Ontario Labour Relations Board

[1982] OLRB Rep. April 590

2095-81-M United Brotherhood of Carpenters and Joiners of America, Local 1988, Applicant, v. G. Lavictoire and Brothers Ltd., Respondent

BEFORE: Ian Springate, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.

APPEARANCES: B. W Adams and G. Rees for the applicant; Brian P. Smeenk and Gabrielle Lavictoire for the respondent.

DECISION OF THE BOARD; April 30, 1982

1. This is a referral of a grievance to the Board pursuant to section 124 of the Labour Relations Act.

2. The grievance giving rise to these proceedings alleges a violation of the Carpenters' provincial agreement on the part of Ron Engineering and Construction Ltd. ("Ron Engineering"). In referring the grievance to the Board, however, the applicant named as respondents both Ron Engineering and G. Lavictoire and Brothers Ltd. Neither prior to, nor during the hearing did G. Lavictoire and Brothers Ltd. object to being named in the referral.

3. At the commencement of the hearing, counsel for the applicant trade union stated that on the basis of certain information received from the counsel acting on behalf of the two companies, he believed that G. Lavictoire and Brothers Ltd. was responsible for performing the work giving rise to the grievance, and that the union was content to proceed only against G. Lavictoire and Brothers Ltd. Counsel for the applicant added, however, that he was reluctant to formally withdraw the grievance against Ron Engineering until he had actually heard the evidence related to the grievance. Part-way through the introduction of evidence, counsel for the applicant indicated that the facts revealed by the evidence were different from what he had been led to expect. Counsel stated that although he had been advised that the firm of G. Lavictoire and Brothers Ltd. had been retained to do the work in issue, it now appeared that the president of the company, Mr. Gabrielle Lavictoire, may have been personally hired by Ron Engineering to do the work. If this was the case, he submitted, Ron Engineering would have been in violation of the Carpenters' provincial agreement and, accordingly, Ron Engineering should remain a party to these proceedings. At this point, counsel representing both companies objected to having the matter proceed against Ron Engineering in that he had understood prior to the hearing that the applicant would be proceeding only against G. Lavictoire and Brothers Ltd. and, in consequence, he had not come to the hearing prepared to deal with a case against Ron Engineering. In response to a question from the Board, counsel for the two companies indicated that he did not object to having the union s case against Ron Engineering dealt with separately at a later time.

4. In light of the circumstances before it, the Board ruled orally that it was prepared to deal only with the case against G. Lavictoire and Brothers Ltd., but that this was without prejudice to the right of the union to later refer the grievance against Ron Engineering to the Board for determination. Accordingly, Ron Engineering is hereby formally deleted as a respondent in these proceedings. In addition, although the grievance as drafted refers only to Ron Engineering, for the purpose of these proceedings, we will treat the grievance as if it had alleged a violation of the Carpenters' provincial agreement by G. Lavictoire and Brothers Ltd.

5. The grievance arises out of the construction of a warehouse, primarily made of steel, for Flakt Canada Limited in Smith Falls. Flakt Canada retained the services of Ron Engineering to act as its project manager. Ron Engineering then entered into an arrangement with G. Lavictoire and Brothers Ltd. to perform certain of the carpentry work on the project. It should be noted that this arrangement did not cover either the forming work on the project or the installation of drywall, both of which jobs required the services of a number of carpenters. G. Lavictoire and Brothers Ltd. did seek to obtain the contract for the drywall, but without success. The terms of the arrangement between the two companies were set out in a letter from Ron Engineering to G. Lavictoire and Brothers Ltd. on September 24, 1981. The letter read as follows:

This will confirm our agreement to engage the services of G. Lavoctoire [sic] and Brothers Ltd., on behalf of the Owners, Flakt Canada Limited, with respect to the above noted project.

G. Lavictoire and Brothers will provide throughout the duration of this project, and in accordance with our scheduling, all required labour for the installation of the millwork and miscellaneous carpentry.

Your personnel, as engaged on the above project, will be reimbursed in the amount of $575.00/week plus 21% payroll burden and 3% overhead costs. Also, as agreed, gas expenses for travel from Ottawa to the project site in Smith Falls will be reimbursed at cost.

Please note that Ron Engineering and Construction (Eastern) Ltd. are acting as Project Managers on the construction of the Flakt Canada Warehouse, on behalf of the Owners, Flakt Canada Limited, of Ottawa. Any and all payments, therefore, as noted above, will be forthcoming from the Owners, following our approval of the same.

6. G. Lavictoire and Brothers Ltd. is based in Ottawa. Mr. Gabrielle Lavictoire, the president of the company, testified before the Board. Mr. Lavictoire's testimony indicates that he is responsible for the day to day operations of the firm, including the hiring and firing of employees, as well as the supervision of on-site employees. Mr. Lavictoire testified that although at the relevant time business was very slow, in the past the company has employed up to sixty carpenters at a time.

7. G. Lavictoire and Brothers Ltd. is bound by the terms of the Carpenters' provincial agreement. Mr. Lavictoire is himself a member of the Ottawa local of the United Brotherhood of Carpenters and Joiners of America, namely, Local 93. The applicant local is based in Smith Falls. Mr. Lavictoire indicated that in the past he had performed carpentry work on G. Lavictoire and Brothers Ltd. jobs in Smith Falls, and that when he had done so, he had paid an amount equivalent to local dues to Local 1988. According to Mr. Lavictoire, this arrangement had been agreed to by himself and Mr. Richard Proctor, the former business representative of Local 1988. Mr. Lavictoire worked on the Flakt Canada Limited project in Smith Falls. When Mr. G. Rees, the current business representative of Local 1988, raised the matter with him, Mr. Lavictoire offered to make payments to Local 1988 in accordance with his prior arrangement with Mr. Proctor. This offer was rejected by Mr. Rees.

8. The evidence led before us establishes that all of the carpentry work performed by G. Lavictoire and Brothers Ltd. on the Flakt Canada job was actually performed by Mr. Gabrielle Lavictoire. Mr. Lavictoire did not obtain a referral slip from Local 1988. It is the contention of the applicant that under the provincial agreement any carpentry work on the project should have been performed by a Smith Falls carpenter belonging to Local 1988, and that in any event, Mr. Lavictoire would have had to obtain a referral slip from the Local before starting work on the project. In support of its position, the applicant relied on the following provisions of the Carpenters' provincial agreement:

ARTICLE 5 - UNION SECURITY

5.01 (a) The employer agrees to hire and continue to employ employees covered by this Agreement who are members in good standing of the United Brotherhood of Carpenters and Joiners of America as long as the Local Union or the District Council of the United Brotherhood of Carpenters and Joiners of America in the Province of Ontario can supply qualified employees in sufficient numbers who are capable of performing the work required.

(b) Except as modified by the provisions of sub-section (c) of this Article, all employees covered by this Agreement shall be hired by the employer through the offices of the Local Unions and District Councils having jurisdiction over the geographical area, set in Schedule "B", where work by the employer is to be performed. Such hiring shall be done by way of a referral slip issued by the Local Union or District Council.

(c) It is understood that, if the Local or District Council is unable to provide the required manpower within two (2) working days, the employer is free to hire such manpower as is available, but such manpower shall, as a condition of employment, either be in good standing or apply for membership in the Union within seven (7) days.

5.08 (a) Except as provided otherwise in the trade appendices an employer may transfer an employee from one geographic area to any job or project in any other geographic area within the Province of Ontario on the following basis:

Out of L.U.'s or Total

Area D.C.

First Employee - 1 1

Next Two Employees 2 - 3

Next Three Employees - 3 6

Next Employee 1 - 7

Next Two Employees - 2 9

Next Employee 1 - 10

Next Three Employees - 3 13

Total 4 9

(b) The first out of area employee may be a working foreman. The maximum in the above schedule may be increased by such further employees as may be agreed upon between employer and Local Union or District Council having jurisdiction. Before commencing work the member must be given a referral slip.

9. In our view, Article 5.01 has no relevance to these proceedings. Article 5.01 deals with the hiring of employees, and however one might view Mr. Lavictoire's position, it cannot reasonably be said that he was a newly hired employee of G. Lavictoire and Brothers Ltd. Accordingly, the only issue is whether there has been a breach of Article 5.08.

10. Article 5.08 clearly refers to the transferring of "employees" from area to area. Mr. Lavictoire, however, is president of G. Lavictoire and Brothers Ltd., and as such we regard him as a managerial person and not an "employee" of the firm, either for the purposes of the Labour Relations Act or for the purposes of the collective agreement. It is now generally accepted that unless specifically restricted from doing so by the collective agreement, managerial persons are free to perform work which would otherwise be performed by bargaining unit employees. See Re Orenda Ltd. and I.A.M., Lodge 1922, (1972) 1972 CanLII 2024 (ON LA), 1 L.A.C. (2d) 72 (Lysyk) and Re 40548 Ontario Ltd. and Retail, Wholesale & Department Store Union, Local 448, (1980) 1980 CanLII 1575 (ON HCJ), 28 O.R. (2d) 697. Although both the caulking appendix and the acoustic and drywall appendix to the provincial agreement do place certain limitations on the right of managerial persons to work "with the tools", no such restriction is contained in the provisions of the provincial agreement applicable to G. Lavictoire and Brother Ltd. In particular, there appears to be nothing in the agreement which prevents managerial persons from working on a job in Smith Falls.

11. We recognize that a person classified as managerial may perform bargaining unit work to such an extent as to bring him within the bargaining unit. See Re Westroc Industries Ltd. and United Cement, Lime and Gypsum Workers, Local 366, (1973) 1973 CanLII 2047 (ON LA), 5 L.A.C. (2d) 61 (Beatty). We also recognize that Mr. Lavictoire spent all of his time on the Flakt Canada job doing bargaining unit work and that there were no other company employees on the site for him to supervise. Had Mr. Lavictoire been a person of lesser managerial status, we might well have concluded that he should be regarded as an employee in the bargaining unit subject to the provisions of Article 5.08 of the provincial agreement. Given, however, that Mr. Lavictoire is the president of the firm, and as such is presumably its chief executive officer, we are not prepared to regard him as a bargaining unit employee even in the circumstances present here. This being the case, we are of the view that there is nothing in the provincial agreement which prohibited him from working on the Flakt Canada project.

12. Article 5.08(b) of the provincial agreement stipulates that "Before commencing work the (transferred) member must be given a referral slip". Given the context in which this statement is made, particularly in that it immediately follows references to both "the first out of area employee" and the fact that the out of area schedule "may be increased by such further employees as may be agreed upon" (emphasis added), we view the term "member" as it is used in this Article as a reference to union members who are bargaining unit employees, and not to managerial persons such as Mr. Lavictoire who also happen to be union members. Accordingly, we are unable to conclude that the fact that Mr. Lavictoire did not obtain a referral slip from Local 1988 amounted to a violation of the provincial agreement.

13. We would note that our decision in this matter is based upon the assumption that G. Lavictoire and Brothers Ltd. was a bona fide subcontractor on the Flakt Canada job. As indicated above, counsel for the applicant raised the possibility that Mr. Lavictoire was in fact a direct employee of Ron Engineering which, in his view, would have involved a violation of the provincial agreement by Ron Engineering. That is a matter, however, which must await a determination in any proceedings involving Ron Engineering.

14. The grievance insofar as it applies to G. Lavictoire and Brothers Ltd. is dismissed.