[1983] OLRB Rep. March 428
0745-82-M United Brotherhood of Carpenters and Joiners of America, Local Union No. 494, Applicant, v. New Vision Construction Limited, Respondent
BEFORE: Ian Springate, Vice-Chairman, and Board Members J. Wilson and B. L. Armstrong.
APPEARANCES: Douglas J. Wray and Ian R. Logan for the applicant; David B. Hamilton, John Davison, and others for the respondent.
DECISION OF THE BOARD; March 25, 1983.
This is a referral of a grievance to the Board pursuant to section 124 of the Labour Relations Act.
The applicant trade union and the respondent employer are both bound by the provisions of the current carpenters provincial agreement. The respondent is a construction firm based in the City of Mississauga in the Regional Municipality of Peel. The applicant is a local of the United Brotherhood of Carpenters and Joiners of America with jurisdiction in the Counties of Essex and Kent. The offices of the local are in the City of Windsor in Essex County. The local has approximately 600 members, most of whom reside in Windsor and other nearby communities in Essex County. Approximately 40 members of the local reside in the City of Chatham, which is the largest centre in Kent County.
At the time of the filing of the grievance the respondent was engaged in doing the interior work on a Simpsons-Sears store in the downtown area of Chatham. The respondent had what was essentially a "cost plus" arrangement with Simpsons-Sears, although prior to the commencement of the project the respondent was required to provide Simpsons-Sears with details of its labour costs so as to allow it to budget for the work.
The general manager of the respondent is Mr. J. Davidson. Prior to commencing a project, it is Mr. Davidson's practice to meet with officials of the various unions that the company will be dealing with. To this end Mr. Davidson met with officials of different unions in both Chatham and Windsor. Mr. Davidson had originally arranged to meet with officials of Local 494 at its offices in Windsor on April 28, 1982. However, because of being delayed in Chatham Mr. Davidson did not arrive in Windsor until the following day. On arriving at the union's offices Mr. Davidson met Mr. Frank Hutnik, Local 494's financial secretary. As financial secretary, Mr. Hutnik's responsibilities primarily involve the internal administration of the local. Labour relations matters on the other hand are generally the responsibility of Mr. Ian Logan, the local's business representative. As is common in the construction industry, the local's president, Mr. L. Roone, is not a full time official of the local but works "with the tools." Because of this, Mr. Roone is generally not involved in the routine day-to-day affairs of the local. When Mr. Davidson met with Mr. Hutnik to discuss the Simpsons-Sears job, Mr. Hutnik did not advise him that he lacked authority to discuss the project. Rather, Mr. Hutnik and Mr. Davidson engaged in a discussion relating to the availability of carpenters for the project, applicable wage rates and the required employer contributions to various trust funds. During the course of the meeting, Mr. Hutnik handed Mr. Davidson a number of remittance forms on which the respondent could list contributions to the trust funds. Mr. Hutnick also handed Mr. Davidson a sheet setting out in detail the local area wage rates, trust fund contributions and fringe benefits. This sheet had been drawn up jointly by Local 494 and the Windsor Construction Association and was meant to be a summary of the relevant provisions from the carpenters' provincial agreement applicable to Essex and Kent Counties. At the bottom of the sheet was the signature of an offical of the Windsor Construction Association as well as the signature of Mr. Hutnik on behalf of Local 494. Mr. Davidson testified that the fact that Mr. Hutnik had signed the sheet on behalf of the local indicated to him that he had considerable authority in the local.
During the course of his meeting with Mr. Hutnik on April 30, 1982, Mr. Davidson raised the possibility of having the union refer to the respondent only carpenters who were residents of Chatham. Mr. Davidson had been instructed by Simpsons-Sears to try to hire Chatham men as a public relations gesture. Mr. Davidson also had in mind that the provincial agreement called for employers to pay travel allowances to employees who had to travel. In response to Mr. Davidson's comments, Mr. Hutnik advised Mr. Davidson that the union had unemployed men available in both Windsor and Chatham. There is some dispute concerning what transpired next. Mr. Hutnik testified that while Mr. Davidson may well have said that the respondent preferred Chatham men, and that he in turn had indicated to Mr. Davidson that there were unemployed union members in Chatham, he was certain that he had not gone further and actually promised Mr. Davidson that Chatham men would be referred to the project. For his part, Mr. Davidson testified that he was very concerned that the respondent be able to employ Chatham men, and he specifically recalled that he asked if the respondent could hire Chatham carpenters, to which Mr. Hutnik replied that it should be "no problem." Mr. Davidson's testimony on this point was supported by that of Mr. Peter Yourkevich, an official of Simpsons-Sears. Mr. Yourkevich was in Windsor to deal with certain other matters relating to the Chatham project. However, since he was travelling with Mr. Davidson, Mr. Yourkevich sat in on (but did not participate in) the meeting with Mr. Hutnik. In balancing the evidence of the three witnesses, and considering that Mr. Davidson would have had reason to take particular note of, and recall, Mr. Hutnik's comments on point, we accept that Mr. Davidson did ask if the respondent could obtain Chatham men, to which Mr. Hutnik replied that it should not be a problem. The issue of travel allowances was not specifically discussed at the meeting. Mr. Davidson testified that he felt that there was no need to discuss travel allowances since it was understood that Chatham men would be referred to the job.
Mr. Hutnik prepared notes of his meeting with Mr. Davidson and gave the notes to Mr. Logan. (Prior to the hearing Mr. Logan's brief case containing the notes and certain other documents were stolen, and accordingly, the notes were not filed in evidence.) It is not at all clear how detailed Mr. Hutnik's notes were, or whether they contained any reference to the discussion relating to the referral of Chatham men. However, it appears that Mr. Logan was made aware through the notes or otherwise of the outline of what was discussed between Mr. Davidson and Mr. Hutnik. In cross-examination Mr. Logan was asked why he had not asked Mr. Hutnik specifically what it was that he and Mr. Davidson had agreed to. Mr. Logan's response was "Because I think we'd (i.e. Mr. Logan and Mr. Hutnik would) end up in a fight." Mr. Logan did not immediately contact Mr. Davidson to advise him that the respondent could not rely on Mr. Hutnik's statements.
Subsequent to the meeting between Mr. Hutnik and Mr. Davidson, Mr. Davidson calculated the hourly cost for carpenters on the project. His calculations did not contain any provision for travel allowances. Mr. Davidson supplied his calculations to Simpsons-Sears, which in turn used them in calculating its own budget for the project.
The respondent employed all of its carpenters by way of referrals from Local 494. The first carpenters arrived on the project on or about May 18, 1982. Eventually a total of 19 carpenters were referred to the respondent. Of these 18 men, nine were from Windsor and three were from the nearby town of Tecumseh. In addition, there were three carpenters from Leamington, and one each from Amherstburg and Kingsville. These are all towns in Essex County. No Chatham carpenters were referred to the respondent, although one carpenter from Thamesville, which is situated in Kent County, was referred. One carpenter normally resident in Ottawa was also referred to the job.
Mr. Logan testified that the carpenters who were referred to the respondent were chosen because they were at the top of the local's "out-of-work" list. Mr. Logan further indicated that it is the local's invariable practice to refer men from the top of the list (subject to their being able to do the work involved) regardless of their place of residence. Mr. Logan's testimony on this point was contradicted by two witnesses. Mr. Jim Petsche, the superintendent of Cooper Construction, which was the general contractor on the Simpsons-Sears store, testified that he had personally requested of Mr. Logan that the local refer only Chatham area men to his company. Some thirteen carpenters were employed by Cooper Construction on the project, all of whom resided in Kent County. Three of these carpenters resided in Tilbury, one in Wheatley and the remainder in Chatham. (Given the wording of the relevant portions of the provincial agreement it would appear that no travel allowances would be payable to employees residing anywhere in Kent County when working on a job in Chatham.) It was Mr. Logan's testimony that it was pure chance that only Kent County residents were referred to Cooper Construction. We find this explanation extremely unlikely given that the heavy preponderance of Local 494's members reside in Windsor and other Essex County communities. In these circumstances, we prefer Mr. Petsche's testimony, and accept that with respect to Cooper Construction the local did make a point of referring only Kent County tradesmen. We also accept the testimony of Mr. Patrick Daly, the owner of P. J. Daly, a firm which did some drywall work on the Simpsons-Sears project, that prior to bidding for the work he received an assurance from Mr. Logan that the local would supply Chatham area carpenters to his firm, and that if for some reason it could not supply Chatham men it would supply men from Windsor to whom the company would not have to pay travel allowances. As it turned out the Daly firm was awarded less work than it had hoped for on the project, and consequently employed only three members of Local 494. At least one (and perhaps all) of these carpenters were from the Windsor area. At one point Mr. Logan asked Mr. Daly to pay the carpenters a travel allowance, but Mr. Daly flatly refused to do so.
On or shortly after the day that the respondent first employed carpenters on the Simpsons-Sears project, Mr. Logan came to the job site and had a discussion with Mr. Davidson. Mr. Logan testified that the terms of employment of the carpenters were briefly discussed, and that during the discussion Mr. Davidson stated that he had met with Frank Hutnik and "it was all settled." According to Mr. Logan he did not ask what had been settled, but he did state that he was the business representative of the local and that Mr. Davidson had no right to be dealing with Mr. Hutnik. It appears that no direct reference was actually made to travel allowances during this discussion.
The carpenters on the Simpsons-Sears project received their first pay cheques from the respondent on May 27, 1982. On the same day certain of the carpenters complained to Mr. Roone, the president of the local, that they had not received any travel allowance. Mr. Roone then went to the job site and told Mr. Davidson that the company should be paying travel allowances. It appears that during the course of this discussion Mr. Roone used both the terms "travel time" and "travel allowance." In consequence of this, Mr. Davidson reached the conclusion that Mr. Roone was seeking both the payment of travel allowances as well as payments for the time that the carpenters actually spent travelling. It is clear, however, that Mr. Roone meant only to refer to travel allowances. Mr. Davidson's response to Mr. Roone was that he had been advised by Mr. Hutnik that the respondent would be supplied with Chatham men. Mr. Roone indicated that he was aware of Mr. Davidson's discussion with Mr. Hutnik but stressed that the Essex County men had been at the top of the list.
On July 2, 1982 the union filed the grievance which is the subject matter of these proceedings. The grievance alleges a violation of schedule "D" of the provincial agreement. The portion of the schedule alleged to have been violated reads as follows:
"Transportation and Transfer
For the purpose of determining the employer's obligation to supply transportation to employees, the area is divided into Zones.
(a) Essex County - Employees providing transportation
There shall be a free zone within a ten (10) mile radius of the Windsor City Hall. No travel allowances shall be paid to the employees working in this area.
20 Mile Limit - When an employee is required to work in an area outside of the above free zone up to a distance of twenty (20) miles in any direction, he shall be paid a traveling allowance of five dollars and forty cents ($5.40) a day, five dollars and sixty-five cents ($5.65) May 1, 1983.
Outside 20 mile Limit — When an employee is required to work in an area outside of the above free zone and the twenty (20) mile area, to the boundaries of Essex County, he shall be paid a traveling allowance of Ten dollars and twenty-five cents ($10.25) a day, Ten dollars and seventy five cents ($10.75) May 1, 1983.
Travel from Essex County to Kent County — If an employee is required to travel from any place in Essex County outside the free zone to Kent County, he shall be paid a traveling allowance of thirty-one cents (3lC) per mile, and thirty-four cents (34C) May 1, 1983, to the jobsite and return. All of the above miles shall be paid for by the most direct route.
(b) Kent County - Employees providing Transportation
There shall be a free zone within a five (5) mile radius of the Chat ham City Hall. No travel allowances shall be paid to the employees working in this area.
Outside 5 Mile Limit — When an employee is required to work in an area outside of the above free zone anywhere within the boundary of Kent County he shall be paid a traveling allowance of five dollars and forty cents ($5.40) a day, five dollars and sixty-five cents ($5.65) May 1, 1983.
Travel from Kent County to another County — If an employee is required to travel from any place in Kent County outside the free zone to another County he shall be paid a traveling allowance of thirty one cents (31~) per mile, and thirty-four cents May 1, 1983 to the jobsite and return. All of the above miles shall be measured by the most direct automobile route ."
(emphasis added)
The Simpsons-Sears store is located within a five mile radius of the Chatham City Hall, and hence falls within the Chatham "free zone." It was the contention of counsel for the respondent that since the project was in the Chatham free zone, even on the straight wording of the agreement there was not any requirement on the respondent to pay travel allowances to employees from Essex County. We cannot accept this contention. The purpose of a travel allowance is to compensate employees for traveling. Common sense, as well as the specific reference in the provincial agreement to a travel allowance payable to Essex County employees who travel to Kent County, suggests that the Chatham "free zone" is applicable only to employees who reside in Kent County. Accordingly, employees who travel from Windsor and other communities in Essex County to Chatham would generally be entitled to receive a travel allowance.
As an alternative argument, the respondent contends that the trade union is estopped from claiming travel allowances for its employees on the basis of Mr. Hutnik's comments indicating that the respondent would be referred carpenters who reside in Chatham.
The classic description of the doctrine of estoppel is to be found in Combe v. Combe 1951 I ALL.E. R. 767 where Denning L. J. stated (at p. 770):
"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."
In our view, the doctrine of estoppel is applicable to the facts of this case. Mr. Hutnik indicated that tradesmen from Chatham would be referred to the respondent. Mr. Hutnik held himself out as being able to speak on behalf of the union, and it was reasonable in the circumstances for the respondent to conclude that Mr. Hutnik had the authority to do so. The respondent relied on Mr. Hutnik's comments and prepared its costing figures without any provision for the payment of a travel allowance. Had the respondent been advised that travel allowances would have to be paid, the respondent's costing would have been different. Also, the respondent might have proceeded with the project in a different manner. It was Mr. Davidson's testimony that had he known the union would be seeking the payment of travel allowances, the respondent would have considered either sub-contracting out its carpentry work to another firm, or perhaps paying the employees a board allowance instead of a regular travel allowance, as is permitted under the provincial agreement. Potentially, the respondent might also have challenged the right of the union to refer Essex County tradesmen to a job in Chatham when there were unemployed tradesmen in Kent County. All of these are matters that the respondent did not consider due to Mr. Hutnik's statement there would be "no problem" in supplying Chatham men to the project. In all these circumstances, we are satisfied that the applicant is now estopped from referring Essex County tradesmen to the respondent to work on the Simpsons-Sears project and then claiming travel allowances on their behalf.
Having regard to the above, the grievance is hereby dismissed.