[1987] OLRB Rep. May 667
0876-86-M The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, Applicant v. Comstock International Ltd., Respondent
BEFORE: Ken Petryshen, Vice-Chair, and Board Members J. A. Ronson and D. Patterson.
APPEARANCES: Paul W. Timmins, Reg White, Doug Sullivan and Frank Lily for the applicant; G. Grossman and R. Delaney for the respondent.
DECISION OF KEN PETRYSHEN AND D. PATTERSON; May 29, 1987
The name of the respondent is amended to read: "Comstock International Ltd.".
This is a referral of two grievances to the Board pursuant to section 124 of the Labour Relations Act.
Mr. Doug Sullivan was discharged for an incident which occurred on April 10, 1986 at the SWARU project in Stoney Creek. The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128 (the "union") filed a grievance dated April 18, 1986, challenging Sullivan's discharge. Shortly after the discharge, the union dispatched Sullivan back to the SWARU project. A representative of Comstock International Ltd. (the "employer") refused to re-hire Sullivan, which caused the union to file a second grievance on Sullivan's behalf dated April 28, 1986. Both of these grievances are before us but, as will become evident, the Board only need deal with the discharge grievance dated April 18, 1986.
Counsel for the employer called as witnesses O. Churchill, superintendent, K. Bosch, foreman, and R. Delaney, project estimator. Counsel for the union called D. Sullivan, F. Lily, steward, and R. White, assistant business manager, to give evidence in support of the discharge grievance. Having weighed and assessed the evidence, including the credibility of the witnesses, the Board makes the following findings of fact.
Sullivan, a boilermaker, began to work for the employer on the SWARU project on January 24, 1986 and, for the most part, he worked as a welder. By the time the hearing in this matter concluded, the project was virtually completed. Prior to the incident of April 10 which led to the discharge, two events occurred which counsel for the employer argued are of some relevance.
On March 11, 1986, Sullivan did not report for work. Churchill called Sullivan at home and was informed by Sullivan that March 11 was his birthday and that he does not work on his birthday. Churchill instructed Sullivan to ensure that he was at work the next day and Sullivan complied. In cross-examination, Sullivan admitted he was told by Churchill that he would be replaced if he did not report for work the following day and that Churchill's concern about his absence and his direction to report to work on March 12 indicated to him the importance of the schedule on a construction project. Although Sullivan was not disciplined for his absence on March 11, counsel for the employer argued that the incident should have made Sullivan aware of the importance the employer generally placed on attendance and timekeeping.
The second event occurred on April 9,1986. The steward, Frank Lily, left the job site in order to drive White back to the union office. Lily did not advise management that he was leaving the project and, at some point, Churchill became aware of his absence. At the completion of the shift on April 9, Churchill addressed the employees for a few moments, with Sullivan present, as they were preparing to leave for the day. While there is some conflict in the evidence regarding precisely what Churchill said to the employees, there is no doubt that Churchill advised employees that an employee was required to inform management of his desire to leave the job site. Churchill also may have indicated that an employee was required to obtain permission to leave from management prior to leaving the job site. In our view, even if Churchill did not explicitly give the latter instruction, such an instruction is implicit in the direction to advise management of an intention to leave the job site. Once an employee approaches a person occupying a managerial position expressing an intention to leave, one would expect an interchange between the two in which the employee conveys a reason for wanting to leave and the management person conveying a decision to either permit or deny the employee's wishes. Counsel for the employer argued that Churchill clearly conveyed to the employees what was expected of them during the meeting on April 9.
On April 10, Sullivan, who until that day had been working primarily inside the plant on boiler modification, was assigned by Bosch, the foreman, to work with Lily on the No. 1 spray cooler on the roof. The evidence and the manner in which the case was argued indicate that, as a foreman, Bosch was one of management's representatives on the job. Sullivan testified that at approximately 8:00 a.m. he advised either Bosch or the other foreman, Mr. Roy, of the possibility that he would be leaving work early that day. Bosch, who testified before Sullivan, strongly denied that Sullivan gave him any advance notice that he possibly would be leaving early when the suggestion was put to him in cross-examination. Lily did testify that earlier in the day Sullivan mentioned something about leaving early, but there is no indication in his evidence that Sullivan's comment was directed to or could have been heard by a foreman. Although Roy did not testify, we cannot accept Sullivan's evidence on this point. Given that the matter is one of some importance, one would have thought that Sullivan would have had a clearer recollection of which foreman he advised of his possible departure. We are satisfied that Sullivan did not convey to anyone in management in a proper manner the fact that he might leave the job site later that morning.
On April 10, during his 9:30 a.m. coffee break, Sullivan made a telephone call and, based on information he received during that call, he decided, at approximately 10:15 a.m.,to personally attend an appointment. The evidence does not disclose the nature of the appointment or why Sullivan felt it imperative to attend. Sullivan climbed down from the roof, asked some other employees if they knew where Bosch was and, based on their information, he headed for the office trailer. As he was approaching the trailer, he met Bosch returning from the trailer. Sullivan briefly indicated to Bosch that he was leaving the job site, without giving a reason and without requesting permission to leave. Bosch did not make any verbal response and, although Sullivan testified that Bosch "kind of nodded", we are satisfied that Bosch did not make any gestures from which Sullivan reasonably could have concluded that he had the foreman's consent to leave. Sullivan proceeded to a trailer where he changed and drove off the job site.
Two matters are worth noting. Counsel for the employer called some evidence with a view to suggesting that Sullivan left the job site because of a safety concern or because he was not happy with the prospect of working outside on the roof for the entire shift. These suggestions are not established by the evidence before us. There is nothing before us from which the Board can infer that Sullivan left the job site for a reason other than the one Sullivan gave. Secondly, the union called some evidence which attempted to demonstrate that Bosch and Sullivan were not on the best of terms. Based on this evidence, we are satisfied that the working relationship between Bosch and Sullivan was strained to a degree. Their relationship may explain, to some extent, the nature of their conduct when Sullivan advised Bosch he was leaving the job site.
Bosch advised Churchill of Sullivan's departure. After attempting to contact Sullivan at home and after discussing the matter briefly with Bosch and Lily, Churchill decided to lay Sullivan off. A lay-off in these circumstances in the construction industry in effect amounts to a discharge. Churchill called the union hall in order to obtain another welder and eventually spoke to White. When he was advised that the employer had decided, in effect, to terminate Sullivan's employment, White insisted that Sullivan be discharged, not laid-off, and he told Churchill that the union would be filing a grievance. The employer complied with White's wishes and discharged Sullivan for walking off the job without requesting permission and without giving a reason. On April 11, Sullivan reported for work and was advised for the first time that he was discharged.
Bosch testified that he was able to direct another employee to complete Sullivan's assignment of April 10 and that there were no other problems in getting that assignment completed. Although both Sullivan and White admitted it generally was important to keep on schedule on a construction project, both testified that by April 10 the welding work was not crucial at that point in the project's development. This evidence was uncontradicted.
Counsel for the union attempted to prove that Churchill, at some point in the afternoon of April 10 after he had decided to lay-off Sullivan, and after discussing the matter with White, reversed his position and advised White and Lily that Sullivan could return to work on April 11. In addition, the union attempted to prove that Churchill changed his mind again on April 10 in favour of discharging Sullivan after Bosch made it clear to Churchill that if Sullivan was not discharged, Bosch would quit. Counsel for the employer objected to this evidence firstly on the basis of its relevancy and subsequently on the basis that a privilege was attached to the settlement discussions between the employer and union representatives. The Board orally ruled at the hearing, Board Member J. Ronson dissenting, that it would admit the evidence. The majority of the panel was of the view that the results of those discussions, even though they occurred subsequent to the discharge, arguably could be relevant. In reviewing the evidence of the union and employer witnesses relating to these matters, we are satisfied that in the circumstances of this case, even if we were to make the factual determinations as suggested by the union, it would not affect our disposition of the discharge grievance.
Counsel for the union argued that Sullivan's discharge was "not for just cause" and, consequently, that it was contrary to subsection 3:03 of the collective agreement. That subsection reads as follows:
3:03 It is an exclusive function of the Employer to hire, promote, demote, transfer, suspend, lay off, discipline or discharge for just cause, employees in the bargaining unit, subject to the provisions of this Agreement.
Based on this violation, the union requested an order directing the employer to fully compensate Sullivan for his losses. Alternatively, we were urged by the union to exercise our discretion under section 44(9) of the Act to substitute a penalty if we found Sullivan was guilty of some misconduct.
Counsel for the employer argued that we should dismiss the grievance. In his view, the birthday incident and Churchill's instructions to the employees on April 9 alerted Sullivan to what was expected of him and warned him that a failure to meet his obligations in this regard would result in serious consequences. On April 10, counsel contended that Sullivan left the job without obtaining permission and without giving any reasons. Given the nature of the employment relationship in the construction industry, counsel argued that Sullivan's misconduct on April 10 was sufficient to warrant discharge.
This is not the first occasion where the Board, acting as arbitrator, has been asked to adopt an approach which recognizes that there are aspects of the construction industry which impact on the standard of just cause in matters of discipline. The Board's response to such a suggestion is reflected in the following comments in Canadian Engineering and Contracting Co. Ltd., [1983] OLRB Rep. July 1017 at paragraph 11:
We accept, of course, that the employer-employee relationship in the construction industry is not a close one, and is not comparable with relationships that arise between employers and their employees in an industrial setting. Employment relationships are transitory and, as in the present case, workers will be referred from the hiring hall and employed for short periods of time without the kind of pre-selection which would be undertaken by an industrial employer before engaging workers who could conceivably be employed on a long-term basis. Accordingly, we accept the need for a certain amount of realism and arbitral restraint in determining what constitutes just cause for discharge in a construction context. However, we are not persuaded that either the arbitral jurisprudence or the language of the collective agreement before us requires us to apply considerations that are totally different from those applied by arbitrators to employers who use the same language in collective agreements in other industries. In particular, the Board is of the view that the employer must at least warn a grievor that his job is in jeopardy prior to discharging him for "unsatisfactory performance" - which is what we found has happened in the circumstances of this case. In Re Harold R. Stark Limited et at. 1972 CanLII 2050 (ON LA), [1972] 1 L.A.C. (2d) 405 (Egan), the majority of the Board observed (at pages 406-407);
It was argued by the company that because of the special nature of the construction industry, different considerations ought to apply with respect to the discharge of employees to those obtaining in industry in general. In this regard, it is of some significance to note that the grievors are not in the position of long-term employees whose previously acceptable work performance has deteriorated. The grievors were assigned to the company by the union under the terms of the collective agreement. That is, of course, an arrangement quite common in the construction industry. In consequence of this practice, the grievors were taken on without any pre-hiring or qualifying interview such as might enable the company to make a pre-employment assessment. They entered into the employment of the company purporting to be competent tradesmen and were not subject to any probationary period of evaluation by the company. Therefore, there is no question of any knowledge, on the part of the company, as to the proficiency of the grievors at the time of their engagement as tradesmen qualified in the classifications which they hold.
We are not wholly persuaded, however, that totally different considerations from those applied to industry in general are applicable to discharge cases in the construction industry. In this connection, our attention was drawn to Re United Ass'n of Journeymen & Apprentices of the Plumbing and Pipefitting Industry, Local 221, and Fraser-Brace Engineering Co. Ltd. 1968 CanLII 1197 (CA LA), [1968], 19 L.A.C. 258 (Christie). This case involved the question of the discharge of an employee for "loafing" on a construction site. The company, in that case, argued that different considerations applied to discharge in the construction industry. The Board, in its decision in that case, stated that it was not unimpressed by the argument that rather different considerations may apply in the determination of what constitutes just cause for dismissal in the construction industry.
The grievor in the Fraser-Brace case, supra, appears to have been a chronic time waster, but received no admonitions from the company with respect to his conduct prior to his discharge. The Board went on to say, however, that "It is unnecessary to decide what differences it makes that we are dealing with the construction industry. Even if the requirements of 'cause' and just cause were considerably lower than they are in general industrial situations 'cause' for dismissal was not established here". The Board went on to find that the discharge was unjust because of the absence of a warning and reinstated the grievor.
See also Proweld Company Limited, [1982] OLRB Rep. March 437, and White and Greer Company Limited, Board File No. 1404-81-M, decision dated November 23, 1981, unreported, in which this Board confirmed that prior to the discharge of an employee in the construction industry for lack of production or inadequate quality, the employee is entitled at least to a warning that the employer is dissatisfied.
We adopt these observations in our consideration of the matter before us. We note that the construction project in this case extended over a relatively long period, approximately ten months, and that Sullivan's connection with it was expected to be of significant duration. The longer an employee has worked and is expected to work on a construction project, the more likely an arbitrator will apply considerations which pertain to industry in general when assessing whether an employer has established cause for discharge.
We are satisfied that Sullivan approached Bosch on April 10 for the sole purpose of advising Bosch that he was leaving. Sullivan did not intend to provide Bosch with a reason for leaving, nor did he intend to seek the foreman's permission to leave. In his evidence, Sullivan candidly admitted that he did not feel he had an obligation to obtain permission or to provide a reason. We do not agree. Even if Churchill on April 9 simply said that an employee was obliged to advise management when he was going to leave, it would be unreasonable for an employee to conclude that a simple announcement of an intention to leave work would satisfy his obligations to his employer. In a situation such as this, Sullivan was obligated to seek permission to leave and to provide a reason for the absence, if requested. Sullivan failed to meet his obligations to the respondent on April 10 and, accordingly, we find that the respondent had cause to impose some discipline on Sullivan for his conduct on that date. We have concluded that, in the circumstances of this case, mere silence on the part of the foreman would not have provided Sullivan, acting reasonably, with an indication that he had the foreman's permission to leave.
Although we are satisfied that Sullivan's conduct should attract some discipline, we are not satisfied that the employer has demonstrated it had just cause for discharge. Sullivan had worked for the respondent for well over two months, not an insignificant period in the construction industry, and this was the first occasion where Sullivan's conduct, in the employer's view, warranted discipline. Given the nature of Sullivan's misconduct on April 10, discharge is too severe a response in all of the circumstances.
We have found that Bosch's silence on April 10 should not have led Sullivan to conclude that he had Bosch's consent to leave. But Bosch's silence is inconsistent with the position that the employer had just cause for discharge. It is difficult for us to treat Sullivan's misconduct severely when a representative of the employer responds with silence to a situation which, if taken seriously, would have prompted at least some comment and discussion. Bosch did not ask Sullivan for a reason, did not tell him he could not leave, and did not advise him that if he left, he would be doing so at his peril. One can only conclude that Bosch's failure to treat the incident seriously is indicative of the fact that Sullivan's departure from the site was not seriously damaging to legitimate employer interests. This is consistent with the fact that there was little difficulty in completing Sullivan's assignment after he left and the uncontradicted evidence that by April 10, welding work was not all that critical.
In exercising our discretion under section 44(9) of the Act, we have considered, in addition to those matters referred to in the three preceding paragraphs, the following:
(a) the birthday incident in which Sullivan conceded that Churchill viewed the schedule with some importance and his absence with some concern;
(b) the importance of schedules on construction projects generally;
(c) Sullivan's failure to adequately advise management of the possibility that he might leave the site during the course of his shift on April 10;
(d) Churchill's meeting with the employees on April 9; and,
(e) the fact that the parties recognized in subsection 3.03 of the collective agreement (paragraph 14, supra) that a disciplinary response in the form of a suspension may be an appropriate response, depending on the circumstances.
- Accordingly, we find that Sullivan's discharge, which was communicated to him on April 11, 1986, was without just cause and, therefore, contrary to article 3 of the collective agreement. Having found that there was cause for some discipline and in exercising our discretion under section 44(9) of the Act, we substitute for the discharge a five day suspension. The Board directs that the respondent compensate Sullivan for any wages or benefits lost between April 10, 1986 and the time when Sullivan would have been laid-off in the ordinary course of business, less the five day suspension. It would not be appropriate to direct the respondent to reinstate Sullivan, since it appears that the respondent's SWARU project has been completed. In accordance with the agreement of the parties, the Board will remain seized of this matter in the event that the parties are unable to agree on the amount of compensation to which Sullivan is entitled.
DECISION OF BOARD MEMBER JAMES A. RONSON;
We have before us a straightforward discharge grievance involving the construction industry.
I find as fact:
(a) The employer gave warning to its employees, including the grievor, of its concern with the high level of absenteeism on this job. This warning was given shortly before the incident in question.
(b) The grievor and his foreman (who is a member of the union) did not see eye-to-eye as a result of differences which arose on a previous job when both were journeymen.
(c) The grievor did not like to work at height.
(d) On the day in question the foreman assigned the grievor to a job which was at some height above ground. The grievor may have felt that the foreman was indulging in an old grudge in making the assignment. This was not substantiated and in fact was disproven by the evidence led by the employer.
(e) At mid-morning, the grievor climbed down from his work position and left the job. As he passed his foreman on the way out he stated his intentions as "I'm fucking off'.
(f) The employer terminated the employment of the grievor.
Construction industry employees are subject to minimal supervision, often by 'working foremen' who are also members of the union. As a result, a degree of self-discipline is required of them to provide an honest day's work for a day's pay. With the hiring hall process, employers on a job of this size usually take what they are sent by the union. Both the employer and the union are usually concerned with employees/members who 'goof-off on the job.
This is a classic case of a construction industry employee who did not give a damn about his obligations to his employer or his union and indicated his disdain by walking off the job in the manner he did.
The employer had just cause to terminate the employment of the grievor. Hopefully the union could send him to a job where he would be happier and would perform his duties with due regard to his obligations.```