[1986] OLRB Rep. January 62
0201-86-M Local 787 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Applicant, v. J. H. Lock & Sons Limited, Respondent
BEFORE: Patricia Hughes, Vice-Chairman, and Board Members M. A. F. Stockton and P. J. O'Keeffe.
APPEARANCES: L. Steinberg, J. Carricato and M. Sumka for the applicant; Brian Burkett and Walter Enns for the respondent.
DECISION OF THE BOARD; January 5, 1987
This is a reference under section 124 of the Labour Relations Act ("the Act").
By decision dated June 16, 1986, we disposed of certain preliminary matters raised by the respondent. The hearing into the merits occurred on November 12, 1986.
In this referral, Local 787 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada ("the union" or "Local 787") alleges that J. H. Lock & Sons Limited ("J. H. Lock" or "the company" or "the employer") contravened the collective agreement between the union and the employer when it laid off Michael Sumka, the grievor herein, and did not recall him. Specifically, the union argues that the employer failed to exercise its management rights over hiring and over determining the number of employees it required in a "fair and reasonable" manner, as required by the collective agreement. Alternatively, the union alleges that the failure to recall Mr. Sumka is tantamount to dismissal without just cause.
Mr. Sumka began working for J. H. Lock on September 1, 1949 and worked there until he was laid off in January 1985. He served his apprenticeship as a refrigeration mechanic with the respondent, becoming a journeyman and on occasion a foreman on a project. For thirty years, the job was more or less steady; however, beginning in 1979, there was less work available and he was laid off for increasing periods, but never for more than a few weeks. Sometimes mechanics with less service would be kept on when Mr. Sumka was laid off. He was always recalled. A pattern of layoff and recall was established and followed for five or six years until January 1985.
In January 1985, Mr. Sumka was employed on a project at Molson Brewery. About the ipiddle of January, Alan Campbell, the Ontario Regional Manager for J. H. Lock, told Mr. Sumka that there was a shortage of work and he would be laid off. He also told Mr. Sumka that if any work came up, he would call Mr. Sumka back.
Mr. Sumka maintained regular contact with Mr. Campbell and with Doug McNinch, then President of J. H. Lock, who subsequently left the company the following November. He made sure they knew he was interested in work and they continued to assure him he would be recalled when there was work. When he had not been recalled at the end of January, Mr. Sumka called the union. In March, he was offered a chance by the union to go to a project at Carling O'Keefe with a company called Black and MacDonald. (It might be noted here that while the union does operate a hiring hall, workers can call employers themselves for work, as Mr. Sumka did.) Before he took the job, Mr. Sumka visited Mr. McNinch to let him know that the Carling project was temporary and that he was still interested in J. H. Lock. Mr. McNinch told him there would be 'no problem' with his returning to J. H. Lock. More or less the same conversation took place between Mr. Sumka and Mr. Campbell.
A week after Mr. Sumka began the Carling O'Keefe project, he received his separation papers from J. H. Lock, with a note attached saying he had "quit". Mr. Sumka called his union and Mr. McNinch who was, he says, "a little dumbfounded". Mr. McNinch said he would look into the matter. Joe Carricato, the business manager of Local 787, testified that Mr. McNinch told him it was an internal error and "we know he [Mr. Sumka] was laid off, don't worry".
After being laid off the Caning O'Keefe project in mid-July, Mr. Sumka again contacted Mr. McNinch to confirm that his staying at Black and MacDonald would not raise problems about his returning to J. H. Lock. Sometime around August 1, 1985, he was laid off from Black and Macdonald and went to see Mr. Campbell who told him that he would call Mr. Sumka back after he had other men working and as a new employee. Although Mr. Sumka did not understand this shift in the company's perception of his status (one which Mr. Campbell does not appear to have raised again), he did not question it for fear of alienating Mr. Campbell. In September or October, he was again told by Mr. McNinch and Mr. Campbell there would be work for which he was ''suitable'' coming up and that there were a couple of likely jobs in Hamilton (''the skating rink projects"). In fact, he was never called for those jobs.
The work undertaken by J. H. Lock varies from two or three-day jobs to small projects of less than two weeks to large projects which might last months. According to Mr. Carricato, it was understood that Mr. Sumka was a