United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552 v. The Board of Education for the City of Windsor, 1984 CanLII 1004

[1984] OLRB Rep. August 1145

3113-83-U United Association of Journeymen and Apprentices of the Plumb­ing and Pipefitting Industry of the United States and Canada, Local 552, Applicant, v. The Board of Education for the City of Windsor, Respondent

BEFORE: D. E. Franks, Vice-Chairman.

APPEARANCES: S. B. D. Wahl and J. Boyle for the applicant; Leonard P. Kavanaugh. Q. C. George W. King, Robert A. Dureno, Eric J. Laub and Wayne T. Mickle for the respondent.

DECISION OF THE BOARD; August 8, 1984

1. By a decision dated May 11, 1984 this Board rejected the respondent's motion to "non-suit" the applicant, and accordingly, declared that the respondent had engaged in an unlawful lock-out and made certain directions with respect to that unlawful lock-out. Herein are the detailed reasons for that decision.

2. The lock-out itself occurred on March 30, 1984 when all four members of the applicant trade union employed by the respondent Board of Education were "laid-off'. Each of the four employees concerned received a letter from the respondent stating quite simply:

"Please be advised that effective at noon today, March 30, 1984 you are laid off from employment with the Board of Education for the City of Windsor."

The employees also received a standard record of employment form of Employment and Immigration Canada for unemployment insurance purposes. This lists as the reason for issuance "lay-off'.

3. No explanation for the lay-off was given to the employees or the applicant at that time, nor was any explanation offered at the hearing in this matter. The four plumbers affected by this application, namely, Murray Inverarity Sr., Murray Inverarity Jr., Paul Lanoue and William Boroski constitute the total bargaining unit for which the trade union has bargaining rights. It is also clear that these employees were long-standing regular employees of the respondent. Mr. Inverarity Sr. had been employed by the respondent for some 23 years. Mr. Inverarity Jr. has had the shortest term of employment with the respondent, namely, about 2 years. Further, the evidence is clear and undisputed that there remains a substantial amount of work of the type normally done by these four employees. It appears that this work, from March 30, 1984 to the time of the hearing, was being performed by local Windsor mechanical contractors. These contractors appear to have a bargaining relationship with the applicant trade union. Of interest, however, was the clear evidence that at the time of the sub-contracting of the work to these mechanical contractors there had been no price negotiated for the performance of such work between the contractors and the respondent. This was apparently because the decision to sub-contract the work out was done on such short notice.

4. Although the lay-off of the four employees in question was precipitous and unex­plained, it occurred in the context of a very long relationship between the applicant and the respondent. The evidence concerning the background relationship between the parties was tendered in evidence by counsel for the applicant at the commencement of the hearing. This evidence was largely in the form of documents filed with this application, and identified by Mr. Boyle, the business manager for the applicant trade union. Counsel for the respondent objected to the introduction of these documents in the present proceedings since these docu­ments were also the subject matter of other proceedings and before another panel of this Board. The Board, however, admitted the documents as forming the context in which the "lay-off' of the four employees occurred.

5. The relationship between the applicant local and the respondent began with a certifi­cate by this Board dated February 27, 1967 which certified the applicant union as bargaining agent of "all plumbers and plumbers' apprentices in the employ of the Board of Education for the City of Windsor, save and except foremen and persons above the rank of foreman". It appears that subsequent to that certification on July 19, 1968 the applicant and the respondent became party to a collective agreement which appears to be a modification of a standard form of construction industry agreement negotiated between the applicant trade union and mechani­cal contractors. Thus, the agreement filed as exhibit #2 in this matter is effective from January 1, 1966 to April 30, 1969 wherein the Board of Education for the City of Windsor is referred to as the employer. Subsequently, (exhibit #3 in these proceedings) there was a document on the stationery of the Board of Education for the City of Windsor, dated October 8, 1971 which is signed on behalf of the Board but also signed on behalf of Local 494 of the Carpenters' Union and the applicant trade union and that document reads as follows:

"It is agreed between the parties, subject to the approval of their principals, the following is the basis for arriving at base hourly rate and for fringe benefits:

1. Board of Education Base Rate to be 85% of the Building Trade Base rate plus Welfare Fund cost, Pension Fund Cost, and S.U.B. cost where applica­ble.

2. Permanent employees will receive the same Fringe benefits as provided to the Canadian Union of Public Employees."

It appears that these documents formed the basis of the relationship between the applicant and the respondent for some years. The next exhibit is a letter dated March 30, 1982 from the Employee Relations Administrator for the Board of Education to Mr. Jerry Boyle the business manager of the applicant trade union. That letter reads as follows:

"At the present time there is no Collective Agreement in existence with respect to Plumbers employed by the Board of Education for the City of Windsor, other than an understanding that the Board will pay its Skilled Trade employees 85% of the negotiated trade rate(s).

We are desirous to meet for the purpose of negotiating a Collective Agree­ment commencing May 1, 1982.

It would be appreciated if you could contact me at 255-3301 for the purpose of establishing a mutually satisfactory time and place to discuss this matter."

From this point on it appears that relations between the applicant and the respondent became complicated and strained. Indeed, much of this matter is before another panel of this Board which will resolve the state of the relationship between the parties. For the present purposes it is sufficient to simply recount the matters that are not in dispute between the parties. The respondent Board of Education commenced negotiating in 1982 with a number of local building trades unions in the Windsor area, namely, the bricklayers, carpenters, electricians, painters, labourers, as well as the applicant plumbers' union. Proposals were exchanged during 1982 which eventually resulted in collective agreements with the trades other than the applicant trade union. The applicant, it appears, withdrew from those negotiations.

6. Subsequently, in December of 1982 the applicant filed an application for certification with respect to certain employees of the respondent. That resulted in a decision of May 18, 1983 in which the Board, pursuant to section 144 of the Labour Relations Act issued two certificates to the applicant, one with respect to plumbers and plumbers' apprentices in the industrial, commercial and institutional sector, and the other for plumbers and plumbers' apprentices in sectors other than the industrial, commercial and institutional sector. It is not disputed between the parties that the effect of the certification of the applicant in the ICI sector binds the respondent by operation of law to the provincial agreement for plumbers and plumbers' apprentices in the ICI sector. With respect to the totality of the bargaining relation­ship between the applicant and the respondent (in relation to sectors other than the ICI sector and for employees other than employees in the construction industry), it is not necessary to determine the relationship between the applicant and the respondent in these proceedings. All that need be noted here is that in July of 1983 there were meetings between representatives of the applicant and the representatives of the respondent. The positions of the various parties at those meetings, and the legal consequences resulting therefrom are part of another complaint before another panel of this Board. For the present purposes, however, we need only note in evidence that the parties, in fact, took different bargaining positions and were unable to reach any final agreement with respect to their legal rights resulting from the Board's certificate and the previous bargaining relationship between the parties.

7. One other piece of background should be noted. The respondent was subject to the Inflation Restraint Act. The effect of this legislation was a substantial issue between the applicant and the respondent and on December 21, 1983 the Inflation Restraint Board issued the following decision:

"On December 15, 1983, the Inflation Restraint Board considered an application of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552, dated September 29, 1983, concerning the status of certain of its members under the Act.

The applicant has requested the Board to take the following action:

1. to decide whether or not certain of its members are employees of the Windsor Board of Education within the meaning of the Act;

2. to recommend to the Lieutenant Governor in Council that its members be exempted from the provisions of Part II of the Act if they are found to be employees of the Windsor Board of Education;

3. in the alternative, to determine a compensation rate increase for the subject employees, pursuant to Clause 14(l)(a) of the Act, for the period of May 1, 1982 to April 30, 1983, the transition year of the employees' compensation plan.

In regard to the question of whether or not the applicant's members are employees within the meaning of the Act, the Board referred the applicant to Clauses 4(a) and 6(1 )(c) of the Act. On this basis, the Board DECIDED that the subject individuals are employees of the Windsor Board of Educa­tion and are subject to the provisions of Part II of the Act.

In considering the matter of a recommendation for exemption from Part II of the Act, the Board DECIDED that it would not make a recommenda­tion to the Lieutenant Governor in Council for exemption as requested by the applicant. In the matter of the compensation rate increase for the period May 1, 1982 to April 30, 1983, the Board DECIDED to permit an increase in compensa­tion rates for the subject employees of 5 per cent, effective May 1, 1982.

The Board noted that the compensation plan of the subject employees entered its control year on May 1, 1983, at which time compensation rates are to be increased by 5 per cent and the other provisions of Section 12 apply."

The respondent Board of Education has indeed applied the Inflation Restraint Act to the wages of the four plumbers.

8. Another fact clearly in evidence is that as a result of the foregoing events the applicant in the present matter filed a complaint, Board File No. 0866-83-U. It is in this context that the four plumbers were "laid off'. The complainant alleges that this constitutes an unlawful lock-out and the substance of the motion for a non-suit brought by the respondent is that the applicant has not proven the necessary ingredients of a lock-out.

9. At the hearing in this matter, counsel for the applicant sought to adduce direct evidence of the intention of the employer in laying off the four employees. The theory put forth by the applicant was that Mr. Hardcastle, the President of the CUPE local that bargains with the respondent for various caretaking and maintenance employees, had a number of discussions with Mr. Boyle and the employees in which he purported to deliver a message from the employer to the employees concerning their lay-off and how to resolve the problem. Accordingly, the applicant tendered evidence in the examination of its witnesses, Boyle and Inverarity Sr. and Inverarity Jr. concerning certain statements made by Mr. Hardcastle attributed to a Mr. Laub a managerial employee of the respondent. Counsel for the respondent quite properly objected to this evidence when it was tendered as hearsay. The Board noted the objection by counsel but deferred ruling on the matter pending the testimony of Mr. Hardcastle. Obviously, if Hardcastle was delivering an offer by Laub to the employees, such an offer would not be hearsay since offers are not capable of being either true or false.

10. Eventually Mr. Hardeastle was called as a witness by counsel for the applicant. In his direct evidence, Mr. Hardcastle denied the statements attributed to him by the applicant's other witnesses. Counsel put the evidence tendered by the other witnesses specifically to Mr. Hardeastle and he specifically denied having made the statements attributed to him. Counsel for the applicant then sought permission to cross-examine Mr. Hardeastle. After hearing the representations of the parties I allowed the motion to cross-examine Mr. Hardcastle with reasons for that decision to be given later.

11. The motion to cross-examine Mr. Hardcastle was based on the proposition that as a witness he was either adverse or hostile and that, accordingly, counsel, although he called Mr. Hardcastle as a witness, was therefore entitled to cross-examine him. In my opinion the motion to cross-examination was entitled to succeed on both grounds of being adverse and being hostile. First, the applicant had established in evidence previous contradictory statements by the witness. Further, the witness had been confronted with these statements and they had been denied. See section 24 of the Evidence Act, R.S.O. (1980) c. 145 and Wawanesa Mutual Insurance Company vs. Haines, 1961 CanLII 28 (ON CA), [1961] O.R. 495. I am, however, also of the view that the witness was also hostile in what might be called in a more classical sense of the word "hostile", that is, in his manner of giving evidence Mr. Hardcastle betrayed a desire not to tell the truth. (See, Boland vs. the Globe and Mail Limited 1961 CanLII 162 (ON CA), 29 D.L.R. (2d) 401 at 422.) Thus, Mr. Hardcas­tIe's denials of the statements attributed to them were themselves evasive. The witness in referring to conversations which took some time described himself as talking about "generali­ties". He persisted in this form of answer to the point where he was, in my view, not responsive to the questions and not prepared to tell the "whole truth" concerning the conversations he had with Mr. Boyle, Mr. Inverarity Jr. and with the group of employees.

12. The motion to cross-examine Mr. Hardeastle having been allowed, counsel for the applicant proceeded to cross-examine Mr. Hardeastle at length. The result of this cross-examination, however, was simply a reiteration of the denials already elicited from the witness.

13. The net result, however, is that whether or not I am prepared to believe Mr. Hardcas­tIe's denials, the whole matter falls as inadmissible hearsay evidence. That is, there is no evidence of a message having been sent from the employer to the employees concerning the employer's intention with respect to the lay-off and what the employees could do about the lay-off. The Board ruled on this matter at the conclusion of Mr. Hardcastle's testimony.

14. At the conclusion of the applicant's case counsel for the respondent moved to dismiss the application. Counsel asked for a ruling on the motion but also requested that in the event that the motion was unsuccessful he be allowed to call evidence herein. The Board refused to allow counsel his latter request and put counsel to the irrevocable election as to whether he chose to call evidence. This election being put to the respondent, counsel for the respondent elected not to call evidence, and accordingly, the Board heard the argument on the "non-suit".

15. In the course of these proceedings, counsel for the respondent conceded in these proceedings that if a lock-out occurred it occurred at a time when such a lock-out would be unlawful within the provisions of the Ontario Labour Relations Act. The respondent, however, denies that there was a lock-out and specifically argues that there is no evidence before this Board to find a lock-out within the meaning of section 1(1)(k) of the Labour Relations Act. That section reads as follows:

"'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."

Thus, the respondent denies that there has been any evidence that the School Board closed or that there has been a suspension of work or a refusal by an employer to continue to employ a number of his employees. However, it is clear on the facts that the "lay-off' on March 30th constitutes a refusal to continue to employ all of the members of the applicant in its employ. We can see no merit in this first part of the respondent's argument.

16. The second part of the respondent's argument is that, even if there is a refusal by an employer to continue to employ a number of his employees within the meaning of the definition of the term "lock-out" there has been no evidence relating to the purpose of such conduct, i.e. "with a view 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". Counsel for the respondent relied heavily on the decision of the Board in Rondar Services Limited [1977] OLRB Rep. Oct. 655. In that case, like the present case, the employer chose not to call evidence and in the circum­stances the Board found that the applicant had not established that the refusal of the employer to continue to employ certain employees was a lock-out. In that case the Board placed a great emphasis on the irrevocability of a decision by the employer on the theory, presumably, that a revocable decision is more likely designed to influence the employees:

"13. A reading of the statutory definition in light of the public policy referred to above establishes that the definition is designed to cover employer sanctions motivated by a desire to compel or induce an alteration or modifi­cation of behaviour, i.e. an agreement respecting terms and conditions of employment or a refraining from the exercise of rights under the Act. An employer is not prohibited from laying-off, contracting-out or going out of business during the periods when it is unlawful to lock-out. Rather, the definition has been formulated to catch economic sanctions which are designed to influence employee behaviour. The use of the verb "refrain" which means to "hold oneself back" or "to keep oneself from doing", and the reference to an agreement respecting terms and conditions of employ­ment bespeak a continuing but altered employment relationship. The motive which brings a refusal to continue to employ within the definition, therefore, is one directed at altering or modifying the employment relationship to the extent that employees refrain from exercising rights or agree to provisions in terms and conditions of employment.

14. In the line of cases relied upon by the company the Board has looked to whether or not the objective acts of the employer (i.e. the refusal to continue to employ etc.) were revocable or irrevocable. If revocable, then clearly an inference can be drawn as to the subjective element of the definition (i.e. the compelling or inducing to refrain from exercising rights etc.) and a finding made that the refusal to continue to employ is being used as a lever to effect an alteration or modification of employment behaviour within the meaning of lock-out as set out in section l(l)(i) of the Act. (See re Harry Woods Transport case, [1976] OLRB Rep. July 341 where such an inference was drawn.) If, on the other hand, the evidence establishes that the company's decision to refuse to continue to employ is irrevocable, then it is more difficult to draw the inference that the sanction is designed to effect a modification or alteration or employment behaviour in those whom the employer has refused to continue to employ, and indeed, in a number of cases a finding that the decision of the company was irrevocable has led to a dismissal of the application. (See Livingston Transportation Limited case (supra).)

15. Does this mean that in order to establish that a lock-out has occurred a union must establish that the decision taken by the company in respect of those it refuses to continue to employ was a revocable one? The answer is no. Whereas the objective element of the definition encompasses "a refusal by an employer to continue to employ a number of his employees", the subjective element requires that the refusal be "with a view to compel or induce his employees to refrain from exercising any rights or privileges under the Act. . ." The definition contemplates and catches an irrevocable decision taken by an employer to refuse to continue to employ some of his employees with a view to compel or induce other employees to refrain from exercising rights under the Act etc. This is clear from a reading of the definition and fits within the policy considerations referred to above. It is within this context that the statement in the Milrod decision (supra) must be read. If it can be shown that an employer's refusal to continue to employ a number of his employees is rooted in an anti-union animus and if there are other employees who may be influenced within the meaning of the definition, an inference can be drawn that the motive for the employer's action falls within the statutory definition of "lock-out". It can be inferred that the employer's decision is designed, at least in part, to modify or alter the behaviour or conduct of those employees who remain within his employ.

16. The onus is upon the union to establish the existence of a lock-out. It can satisfy the onus by establishing that the economic sanctions are revoca­ble thereby allowing the Board to draw the inference that the sanctions have been designed to modify employee behaviour within the meaning of the definition. It can also satisfy the onus by establishing that the sanction, although irrevocable, was motivated by an anti-union animus, thereby allowing the Board to draw the inference that the sanctions were intended to modify the behaviour of employees other than those directly affected. The "reverse onus" which requires an employer to satisfy the Board that he has not acted out of an anti-union animus in certain unfair labour practice complaints does not prevail in a section 83 application. In the Milrod case (supra), an application under section 83, the union was unable to discharge the onus of establishing an anti-union motive. Having regard to the different placement of the onus in a section 79(4a) complaint and to the fact that in certain circumstances an employer's irrevocable refusal to continue to employ for an anti-union reason will not fall within the definition of lock-out, there will be situations in which the Board dismisses an application under section 83 which would succeed if brought under section 79 of the Act."

The respondent in the present case argues that there is no evidence of revocability and, therefore, the applicant has not established that the respondent has attempted to compel or induce its employees to do anything. The Rondar Services Limited, supra, decision was quoted extensively in another case, Doral Construction Limited [1980] OLRB Rep. March 310 where in dismiss­ing the application the Board noted:

"Since the scope of the statutory definition requires that, for an action to constitute a lock-out, an underlying motive for the action must be to compel or induce an alteration either in employee behavior or conditions of employ­ment (i.e. to extract a concession from employees), an irrevocable decision cannot fall within the definition unless it is established that its purpose was to compel or induce those employees not directly affected by the decision to refrain from exercising rights under the Act (or alter working conditions). There is no evidence before me that the respondents' action was devised for the purpose of compelling or inducing other employees to forego rights or privileges under the Act or to agree to an alteration of conditions of employment. In other words, there is no evidence that the respondents' actions were devised for the purpose of "bargaining" a concession from employees in respect of rights and privileges under the Act or employment conditions. Therefore I must conclude that the respondents' actions do not constitute a lock-out within the meaning of section 1(1 )(i) of the Act."

17. Both the Rondar and the Doral cases, supra, deal with the circumstances in which the Board will, from the circumstances of the case, infer that the employer has the requisite motive behind his action to constitute a lock-out within the meaning of section 1(1 )(k) of the Act. In the present case there is no direct evidence of any communication by the employer as to the employees that would exhibit an intention by the employer to make the employees or the union "change its mind" about something. The question is, however, on the evidence before me, can I conclude that the events of March 30th were intended to convey a message to the employees? In the absence of any explanation from the employer I am inclined to the view that the lay-off of the employees was a very powerful message to both the union and the employees and that it was intended to induce or compel them to change their position in bargaining and in the section 89 complaint referred to above.

18. First, I should point out that in the present case the analysis referred to in the Doral and Rondar cases, supra, is largely irrelevant. We have no evidence as to whether the decision is revocable or irrevocable. It would appear that the only thing before this Board is the argument made by counsel for the respondent that the decision stems from a decision of the respondent Board of Education. Such a decision may or may not be revocable. We simply have no evidence on that matter. That, however, in the context of a present case simply means that the union cannot point to a revocable decision as evidence of a motive and the respondent cannot point to an irrevocable decision as evidence of a lack of motive. Therefore, the cases relied upon by the respondent do not address the problem in the present case.

19. The facts in the present case are that the applicant and the respondent have since the letter of March 30, 1982 from the Employee Relations Administrator to Mr. Boyle quoted above, been arguing about the collective bargaining relationship between them. This has at times been a very heated and even bitter argument, as demonstrated by the different positions taken by the parties over the Inflation Restraint Act. This relationship has culminated in the other proceedings before this Board (Board File 0866-83-U). It is in this context of a disputed relationship between the parties that the respondent without explanation "laid off' all of the plumbers represented by the applicant. What other possible message can there be in this conduct but a statement to the employees to get their trade union to change its position vis-a-vis the respondent Board of Education? Indeed, this was exactly the way the employees interpreted these events. The evidence of Mr. Inverarity Sr. gives a good example of this reaction by the employees. When he reported to the Unemployment Insurance office he was questioned about the unusual manner in which the Record of Employment form had been completed and was asked why he was laid off. His answer, and it was still his position when he was giving evidence, was that he didn't know "other than it must have something to do with 'the union"'. Given the context in which these events occurred this is a thoroughly reasonable conclusion by Mr. Inverarity Sr., and I am of the view it was the conclusion intended by the employer, and in the absence to any evidence to the contrary I am of the view that it was the result intended by the respondent employer.

20. For the foregoing reasons, I am of the view that the applicant has demonstrated a refusal by the respondent to continue to employ a number of its employees with a view to compel or induce them to refrain from exercising rights or privileges under this Act. Thus, the applicant has demonstrated a lock-out which is unlawful under the Labour Relations Act, the conditions precedent to a lawful lock-out having not been fulfilled.

21. I feel constrained to point out that the inference that there was a lock-out is in no small measure related to the failure of the employer to explain its conduct in the present case. Not only was no explanation given to the employees, leaving them to form their own conclusions, but counsel for the respondent chose not to call any evidence, leaving this Board to form its own conclusions concerning to respondent's motivation without any explanation from the party which is clearly in the best position to know and to explain precisely what that motivation was. Counsel for the respondent argued in passing that if one took the position that the provincial agreement relating to industrial, commercial and institutional construction was applicable, that that collective agreement contemplates sub-contracting and the employer was simply exercising a right under that collective agreement. While this argument might have been open to the employer had it called evidence of that intention, it is, in the circumstances of the present case, merely speculation. It does not clothe the conduct of the employer with good faith. The employer in the present case chose not to lead evidence concerning the contracting out arrangements and, therefore, must be presumed to have intended the natural consequences of its actions, as described in the preceding paragraph.

22. For the foregoing reasons, the Board hereby confirms its decision of May 11, 1984 in which it declared that the respondent has engaged in an unlawful lock-out and made certain directions with respect to that unlawful lock-out.