[1984] OLRB Rep. January 82
2607-82-M Labourers' International Union of North America, Local 247, Applicant, v. Plibrico (Canada) Limited, Respondent
BEFORE: R. A. Furness, Vice-Chairman, and Board Members C. A. Ballentine and J. A. Ronson.
APPEARANCES: S. B. D. Wahl and M. Sullivan for the applicant; R. D. Perkins, G. Gerber and Mel Perkins for the respondent.
DECISION OF THE BOARD; January 3, 1984
1The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination.
2The applicant has grieved on its own behalf, on behalf of its members and on behalf of the employees of the respondent that from and after January 1, 1983, the respondent has violated and continued to violate the provincial collective agreement between the employer bargaining agency and the Labourers' International Union of North America, Ontario Provincial District Council on behalf of its affiliated local trade unions (the "collective agreement") effective from June 9, 1982, until April 30, 1984, in connection with the work covered by the collective agreement at the respondent's Lake Ontario Cement ("LOC") construction project in Picton (the "project"). The applicant alleged that the respondent had failed or refused to employ and continue to employ only members of the applicant in good standing to perform work covered by the collective agreement and hire the said employees through the applicant's hiring hall. Further, or in the alternative, the applicant alleged that the respondent failed or refused to engage only subcontractors who are in contractual relations with the union and or/its affiliated bargaining agents contrary to the collective agreement. The applicant has also alleged that the respondent has failed to pay proper wage rates, vacation pay and statutory holiday pay and failed or refused to make and pay the required contributions, deductions and allowances with respect to union dues, working dues, welfare, pension, travel allowance and industrial grading and retraining as and when required by the collective agreement. The respondent has denied that there has been any violation of the collective agreement.
3In 1975 the respondent constructed the riser and cyclone components in a number of kilns for LOC. Since 1975 the respondent has been engaged in performing maintenance and replacement functions for LOC. Every six months or so it is necessary for the risers and cyclones to be scaled down with a twenty foot bar. The scaling with the bar removes clinker from the risers and cyclones blocks of material weighing up to 200 pounds. This is a hazardous job and LOC has depended upon the expertise, safety and knowledge of the respondent to perform this work for it. This involves the construction of a scaffold from which the work is performed. Since 1976, LOC has been gradually performing more of the work with its own employees. For example, the tearing out and replacement of the refractory brick in the kiln has been done more and more by the employees of LOC. This process has been accompanied by the purchase of some of the materials required by LOC from the respondent. On these occasions, the respondent frequently acts as an advisor and a technical consultant to LOC. In January of 1983, LOC requested the respondent to scale down the riser and cyclone in one of its kilns. The respondent accepted this work.
4In order to perform this work at Picton the respondent hired two labourers from the applicant's hiring hall to perform the scaling work. The two labourers were on the job on Monday, January 10th and Tuesday, January 11th, when the respondent's supervisor on the job, Mel Perkins, was directed by the plant manager of LOC, Leo Finnegan, to terminate the two labourers. It was the intention, as subsequently executed by LOC, to employ two of its employees to perform the work. The respondent's supervisor checked with his head office in Burlington and reluctantly discharged the two members of the respondent.
5LOC is party to a collective agreement with the United, Cement, Lime & Gypsum Workers' International Union, Local 387 ("Local 387"), effective from December 1, 1980, to November 30, 1983. Under the terms of this collective agreement in article 1.04, LOC agrees to make every reasonable effort to eliminate or reduce the contracting out of work. That article also provides a provision for giving notice where contracting out is used. Article 1.05 also provides that any employee in the bargaining unit on layoff will be given an opportunity to work on construction projects of LOC if the employee meets the requirements of the contractor.
1:04 CONTRACT WORK
Section 1. The Company agrees it will make every reasonable effort to eliminate or reduce the contracting out of work.
Section 2. In the event that it does become necessary to contract out work, the following procedure shall apply:
(a) The Plant Manager or his replacement and the Department Head concerned will meet with the Plant Committee at least fourteen (14) days prior to the proposed contracting out of the work for the purpose of attempting to find ways to reduce or eliminate such work.
(b) The Company will confirm its intention to contract out work in writing, signed by the Plant Manager or his replacement, to the Local Union and outline the reasons for such work.
(c) The satisfactory conclusion of the above shall be signed by both parties or the matter may be referred to the grievance procedure to determine the reasonableness of the position of the parties. A reasonable position shall always be determined to mean that qualified Bargaining Unit members should do the work, if at all possible, within the time limits necessary for the efficient operation of the Plant
Section 3. In the circumstances where the fourteen (14) day advance notice cannot be given, the Company agrees to give such notice as is reasonably possible and to follow the procedure as outlined above.
Section 4. While the Company reserves the right to contract such work, it agrees it will not be done if it will result in layoff of members of the bargaining unit.
Section 5. If the Union disagrees with the Company's action in contracting-out, the matter will be referred to resolution by the Grievance Procedure.
Section 6. With the exception of original warranties, equipment or machinery that is repaired or reinstalled under manufacturer's guarantee shall follow the procedure established in Section 2.
1:05 LAYOFF
Any employee in the bargaining unit that is on layoff will be given an opportunity to work on construction projects at the Picton Plant or Cherry Street Packhouse of the Company, if the employee meets the requirements of the contractor.
6At the time of the hearing of this application, LOC had approximately 75 of its production employees on layoff. While the employees of LOC had not previously expressed any willingness or interest to perform the hazardous work of scaling, in January of this year the representatives of Local 387 requested an opportunity to have two of its unemployed members in the bargaining unit perform the work in question. The previous lack of interest by employees of LOC to perform scaling was the reason LOC did not provide notice pursuant to article 1.04. It was the position of LOC that in order to further its own good industrial relations with Local 387, it would comply with their request to have the employees work on the scaling. It was the position of both the respondent and LOC that the awarding of this work to two employees of LOC was not performed under the provisions of article 1.05 of LOC's collective agreement with Local 387.
7The work performed by the respondent and the employees of LOC consisted of the scaling-down of the riser and cyclone by the two members of Local 387. Mel Perkins, the supervisor employed by the respondent, supervised the work from a technical point of view, and one of the respondent's carpenters used his expertise in erecting the swing-stage scaffold to be used in the riser and cyclone.
8The work performed by the four members of Local 387 was performed under the guidance of Mr. Perkins. However, it is quite clear from the evidence that Mr. Perkins had to obtain the permission and assistance of Mr. DeMille, a supervisor for LOC, in order to transmit orders to the members of Local 387. During the course of the scaling, Mr. DeMille would, from time to time, remove employees working on this job to perform other work for LOC.
9The applicant argued that the respondent had unlawfully subcontracted the work performed by the members of Local 387 contrary to the provisions of the trade appendix for the masonry trades, article 2.01, and also contrary to 1.04 of the collective agreement referred to in paragraph one. Articles 1.04 and 2.01 state:
1.04 An individual Employer desirous of sub-contracting any work encompassing the skills of a mason tender as described in Article 2, shall only sub-contract such work to a sub-contractor for whom the Union holds bargaining rights.
2.01 The Employer recognizes the Union work jurisdiction shall include that work which has been historically or traditionally or contractually assigned to members of the LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA in the tending of Masons including unloading, mixing, handling, and conveying of all materials used by Masons including Refractory by any mode or method; the unloading, erecting, dismantling, moving, and adjustment of scaffolds; the starting, stopping, fueling, oiling, cleaning, operating, and maintenance of all mixers, compressors, mortar pumps, fork lifts, tuggers, and other devices under the direction of the Employer or his representative.
The respondent argued that it was the victim of a change in design by LOC when the latter made a determination after pressure by Local 387 to have the few days work required for the scaling operation to be performed by its laid off members.
10In the view of the Board, the respondent has merely abided by the decision of LOC to satisfy the desires of its own bargaining agent Local 387 with little thought for the effect that this decision would have on the respondent in its bargaining relationship with the applicant. The Board finds that the respondent acted in good faith and that the change in plans by LOC was entirely the decision of LOC. The respondent has had an ongoing relationship with LOC and regardless of how much of its services are used in the form of tasks performed by members of the applicant, the respondent has a considerable amount of business with LOC in supplying it with materials for its operations.
11The Board finds that the work of scaling the risers and the cyclones was not performed pursuant to the provisions of article 1.05 of the collective agreement with Local 387. In York Condominium Corporation No. 46 and/or Medhurst Hogg and Associates Limited, [1977] OLRB Rep. Oct. 645, the Board enunciated a series of criteria in order to determine which of two or more parties is the employer of persons who perform the work. The Board proposed a seven-fold criteria to determine the relationship of employer and employee. These criteria are 1) the party exercising direction and control over the employee performing the work, 2) the parties bearing the burden of remuneration, 3) the party imposing the discipline, 4) the party hiring the employee, 5) the party with the authority to dismiss the employee, 6) the party who is perceived by the employee to be the employer and 7) the existence of an intention to create the relationship of employer and employee.
12With respect to the first criterion, the Board finds that LOC, through Mr. DeMille, exercised the effective direction and control over the employees who were performing the scaling. Mr. Perkins was merely an advisor and was not a director for the respondent or its representative within the meaning of article 201. He was not exercising direction and control over the employees. With respect to the second criterion, LOC was bearing the burden of remuneration. With respect to the third criterion, there was no evidence of any discipline being imposed. With respect to the fourth criterion, it appears inferentially that LOC had initially hired the employees and was merely bringing them back for the purpose of offering them a short period of employment during their layoff. With respect to the fifth criterion, there is no evidence regarding the dismissal of any of the employees who performed the scaling. With regard to the sixth criterion, there is some evidence that the employees who were performing the scaling regarded LOC as their employer since they were reluctant to take directions from Mr. Perkins. With respect to the seventh criterion, it appears that there was certainly no intention to create the relationship of employer and employee as far as the respondent was concerned. On the other hand, the employees who performed the scaling were employees of LOC on layoff. In examining these seven criteria, the Board inescapably reaches the conclusion that the work of scaling was being performed by employees of LOC and not by employees of the respondent.
13While the Board understands the concern and anxiety of the applicant with regard to the bumping of its own members of a job which they would normally do as a result of pressure by Local 387, the immediate concern before the Board in this application is whether or not the respondent has violated the provisions of the collective agreement referred to in paragraph one. On the evidence before it, the Board is not prepared to find a scheme or conspiracy to defeat the bargaining rights of the applicant and to deny its members work. On the other hand, the Board does find that an industrial employer seeking to maintain its best possible relationship with Local 387 has made a calculated decision which has impacted on, not only the members of the applicant, but also upon the respondent which was engaged on this project on a cost plus basis. In the result, this application is dismissed.