter of clarification indicated anything about Mr. Jagger. The Board is therefore of the view that reference to Mr. Jagger on the first day of hearing was simply too late for the union to be adding any new persons. Furthermore, the union led no evidence about where Mr. Jagger fit into the scheme of things. The Board has no evidence regarding Mr. Jagger’s seniority, other than the union’s printed seniority list. The employer had put the union to the strict proof standard with respect to the industry-wide seniority of each person in contention. There is therefore nothing before the Board, other than Mr. Baxter’s one reference to Mr. Jagger, which the Board could rely upon. In the circumstances, and since the union had never referred to Mr. Jagger during the grievance process, the Board declines to expand the grievance to include a complaint about the employer’s decision to keep Mr. Jagger in employment in September 1997.
For all of the above reasons the Board dismisses the union’s grievance.
“Gail Misra”
for the Board