International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 v. Lewis Insulation Services Inc., 1982 CanLII 820

[1982] OLRB Rep. April 594

0581-81-M; 0582-81-M International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Applicant, v. Lewis Insulation Services Inc., (Respondent)

BEFORE: D. E. Franks, Vice-Chairman, and Board Members J. D. Bell and C. A. Ballentine.

APPEARANCES: S. B. D. Wahl and B. Mc Queen for the applicant; G. Grossman, B. W. Binning and Ross Lewis for the respondent.

DECISION OF VICE-CHAIRMAN D. E. FRANKS AND BOARD MEMBER J. D. BELL; April 29, 1982

1. These two cases result from two grievances which were referred to the Ontario Labour Relations Board for arbitration pursuant to section 124 of the Labour Relations Act. They arise out of three different alleged violations of a collective agreement by the respondent, Lewis Insulations Services Inc. (hereinafter referred to as Lewis) in Windsor. Although the grievances are separate and allege different violations, because they are part of one stream of things, for convenience the Board consolidated the two proceedings.

THE FACTS — BACKGROUND AND OVERVIEW OF EVENTS

The three alleged violations being grieved relate to,

(a) the emergency clause in the collective agreement and how it works;

(b) the hiring of first year apprentices under the collective agreement;

(c) the lay-off of a job steward.

These are extremely complex issues which raise difficult problems of the interpretation of the collective agreement between the parties. In order to understand these issues it is necessary to put them in context. Accordingly, before dealing specifically with each of the three issues we will first set out some of the background and an overview of the events which gave rise to these proceedings.

3. The events which give rise to the present grievances go back to the fall of 1980. The applicant trade union had engaged in a lengthy strike during the summer of 1980. As a consequence of this strike the respondent Lewis had an extensive backlog of work throughout the Province but specifically in the Windsor area. Indeed, not only had the work backed up as a consequence of the strike, in some cases the work had become more complicated because other construction work had gone on during the strike and materials had to be fitted around the other works. The respondent thus needed a large supply of insulators, particularly in regard to a series of jobs at the extension to the GM plant on Walker Road in Windsor.

4. The respondent requested such men of the trade union. Presumably sufficient numbers of tradesmen were not referred and as a consequence the respondent declared an "emergency". This was done by sending the following telegram to the applicant trade union:

“REF - CLAUSE 2:04 OF THE COLLECTIVE AGREEMENT CONFIRMING THAT YOU HAVE NOT SUPPLIED UNION MEMBERS TO US AS PREVIOUSLY REQUESTED FOR VARIOUS JOBSITES, WE HAVE NO CHOICE BUT TO HIRE EMERGENCY EMPLOYEES AS ALLOWED UNDER THE COLLECTIVE AGREEMENT. PLEASE ADVISE IF AND WHEN YOU HAVE COMPETENT AND QUALIFIED MEMBERS AVAILABLE TO WORK FOR US, AND WE WILL 1NSTRUCTION [sic] YOU WHERE TO DIRECT THEM.”

To understand the concept of "emergency employees" reference must be had to the collective agreement in force between the parties:

“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

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 reemploy 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.”

Although much of the present case centres around the interpretation to be given this clause, from even a superficial reading it can be seen that the declaring of an emergency relieves against the effect of the closed shop provision of the collective agreement. Once the employer declares the emergency he is then entitled to hire "off the street", that is, obtain employees from wherever he can.

5. Having declared the emergency, Lewis then proceeded to hire a number of emergency employees. In accordance with the collective agreement, Lewis requested the Union to issue permits to these emergency employees. No such permits were sent from the union for these employees. In practice there are a number of types of permits issued by the applicant trade union. Whenever a journeyman is dispatched to a job site a permit is issued. When an emergency employee is hired, the practice is for the permits to be sent to the employer as a matter of course. Such permits are then recorded in a specific book for emergency help at the union office. However, in this case, at no time from the original request on, and notwithstanding subsequent requests, did the trade union issue permits for the employees in question.

6. While this emergency situation was continuing for the Lewis operation in Windsor there was a change in leadership of the local union. The evidence of the union's dispatcher is that during this period both Mr. Duffy and Mr. McQueen, his successor as business manager, told her "not to worry" about referrals to the Lewis job sites in Windsor. She apparently didn't heed either instruction and it appears that there were referrals to the Windsor job sites. There is one other piece of evidence by the dispatcher that is worth noting at this point since it forms part of the general background to this dispute. It is clear from her evidence, that in referring mechanics to job sites, as dispatcher she would go down the out-of-work list in the hiring hall and phone up the various out-of-work members when a job became available. However, they could refuse to go to such a job and furthermore the rules of the hiring hall do not impose any penalty for refusing a succession of such referrals. In other words the function of the hiring hall with respect to the members of the applicant is simply to inform them of jobs that are available. The union, through the hiring hall cannot effectively direct its members to go to any job.

7. The present dispute between the parties started in mid-February. At about this time there were a series of conversations between Mr. McQueen, business manager of the applicant, and Mr. Flynn, the manager of the Lewis operation in Windsor. The conversations were obviously heated conversations. What is clear from the evidence, however, is that McQueen told Flynn that the union now had unemployed mechanics and they would send them to Windsor. Flynn, on the other hand, took the position that this was rather pointless, since the Windsor jobs, in particular the GM job which was the largest, was closing down or decreasing in work and Lewis would be laying off people in the near future. Flynn, for his part, insisted that the permits be sent for the emergency men. The outsome of these conversations was that the applicant trade union sent Flynn a telegram as follows:

“YOU ARE EMPLOYING EMERGENCY MEN WHILE WE HAVE UNEMPLOYED MEMBERS. EMERGENCY MEN MUST BE DISCHARGED AND REPLACED WITH LOCAL 95 MEMBERS THE UNION IS READY AND WILLING TO SUPPLY AS PER ARTICLE 2.04 COLLECTIVE AGREEMENT. EMERGENCY HELP SHALL BE REPLACED AS SOON AS UNION EMPLOYEES ARE AVAILABLE.”

The effect of this telegram was that the battle lines were drawn between Lewis and the applicant trade union. Lewis took the position that certain emergency persons were entitled to the status of first year apprentice and that permits should be sent to Lewis classifying them as first year apprentices. The trade union took the position that the emergency was over and that Lewis ought to lay off everyone not working on a permit, that is all emergency men, and accept journeymen referred by the union. However, there is no evidence of any mechanics showing up at the Lewis job site in Windsor and being refused work by Lewis. Further, the evidence is clear that shortly after the telegram, the Lewis forces in Windsor decreased and a number of emergency employees were laid off.

8. Lewis, however, retained some dozen of the emergency employees claiming that they were first year apprentices. Mr. Flynn, in explaining this, was quite candid. Of the group of emergency help that had been hired by Lewis in the fall of 1980, the employees which were retained by Lewis as first year apprentices were the best of this group as employees. It is also clear, on the evidence that within a week or so of the telephone conversations and the telegram, Lewis was within the ratio of apprentices to journeymen set out in the collective agreement, provided Lewis was indeed entitled to designate the employees in question as first year apprentices.

9. Events continued in this fashion for a while. There was a pattern of increased layoffs as Lewis completed the GM job, and indeed, over time a number of the first year apprentices were laid off as the work load decreased and the number of allowable apprentices decreased. Throughout this time, Flynn asked various representatives of the applicant trade union (the area steward and certain job stewards) whether the permits for the first year apprentices would be forthcoming.

10. During the month of May, there was a meeting of the Windsor area insulators in which the status of the first year apprentices working without permits was raised by the members. It appears that the members working on the Lewis job site were concerned about the fact that the apprentices in question did not have permits and they were subject to discipline under the union constitution and by-laws for working alongside insulators not under permit from the local. In this regard, the evidence is quite clear that Mr. McQueen indicated to the members that he would not issue such permits but also indicated that he would not charge the employees for working with such persons. The meeting in question involved the replacement of the area steward who had apparently been requesting such permits from the Toronto head office of the union. It appears that after this meeting a Mr. Clark was appointed a job steward by Mr. McQueen on the GM site. Mr. Clark was laid off and his lay-off is the subject matter of one of the two grievances. We shall deal with that very specific dispute later.

11. At the very core of this dispute is a complete divergence of the views about the use and economics of emergency help and apprentices. The evidence given by Mr. Ross Lewis, the employer, is that the usefulness of untrained employees is limited. Thus, when emergency employees are hired "off the street" they can only be used to carry materials and to clean up on the job site. In such a function, it was his estimate that about three such unskilled persons could keep ten mechanics supplied. Clearly, on the other hand, Mr. Lewis would just as soon not pay a mechanic to carry material. On the other hand, Mr. McQueen, the business manager of the applicant, clearly feels that the process of hiring emergency help is open to extreme abuse as a source of "cheap labour" whereas Lewis's view was that he couldn't make money off cheap labour since they simply could not do the work of a fully trained mechanic.

12. Concerning apprenticeship, however, neither Mr. Lewis nor Mr. Flynn appear very interested in the formalized apprenticeship program being administered by the Joint Apprenticeship Committee. This committee, referred to as the JAC, controls entrance into the second year of aprenticeship and thus ultimately controls the apprenticeship program. Mr. McQueen is clearly concerned that, if Mr. Lewis can choose the first year apprentices, this, in effect, gives the employer the first screening of entrance into the apprenticeship program. Mr. Lewis, on the other hand, was frequently quite bitter about the refusal of the union to take people that he thought qualified, into the "union’s" apprenticeship program. It is in the context of these complex problems that these grievances were argued. It would surprise no one, therefore, that the hearing was long and at times bitter.

PART ONE OF THE GRIEVANCE — THE END OF THE EMERGENCY:

13. As noted above, Lewis had declared an emergency sometime in October of 1981. The end of the emergency came with a series of telephone conversations between Mr. Flynn and Mr. McQueen in February which resulted in a telegram being sent by McQueen to the Lewis Windsor office. We turn now to examine the end of the emergency in some detail.

14. The evidence of Mr. Flynn is that sometime about mid-February he was contacted by Mrs. Bradley, the dispatcher in the union office, to the effect that the union had men available and were prepared to start sending them. Mr. Flynn's reply was that the Lewis operation was starting to lay-off men. This was followed shortly thereafter by a phone call from Mr. McQueen. McQueen demanded that Lewis take some more men or get rid of the emergency people. McQueen was informed by Flynn that they were ready to lay-off people, and McQueen said he would look into it. There followed another conversation several days later which turned into a bad argument. In this conversation McQueen demanded that Flynn lay-off all of the emergency help. Flynn, in turn told McQueen that he wanted permits for seven of the people that he had. That is, first year apprenticeship permits. The conversation got heated and McQueen threatened Flynn with a grievance whereupon Flynn hung up.

15. The telephone call was followed by the telegram recounted above (paragraph 7) stating that the union was ready and willing to supply men, and that emergency help shall be replaced as soon as union employees are available.

16. The first question raised in this matter is what was the effect of this telegram. The applicant takes the position that the telegram clearly ended the emergency. We cannot accept this proposition. The telegram may have told the respondent that men were available, but the telegram does not in and of itself supply men nor does it indicate that the union can supply men. As we have noted, the evidence is that the union, through its hiring hall, has no way of assigning tradesmen to a particular job and penalizing them if they refuse to go. In the context of evidence which indicates that the union was having trouble getting men to go from other areas to work in Windsor, it is doubtful that the telegram can be taken as anything more than the intention by the union to try and supply men. The emergency would only be truly over if Lewis had been informed by the union that persons X, Y, or Z were reporting to the Lewis operation in Windsor on a certain day. Clearly, under the collective agreement, at that time, Lewis would then be required to terminate the employment of emergency help and hire the members sent from the union hiring hall. That, however, is not the case here and there is no evidence that any members were sent to Lewis subsequent to or as a result of the February telegram.

17. Even if we were to take the telegram as ending the emergency, in the particular circumstances of this case, we would not find a violation of the collective agreement. Counsel for the applicant argued that 48 hours after receipt of the telegram that the employer should have laid off emergency people. The 48 hours he argues comes from the very definition of emergency set out in clause 2.04 which sets out the condition where the union has been unable to furnish the required number of competent and qualified employees within two working days following a request by the employer. The applicant thus argues that this two day period is a reasonable amount of time for the employer to arrange his affairs. This places an interpretation on the whole of Article II which we cannot accept. The employer's position under this article is not simply that of two working days without sufficient tradesmen to man a job, but must allow for the recruitment of the emergency help. Thus, the position by Lewis that they were about to lay-off employees and that they should be entitled to retain the emergency until the lay-off in the immediate future is in our view a valid position. In fact, by the payroll period ending March 2nd, Lewis laid off a number of employees including all of the emergency employees except those which form the second part of the grievance. In these circumstances, therefore, we are of the view that any grievance by the union over the continued employment of emergency help in such circumstances must fail. The employer, in our view, complied with the collective agreement within a reasonable time in the circumstances.

PART TWO - THE HIRING OF FIRST YEAR APPRENTICES:

18. In implementing the lay-off in early March, Lewis took the position that seven of the employees who had originally been hired as emergency help were now employed as first year apprentices pursuant to clause 2.05(a) of the collective agreement which reads as follows:

“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.”

Clearly, at this point Lewis assumed that the emergency was over, whether it had been affected by the telegram or not, and indeed, Lewis terminated all but seven of the emergency crew. Flynn, in his evidence was quite candid that, of the bunch, these were the best employees and he felt that they deserved to be given a chance to become members of the union. Thus, Lewis purporting to act under 2.05(a) retained seven people as first year appentices but otherwise as required by the clause his ratio of apprentices to journeymen was in order. However, Flynn did admit that he also terminated some senior apprentices in order to retain the seven people in question. It is this group of seven which forms the second part of the grievance.

19. There is no need to go into the details of the employment of the seven people in question. It is enough to say at this point that Flynn continued to ask for permits which were denied. Their employment continued with Lewis for varying amounts of time. From March to June Lewis was winding down the work on the GM job and from time to time the various apprentices were laid off so that Lewis effectively remained within the ratio as required by clause 2.03 of the agreement.

20. Both Flynn and Lewis were quite concerned that no permits were sent as required by 2.05(a). However, they did not file a grievance requesting such permits, which presumably they were entitled to do under the collective agreement. As noted above, in the outline of events, this did cause some problems with the members of Local 95 working in Windsor, since they were quite conscious of the penalty under the union by-laws for working next to employees not under permit from the union.

21. At issue in this part of the grievance is the conflict inherent in Article II of the collective agreement between clause 2.01 and 2.05(a). Clause 2.01 provides for a union security provision typical in the construction industry, namely, that of the closed shop. Thus, the employer is required to employ only members and employ them through the union hiring hall. As is typical in arguments over the interpretation of specific language, counsel for both sides offered the Board a veritable pastry tray of the canons of interpretation of documents. Counsel for the applicant argued that 2.05(a) must be read in light of Article II as a whole which is essentially the union security clause, and that therefore the employer is required to hire first year apprentices through the union. The respondent argued that 2.05(a) means exactly what it says and that reserves specifically the right to the employer to hire new first year apprentices. Further, that the interpretation urged by the applicant would render this provision meaningless.

22. We are of the view that the clause entitles the employer to hire new first year apprentices, since any other interpretation would render that clause meaningless. Of particular note, is the fact that the clause talks of new first year apprentices and we interpret the "new" as referring to people who are not already first year apprentices. This is precisely the situation with the seven "emergency help" employees which Lewis continued to employ as first year apprentices. They were not apprentices before, but Lewis under that provision was entitled to hire them as first year apprentices, and further, he was entitled to do that even after the emergency was over.

PART THREE - THE TERMINATION OF EMPLOYMENT OF THE JOB STEWARD:

23. Mr. Brian Clark is a mechanic insulator who is a member of Local 95. He was referred to the Lewis operation in Windsor in October of 1980 where he worked on a number of projects. Eventually he was working on the GM transmission plant project in Windsor in March of 1981. He was appointed a job steward by Mr. McQueen on May 11, 1981. He was terminated from employment on June 4, 1981.

24. The Union claims that the employer violated clause 7.01 of the agreement in terminating Mr. Clark. 7.01 reads as follows:

“It shall be the right of the Union Business Manager to appoint a Steward for each job from the employer's personnel on the job site.

A job steward shall be recognized on the job and shall not be discriminated against. He shall be allowed reasonable time to check out reported grievances after informing the employer and/or his representative.

The Union shall be notified by the employer prior to any layoff or transfer of a Job Steward. Where practical, a Job Steward shall be one of the last six men on the job.”

The respondent argues that the phrase "last six men on the job" refers to particular purchase orders which form part of the overall contract for the job. That is, for the particular purchase order that Mr. Clark was working on, at the time he was terminated, that purchase order was finished. The union argues that the term 'lob" does not refer to a specific commercial contract between Lewis and the purchaser of the construction, but rather the job should be interpreted as the overall GM job site.

25. We are of the view that the employer did violate section 7.01 in terminating Mr. Clark's employment. There were clearly more than six men on the whole of the GM job. Notwithstanding Mr. Lewis's concern about job steward roving from one area of the job to the other, their security of employment cannot be confined to particular purchase orders in the circumstances where there are still a large number of tradesmen on the project. To do so would render the clause meaningless as a device for the union to protect stewards on a project. On this ground, therefore, the grievance succeeds. The parties can work out the details of compensation for Mr. Clark’s loss of employment. If the parties are unable to agree on this we remain seized of this aspect of the grievance in the event that they are unable to agree.

26. In summary, the grievnce as it relates to part one, the termination of the emergency and part two, the hiring of the first year apprentices, is dismissed. With respect to the violation of a steward's clause the union succeeds.

DECISION OF BOARD MEMBER C. A. BALLENTINE;

1. 1 disagree with the majority decision as it applies to parts one and two of the grievance. It is my position that the "emergency" officially came to an end in February, 1981, when the union advised the company's Windsor office by telegram (contents appear in paragraph 7 of the majority decision).

2. Mr. Flynn, the company's representative in Windsor, admitted in his evidence that the union had the right to declare the emergency at an end, and that the telegram signified that. However, his reason for not complying with the request of Mr. McQueen, the union's business manager, was that they were at a standoff.

3. Mr. Flynn's arbitrariness extended to the discharging of three "senior established apprentices" while retaining three "emergency workers", which he was insisting should be given status as "first year apprentices". This incident occurred as late as June, 1981, at least three clear months after he had received the telegram from the union.

4. Mr. Flynn showed contempt for the "Apprenticeship Standards"; he stated that he was not a great believer in the set-up, and had not paid any attention to the "Standards' Document". The act of laying off the "established apprentices" while retaining the "emergency workers" is clearly a violation of Article XVIII (Apprenticeship Training) of the collective agreement, and is contrary to section 15a of the Apprenticeship Standards' document which reads as follows:

“15a. Layoff - Subject to shop ratio, an apprentice will be the last non-mechanic to be laid off.”

5. Although the collective agreement is unclear and confusing as it relates to an emergency situation and the hiring of new first year apprentices, I cannot accept the interpretation that the company is at liberty to lay off established apprentices and then be in a postion to engage new first year apprentices in accordance with the shop ratio. This type of manipulation would render the Apprenticeship Standards meaningless.

6. It is my position that the company violated the collective agreement. The grievance as it relates to parts one and two should not have been dismissed.