[1987] OLRB Rep. September 1174
2724-86-M United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 463, Applicant v. Sutherland and Shultz Limited, Respondent
BEFORE: Owen V. Gray, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballentine.
APPEARANCES: P. Timmins, B. Christie for the applicant; T. J. Billo, B. J. Houston, J. D. Dougall for the respondent.
DECISION OF THE BOARD; September 11, 1987
In December of 1986, Sutherland and Shultz Limited was awarded a contract to perform certain work ("the job") at the General Motors chassis plant in the City of Oshawa. It sent Jim Scharlach to perform work in connection with that contract on December 28, 29 and 30, 1986. Sutherland and Schultz Limited is one of the employers bound by the provincial collective agreement between the Mechanical Contractor's Association, Ontario and The Ontario Pipetrades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada. It is common ground that Mr. Scharlach performed work which falls within the scope of that collective agreement during the three day period in question. Mr. Scharlach is a member of Local 527 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("the UA"). The applicant, Local 463 of the UA, is the UA local with geographic jurisdiction in the City of Oshawa. Mr. Scharlach left a valid travel card at the offices of Local 463 before he went to the jobsite, but did not receive a referral slip. Local 463 grieves that the respondent violated the provincial collective agreement by permitting Mr. Scharlach to perform bargaining unit work during the period in question and has referred that grievance to this Board for arbitration pursuant to section 124 of the Labour Relations Act. The parties agree that if we find that the respondent did breach the collective agreement, the amount of compensation to which Local 463 may be entitled as a result, if any, is to be determined at a subsequent hearing unless the parties are able to resolve that question themselves.
The respondent and Local 463 started discussing the job in question in mid-December. It was the subject of a pre-job conference on December 22, 1986, at which a dispute arose about whether certain of the work involved should be awarded to plumbers or to another trade. Local 463 was given until noon on December 24th to provide the respondent with information and evidence in support of its jurisdictional claim over that work. Its business manager and business representatives were in the course of gathering up that material when Mr. Scharlach attended on them in Local 463's offices in the afternoon of December 23rd.
Mr. Scharlach spoke to Brian Christie, a business agent for Local 463, on December 23, 1986. He had earlier spoken by telephone to Mr. Christie of his desire to deposit his travel card and obtain a referral to the job as foreman and to request, on behalf of Sutherland and Schultz, that the union refer two Local 463 members to the job. That is what he discussed with Mr. Christie again on the afternoon of December 23rd. Mr. Christie told him of the jurisdictional dispute. He said that if Local 463 got the disputed work, it would refer him as a foreman; if not, it would insist on sending one of its own members as foreman. With respect to Mr. Scharlach's travel card, Mr. Christie suggested that the union would hold it for him but not treat it as having been formally deposited until the decision whether to refer him was made, as formal deposit of the card would require a payment from him. There was some discussion about how referral arrangements could be made during the Christmas holiday period. Mr. Christie gave Mr. Scharlach his home telephone number and the home telephone number of the business manager, and assured him that one or other of them could be in the union office on very short notice to make any required referrals. It is Mr. Christie's evidence that Mr. Scharlach did not ask for a referral slip at this time. Mr. Scharlach did not testify.
On December 28, 1986, Mr. Scharlach went to work for the respondent at the General Motors chassis plant job. He did not have a referral slip. The union learned of this a day or two later, and protested in a telegram to the respondent. The respondent's Vice-President of Construction, Bernard Houston, then telephoned Bob Watson, a UA International representative, to discuss the matter. Mr. Houston asserted his understanding that the respondent was entitled to send one man to a job on a travel card. According to Mr. Houston, Mr. Watson confirmed his understanding and said he would deal with the matter. Mr. Watson did not testify.
The conversation between Messrs. Houston and Watson took place on December 30, 1986. Mr. Watson telephoned Mr. Houston on January 2, 1987, and told him that Chris Burrows, the business manager for Local 463, was not happy with Mr. Watson's having interfered in the matter. Mr. Watson asked Mr. Houston to straighten the matter out directly with Mr. Burrows. Messrs. Houston and Burrows then had a conversation or conversations, as a result of which it was agreed that, from and after January 2, 1987, Mr. Scharlach would not work with the tools on this job and that Local 463 would refer the men necessary to do the work, including someone to act as foreman. While the respondent seems to have thought that this was the end of the matter, we are not persuaded that those or subsequent discussions between the applicant and respondent resulted in any settlement of the union's grievance or potential grievance with respect to the employment of Mr. Scharlach on December 28, 29 and 30, 1986.
The parties agree that the provincial collective agreement by which they were bound at the time of the alleged breach included the following provisions:
ARTICLE 1- DEFINITIONS
1.4 "Union" means a local union having geographical jurisdiction over a particular area and any successor or assign.
1.6 "Member" means any member of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada.
1.8 "Employee" means a qualified and/or Certified Journeyman or Apprentice employed by a Contractor as a plumber, steamfitter, pipefitter, welder, and apprentice thereof, or job foreman.
ARTICLE 12- UNION SECURITY
12.1 As a condition of employment, an employee must be in good standing with the Union.
APPENDIX 12W
ZONE 12W OSHAWA - PETERBOROUGH - LOCAL UNION 463
ARTICLE 101 HIRING
101.1 The Contractor agrees to give preference in employment to Members of the Union having Jurisdiction over the area where the work is being performed. Such Member shall have his Certificate of Qualification for the trade required, the tools listed in Article 106 hereof, and shall present the Contractor and Job Steward if applicable with a work referral slip issued to him by the Union, before starting work, or the Union shall have the right to remove said man from the project.
101.3 A Contractor who after (3) three regular working days of a request to the Union (Saturday, Sunday and Holidays excluded) does not obtain the number of qualified Members requested, shall notify the Business Manager of the Local Union by wire, that the Contractor will obtain Members from other U.A. sources if available.
ARTICLE 111 FOREMEN
111.1 Job Foremen [sic] shall mean: a qualified Journeyman who is elevated by his employer to lay-out work and who shall within the terms of this Agreement instruct other Members of his respective trade.
111.2 The Contract shall appoint or demote a Foreman to Journeyman or appoint or demote additional Foremen, at his discretion as may be required. Any project requiring more than (3) three foremen, an area foreman shall be at the ratio of (4) four to (I) one.
111.3 He shall protect and promote the interests of the Contractor on the job or in the shop at all times, within the terms of this Agreement.
111.4 The extent to which a Foreman shall work with the tools of the trade shall be at the discretion of the Contractor or his representative.
Article 101 clearly requires the exclusive use of members of Local 463 on jobs in the geographic area over which that local has jurisdiction, unless Local 463 proves unable to supply the necessary workers. As between an employer and the local union, this is a requirement which the local union can waive on a case by case basis as it sees fit. The issuance of a referral slip to a worker who is not a member of its local is apparently the way this local customarily signifies its consent to employment of that worker notwithstanding the requirements of Article 101. While it is true, as counsel for the respondent argued, that Article 101 does not expressly require that any worker other than a member of Local 463 present a referral slip, the union's grievance that a member of another local was employed without having a referral slip is simply another way of saying that the respondent's employment of a member of another local in a bargaining unit position on this job was a breach of Article 101 which Local 463 had not waived.
Counsel for the respondent argues that Article 111 overrides Article 101 and gives an employer the right to employ any journeyman it wishes as a job foreman, whether or not that journeyman is a member of the union having jurisdiction over the area where the work is being performed. The language of Article 111, and particularly the use of the phrases "elevated by his employer" and "appoint or demote", is more consistent with the applicant's interpretation, which is that the only right given by Article 111 is the right to select a foreman from among those journeymen whose employment on the job is otherwise permissible under the terms of the collective agreement.
The respondent employer seeks to rely on the provisions of the UA constitution governing members' use of the travel cards and the rights associated with travel cards and, particularly, the following provision:
A travel card shall be accepted under the provisions of this section for one Building Trades journeyman member for each branch of the craft, that is, one plumber, one steamfitter or pipe fitter, one lead burner, and one sprinkler fitter sent from one Local Union to perform or install work in the jurisdiction of another Local Union for a contractor in agreement with the home Local Union, ordinarily engaged in work elsewhere. Such journeymen although performing supervisory work, may also work with the tools, and shall not, in any event, be subject to an examination.
The respondent says that this is what gives it the ability to put a member of one local to work on a job in the geographic jurisdiction of another local, so as then to be in a position to appoint him to the position of job foreman pursuant to Article 111.
The UA constitution is a contract between each member of the union and all of the other members governing the relationship between and among members, local unions and the international union. Only parties to that contract - the members - have rights or obligations thereunder. Even assuming that the provision referred to by the respondent employer confers the right contended for on a member in the position of Mr. Scharlach, it cannot confer any right on the respondent. The respondent argues, however, that this provision of the UA constitution estops the local union from relying on Article 101 to prevent the respondent from employing a single member of another UA local on a project in Local 463's geographic jurisdiction. As the cases referred to by counsel for the respondent indicate, an estoppel arises when one party to a collective agreement has represented to the other, by words or conduct, that it will not strictly enforce its legal rights under the collective agreement, and the other - the party later asserting the estoppel - has relied on that representation in such a way that it would be detrimentally affected if the legal right in question were to be strictly enforced against it: The Master Insulators' Association of Ontario, Incorporated [1979] OLRB Rep. Sept. 877; Comstock International Ltd., [1982] OLRB Rep. June 852; Vanbots Construction, [1982] OLRB Rep. July 1086; New Vision Construction Limited, [1983] OLRB Rep. Mar. 428; Losereit Sales and Services Ltd., [1983] OLRB Rep. April 569.
The mere existence of the union's constitution is not a representation to employers of the sort which can give rise to an estoppel. There is no suggestion that the employee bargaining agency in provincial bargaining has ever told the employer bargaining agency that the UA constitution effectively gives employers the right contended for by the respondent. It is noteworthy that the right to transfer employees who are members of one local to jobs in an area over which another local has jurisdiction has been specifically addressed in the provincial agreement in Appendices applicable to other areas. Article 111.3 of the Appendix covering Local 527's area, for example, expressly provides that "Contractors from outside the Union's jurisdictional area shall be allowed to bring in one (1) foreman for the project."
The respondent's witnesses made reference to two jobs previously performed by the respondent in Local 463's geographic area in which the respondent was permitted to employ one or more persons who were members of other locals. In light of Mr. Burrows' uncontradicted evidence about the circumstances in which that occurred on those two occasions, and his evidence about the circumstances of two other projects performed by the respondent in Local 463's geographic area, we conclude that past practice is quite consistent with the union's position that employment of members of other locals in bargaining unit positions including "foreman" (as opposed to non-working supervisory positions) is a matter it discusses and considers on a project by project basis and is generally not consented to if Local 463 has unemployed members qualified to perform the work in question. Local 463's past dealings with the respondent do not amount to a representation by conduct that the respondent will always be permitted to employ one travel card member on each job in Local 463's geographic area.
Mr. Watson did make a representation to Mr. Houston on December 30, 1986, which was consistent with the respondent's belief that it could employ one travel card member at a job in Local 463's geographic area. While denying that Mr. Watson had actual authority to make that representation on behalf of Local 463, counsel for the local union concedes that, vis a vis the respondent, Mr. Watson would have had ostensible authority to make a representation of that kind. That representation is not something on which the respondent could be said to have relied at any time before the representation was made. Accordingly, it can only serve as a defence with respect to that portion of Local 463's claim which relates to the period of time (if any) on December 30, 1986, after the conversation between Watson and Houston during which Mr. Scharlach continued to work.
Accordingly, we find that the respondent violated the collective agreement by employing Mr. Scharlach as an "employee" within the meaning of that collective agreement on a project in Local 463's geographic area without the consent of Local 463 during the period from the point in time at which Mr. Scharlach started work on December 28, 1986 to the earlier of the completion of his work on December 30, 1986 and the telephone conversation that day between Messrs. Houston and Watson. We direct that the respondent compensate the applicant for the losses (if any) which it and its then unemployed members (if any) may have suffered as a result of this breach. We remain seized with this referral for the purpose of resolving any dispute over the quantum of compensation awarded if the parties are unable to resolve that issue themselves.