HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Thomas Atherley
Applicant
-and-
Alstom Canada Inc., Larry Ste. Croix, Dean McNeil and Robert Cherney
Respondents
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: Mary Anne McKellar
Indexed as: Atherley v. Alstom Canada
APPEARANCES BY
Thomas Atherley, Applicant ) Glen Morrison, Representative )
Alstom Canada Inc., )
Larry Ste. Croix, Dean McNeil ) Nancy Ramalho, Counsel
and Robert Cherney, Respondents )
Introduction
1This Application under section 53 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), was filed with the Human Rights Tribunal of Ontario (“the Tribunal”) on December 29, 2008, and the applicant abandoned his previous complaint to the Ontario Human Rights Commission (“the Commission”), filed November 19, 2007.
2A Case Resolution Conference was held in Ottawa on October 8, 2009. I heard testimony from the following witnesses: Larry Ste. Croix, Dean McNeil, Robert Cherney, Marty Albright, David Hunte, Jim Tinney, Winston Curtis, Thomas Atherley and George Gomez. After all the evidence had been tendered, the parties made submissions on the question of liability, and agreed to make written submissions on the question of remedy in the event that I found a contravention of the Code.
DECISION
3The evidence does not support a finding that the Code has been contravened by any of the respondents. This Application is dismissed, for the reasons set out below.
THE FACTS
4Except as may be noted below, the following facts are not in dispute.
5The applicant self-identifies as a black man. He is a trained welder and a member of a construction industry trade union, referred to throughout these proceedings as the “Pipefitters”. He customarily performs welding activities that fall within the particular work jurisdiction of that union.
6Alstom Canada Inc. (“Alstom”) supplies and services products for steam and power generation such as boilers, turbines, generators and air pollution control equipment and systems. Among other activities it engages in the construction of boiler systems at customer sites. It was engaged to build boiler systems for a power plant in Toronto on a sub-contract. This will be referred to as the “Portland Project”. The general contractor on the site was SNC-Lavalin.
7In its construction work Alstom is bound to various collective agreements with a variety of trade unions. Construction industry trade unions each have a specific work or “craft” jurisdiction. Construction industry trade unions also typically operate a “hiring hall”. An employer bound to a collective agreement with a particular construction industry trade union advises the union of the number of workers needed to perform work falling within that craft jurisdiction, and the union dispatches workers to fill the request. Therefore, the union, rather than the employer, typically selects the individuals who will be entering into an employment relationship with the employer.
8When Alstom required welders to work on the boiler systems it was building on the Portland Project, it was contractually obliged to seek them from the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (“the Boilermakers”). The work in question fell within the Boilermakers’ craft jurisdiction, and Alstom was bound to a collective agreement with the Boilermakers. The Local of the Boilermakers union that operates in the Toronto area is Local 128.
9Alstom requested welders from the Boilermakers. That union was unable to supply welders from among its own membership and the Local 128 hiring hall. Where such a situation occurs, the union may refer welders who are members of a different local of the Boilermakers (“travellers”) or retired welders who were members of Local 128 or another Boilermakers local (“retirees”), or it may refer welders who are members of a different craft union entirely (“permit welders”). In this case, the Boilermakers referred to Alstom six permit welders who were members of the Pipefitters. One of those six was the applicant. He reported to work for Alstom on October 15, 2007. Alstom verified the skills of all the welders by “testing” them before assigning them to work.
10At the time of the applicant’s referral, Alstom already had a crew of approximately 16 welders working on the construction of the boiler system at the Portland Project. Of those 16, Larry Ste. Croix, Alstom’s site manager, estimated that approximately 75% were black, and that there were other racial minorities represented as well. He also recalled that the 16 welders comprised Local 128 members, travellers, retirees and possibly one or two other permit welders. His evidence in this respect was not disputed. There is also no dispute that the permit employees are in the most vulnerable situation insofar as continued employment is concerned because should the employer decide to lay off workers, it is contractually obliged to lay off the permit welders first.
11The differences in the craft jurisdiction as between the Pipefitters and the Boilermakers unions are significant to this case, but need only be generally described, and only as they relate to the activities of welders. Welders within the Boilermakers craft jurisdiction may weld pipes that feed a boiler or are found within it and any headings for that pipe as well as welding together the steel plate (or “skin casing”) that forms the boiler container. Welders working within the Pipefitters craft jurisdiction, on the other hand, more typically weld together lengths or “runs” of pipe, and do not weld steel plate.
12Alstom’s work on the Portland Project was Boilermakers’ work, and the range of welding assignments to be done reflected that. All the welders engaged by Alstom to work on the boiler system on the Portland Project were employed pursuant to the terms and conditions of the collective agreement that bound Alstom and the Boilermakers, and this was so regardless of whether the welders were there on a permit basis or not. Despite the fact that the applicant is a member of the Pipefitters, he was engaged by Alstom to perform Boilermakers’ work. The applicant suggested in his testimony that he was not aware he was required to do Boilermakers’ work, and his complaint states that he and the others went to the job “as permit pipe welders”.
13The personal respondent, Larry Ste. Croix, was Alstom’s site manager on the Portland Project. Robert Cherney was the General Foreman on the site. He worked closely with Ste. Croix to determine what work had