[1982] OLRB Rep. July 1086
0657-82-M Labourers' International Union of North America, Local 506, Applicant, v. Vanbots Construction, Respondent.
BEFORE: R. D. Howe, Vice-Chairman, and R. W. Redford and S. Cooke.
APPEARANCES: Chris G. Paliare, Gil Cragg and Peter Hitch in for the applicant; G. Grossman and F. Pezzelato for the respondent.
DECISION OF THE BOARD; July 23, 1982
This is a referral of a grievance to the Board pursuant to section 124 of the Labour Relations Act.
The grievance alleges that the respondent "failed to recognize Sam Biafore [the grievor] as the Union Shop Steward", contrary to Article 12.02 of the (June 26, 1980 to April 30, 1982) Provincial Collective Agreement (the "Agreement") that was binding upon the respondent at all material times. Article 12.02 provides:
"No discrimination shall be shown against any Union Steward for carrying out his duties, but in no case shall his duties interfere with the progress of work. It is agreed that Union Stewards may be appointed on each job of the Employer by a Business Representative of the Local Union who shall notify the job superintendent or other supervisory personnel of the Employer in charge of the job in writing or by telegram. A Union Steward shall be one of the last two (2) Employees retained on the job by the Employer provided he is competent and capable of performing the remaining work on the job. The Union Steward on each job will be responsible for reporting any disputes to the Employer and the Local Union representative, so that these can be taken up in the proper manner without delay.
The Union Steward shall not excluded from a gang for overtime work, provided he is willing and capable of performing the available work."
- Although it is somewhat unclear from the grievance, it was common ground between the parties at the hearing of this matter that the referral pertains to the discharge of the grievor by the respondent on June 3, 1982. The applicant contends that the grievor was discharged without just cause, as required by Article 5.01 which provides, in part, as follows:
"The Union agrees and acknowledges that the Employer has exclusive rights to manage the business and to exercise such right without restriction save and except such prerogatives of management as may be modified by the terms and conditions of this Agreement. Without restricting the generality of the foregoing paragraph it is the exclusive function of the Employer:
(a) to determine qualifications, classify, transfer, hire, direct, promote, demote, lay-off, discipline, and discharge for just cause Employees and to increase or decrease or transfer working forces in accordance with the terms of this Agreement . .
The respondent, on the other hand, contends that the applicant was estopped from appointing the grievor as a Union Steward and that, in any event, the grievor was justly discharged for insubordination.
There were a number of conflicts in the evidence given by the witnesses who testified before the Board in these proceedings. The findings of fact contained in this decision reflect the Board's assessment of the relative credibility of those witnesses in the light of such factors as their demeanour while testifying, the consistency of their evidence, their capacity to recall events and to clearly express their recollections, their ability to avoid the influence of interest to modify their recollections, and the Board's assessment of what is most probable under the circumstances.
During May of 1982, the respondent was working on two projects in the industrial, commercial and institutional ("I. C. I.") sector of the construction industry in the Metropolitan Toronto Area, on which it was obligated by the Agreement to employ only members in good standing of the applicant ("Local 506"). One of those projects was at Scarborough General Hospital (the "Scarborough" site), and the other was at Gateway Centre (the "Gateway") site). The respondent's General Superintendent on those sites, which were approximately eight miles apart, was Frank Pezzelato, who has been employed by the respondent for over fifteen years. The respondent was also engaged in several residential projects on which it employed a number of labourers who had been in the employ of the respondent for many years. It was Mr. Pezzelato's uncontradicted evidence that in order to provide continuity of employment with the respondent, those men, who were members of Local 506, transferred to Local 183 (of the Labourers' International Union of North America), whose members the respondent was contractually obligated to employ on its residential projects, on the understanding that on the completion of those projects, they would be permitted to transfer back to Local 506 and remain in the employ of the respondent if it had I.C.I. work for them to perform. Since many of the respondent's residential projects were nearing completion, Mr. Pezzelato wanted to be in a position to employ on the respondent's I.C.I. projects as many of the labourers from those projects as possible, in order to retain them as employees of the respondent. Thus, he wished to avoid employing on those I.C.I. projects "new men" who could not be transferred or laid-off to make room for the labourers who were "returning" from the residential projects.
In mid May, Tony Fruzzese, who has been a Business Agent for Local 506 for approximately one year, attended at the Gateway site at which "five or six" members of Local 506 were employed, and asked Mr. Pezzelato if he could "take on some new labourers". Mr. Pezzelato explained that he did not really need any more labourers because a number of the respondent's long term employees would soon be returning from the residential projects which were nearing completion. However, he ultimately agreed to temporarily employ one more member of Local 506 at the Scarborough site, where the respondent was already employing "two or three" members of Local 506, and also agreed to employ an additional member of Local 506 at Gateway, on the understanding that the additional labourer would be employed at Gateway only on a temporary basis since Mr. Pezzelato would probably need to transfer him to Scarborough (or other sites) to do "deficiency" or other work. Accordingly, two additional members of Local 506 commenced employment with the respondent on May 17th. On May 2 1st, the additional labourer who had been working at Gateway was transferred by the respondent to the Scarborough site. However, at the end of that day, he quit to return to work for his previous employer.
When Mr. Pezzelato was advised of that employee's departure, he telephoned Mr. Bruzzese and expressed his annoyance about the unreliability of the labourer whom Mr. Bruzzese had sent. Mr. Bruzzese, who was quite sympathetic concerning the situation, offered to send Mr. Pezzelato another man. However, Mr. Pezzelato expressed concern that he had been cautioned by his Labour Foreman that he was "going to have a problem" of not being able to transfer a new worker sent by Local 506 if the Local appointed him as a Union Steward, in view of the requirement (in Article 12.02 of the Agreement) that the Union Steward be one of the last two employees retained on the job by the employer (provided he is competent and capable of performing the remaining work on the job). Therefore, he asked Mr. Bruzzese to appoint a Union Steward from among his existing workforce "right away" rather than appointing one after a new labourer had been sent to the site. In response to that request, Mr. Bruzzese told Mr. Pezzelato that a Union Steward was not needed on the site but that if one was needed, he (Mr. Pezzelato) would be the first one to know about it. Although Mr. Bruzzese denied having done so, we accept Mr. Pezzelato's testimony that Mr. Bruzzese also assured him that a new man who had just been on the site for a few days would not be appointed as a Union Steward. On the basis of that understanding, Mr. Pezzelato agreed to employ another labourer to replace the worker who had quit. Accordingly, the grievor was sent to the Gateway site by Local 506 on May 26th. (Mr. Pezzelato requested that he be sent to the Gateway site in order to avoid the confusion which had arisen at the Scarborough site when the first "extra" labourer whom Mr. Pezzelato had agreed to hire from Local 506 had arrived at that site and been denied entry by the Site Superintendent.) The grievor continued to work at the Gateway site until the time of his discharge.
On June 2nd, Mr. Bruzzese was directed by the Business Manager of Local 506 to appoint the grievor as a steward at the Gateway site because he had "so many years with the Local" and "was qualified". (The grievor had been a member of Local 506 since 1951, and had been a Union Steward on "five or six other jobs".) Later that day, Mr. Bruzzese delivered to Joe Grossi, the respondent's Labour Foreman at Gateway, a letter (signed by the Business Manager) notifying the respondent of the grievor's appointment as Union Steward on that site. Although Mr. Grossi was initially pleased about the fact that a Union Steward had been appointed, when he read the letter and discovered who had been appointed, he (in the words of Mr. Bruzzese) "changed colour in the face". Mr. Bruzzese also announced the appointment to the other labourers on the site and gave the grievor a copy of the letter confirming his appointment.
On June 3rd Mr. Pezzelato came to the site at approximately 8:00 a.m. and discharged the grievor. It was Mr. Pezzelato's evidence that he came to the site that morning and asked the grievor to go the Scarborough site, to which the grievor replied that he was a Union Steward. Mr. Pezzelato also testified: "When he refused to go, I had no choice. You have a man on the site who won't do what you want him to do." That evidence is in direct contradiction to the evidence of the grievor who testified that when Mr. Pezzelato arrived at the site that morning, he (Mr. Pezzelato) came over to him and said: "What are you doing on my job? Get off the job. I don't want no Steward on my job. I'll get you out of here even if I have to pay you." The grievor also testified that Mr. Pezzelato neither asked him, nor told him, to transfer to another job before discharging him that morning. Having regard to the candid and forthright manner in which the grievor gave his credible evidence concerning the events which transpired on the morning in question, we prefer his evidence to that of Mr. Pezzelato with respect to those matters. Mr. Pezzelato's highly emotional response to his discovery that the grievor had been appointed as the Union Steward at the Gateway site is confirmed by the fact that he telephoned Mr. Bruzzese early that morning and angrily berated him for appointing "the new man as a Steward on the job" at a time when he had other employees on the job who had worked much longer for him. He also told Mr. Bruzzese, "I don't want him. the new man is fired." He then hung up without giving Mr. Bruzzese any opportunity to discuss the matter.
Although Mr. Pezzelato's anger at the appointment of the grievor as a Union Steward by Local 506 is somewhat understandable in view of his understanding with Mr. Bruzzese, his act of summarily discharging the grievor was an unjustifiable over-reaction to the situation. Having regard to all of the evidence, we find that there was no insubordination or misconduct on the part of the grievor that justified any disciplinary action whatever, much less his discharge from employment. Thus, we find that the respondent breached the collective agreement by discharging the grievor without just cause on June 3,1982. Accordingly, the grievor is entitled to be reinstated with full compensation for all lost wages and other benefits. However, we must also consider whether the applicant was, and continues to be, estopped from appointing the grievor as Union Steward, as contended by the respondent.
The doctrine of estoppel is succinctly summarized in the following passage from
Brown and Beatty, Canadian Labour Arbitration (Agincourt: Canada Law Book Limited,
- at paragraph 2:2210:
"The concept of promissory estoppel is well established at common law and has been expressed in the following way:
The principle, as I understand it, is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word.
One arbitrator in a recent award has summarised the doctrine in the following terms:
It is apparent that there are two aspects of the doctrine as thus stated. There must be a course of conduct in which both parties act or both consent and in which the party who later seeks to set up the estoppel is led to suppose that the strict rights will not be enforced. It follows that the party against whom the estoppel is set up will not be allowed to enforce his strict rights if it would be inequitable to do so.
The main situation where it would be inequitable for strict rights to be upheld would be where the party now setting up the estoppel has relied to his detriment.
Thus, the essentials of estoppel are: a finding that there was a representation by words or conduct intended to be relied on by the party to which it was directed; some reliance in the form of some action or inaction; and detriment resulting therefrom. .
Although the Ontario Divisional Court decision in Re Hospital Commission, Sarnia General Hospital and London District Building Service Workers' Union Local 220, 5. E. I. U., 1972 CanLII 742 (ON HCJDC), [1973] 1 O.R. 240, cast some doubt upon whether the doctrine of estoppel could be applied in labour arbitration proceedings, that doubt has been removed by a more recent unanimous judgment of that Court written by Osler J., who also wrote the decision in the former case: see Canadian National Railway Co. et al. v. Beatty et al. (1981), 1981 CanLII 2953 (ON HCJDC), 34 O.R. (2d) 385. Moreover, the Board has not infrequently applied that doctrine in the context of section 124 applications; see for example, Sinclair Welding Limited, [1981] OLRB Rep. March 331, and The Master Insulators' Association of Ontario, Incorporated, [1979] OLRB Rep. Sept. 877.
The Board is satisfied that the aforementioned "essentials" of estoppel are present in the instant case. Mr. Bruzzese made a representation to Mr. Pezzelato that a "new man" such as the grievor, who had only been on the site for a few days, would not be appointed as a Union Steward, in view of Mr. Pezzelato's desire to retain the necessary flexibility to accommodate his long term employees who were soon to return from residential projects. In reliance upon that representation, Mr. Bruzzese agreed to hire the grievor. If the applicant were to be permitted to renege on that understanding, the respondent would suffer the very prejudice which Mr. Pezzelato was seeking to avoid, namely, being unable to transfer or lay-off the grievor to make room for the returning employees. As noted by the Board in Sinclair Welding Limited, supra, at paragraph 14, "the application of the principle of estoppel does not have the effect of amending a collective agreement. Rather, what it does do is prevent a party from enforcing its strict legal rights under the agreement when, because of its own conduct, it would be inequitable to allow it to do so." Thus, although the applicant had a "strict legal right" under the Agreement to appoint the grievor as a Union Steward on the Gateway site, it was precluded by the principle of estoppel from enforcing that right because it would be inequitable to allow it to do so under the circumstances, since the grievor would not have been employed by the respondent in the first place but for Mr. Bruzzese's representation that he would not be appointed as a Union Steward. Therefore, while the grievor is entitled to be reinstated as an employee of the respondent, the applicant was, and continues to be, estopped from appointing him as a Union Steward on the respondent's Gateway or Scarborough sites.
The Board therefore orders:
(1) that Sam Biafore be compensated by the respondent for all lost wages and benefits sustained by him as a result of his discharge by the respondent without just cause, in breach of the Provincial Collective Agreement; and
(2) that the respondent pay interest on the compensation for lost wages ordered by the Board, said interest to be calculated in the manner described in Practice Note No. 13 dated September 8, 1980.
- The Board remains seized of this matter in the event that a dispute arises concerning the implementation of the Board's order.