Ontario Labour Relations Board
[1985] OLRB Rep. February 160
2832-83-M Lumber and Sawmill Workers' Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America, Applicant, v. Bird Construction Company Limited, and The General Contractors' Division of the Construction Association of Thunder Bay Incorporated, Respondents, v. Julian Morelli, Peter Piotrowski, Interveners
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members B. L. Armstrong and A. Grant.
APPEARANCES: L. Arnold for the applicant; G. Grossman for the respondents; B. Fishbien for the employee interveners.
DECISION OF THE BOARD; February 28, 1985
1This is a grievance filed under section 124 of the Labour Relations Act. It alleges that the respondent company has contravened Article 4 of the collective agreement by which it is bound. That provision reads as follows:
Article IV — Union Security
4.01 The Employer agrees to hire as Employees, only members of the Union, so long as the Union is able to supply the needs of the Employer.
4.02 After forty-eight (48) hours' notice to the Union, the Employer is free to hire
Employees from any other source, and these Employees shall become members of the
Union within fifteen (15) days.
4.03 (a) All Employees shall remain members in good standing of the Union, so long as they are employed by the Employer.
4.03 (b) An Employee shall not be entitled to continued employment by the Employer when notified by the Union in writing that such Employee is not in good standing with the Union.
4.04 Employers shall give preference in hiring in the following order:
(a) Members of the Union who have resided in the area within a radius of twenty-five (25) miles of the project immediately prior to the start of the project.
(b) Persons who have resided in the area within a radius of twenty-five (25) miles of the project for at least six (6) months immediately prior to the start of the project and who furnish proof of such residence in the form of an affidavit.
(c) All other members of the Union.
(d) All other persons, providing that the Steward on the project is notified at the time.
(e) It is understood that upon lay-off, it shall be done in the reverse order of hire.
The Chief Steward on the project shall be notified of the members and non-members to be laid off.
The Employees to be laid off will be given at least a half (i/2) hour notice of lay-off and the Employee must remain on the project for the half (1/2) hour. In lieu of the half (1/2) hour's notice, the Employee shall receive one-half (1/2) hour's pay.
4.05 Where mutually agreed to by the parties, the Employer may bring in employees for specialty work, and these employees shall obtain a work card from the Union before performing the specialty work.
4.06 All work as defined in Article XV of this Agreement, performed on the job site of the Employer, subcontracted in any form, shall be subject to this Agreement, unless such a sub-contractor is bound by a Collective Agreement with a bona-fide Union, which Collective Agreement was in effect prior to the sub-contractor bidding for the job.
For ease of reference, the parties will be referred to as "the union" and "the company".
2The union contends that on or about February 13, 1984, the company hired Julian Morelli and Peter Piotrowski on its own initiative without contacting the local area steward, and without regard to their position on the union's established out-of-work list. Morelli and Piotrowski are both union members, but the union asserts that the company is required to contact it when it needs workers, and must accept such workers as the union refers. The company is not permitted to hire unilaterally or "off the street". The union seeks a declaration that the terms of the collective agreement have been violated and a direction that Morelli and Piotrowski be discharged. The union also seeks compensation on behalf of the employees whom it submits should have been hired.
3The company concedes that it must make an effort to hire trade union members, but takes the position that it is not required to hire them exclusively through the union. The company submits that the collective agreement does not contemplate a hiring hall or referral list system, and, even if it did, no such system has ever existed in Fort Frances.
4The company's submissions are supported by counsel for Morelli and Piotrowski, who argues, in addition, that the union cannot seek his clients' discharge when one of its own officials affirmed their right to conduct an independent job search and accept such employment as might be available. He argues that even if there has been a breach of the collective agreement, no remedy should run against the two employees. He further argues that the union has attempted to procure their discharge by resort to an unlawful strike, and that such conduct should not be condoned or rewarded. Finally, he argues that the hiring hall system (if it exists at all) was constructed and administered in such a way that is so obviously arbitrary, discriminatory and in bad faith, that the Board should not make any order based upon its supposed terms.
5The hearings in this matter consumed several days. The Board heard the evidence of union officials Eric Hautala and Garry Gushulak, company representative Paul Reinhardt, and John Morelli, one of the employees whom the union seeks to have removed from the job site. We do not think that any useful purpose would be served by reviewing the details of that testimony. It suffices to say that we have made our factual findings based upon our assessment of the witnesses' overall credibility, taking into account such factors as their demeanour, the clarity, consistency and general plausibility of their evidence when weighed against that of the other witnesses, and their performance under cross-examination. On this basis, we unhesitatingly prefer the evidence of Morelli and Reinhardt whenever it is in conflict with that of Gushulak or Hautala. In Mr. Gushulak's case, we are satisfied that much of his evidence is totally unworthy of belief. It was marked by evasions, contradictions, and outright fabrications —particularly in respect of the so-called work referral list upon which this grievance is based. In argument, counsel for the union suggested that certain statements made by Mr. Gushulak were so obviously false that they could only be explained by his nervousness. We draw a less charitable conclusion; moreover, in our view, it is not without significance that Mr. Gushulak has placed himself at the top of the so-called referral list and took the position that as area stewart, he had a right of first refusal on available jobs. No such preferential hiring is indicated by Article 4.04 of the agreement. It is also interesting to note that even Mr. Hautala was not prepared to endorse the basis upon which Gushulak says he prepared the list.
6Morelli has been a member of the union since 1974. He has never obtained work through a union referral system. He has never been given a referral slip. He testified that there has never been an out-of-work list in Fort Frances, or a referral system requiring that employees be dispatched only from the union. Indeed, in a moment of uncharacteristic candor, even Garry Gushulak conceded that trade union members commonly solicited their own work. He had done so himself. Company records also indicate that it has regularly hired union members without a union referral slip. While Gushulak asserted that, as area steward, he often wrote referral slips, he was singularly unable to produce copies, nor was he able to produce any earlier out-of-work lists. As counsel for the employees pointedly noted: if there is a hiring hall system in place, it is one which operates without records. There has not even been a union meeting in recent years. The only out-of-work list produced before the Board is a handwritten page in Mr. Gushulak's notebook; however, we find that his testimony regarding the origination and preparation of that list is totally unreliable.
7In the fall of 1983, Morelli learned that the company had been the successful tenderor on a project in Fort Frances. Shortly thereafter, Morelli spoke to John Lorenovitch, a union official in Thunder Bay, and was told that the company was bound by a collective agreement. Morelli told Lorenovitch of his intention to seek work and was advised that, if he were successful, he would become the local area steward. Lorenovitch said that Gushulak had been the steward at one time, but had moved away so that there was now no area steward. It appears that Lorenovitch did not know that, although Gushulak had been away from Fort Frances for almost two years, he had since returned. In any event, Lorenovitch expressed no disapproval when Morelli told him he intended to approach the respondent for a job. After several tries, he was successful. Ironically, it was Morelli who first told Gushulak that the respondent might be needing workers in Fort Frances.
8When Gushulak found out that Morelli and Piotrowski were working, he approached the company and demanded that they be replaced. In his opinion, as area steward, the company should have approached him and he should have been the first one hired. When the company refused to discharge Morelli and Piotrowski, Gushulak organized a picket line which precipitated an unlawful strike by other tradesmen working on the job. While Gushulak testified that this was merely an "information" picket line by a group of "concerned citizens", we are satisfied that he intentionally provoked a work stoppage in order to put pressure on the company to accede to his demand that Morelli and Piotrowski be discharged. To its credit, the company did not bend to this unlawful pressure. This grievance was filed on March 6, 1984.
9It will be convenient to deal with the issues in the same order as the parties did in argument: whether Article 4 of the collective agreement obligates the company to secure employees only through the trade union; whether, in fact, there is a functioning job referral system to which the company must resort to secure employees; and finally, whether in the circumstances of this case, the union should not be entitled to demand the discharge of the two employees whom it says were hired contrary to the terms of the collective agreement.
10In the construction industry it is not at all unusual for a collective agreement to provide for a job rationing mechanism, commonly referred as a "hiring hall", which allocates available work opportunities among unemployed union members. Indeed, the hiring hall is so prevalent that it has attracted specific statutory treatment to ensure that it is operated fairly. Section 69 of the Labour Relations Act reads as follows:
Where, pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith.
11The particular details of the hiring hall system may vary from trade to trade and agreement to agreement. Sometimes there is an actual union office where unemployed members report for work before being dispatched to available jobs — usually on a first-in, first-out basis. Sometimes the work referral system is less formal. But what these various schemes have in common is that the union regulates access to work through issuing referral slips to members who have registered on an out-of-work list. Without a referral slip from the union, the member cannot work. For example, the local collective agreement with Local 1669 of the United Brotherhood of Carpenters and Joiners of America (another local of the same parent union) contains the following:
5.01 No Employer shall hire any journeymen or apprentice without a referral slip from the Union except in the case of a rehire within a 3 month period after a previous layoff, provided the journeyman or apprentice is in good standing with the union. The Employer shall notify the Union when any journeyman or apprentice is rehired.
The question here is whether Article 4 of this agreement (set out in paragraph I above) imposes a similar obligation, requiring the company to go through the trade union to fill its employee needs and prohibiting the hiring of any employees without a union referral slip.
12It will be seen immediately that unlike the other Carpenters' collective agreement, this one does not contain any specific reference to referrals from the union or hiring exclusively through the union. The language does not expressly contemplate a system in which union members are referred or dispatched from an established out-of-work list. Such language is so easily drafted and so common in construction industry collective agreements that one must remark upon its absence (see, for example, the hiring hall provision discussed by the board of arbitration — and later the Court of Appeal — in Blouin Drywall (1973), 1973 CanLII 2044 (ON LA), 4 L.A.C. (2d) 254). In this agreement, the only reference to obtaining union permission for hiring particular employees is found in Article 4.05. There is no similar prerequisite in Article 4.01 which, on its face, appears to require only that the union hire union members — not those members whom the trade union may designate or refer. Indeed, if the company were required to obtain employees through a union referral system, there would be no need for Article 4.04 which requires the company to give preference in hiring to certain designated groups. If the company were required to hire only those members whom the union dispatched from its out-of-work list, why would it be necessary to require the company to give preference to those members who lived within twenty-five miles of the project? If the union, not the company, were making the initial selection, that provision would be unnecessary.
13In our view, when Articles 4.01, 4.02 and 4.04 are read together, they require only that the company endeavour to hire available union members before hiring non-union employees. The company is not required to contact the union in advance or to hire only those employees whom the union chooses to send. And, so long as those union members remain in "good standing", they shall be entitled to continued employment. (See Article 4.03(b).) Accordingly, we find that the company did not breach the collective agreement when it hired Morelli and Piotrowski.
14Even if we were to accept the union's submission that the use of the words "supply" and "source" in Article 4 create an obligation similar to that in the other Carpenters' collective agreement, we find that there was, in fact, no work referral system in place. At the time Morelli and Piotrowski were hired, there was no out-of-work list, there was no referral system, there was no established practice of securing employees through the union, and, indeed, in the last few years the union's presence in the area has been minimal. Whether this is because of the low level of construction activity, or because of the erosion of its industrial membership, or for some other reason, the fact remains that when Morelli went looking for work on his own, and the company officials hired union members who presented themselves for work, they were both acting in accordance with what in their experience had been the area practice — a practice which they believed, and we find to be in conformity with the terms of their collective agreement. In the circumstances, it is hardly surprising that Lorenovitch expressed no surprise or concern that Morelli intended to approach the company in search of work. Thus, regardless of what the collective agreement might contemplate, we do not think that the company can be found liable for failing to comply with a referral system which, we find on the basis of the evidence before us, did not exist. Furthermore, we would not be disposed to direct the employees' discharge, where, as here, there was no work referral system in place and their independent job search was in accordance with established area practice and known to and apparently approved by a union official long before Morelli was actually hired. Even if the company has not complied with the terms of the collective agreement, we do not think that the union could now demand Morelli's discharge.
15We are troubled by the employees' alternative submission that the union should be denied a remedy under section 124 of the Act because it intentionally sought to achieve the same objective by unlawful means.
16Obviously the Board does not condone a resort to unlawful industrial action to achieve compliance with a collective agreement or rectify what a union may see as a breach of the agreement. Section 124 of the Act provides a speedy remedy in such circumstances and that is the route the union should have taken here. On the other hand, illegal conduct by the union is itself subject to remedy and it is by no means clear that such improper conduct on the part of the union should excuse a breach of the collective agreement on the part of an employer. We prefer to leave this difficult question to a case where it is necessary to decide it. It suffices to say that, in appropriate circumstances, the Board may well be disinclined to grant relief to a party that has earlier sought to achieve its objectives by unlawful means.