[1983] OLRB Rep. September 1504
0942-83-U The IBEW Construction Council of Ontario and The International Brotherhood of Electrical Workers, Local Union 894, Complainant, v. C. E. Lummus Canada Ltd., Respondent
BEFORE: D. E. Franks, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.
APPEARANCES: Alex Ahee and Robert Hill for the complainant; R. C. Filion, T E. Ervin and K. R. Pierce for the respondent.
DECISION OF THE BOARD; September 28, 1983
This is a complaint under section 89 of the Labour Relations Act in which the complainant alleges that the respondent has acted contrary to the provisions of sections 64, 66, 67, 72, 75 and 146(2) of the Labour Relations Act, and in consequence requests that certain relief be directed by this Board.
The complainants herein are the council of the IBEW which negotiates the provincial agreement with respect to electricians in this province, and the local of the IBEW which has geographic jurisdiction in the Port Hope area. The respondent herein, C. E. Lummus Canada Ltd., (hereinafter referred to as "Lummus") is the prime contractor on a project for Eldorado Resources Limited ("Eldorado") in Port Hope. The parties are in agreement that the respondent Lummus is bound by the collective agreement between the Electrical Trades Bargaining Agency of the Electrical Contractors Association of Ontario, and the International Brotherhood of Electrical Workers and IBEW Construction Council of Ontario expiring April 30th, 1984 (hereinafter referred to as the "electricians' provincial agreement"). At the job site in question it would appear that although Lummus is bound by the provincial agreement the electrical work has been completely sub-contracted to five trade contractors who are bound by the electricians' provincial agreement.
The Port Hope project for Eldorado is one of two projects on which Lummus is the prime contractor. The other project is a project in Blind River. The Port Hope project began in February of 1982 and by the spring of 1983 the on-site work force consisted of approximately 750 employees, most of which were directly employed by Lummus, the remainder employed by sub-contractors. The various trades on the job site include insulators, millwrights, carpenters, operating engineers, sheet metal workers, ironworkers, painters, boilermakers, teamsters, electricians and labourers. It is clear on the evidence, however, that the major trade on the job site is the pipefitter (members of the United Association of Plumbers and Pipefitters (herein referred to as the "UA")) which numbered some 400 odd employees, that is, more than half of the work-force.
The evidence of Mr. Pierce (the senior representative of Lummus on the project) is that during the spring of 1983 there was a drastic decrease in the productivity on the job site. In fact, Mr. Pierce's estimate was that in January the productivity was running at some 110 per cent of expectations. However, by May of 1983 the productivity on the site had decreased to about twenty-five per cent of expectations. It is that decrease in productivity and Lummus' response thereto which gives rise to the present complaint. Lummus at this point was under great pressure from the client Eldorado to do something about the decrease in productivity, and it appears that Eldorado requested Lummus to formulate options on how to improve the productivity on site.
The evidence of Mr. Pierce is that Lummus analysed the lack of productivity as the result of two factors. Thus, Mr. Pierce suggested that one major problem was the fact that Friday was a low productivity day because as a consequence of the various provincial agreements applicable to the job site certain trades such as the electricians and pipefitters worked four hours whereas other trades such as the boilermakers and painters worked five or five and a half hours and still other trades such as the carpenters, labourers and ironworkers worked a regular eight hour day on Friday. This lead to inefficient scheduling. The other cause of the low productivity was the pipefitters themselves. Indeed, under cross-examination Mr. Pierce acknowledged that the UA was in fact the total cause of the loss of productivity and that in fact the UA was in the process of conducting a "wobble" during the month of May. Further, he also acknowledged in cross-examination that there were no complaints about the productivity of the complainant electricians on the job site.
In response to the pressure from Eldorado to improve conditions on the job site Lummus commenced negotiating with Mr. St. Eloi, a senior representative of the UA. These negotiations it appears were conducted at the Port Hope site. The evidence is that a major concern of the pipefitters was the fifth working day. It appears that seventy per cent of the pipefitters on the job were not local tradesmen but were from out of town, and they were not happy about working four hours on Friday. Consequently, discussions centered around a four day workweek with various proposals being made for either nine or ten hours for each of the four days. It appears that Lummus reported these negotiations to Eldorado and Eldorado took the position that it was not prepared to pay overtime for an extended workday on the four day workweek. This was reported to Mr. St. Eloi and eventually an agreement was reached wherein Mr. St. Eloi would support a proposal for a four day workweek at nine hours of straight time plus travel benefits paid on a five day workweek basis notwithstanding the fact that only four days had been worked.
Up to this time Lummus appears not to have raised this issue with the other trades on the job site, notwithstanding its obligations under the various provincial collective agreements for these other trades, including the agreement with the I.B.E.W., although Lummus was aware that the various agreements provided for normal workweeks with varying hours on Friday.
It appears that the first move that Lummus made with respect to the other trades was to deal with the stewards for its direct hire employees on the job site. These stewards apparently canvassed the various members of their unions and the result of these inquiries were that there was no great aversion to a four day workweek.
Subsequently, Lummus called a meeting of the various business agents of all of the trades on the job site for Wednesday, June 29th. The minutes of this meeting were filed as an exhibit in these proceedings and read as follows:
"Participants
A. Taggart, Insulators
H. Carruthers, Millwrights
Q. Begg, Carpenters
G. Steers, Operators
R. Hill, Electricians
M. English, Sheetmetal
S. Arsenault, Ironworkers
W. Fairservice, Labourers
M. Richtig, Painters
E. Amos, LCI (Part-time) (LCI refers to "Lummus Canada Inc.")
K. R. Pierce, LCI
T. Ervin, LCI
E. Kapfer, LCI
P. Bembenek, LCI
Mr. Ervin explained that the purpose of this meeting was to bring BusinessAgents up to date on recent developments on the Jobsite. Approaches had been made to him by some of the LCI Stewards about the possibility of their members working their regular weekly hours in 4 days. LCI decided to find out if this would be a viable proposition so the Stewards were asked at their meeting to take a consensus, in writing, of their members to see if enough people were interested before pursuing the matter further.
The survey revealed that the majority of LCI employees would like 4 days, although some were hesitant to put this in writing. The benefits received by any trade for a 5 day week would continue to be paid even though the employee worked only 4 days.
It was apparent that a 4 day week should be given serious consideration by LCI and the Business Agents should be brought together to seek their opinions. The Client's approval to any change would have to be sought, but they would probably be amenable to this as long as no extra costs were involved, i.e., overtime for extended hours.
After objections from the Business Agents that they felt they should have been brought into the matter when it was first raised, the following positions were stated.
Mr. Begg advised that there could be a problem with the second shift and was advised by Mr. Pierce that this would be dealt with separately. The new day shift hours for a 4 day week would commence at 7:00 a.m. and finish at 4:30 p.m. for the trades on a 36 hour week; 5:00 p.m. for a 37 1/2 hour week and 5:30 p.m. for a 40 hour week. This could back up the starting time of the second shift to 5:00 p.m. as the parking lots would not accommodate two shifts.
Mr. English commented that he would have no problem with this as his agreement had provision for a 4 day week. Mr. Taggert stated that the Insulators normally worked 4 x 9 hours and were presently working these hours on the job.
Mr. Ervin advised that Mr. Burrows, the UA Business Agent, could not attend the meeting but had indicated that he would allow his members to work their normal week in 4 days.
Mr. Arsenault advised that the Ironworkers could not go along with this unless the Ontario Erector's Association was in agreement, although, if it would increase manpower on the job, he would be in favour.
Mr. Hill advised that the Electricians would continue to work 4 x 8 hours and 4 hours on Friday. He felt that any change would be used in the next Agreement negotiations against the Electricians.
Mr. Carruthers said that he had a Collective Agreement to follow and he was afraid that if he agreed to this it would be used by other small contractors in the area as a way of getting out of paying overtime premiums. However, he would give consideration if it provided more work for his members.
The LCI personnel then left the meeting to allow time for the BA' s to discuss the proposal. The outcome was that eight Unions out of nine would live by their agreements. It was pointed out by the BA's that they felt the matter had been approached in the wrong way and they should have been involved earlier as any amendments to their Collective Agreements must go through proper channels. Mr. Ervin explained that, in this instance, it was the individual employees who were seeking the change.
Mr. Pierce advised that split shifting would now be considered with the UA, Boilermakers, Sheetmetal workers and Insulators working a 4 day
week. The other trades could be left as they were, although Supervision and work planning would be a problem.
Mr. Ervin said that as the majority of BA's did not agree with the proposal a meeting would be held with the Stewards to explain the situation.
(emphasis added)
It is clear from the minutes of that meeting that Lummus wanted the other trades to accept the same conditions as had been agreed to by the UA representative, Mr. St. Eloi. Mr. Hill of the complainant IBEW local was under the impression at the end of the meeting on the 29th that nothing further would be done without further discussions on the four day workweek. This is certainly consistent with Mr. Ervin's reported statement at the end of the meeting.
Mr. Pierce explained in his evidence, however, that Mr. Hill left the meeting at lunch-time and that after a two hour lunch with cocktails some of the trades had changed their minds. The significance of this, however, is difficult to assess. It is to be noted that neither the UA or the Boilermaker representative was present at that meeting and on Mr. Pierce's analysis the flexibility to move to a four day workweek presented no problem to either the insulator or the sheet metal worker. It would appear that, at best, the only trade which changed its mind that day was the painter.
Mr. Pierce's evidence is that on the next day, Thursday, June 30th by 2:15 p.m. the business agent for the plumbers local in the area, Mr. Burrows, accepted in writing the proposal agreed to by Mr. St. Eloi for a workweek of four days at nine hours straight time. Lummus informed Eldorado of this and immediately issued the following notice on the afternoon of June 30th, 1983:
"Effective July 4, 1983, this job site will be scheduled for a four (4) day work week. Pipefitters, insulators~ sheet metal workers, boilermakers and painters will be working extended hours on the 4 days to complete a standard work week in accordance with our agreement. Other crafts will be working 4 eight hour days unless some agreement is reached to the contrary.
This alteration to working hours has been made at the request of and with the agreement of the majority of crafts on site. Our Client has dictated that the job site be closed on Fridays. The hours of work shall be:
(a) Crafts working 4 eights shall work 7:30 a.m. until 4:00 p.m.
(b) Crafts working extended hours shall begin work at 7:00 a.m. and work until the completion of shift.
Pipefitters, sheetmetal workers~ insulators shall work 9 hours per day; boilermakers and painters shall work 9 1/2 hours Monday, Tuesday & Wednesday and 9 hours on Thursday.
Lunch and break times shall remain as per the present arrangement, i.e.,
lunch at 11:30 a.m. and breaks at 9:30 a.m. and 2:00 p.m.
(emphasis added)
It is to noted of course that June 30th was a Thursday, the Friday being a holiday, Monday, July 4th would be the first day back to work after the issuance of that memo. It is also clear on the facts that throughout the week of July 4th there were daily discussions between Lummus and Mr. Hill of the IBEW concerning acceptance by the IBEW of the 4 x 9 hour proposition.
On Friday morning July 8th the employees of the Electrical sub-contractors appeared for work at the regular starting time. There were some fifty-one tradesmen prepared to work at that time. They were not allowed on site, the job site having been completely closed (there was one exception, one person did in fact go to work, but that is not critical to the issue in dispute). It appears that since July 4th the electricians on site have been working 32 hours per week at regular time. They are not working the overtime hours during the week. They are not working the normal four hours on Friday. Mr. Hill, business manager of the complainant local, explained that this turn is working a real hardship on the members since a number of the fringe benefit packages involved hour banks and the reduction in hours was causing serious problems for the members in terms of their benefit packages.
The complainant alleges that these facts give rise to the violation of sections 64, 66, 67, 72, 75 and 146 of the Act. With respect to section 64, 66, and 67 we are unable to see that the conduct of Lummus displays an anti-union animus towards the complainants or constitutes interference with the operation of the trade union within the meaning of section 64 of the Act.
The complainant alleges that the respondent has conducted an illegal lock-out contrary to section 72(1) of the Act. That section reads as follows:
"Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee."
The other sections of the Act which need to be looked at are section l(l)(k), that is the definition of "lock-out":
"'lock-out' includes the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of his employees, with a view to compel or induce his employees, or to aid another employer to compel or induce his employees, to refrain from exercising any rights or privileges under this Act or to agree to provisions or changes in provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, an employers' organization, the trade union, or the employees.",
and section 77 reads:
"Nothing in this Act prohibits any suspension or discontinuance for cause of an employer's operations or the quitting of employment for cause if the suspension, discontinuance or quitting does not constitute a lock-out or strike.''
The definition of lock-out, section l(l)(k) breaks down into two fundamental parts. On the one hand, the definition requires the "closing of a place of employment or a suspension of work...". However, the mere closing of a place of employment does not in itself constitute a lock-out. The definition also requires that there be a purpose or a motive to the closing of the place of employment. That is, there must be "a view to compel or induce his employ....., to refrain from exercising any rights or privileges under this Act or to agree to provisions or changes in provisions respecting the terms or conditions of employment or the rights, privileges or duties of the employer, an employers' organization, the trade union, or the employees". Thus to prove a lock-out under the Labour Relations Act the definition of lock-out requires the proof of the two elements, the closing of the place of employment and the motive behind the closing. This dual aspect in the definition of lock-out is in turn supported by section 77 of the Act which provides that nothing prohibits any suspension or discontinuation for cause of an employer's operation. Thus, the discontinuance does not constitute a lock-out when an employer closes a place of employment or suspends work for cause and such cause is for valid reasons not disclosing the requisite motive for a lock-out.
On the facts of the present case, it is clear that the members of the complainant trade union have had their regular workweek changed from 36 hours to 32 hours per week. The argument by the respondent is that this change in the workweek is solely attributable to the closing of the workplace on Friday. As justification for this closing of the workplace on Friday, the respondent argues that the Friday was an uneconomic workday because of the staggered closing hours due to the various provincial agreements. Unfortunately, the present case is not as simple as suggested by the respondent. While it is true that the respondent has closed the work site on Friday, it is also clear that the respondent is offering to trades other than the pipefitters and in particular the complainant, a regular "thirty-six hour workweek" in the four days. That is, the employer has not reduced the amount of work on the project. Indeed, as the minutes of the 29th indicate the respondent is working two shifts on the job. We are, therefore, of the view that the cessation of work on Friday is not the cessation of work which is at the root of this matter. Indeed, we would note that had the respondent Lummus or Eldorado simply announced that the job site was closed on Friday this might be capable of justification and it might not be a lock-out.
The fact of the matter in the present case is that Lummus is continuing to employ people for their regular workweek providing they accept the straight time for overtime proposition. This is made clear in their memo to all employees of June 30th where the first paragraph reads:
"Effective July 4, 1983, this job site will be scheduled for a four (4) day work week. Pipefitters, insulators, sheet metal workers, boilermakers and painters will be working extended hours on the 4 days to complete a standard work week in accordance with our agreement. Other crafts will be working 4 eight hour days unless some agreement is reached to the contrary.”
(emphasis added)
That is to say that unless the trades arrive at some agreement with Lummus they will be limited to a thirty-two hour workweek. It is our view that that constitutes a cessation of work for four hours for the complainant during each workweek.
This brings us to the second part in the definition of a lock-out, namely, the motive. In this regard, it is patently clear that the four hours per week less which the complainants' members are working is in order to compel or induce the employees to modify the provincial agreement under which they are employed. In this regard we would note that it makes no difference as suggested by counsel for the respondent that the actual employees are employees of sub-contractors. It is clear that both Lummus and the trade sub-contractors are bound to the electricians' provincial agreement and that Lummus has sub-contracted the work pursuant to that agreement. While Lummus does not employ electricians it has closed the work site to the electricians employed by the sub-contractors. Not only is Lummus seeking to change its agreement with the electricians but it has closed the site to the sub-contractors' employees to induce those employees to change their collective agreement with their employers. It is clear that Lummus' intention is to modify both its relationship and the sub-contractors' relationship with the complainant and thus is either refusing either ..... to continue to employ a number of his employees with a view to compel or induce his employees or to aid another employer to compel or induce his employees..." (emphasis added).
Further, we are of the view that Lummus cannot claim that its request to the electricians to modify their collective agreement is part of any broader economic justification. As Mr. Pierce's evidence indicates there was no problem with the productivity of the electricians, nor has there been a decrease in the overall work on the job site as evidenced by the continuation of the second shift. Indeed, it is clear that the productivity problem was dealt with by Lummus as a matter solely relating to the UA and that when Lummus commenced negotiating with Mr. St. Eloi of the UA, Lummus knew that it had outstanding obligations to other trades including the complainant. Once these negotiations with the UA appeared to be successful, the first reaction of Lummus was to deal with the stewards in order to test the reaction of the other tradesmen on the job site. Once Lummus felt that they had determined the views of the tradesmen they called a meeting of the business agents of the various trades. It is apparent that at that meeting on the 29th the other trades were not prepared to make an arrangement outside their provincial agreements. In those circumstances, Lummus gave its assurance to those business agents that nothing further would be done. However, on the very next day June 30th, once the local business manager of the UA local had signed the agreement negotiated by Mr. St. Eloi, Lummus proceeded to limit to thirty-two hours a week any trade who would not sign a similar agreement. Such a sequence of events is not consistent with economic justification for such a closure but can only be viewed as an attempt to apply economic pressure on the remaining groups to vary Lummus' obligation with those groups. That variation in the provincial agreement is clearly an economic benefit to Lummus in that it allows for the working of a nine hour day without the payment of double time for the ninth hour.
Counsel for Lummus argues that the job is primarily a pipefitter job and that the remaining trades are working to service the pipefitters. In certain circumstances, it may very well be that the working hours of the majority trade on the job site determine the workweek for the job site. However, that theory is again not consistent with Lummus' conduct in the present case. Clearly, Lummus tried to get the other trades to work a regular workweek in four days and when negotiations appeared futile Lummus simply reduced their workweek to thirty-two hours.
For the foregoing reasons, therefore, we are of the view that Lummus has locked out members of the complainant trade union for four hours a week during the term of a collective agreement and has thus violated section 72(1) of the Act and we so declare.
It also follows, from the foregoing reasons that the respondent has also violated section 75 of the Act in calling the unlawful lock-out.
The complainant also alleges a violation of section 146(2). That section reads as follows:
"On and after the 30th day of April, 1978 and subject to sections 139 and 145. no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void."
While it is clear that the complainant trade union and the respondent have not arrived at an arrangement, it is clear that Lummus has persisted in attempting to achieve such an arrangement. This in itself constitutes a violation of section 146(2) and we would direct the respondent Lummus to cease attempting to negotiate an agreement other than a provincial agreement with the complainant.
At the root of the present case is the arrangement between Lummus and the UA which as we have found Lummus is coercing the complainant to accept. It is not for this panel of the Board to decide whether that arrangement between the UA and Lummus is itself a violation of section 146(2) of the Act. That complaint is not before this Board nor are the parties to such an arrangement before this Board. We cannot help but notice, however, that in all the evidence relating to that arrangement no mention was made of either the Employer or the Employee Bargaining Agency which are the designated parties to that provincial agreement. We mention this because with reference to the present case we are of the view that the problem faced by Lummus and Eldorado is not insoluable. Nothing prevents the complainant provincial council and its counterpart, the Employer Bargaining Agency, from amending the present electricians' provincial agreement to specifically accommodate the kind of problem faced by Lummus at the Eldorado job site. The Employer and Employee Bargaining Agencies have exclusive bargaining rights and it is their obligation to be responsive to the needs of the construction industry. The point, however, is that it is the two bargaining agencies which must ultimately formulate any amendment to that provincial agreement, and this is not something that Lummus can do on its own.
The remedies requested by the complainant in the present case are as follows:
"(a) Declare that the Respondent Company, through its actions has caused its sub-contractors on the project to violate the ICI Collective Agreement.
(b) Direct that the Respondent Company cease and desist the action's complained of.
(c) Direct that the Respondent Company pay to the International Brotherhood of Electrical Workers members on the project, the appropriate wages and fringe benefits for the period that they are denied employment each Friday.
(d) Grant such further and other relief as may be necessary in the circumstances."
There is no evidence that the respondent has caused the sub-contractors on the project to violate the ICI collective agreement. We have, as noted above, directed the respondent to cease and desist from attempting to negotiate an arrangement other than the provincial agreement with the complainant. We have also found that the respondent has engaged in an unlawful lock-out during the term of the collective agreement and we hereby direct the respondent to forthwith cease and desist from continuing that unlawful lock-out. The complainant has asked for damages in respect of this lock-out, and we are of the view that they are entitled to such relief. We remain seized of this matter in the event that the parties are unable to agree on the quantum of damages herein.