Ontario Labour Relations Board
File No.: 3646-00-G Date: 2001-04-06
Re: International Union of Elevator Constructors Local 90, Applicant v. Thyssen Dover Elevator Limited c.o.b. Thyssen Krupp Elevator, Responding Party v. Jim Rudd, Grievor.
Before: Harry Freedman, Vice-Chair
Appearances: Stanley Simpson and Robert Crosby for the applicant and grievor; M. Patrick Moran, Scott Wordtmann, Joe Kerr and Russ Fox for the responding party.
DECISION OF THE BOARD
Jim Rudd, a member of the applicant who had been working for the responding party for about 5 years since his last date of hire, was fired on February 19, 2001 because he, together with two other employees of the applicant, on Friday February 16, 2001 left the construction site at which they had been assigned to work before the end of their scheduled work day without calling the responding party’s office. The other two employees received two-day suspensions that were not grieved. The applicant filed a grievance with the responding party on February 21, 2001 challenging Mr. Rudd’s discharge. That grievance was not resolved. As a result, on March 12, 2001 the grievance was referred to the Board for determination under section 133 of the Labour Relations Act, 1995, S. O. 1995, c. 1, as amended (the “Act”). At the request of counsel for the applicant, this matter was scheduled for hearing on April 4, 2001, rather than the usual 14 days after it was filed as the applicant waived the time period under 133(6) of the Act. The Chair of the Board authorized me under section 110(14)(a) of the Act to sit alone to hear and determine this matter.
The responding party is the largest employer of members of the applicant in the southwestern Ontario region. At the time of Mr. Rudd’s discharge, it employed 19 members under the supervision of Russ Fox who worked out of the responding party’s London office. The responding party has the applicant’s members perform three categories of work that are dealt with under three separate articles of the Provincial Collective Agreement between the National Elevator and Escalator Association and The International Union of Elevator Constructors (the “Collective Agreement”); construction work (Article 7); repair work (Article 8) and maintenance work (Article 9). Five members were assigned to maintenance work on five maintenance routes (each one working alone), while the other fourteen members were divided into two person crews, with five crews assigned to construction work and two crews assigned to maintenance work. In view of the nature and location of their work, the members have little day to day direct supervision since they are assigned to projects in different parts of the region, which includes Windsor, Chatham, St. Thomas and London, and there is only one supervisor responsible for them.
Although Mr. Rudd had been employed by the responding party for approximately five years, he has approximately 13 years of seniority by virtue of section 10.14.01 of the Collective Agreement which provides that an employee’s seniority with an employer is based on that employee’s total length of service in the industry in Ontario, subject to being employed with that employer for a period of six months. The last paragraph of section 10.15 of the Collective Agreement provides, in part:
…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.
Mr. Rudd also had all of the necessary qualifications to work as a Mechanic within the meaning of section 10.07 of the Collective Agreement. Although Mr. Rudd was a qualified Mechanic he had been employed by the responding party for the 18 months prior to his discharge in the classification of Improver Helper as a result of the application of section 10.15 of the Collective Agreement. Mr. Rudd had been employed by the responding party for a period of time as a Mechanic but due to a reduction in the number of employees it required, elected to accept an assignment as an Improver Helper rather than take a lay-off. The relevant paragraphs of section 10.15 of the Collective Agreement state:
Any Mechanic in the Employer’s workforce, affected by a lack of work, may accept assignment to Improver Helper, or take a lay-off.
Assignments of this nature shall not be used as a disciplinary measure and will only be made as a result of a reduction in the Employer’s workforce.
Such assignments shall not be prejudicial to the Mechanic and will not affect his classification of Mechanic for lay-off purposes.
The responding party submitted that Mr. Rudd’s seniority was not relevant to the issue before me as seniority under the Collective Agreement relates only to lay-off. Thus, it was argued that whether Mr. Rudd had 13 years of seniority or five years of service with the responding party