The Hydro-Electric Commission of the City of Nepean et al. v. IBEW Local 636, Unit 54 et al., 2000 CanLII 8324

The Hydro-Electric Commission of the City of Nepean et al. v. IBEW Local 636, Unit 54 et al.

File No.: 2316-00-PS Date: December 19, 2000

Applicants: The Hydro-Electric Commission of the City of Nepean, the Hydro Electric Commission of the City of Ottawa, the Goulbourn Hydro-Electric Commission, the Kanata Hydro-Electric Commission, and the Hydro Electric Commission of the City of Gloucester, Hydro Ottawa, and the Ottawa Transition Board Responding Parties: IBEW Local 636, Unit 54, IBEW Local 636, Unit 52 and IBEW Local 636, Unit 47 and Gloucester Hydro Employees’ Association

Before: Christopher J. Albertyn, Vice-Chair.

Appearances: Jacques A. Emond, Sharmila Clark, Ken Lewis, Joanne Glaser and Casey Malone for the applicants; Phillip G. Hunt and Scott W. Chamberlain for the responding parties; John Richardson and Cor Dykstra, interested employees.

DECISION OF THE BOARD

1This is an application under section 21, 22 or 23 of the Public Sector Labour Relations Transition Act, 1997 (“the Act”) respecting bargaining rights of IBEW Local 636, Unit 54, IBEW Local 636, Unit 52 and IBEW Local 636, Unit 47 (“the unions”) and the Gloucester Hydro Employees’ Association in respect of employees of Hydro Ottawa (“the employer”).

2Considerable progress has been made by the parties towards the overall resolution of the labour relations consequences of the amalgamation of various former utilities into the employer. Those five utilities were the Hydro-Electric Commission of the City of Nepean, the Hydro-Electric Commission of the City of Ottawa, the Goulbourn Hydro-Electric Commission (“Goulbourn Hydro”), the Kanata Hydro-Electric Commission and the Hydro-Electric Commission of the City of Gloucester. However, two issues remained for determination when this matter came before me at a consultation in Ottawa on December 14, 2000.

3The two issues were the following: firstly, what seniority former employees of Goulbourn Hydro should bring into their new employment with the employer; secondly, whether certain positions should be excluded from the bargaining unit which is otherwise agreed between the employer and the unions.

The seniority issue

4I heard argument on the Goulbourn Hydro seniority issue. Thereafter I made a determination of the issue at the consultation. I undertook to provide written reasons, which now follow.

5Some factual background is necessary. As part of the process of amalgamation of local authorities and utilities initiated by the Legislature in the recent past, Bill 25, the Fewer Municipal Politicians Act required, inter alia, the consolidation of the five utilities in the Ottawa-Carleton Region by January 1, 2001. The portion of Bill 25 dealing with the Ottawa-Carleton Region was promulgated as a separate statute, the City of Ottawa Act, 1999. The Bill was introduced on December 6, 1999 and the City of Ottawa Act, 1999 received Royal Assent on December 24, 1999. Of relevance too is the Energy Competition Act, which required that municipal electrical utilities be incorporated under the Ontario Business Corporations Act by November 7, 2000.

6The Act provides, at subsection 3(4), that “the changeover date” from the former employers to the new employer is the date on which the amalgamation takes effect. That date in respect of the employer was November 1, 2000.

7On May 26, 2000 the IBEW was certified as the bargaining agent of the employees of Goulbourn Hydro. In view of the pending amalgamation, the parties reasonably thought it prudent not to conclude a collective agreement because an overall collective agreement would be negotiated between the employer and the IBEW once the amalgamation was complete.

8Section 33 of the Act deals with the issue of seniority from previous employment. It reads:

33. (1) Subject to subsection (2), the requirements set out in this section apply with respect to a collective agreement that provides that employees have rights that depend upon their seniority.

(2) The requirements apply only with respect to the first collective agreement after notice to bargain is given in the following circumstances:

1. A party gives notice to bargain under this Act.

2. A party to a collective agreement continued under subsection 24 (2), a composite agreement or a replacement agreement gives notice to bargain under subsection 47 (2) of the Fire Protection and Prevention Act, 1997, section 59 of the Labour Relations Act, 1995 or section 119 of the Police Services Act.

(3) If an employee in the bargaining unit was employed by a predecessor employer immediately before the changeover date but was not a member of a bargaining unit, the employee shall be accorded seniority on the same basis as other employees in the bargaining unit and, without restricting generality of the foregoing,

(a) if the collective agreement provides that seniority includes all periods of employment with the employer and all periods of employment with a predecessor employer, his or her seniority shall include all periods of employment with the employer and all periods of employment with a predecessor employer;

(b) if the collective agreement provides that seniority includes all periods of employment in the bargaining unit of the employer and all periods of employment in a bargaining unit of a predecessor employer, his or her seniority shall include all periods of employment in the bargaining unit of the employer and all periods of employment with a predecessor employer in a position having duties, responsibilities and other attributes such that, if the employment were with the employer, the employee would have been a member of the bargaining unit; and

(c) if the collective agreement provides that seniority includes all periods of employment in the bargaining unit or in a similar bargaining unit of the employer and all periods of employment in a bargaining unit of a predecessor employer, his or her seniority shall include all periods of employment in the bargaining unit or similar bargaining unit of the employer and all periods of employment with a predecessor employer in a position having duties, responsibilities and other attributes such that, if the employment were with the employer, the employee would have been a member of the bargaining unit or similar bargaining unit.

(4) Subsection (3) does not apply with respect to an employee to whom an order made under subsection 12.9 (5) of Ontario Regulation 143/96 (“Powers of the Minister or a Commission for the Implementation of a Restructuring Proposal”) made under the Municipal Act applies.

(5) Such requirements as may be prescribed apply with respect to determining seniority in a bargaining unit that includes employees who, immediately before the changeover date, were employees of the Crown.

9The clear import of section 33 and of other sections of the Act concerning seniority is that employees who enter into a new bargaining unit should be treated alike as regards their accumulated seniority and service.

10The issue between the parties concerned what prior service former employees of Goulbourn Hydro are entitled to for the purposes of seniority with the employer. Only four employees are affected. The parties’ contrary positions were the following: the unions contended the four employees are entitled only to the service they had with Goulbourn Hydro. The employer contended that, in addition to that service, they are entitled to be credited for service they had with other utilities before their engagement by Goulbourn Hydro.

11The employer relied upon a resolution passed by Goulbourn Hydro on December 16, 1999 (shortly after it became public knowledge that the utility would, in due course, be dissolved and combined within the employer). It reads, “All full-time non-probationary staff be recognized for their years of consecutive service with previous utilities”. What Goulbourn Hydro purported to do was grant recognition to its employees of any pre-Goulbourn Hydro, utilities employment so that they would have additional service credit when they were intermingled with employees from the other utilities in a single bargaining unit. Conditions of employment were frozen when the City of Ottawa Act, 1999 became law on December 24, 1999. Thus, according to the employer, a term of employment carried forward by the four Goulbourn Hydro employees in the new employer was that their service was deemed to include utilities service prior to that for Goulbourn Hydro.

12I rejected this argument for several reasons, which were advanced by the union. The four employees were engaged by Goulbourn Hydro on the basis of the written Conditions of Employment for the Employees of Goulbourn Hydro which applied at the time they were employed. In that document there was no recognition of previous utilities service. Under Section 4:01 thereof “Commission service credit” is defined as “the length of continuous service a regular employee has established from the most recent date the employee entered the employ of the Commission”. This means that the four employees accepted employment with Goulbourn Hydro on the understanding that their previous utilities service would not be recognized. Their service was to be that for Goulbourn Hydro. Hence the employees concerned could not reasonably assume they are entitled to greater seniority recognition than that from their service for Goulbourn Hydro.

13On July 14, 2000, in a Letter of Understanding, the unions and the employer agreed upon what definition of seniority would apply thereafter in respect of employees falling within the new bargaining unit of the new employer. They have accepted that Article 7 – Seniority and Layoff – of the collective agreement between The Hydro Electric Commission of the City of Ottawa and Local Union 636 Unit 47 of the IBEW will apply. The relevant portion of that Article is contained at the start of Article 7.2, which reads:

Commission service credit/seniority shall be defined as the length of continuous service a regular employee has established with the Commission from the last day the employee entered the employ of the Commission.

14In respect of all employees (other than those from Goulbourn Hydro) the employer and the union accept that the employees will be credited for their service or seniority with the utility they worked for immediately before the amalgamation. In other words, they are credited with their service for one of the five utilities which have now been incorporated within the employer, and not for any other service.

15As a consequence, recognition of the pre-Goulbourn Hydro service of the four Goulbourn Hydro employees would put them in a privileged position to which none of the approximately 350 other employees who have entered the bargaining unit are entitled.

16Accordingly, the problem with giving recognition to the gratuitous initiative of Goulbourn Hydro, which was clearly intended to give its employees an advantage over the other employees who would be part of the new employer, is that it would put the Goulbourn Hydro employees into a better position than would be the case for any other employees of the employer.

17Counsel for the unions provided information as to the pre-Goulbourn Hydro employment of the four employees. Two of the four were formerly unionized employees, but voluntarily chose to leave a unionized workplace for work at Goulbourn Hydro or elsewhere, realizing that their seniority from their former unionized employment would be lost.

18The employer and the unions concluded a Memorandum of Settlement on September 21, 2000, which substantially resolved many of the important issues to be addressed by them on account of the then impending amalgamation. As part of that Memorandum the parties agreed (at paragraph 6 of the amendments to their Letter of Understanding of July 14, 2000) that “all service driven credits for the purposes of sick leave and annual leave entitlement accorded to individuals with predecessor employers as defined in Bill 136 shall be brought forward as service driven credits with the new employer”. The effect of this provision was to give partial recognition to the service accorded to the former Goulbourn Hydro employees as a consequence of the gratuitous acknowledgement of previous utilities service granted to them by the resolution of December 16, 1999. It also suggests that the parties regarded that provision as sufficient acknowledgement of service other than that provided for under the seniority provision agreed to between them.

19To have adopted the employer’s approach to the matter would have put the four former Goulbourn Hydro employees in a privileged position, with greater recognition of their past employment service than any other employee in the new bargaining unit. All employees should be treated equally and their seniority should be measured from the same standard. Accordingly, I found that the service to which the former Goulbourn Hydro employees are entitled is the service they acquired while in the actual employment of Goulbourn Hydro, and not any service prior thereto.

Inclusion/exclusion of certain positions from the bargaining unit

20The disputed positions were the following: Technical Specialist (Stations); Technical Metering Specialist; Technical Specialist (Customer Premises); Key Accounts Co-ordinator; and Systems Designer. The employer sought the exclusion of these positions from the bargaining unit; the unions sought their inclusion. I reviewed all of the parties’ submissions in respect of the positions and, at the consultation, I was satisfied that all of the positions, save for that of Key Accounts Co-ordinator, should fall within the bargaining unit. Only the Key Accounts Co-ordinator should be excluded because the nature of the work of that position is managerial. I made that declaration at the consultation.

21Accordingly, the bargaining unit agreed between the parties in their Memorandum of Settlement of September 21, 2000 is amended by the addition of one further excluded position, that of Key Accounts Co-ordinator. The bargaining unit description now reads:

The new Hydro Corporation of the City of Ottawa recognizes Local 636 of the I.B.E.W. as the exclusive Bargaining Agent for all the employees of the Corporation below the rank of Supervisor save and except the following: Executive Assistants, all employees of the Human Resources Department, one (1) Payroll Clerk, Engineers, Budget Officer, Programmer/Analyst, Key Accounts Co-Ordinator, all students employed during the vacation period and those persons hired for not more than 24 hours per week.

22This concludes the matter. The application is terminated.

“Christopher J. Albertyn”

for the Board