[1989] OLRB Rep. July 746
2409-88-G International Brotherhood of Electrical Workers, Local 353, Applicant v. E. S. Fox Limited, Respondent
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members D. A. MacDonald and H. Kobryn.
APPEARANCES: L. Steinberg and R. Gill for the applicant; W. J. McNaughton and J. Howes for the respondent.
DECISION OF THE BOARD; June 28, 1989
- The International Brotherhood of Electrical Workers, Local 353 ("the union") has referred a grievance in the construction industry for final and binding arbitration pursuant to section 124 of the Labour Relations Act. The grievance alleges that E. S. Fox Limited ("the employer" or "Fox") terminated the employment of the grievor, Steward Lougheed, on June 27, 1988, without just cause contrary to clause 400 of the collective agreement binding upon Fox and the union. The reply to the referral denies the grievance and states:
The grievor was barred from the [T.T.C. garage] site by the general contractor. The grievor. prior to being barred from the site, had been offered and accepted a position as a foreman at another job site of the respondent. Of his own volition, the grievor required that he be transferred back to the site from which he had been barred when he knew or ought to have known that he was not allowed on the job site.
- Fox and the union are bound to the provincial agreement between the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario and the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario which expires April 30, 1990 ("the Agreement"). Clause 400 of Section 4 - Management Rights of the Agreement states:
400 RIGHT TO MANAGE
Subject to the terms of this Agreement, the Union acknowledges the right of the individual contractor to manage the business in which he is engaged and to direct the working forces, to discharge or discipline employees for just cause.
Lougheed was employed by Fox as a journeyman electrician on or about March 3, 1988, on a construction project at a maintenance garage of the Toronto Transit Commission ("the T.T.C. job"). He was also the union's job steward and safety representative on the project. Fox was a subcontractor to Dineen Construction, the general contractor for construction of the garage. On June 6th, Lougheed was working along with other journeymen electricians and apprentices in the office area of the garage. Toward the end of the day, there was an incident involving the letting off of some firecrackers. It was observed by two of Dineen's labourers. They reported the incident to Dineen's site superintendent, Steve Orr. Orr advised Tony DeSousa, foreman of Fox's electrical crew, that Dineen's employees had seen Lougheed throwing firecrackers. Orr and DeSousa visited the office area together, but, by then, none of Fox's electrical crew were present. Orr told DeSousa that Lougheed's behaviour was unacceptable and that he would not be allowed back on the site. DeSousa informed Orr that Lougheed was being transferred the next day, June 7th, to another Fox job.
Immediately after the incident, DeSilva asked two apprentice electricians and a foreman electrician about it. They were on Fox's electrical crew working in the office area at the time of the incident. DeSousa testified that the apprentices told him that they did not see who threw the firecrackers, but the foreman had told him it was Lougheed. The foreman was not called as a witness and the evidence falls short of establishing that he could have seen who let off the firecrackers.
Fox had another project in Brampton ("the AMC job") and, prior to June 6th, Lougheed had accepted a transfer to that job as foreman. He had been requested for the job by David McVittie, Fox's project co-ordinator on the AMC job. Lougheed reported to the job site on June 7th. The same day, at the T.T.C. job, Orr gave DeSousa a memorandum from Orr for delivery to Dave Leblanc, to whom it was addressed. Leblanc was Fox's project co-ordinator for the T.T.C. job. The memorandum referred to the firecracker incident of June 6th as hazardous horseplay which Dineen would not tolerate. The memorandum ended with the statement "[w]ith concern for safety it is requested that Stew Lougheed be removed from our site.".
Lougheed did not remain on the AMC job, however. About a week after he went to the job, DeSousa was told by McVittie that Lougheed, at his own request, was no longer foreman on the job and wished to return to the T.T.C. job. DeSousa told McVittie that Dineen would not allow Lougheed back on site and sent McVittie a photocopy of Orr's memorandum. DeSousa got another telephone call from McVittie on June 24th. This time McVittie told DeSousa that Lougheed would be reporting to the T.T.C. job on June 27th. DeSousa reminded McVittie of Orr's memorandum and the fact that Dineen would not let Lougheed on the site. He told McVittie to keep Lougheed at the AMC job. Following that exchange, DeSousa asked Orr whether Lougheed could work on the site and was told he could not.
McVittie did not keep Lougheed at the AMC job site and when he reported to the T.T.C. job on June 27th, DeSousa showed him Orr's memorandum. Lougheed did not read it. Their versions of what happened at this point agree on the fact that DeSousa told Lougheed that Dineen would not let him on the job site and that he was fired, but conflict on whether DeSousa told Lougheed why Dineen would not allow him to work on the T.T.C. job and on whether DeSousa gave Lougheed a choice between being fired or returned to the AMC job. Having reviewed and weighed their testimony about the circumstances in which Lougheed reported for work on June 27th and left the site without being allowed to start work, the Board accepts DeSousa's evidence that he read to Lougheed the memorandum from Orr which requested that Lougheed be removed from the T.T.C. job because he had engaged in hazardous horseplay which Dineen would not tolerate.
With respect to whether Lougheed was given a choice between being fired or returned to the AMC job, Lougheed disputes that he was told that he could return to that job and, in any event, claims that there was no work to return to because McVittie had laid him off from that job. Lougheed's evidence that he was laid off from the AMC job was corroborated by the evidence of his foreman at the job. Their evidence on that point was unchallenged in cross-examination. It is undisputed that Fox was obligated by the Agreement to take Lougheed back on the T.T.C. job if there was no work for him on the AMC job. This was because the Agreement gave Lougheed a preferential claim to the work over electricians who were working on the job under travel cards and work permits issued by the union.
It is quite possible DeSilva offered Lougheed the choice of returning to the AMC job or being fired because he clearly harboured the opinion from his first conversation with McVittie that Lougheed had been returned to the T.T.C. job at his own request. Clearly, however, Lougheed did not return to the T.T.C. job at his own request. The unchallenged evidence is that he was laid off from the AMC job because there was no work there for him. It was not argued that the employer was prepared to return Lougheed to that job in spite of the lack of work. Therefore, even if DeSousa did offer Lougheed the alternative of returning to the AMC job and even if Lougheed rejected that alternative, it cannot be said that he chose to be fired because the alternative did not exist. Since his employer did not have the option of laying Lougheed off at the T.T.C. job as long as there were travellers and permit card electricians on the job, Fox had to fire Lougheed if Dineen in fact had told Fox that Lougheed could not work on the T.T.C. job. The Board is satisfied on all of the evidence that Lougheed was told that he was being fired because Dineen would not allow him work access to the T.T.C. job site in its belief that Lougheed had let off firecrackers on the job.
Lougheed testified that he neither lit nor threw any firecrackers and had seen Gary Kyle throw one firecracker from the room where they were working together into the larger area outside of the room. Kyle was one of Fox's electricians and he testified that he had let off four firecrackers in the office area at the time in question. Another electrician, Dave Sutherland, told the Board that a firecracker exploded in another of the small office rooms where he and an apprentice were working. He turned and through the door to the room saw Kyle running away.
Their evidence conflicts with that of Mark van Roode who was called by Fox. Van Roode was employed by Dineen as a construction labourer. He was one of the two Dineen employees who had reported the firecracker incident to Orr and had identified Lougheed as the person who had let off firecrackers. Van Roode testified that he had heard at least three firecrackers being let off and saw Lougheed light and throw at least two of them. Under close cross-examination and upon being challenged that Kyle would testify that he had let off the firecrackers on June 6th, van Roode's unhesitating response was that he did not see Kyle throw any firecrackers and was positive that it was Lougheed whom he had seen.
Lougheed, Kyle and Sutherland are journeymen electricians who were working in the office area on June 6th when the firecrackers were let off. Lougheed and Sutherland were at all material times members of the union. They also worked together on the AMC job after Sutherland succeeded Lougheed as foreman on the job. Kyle worked with them on the T.T.C. job until they transferred to the AMC job. Kyle remained on the T.T.C. job until approximately two weeks after Lougheed was fired. During the time Kyle was employed on the T.T.C. job he was not a member of the union, but was working under a travel card issued by it. He transferred into the union as a member on September 1,1988. Kyle testified that he heard nothing further about the incident until June 27th when he learned that Lougheed was being fired over the incident. He told the Board that he was stunned to learn that Lougheed was being fired for the incident and had thought, if anyone was to get "stung" for it, it would be him. Kyle admitted in cross-examination that, on June 27th, he did not tell DeSousa or anyone else from Fox that he had let off the firecrackers. He testified further that, prior to testifying at the hearing, the only person whom he had told that he had let off the firecrackers was union counsel. This was while he was being interviewed to be a witness. Van Roode had been working for Dineen as a construction labourer for approximately 10 months before the June 6th incident and continued to do so until September 1988. He was not working in the construction industry when he testified and had not worked for Dineen since he left the T.T.C. job. Van Roode had not been employed by Fox at any time prior to the hearing and was not so employed when he appeared before the Board.
The Board has reviewed carefully the testimony of the four witnesses and it accepts van Roode's evidence that he saw Lougheed throw at least two lighted firecrackers. Sutherland did not claim to have seen Kyle throw any, only that, through the door of the room where he was working, he had seen Kyle running away just after a firecracker had exploded beside Sutherland. The descriptions of the incident offered by Lougheed and Sutherland also differed in some of their significant details from Kyle's evidence. Kyle was evasive when questioned in cross-examination about why he had not reported to either~ Fox or the union that he, and not Lougheed, had thrown the firecrackers on June 6th, as he had testified. If he were to be believed, he withheld from everyone the fact that he and not Lougheed had been responsible for the firecracker incident over which Lougheed was fired until he, Kyle, was being interviewed by union counsel as a witness for this referral. It is reasonable to infer from the documents and correspondence filed with the Board that his interview would not have taken place before December 30, 1988, a lapse of at least six months from the time when Kyle became aware of Lougheed's discharge. Thus he not only kept his silence when Lougheed was discharged, he continued to withhold from everyone the testimony he now wants the Board to accept when the union served its grievance on the employer on June 27th, during the remainder of his employment with Fox and when he was accepted as a member of the union on September 1st.
In the Board's view, if Kyle was prepared to maintain his silence in those instances he was capable of trying to mislead this Board in order to do a favour for a union brother at a time when there was little risk of adverse consequence to himself for doing so. In the result, the Board does not believe his testimony respecting the firecracker incident.
Van Roode, by contrast, did not stand to benefit in any manner from his testimony. He was forthright in giving his evidence-in-chief and in cross-examination. There was nothing in the manner in which he gave his evidence or in his general demeanour which might suggest any deficiency in his ability to observe and describe the events which he had witnessed nine months earlier. He described the main elements of the incident briefly and clearly and was unshaken by intensive cross-examination. When he could not recall with certainty some detail about which he was being asked, he admitted it. The Board disagrees with union counsel that the reason van Roode gave for reporting the firecracker incident to Orr discloses an envy of or enmity toward electricians which might colour his evidence. To the contrary, in the Board's view, he was a witness free of any interest in the outcome of the grievance and did not stand to benefit from testifying. His demeanour as a witness was consistent with that independence.
For all of the foregoing reasons, the Board finds that Lougheed let off at least two firecrackers on the T.T.C. job on June 6th, including the one that went off in the room where Sutherland was working. However, that does not answer the question of whether Fox had just cause to terminate Lougheed's employment. Even if the firecracker incident, which Dineen called "dangerous horseplay" was itself cause for discharge, it cannot be said that Fox terminated his employment because he had engaged in that incident. DeSousa's knowledge of the firecracker incident had not changed between June 6th, when it happened, and June 27th when he terminated Lougheed's employment. His knowledge consisted of the information from Orr that two of Dineen's employees had seen Lougheed let off firecrackers and the information from one of Fox's electrical foremen who had told him that Lougheed was the electrician who had let off the firecrackers in the incident which Orr had reported to DeSousa. Fox did not consider that incident alone to be serious enough to discharge Lougheed, since it transferred him to the AMC job as foreman. The incident only gained enough significance with Fox to become the basis for terminating Lougheed when it became necessary for Fox to comply with the direction in Orr's June 7th memorandum. Clearly, Fox terminated Lougheed's employment because the T.T.C. job was the only site at which Fox had employment for him. He could not be laid off as long as there were electricians in Fox's employment within the union's geographic jurisdiction who were on travel cards or work permits, and it could not employ him on the T.T.C. job because Dineen would not allow him work access to the site.
The Board disagrees with union counsel's submission that the evidence does not establish the fact that Dineen was barring Lougheed from the T.T.C. job. Whether the Board believes the employer's witnesses or the union's witnesses, there can be no doubt that there was an incident involving Fox's electricians and firecrackers on June 6th. There is no reason at all to doubt van Roode's viva voce evidence that he told Orr about the incident. The Board has DeSousa's viva voce evidence that, on June 6th, Orr reported the incident to him, told him that Lougheed's behaviour was unacceptable, that Lougheed would not be allowed back on the job and that, on June 7th, Orr delivered a memorandum to DeSousa for delivery to Fox's project co-ordinator for the job requesting that Lougheed be removed from the site. The cross-examination of DeSousa on this evidence did not disclose any flaw which would cause the Board not to rely on his evidence. The Board is satisfied, therefore, that Dineen did bar Lougheed from the T.T.C. job.
Counsel for the union contends that for Fox to say it was prevented by Dineen's prohibition from continuing to employ Lougheed, is not enough to fulfill its collective agreement obligations. Allowing Fox to shield itself behind Dineen in these circumstances would put Fox's commercial obligations under its contract with Dineen at a higher level of importance than its obligation under clause 400 of the collective agreement to have just cause when it discharges employees. Counsel argues that there is nothing in law which supports doing that. Furthermore, counsel submits that, in order for a general contractor's power to control its job site to be a viable defence in an alleged dismissal without just cause, the subcontractor is obligated to investigate and properly satisfy itself that the general contractor's denial of access is legitimate, something which Fox did not do in the instant case.
The Board was given little in the way of legal authorities by either counsel in support of their arguments. Counsel for Fox referred the Board to the head note in Re United Plumbers and Pipe Fitters, Local 46 and Samuel Crump (Canada) Ltd. 1963 CanLII 1016 (CA LA), 14 L.A.C 39 (Weatherill) which states:
Where the collective agreement is between a sub-contractor and its employees, but ultimate control over personnel on a particular job site is vested in the general contractor, it cannot be said that the subcontractor discharges an employee without cause when the general contractor refuses to permit the employee to continue on the job, and the subcontractor has no other work available for that employee and there are no seniority provisions in the collective agreement.
Union counsel did not refer the Board to any legal authorities. He characterized Crump, supra, as "vintage", doubted if it ever was the law and contended that it was not the law now. However, the Board was not instructed on what the current law was if Crump does not reflect it.
Whether or not Crump reflects the present law with respect to where the ultimate control over workers on construction sites is vested, it is generally accepted in the construction industry that the general contractor of a project is responsible to the project's owner for the general security of the project. That would include responsibility for allowing access to the project to persons who have business to conduct or who have work to perform on the project, and for denying access to persons whom the general contractor wants to exclude from doing business or working on the project. In this respect, it is interesting to note that a general contractor who undertakes a project for an owner in Ontario has defined, statutory duties in respect of that project for assuring that "the health and safety of workers on the project is protected" and that "every employer and every worker performing work on the project complies with [The Ontario Health and Safety Act] and the regulations.". The Ontario Health and Safety Act, R.S.O. 1980, c. 321, at s. 13. Those duties seem to reflect the reality of a general contractor's control over its job site.
The Board does not know what the particular fact situation was in Crump, supra, but, in the instant case, there is nothing in the evidence to cause the Board not to believe that Dineen had ultimate control over the work forces on the T.T.C. job. Nor was it argued by union counsel that it did not have that control. Therefore, the proposition in Crump that a subcontractor has not discharged an employee without cause when the subcontractor has discharged the employee because the general contractor refuses to permit the employee to continue on the job could have application here. In the Board's view, in all of the circumstances of the instant case, that proposition would have proper application here. In the result, the Board finds that Fox did have just cause to terminate Lougheed's employment.
This decision should not be taken as saying that a subcontractor bound to a collective agreement which provides that there be just cause for discipline or discharge can shield itself from liability under the agreement in every instance where it is established factually that an employee has been discharged because a general contractor refuses to allow him work access to the site. While a subcontractor might not be able to employ any person on a site to whom the general contractor will not allow access, other circumstances, such as failure of the subcontractor to make any inquiries at all as to the general contractor's reasons, or making no effort to persuade the general contractor to reconsider its position where the subcontractor has reason to believe that there is no foundation in fact for the general contractor's actions, might cause the arbitrator to find that the subcontractor did not have just cause for discharge. These circumstances are not present in the instant case.
For all of the above reasons, this application is dismissed.