[1982] OLRB Rep. November 1674
0710-82-M The Master Insulators' Association of Ontario Inc. and Misco Insulation Company Limited, Applicant v. International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Respondent
BEFORE: D. E. Franks, Vice-Chairman, and Board Members W. H. Wightman and H. Kobryn.
APPEARANCES: D. Jane Forbes-Roberts, Ken LaBelle and Ray Kirki for the applicant; M. Zigler, B. Mc Queen and B. Beamish for the respondent.
DECISION OF THE BOARD; November 12, 1982
This is the referral of a grievance to arbitration pursuant to section 124 of the Labour Relations Act by the applicant Association, The Master Insulators' Association of Ontario Inc. (hereinafter referred to as the "M.I.A.") and on behalf of one of its member companies, Misco Insulation Company Limited (hereinafter referred to as "Misco"). The respondent in this matter, the International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 will be referred to as "Local 95".
The essential facts in this matter are not in dispute. The applicant Misco is a small insulation contractor whose president is Mr. Ken LaBelle. In January of 1982 Mr. LaBelle sought to employ in his business a relative, Mr. Paul Leger. Mr. Leger had returned from university and was looking for a job. He had apparently worked on and off for Misco in residential construction so the work in question was not unfamiliar to him. Mr. LaBelle had discussed the employment of Mr. Leger with Mr. Beamish the dispatcher of Local 95. Mr. Beamish took the position that LaBelle could only hire employees or apprentices from the union hiring hall and asked Mr. LaBelle if he wanted an apprentice sent. Beyond that Mr. Beamish referred the matter to the business manager of Local 95, Mr. McQueen.
As a consequence of the conversation with Mr. Beamish, Mr. LaBelle decided to hire Mr. Leger. He, in doing so, purported to make the hiring under clause 2.05(a) of the collective agreement between the M.I.A. and Local 95. He informed Local 95 by a letter addressed to Mr. Beamish dated January 12, 1982, and in that letter specifically asked Mr. Beamish to provide the apprentice Mr. Leger with a regular work permit. Local 95 has not issued a work permit to Mr. Leger and indeed refuses to do so. The subject matter of this grievance is the issuance of that work permit, and the relief requested by Misco is a direction from this Board that such a work permit be issued.
It is not necessary to recount in detail events subsequent to a letter dated January 12, 1982 in detail. Mr. LaBelle went to the M.I.A. asking their advice and help, he was advised that a similar issue was before this Board and that there was no point in filing a grievance until the issue had been resolved in the other case. Once the decision in the similar case was issued on April 29, 1982 the matter was discussed between Mr. McQueen and Mr. Kirki of the M.I.A., and it is clear on the evidence that Mr. McQueen indicated to Mr. Kirki that the permit would be issued in light of the Board's decision. It appears, however that the union continued to refuse and as a result this grievance was filed on July 6, 1982 requesting a work permit for Mr. Leger.
Mr. LaBelle makes this request under clause 2.05(a) of the collective agreement between Local 95 and the M.I.A. That clause is part of a larger article, Article 2 in the collective agreement dealing with hiring, and Article 2 reads as follows:
'Article II— Hiring
2.01(a)
The employers shall employ as employees members of the Union in good standing in the performance of all work coming within the scope of this Agreement and shall continue in their employ only employees who are in good standing with the Union.
2.01(b)
All such employees shall be hired through the Union Office except as hereinafter provided.
2.01(c)
The Union shall issue to the Employer a copy of the referral slip issued to the employee for all employees upon hiring, without delay.
2.02
The Union agrees to give preference to and furnish the most competent available employees to the employers on request, provided however, that the Employer shall have the right to determine the competence and qualifications of its employees, and to discharge or refuse to employ, in his sole discretion, any employee for any just and sufficient cause. The employer shall not discriminate against any employee by reason of his membership in the Union or his participation in its lawful activities.
2.03
(Shop Ratio Table)
No apprentice shall execute work unaccompanied by a mechanic except that a fourth year apprentice may execute work on a temporary (not to exceed one (1) working day) emergency basis only when a mechanic is not readily available and the Union business office is notified. Employers shall have the right to take apprentices already in their employ to out of town locations.
The following Shop Ratio Table notwithstanding, the ratio of apprentices on a job shall not exceed one apprentice to one mechanic except as provided, for in Clause 2.04.
2.04
The employers shall have the right to procure workmen from available sources other than from the Union on jobs located within the local jurisdiction when the Union has failed to furnish the required number of competent and qualified employees within two (2) working days following a written request by an employer. Immediately upon hiring, such workmen shall be considered to be emergency help. The employer, after consultation with the Union Business Manager, shall designate the classification within which such emergency help falls, and they shall be entitled to receive hourly rates of pay applicable to such classification. Emergency help shall be issued referral cards for identification and classification only, but shall not come within the scope of this Agreement except as noted in Clause 9.01, and shall be replaced as soon as competent Union employees are available. Emergency help shall not be counted in the ratio for the duration of the emergency.
2.05
An emergency shall be defined as, and shall be deemed to exist, where there is a job situation in which the Union is unable to provide qualified members of the Union on a written request by an employer. If there is any disagreement between the parties concerned as to whether or not an emergency does or does not exist, Article VI will apply.
2.05(a)
An emergency need not be declared to hire new first year apprentices providing the employers shop ratio is in order with Clause 2.03. The Union shall provide these new apprentices with a regular work permit, and without delay.
An emergency can only be declared by an employer and it must be in writing or by telegram.
2.06
It is agreed that members of the Union shall not refuse to work on the grounds that the employer has hired non-union workmen, provided that the provisions of Clause 2.04 have been met by the employer.
2.07
If an employee has been discharged for cause, the reason for discharge shall be in writing to the Union within seven (7) days of such discharge. Following such notification the employer shall not be required to re-employ this worker. On receipt of such notice by the Union, the Union or the employee may lodge a grievance on the part of the employee which may be processed through the Grievance Procedure provided for in this Agreement, and for this purpose the date when the grievance arose shall be considered to be the date of the receipt by the Union of such notice.
2.07(a)
Union and Association shall be notified in writing of all discharges within seven (7) days of such discharge and state reason for discharge.
2.08
The Union hereby agrees that it will not transfer an employee from one employer to another without the permission of the employer for whom the employee is working at the time.
The employer hereby agrees that it will not transfer an employee from one employer to another without the permission of the Union.
2.09
A member of the Union shall not work at the trade for himself or any other person or shop in the performance of his job as an Asbestos Worker, until he has secured a written referral clearance from both the Union and employer, which must be produced on request.
2.10
The Union and employer will cooperate in placing, on suitable projects, certain senior members of the Union."
The argument on behalf of the applicant is quite simple. The applicant claims that the employer is merely hiring a new first year apprentice while the employer shop ratio is in order. In these circumstances the union should provide the new apprentice with a regular work permit and without delay. Clause 2 of the agreement between Local 95 and the M.I.A. is a very complicated clause, and a different panel of this Board has been called upon to interpret the meaning to be given to clause 2.05(a), (see Lewis Insulation Services Inc. [1982] OLRB Rep. April 594). In that decision the Board interpreted clause 2.05(a) in the light of Article 2 as a whole, and found that the clause entitled the employer to hire new first year apprentices. We are of the view that that is the proper interpretation of clause 2.05(a) and it is thus clear that Mr. LaBelle was entitled to hire Mr. Leger as a new apprentice. Since Mr. LaBelle was entitled to hire Mr. Leger, it also follows that the union by the clear language of clause 2.05(a) is required to supply Mr. Leger with the work permit referred to therein and the Board so directs.