Ontario Labour Relations Board

[1986] OLRB Rep. September 1299

0118-86-M United Brotherhood of Carpenters and Joiners of America, Local union 93 and Richard Restall, Applicants, v. Ottawa-Carleton Bricklaying and Masonry Limited, Respondent

BEFORE: Harry Freedman, Vice-Chairman, and Board Members I. M. Stamp and L. C. Collins.

APPEARANCES: Denis Power, Wilf Clermont and Richard Restall on behalf of the applicants;

Jacques A. Emond and Richard Olivieri on behalf of the respondent.

DECISION OF THE BOARD; August 20, 1986

1. The name of the respondent is amended to read: "Ottawa-Carleton Bricklaying and Masonry Limited".

2. The Board gave the following oral decision at the conclusion of its hearing in this matter on Ottawa on August 18, 1986:

Richard Restall was dismissed by the respondent on April 1, 1986. Mr. Restall, who was a union steward on the respondent's job, was involved in a verbal exchange with Rick Olivieri, the respondent's vice-president and superintendent on the job in question, over what Mr. Olivieri viewed as a lack of production on the part of the carpenters involved in building a park­ing garage.

On April 1, Mr. Olivieri witnessed the employees not working. He stormed towards the crew, quite angry, and told the employees that unless their work picked up they were going to be fired. He also asked them if they got the message. Mr. Restall responded to Mr. Olivieri, according to Mr. Olivieri's evidence, by stating "I'm the shop steward, get the message."

Mr. Olivieri testified that he did not intend to dismiss anyone when he went to speak to the employees. However, Mr. Restall's comment to him was the last straw. Mr. Olivieri had spoken to Bob Mercier, Mr. Restall's foreman, on at least one specific occasion about Mr. Restall's lack of work, and to others about Mr. Restall's poor attitude and poor productivity.

We have no doubt that Mr. Restall was, as counsel for the respondent sub­mitted, disdainful of Mr. Olivieri. It may well be that Mr. Restall viewed himself as being in a special position as a union steward. We also believe that Mr. Restall's approach to dealing with problems at the job site did not endear him to Mr. Olivieri.

The applicant and respondent are bound by a collective agreement. Article 6 of that agreement states:

"ARITCLE 6- MANAGEMENT RIGHTS

The Union acknowledges that it is exclusively the function of the Employer to main­tain order, discipline and efficiency, and to hire, retire, promote, demote, transfer, lay-off and/or suspend, discipline or discharge employees for just cause. Any com­plaint of improper suspension, discipline or discharge may be made the subject of a grievance as hereinafter provided subject to the right of employee concerned to lodge a grievance under the orderly procedure contained in this Agreement.

The Union further recognizes the right of the Employer to operate and manage its business in all respects in accordance with its commitments and responsibilities sub­ject to the terms of this Agreement."

In this case we must decide whether the respondent had just cause to dis­charge the grievor, Mr. Restall. Counsel for the respondent submits that the comments of Mr. Restall amounted to insubordination, and therefore trig­gered a review of his previous disciplinary record, which counsel conceded was comprised of, at best, one oral warning, but several criticisms that did not constitute discipline.

We do not need to determine whether employers in the construction industry must engage in progressive discipline in order to invoke the doctrine of cul­minating incident or whether there is a lower standard of what constitutes just cause in the construction industry as opposed to other industries.

In our opinion, a union steward on a construction site has the right to ques­tion and indeed challenge the authority of management, so long as the chal­lenge to authority is reasonable in the circumstances. In this case, Mr. Olivi­en was angry and was shouting at the employees represented by the applicant union. Mr. Mercier, the foreman, testified that he would not speak to his cows in the way that Mr. Olivieri spoke to his men. We do not need to evaluate Mr. Olivieri's management style or the way in which he seeks to motivate the employees who work for him. Nevertheless, Mr. Olivieri's tone and manner provoked a response from the union steward. Mr. Restall was not diplomatic and displayed little respect for Mr. Olivieri during this exchange. However, the same can be said for Mr. Olivieri and his lack of respect for Mr. Restall. In our opinion, Mr. Restall's response, while not a response that we would encourage from union stewards to promote good labour relations, cannot be viewed as conduct meriting any discipline.

In our view, Mr. Restall's response or comment was not beyond the bounds of reasonableness in challenging Mr. Olivieri's rights under the collective agreement when he indicated that Mr. Restall and the others would be fired if their productivity did not improve.

Therefore, this grievance is hereby allowed.

We direct the respondent to forthwith compensate the grievor for the losses of earnings that were caused by the respondent's violation of article 6 of the collective agreement.

If the parties are unable to agree on compensation, we will remain seized with determining that issue.

We will now invite submissions with respect to whether a reinstatement order is warranted in view of the fact that the job, that is the parking garage, for which the grievor was hired was completed before the last day of this hearing.

At the conclusion of the Board's oral decision, the Board was asked by counsel for the ipplicant to make the following note:

The Board notes that as of the decision in this matter, the job for which the grievor was hired is substantially complete, with only two carpenters still employed. Therefore, Mr. Restall and the applicant union are not seeking reinstatement of Mr. Restall to employment with the respondent.