Ontario Labour Relations Board
Between: Antoine A. Plennevaux, Complainant v. Labourers International Union of North America, Local 1036, Respondent
Before: Judith McCormack, Vice-Chair.
Appearances: Yvon Renaud for the complainant; S.B.D. Wahl and J. Lewis for the respondent.
Decision of the Board; December 10, 1990
DECISION
The name of the respondent is amended to read: "Labourers International Union of North America, Local 1036".
This is a complaint in which Antoine Plennevaux alleges that the respondent union violated section 69 of the Labour Relations Act on May 1, 1989 by failing to issue a work referral slip to him with respect to a job with City Block Masonry Limited ("City Block").
At the time of these events, City Block was a masonry contractor working under a subcontract with The Matthews Group, the general contractor with respect to the construction of a treatment centre in Sault Ste. Marie. City Block and the respondent union are bound by a collective agreement between the Employer Bargaining Agency - Labourers, the Labourers International Union of North America and the Labourers International Union of North America, Ontario Provincial District Council (the "provincial agreement") dated the 16th day of May, 1988.
On April 19th, 1989 a pre-job conference was held with respect to the masonry construction at the treatment centre project. This meeting was attended by the respondent's business manager Jimmy Lewis, the respondent's president Bill Suppa, Rick Emsley, one of the principles of City Block, and his general manager. Mr. Emsley had a masonry crew stationed in London, Ontario, and sought the respondent's agreement to transfer the entire crew to the treatment centre site. This request was made under Article 3.02(a) of the provincial agreement which reads as follows:
3.02(a) It is hereby agreed by and between the parties to this Agreement that a request by a contractor for mobility of key men shall be discussed at a job conference. Such request shall not be unreasonably denied.
The London crew were members of the Labourers International Union of North America, but in a different local. Mr. Suppa expressed some skepticism about the entire crew qualifying as key men under this provision, and Mr. Lewis told Mr. Emsley that the respondent would not agree to the transfer because there were too many local members out of work. After a lengthly discussion, Mr. Lewis and Mr. Suppa agreed to allow Mr. Emsley to bring in two key men from the London crew. One of these men was described by Mr. Emsley as a zoom boom operator and the other was identified as a lead hand. Part of the agreement was that these men would have to obtain transfer cards from their local in London, and then attend at the respondent's office to sign up and complete the paperwork with the respondent. After this they would be issued referral slips to the treatment centre project. The remainder of the crew for the treatment centre project was then to be made up from the respondent's list of out-of-work members. Mr. Emsley advised the respondent at that time that he would need mason tenders for the rest of the crew.
During the last week of April, at the request of City Block, the respondent referred three mason tenders to the treatment centre site. These individuals were selected because they were the first three mason tenders on the respondent's out-of-work list. At the time the complainant, who is not entered on the list as a mason tender, was higher on the list than one of the men referred to the site.
During that same week, Mr. Suppa became aware that there were two men from London working for City Block on the treatment centre site. They had not presented transfer cards, signed up or obtained referral slips from the respondent. As a result, Mr. Suppa attended at the site and insisted that they leave. Sometime towards the end of that week the complainant went to the site and spoke to Mr. Emsley with respect to working for City Block. Mr. Emsley told him to report for work on Monday, May 1st.
When Mr. Plennevaux attended at the treatment centre site on May 1st, Mr. Emsley took him and three men from London down to the respondent's office at approximately 8:30 a.m. Since the office was closed, Mr. Emsley brought the men back to the work site where they commenced working. At 9:00 a.m., Jodie Devoe, the respondent's chief steward on the site, noticed Mr. Plennevaux and asked him for his referral slip. Mr. Plennevaux said that he did not have a slip and that he would be getting it later. The three men from London also did not have referral slips. Two of them were the ones whom Mr. Suppa had insisted be removed from the site the week before. Mr. Devoe called Mr. Suppa and advised him of this, and Mr. Suppa told Mr. Devoe to send them all down to the respondent's office.
At approximately 9:30 a.m., Mr. Emsley, the three men from London, and Mr. Plennevaux arrived at the respondent's office. Mr. Suppa directed the London men to Roberta Peron, the respondent's office secretary, to complete the necessary paperwork for their transfers. In the meantime, he and Mr. Plennevaux discussed his situation. Mr. Plennevaux said to Mr. Suppa "you caught me, Billy, you can't blame me for trying". This was apparently a reference to the respondent's by-laws which prohibit members soliciting work on their own, rather than being referred by the respondent. Mr. Suppa and Mr. Plennevaux talked about the fact that Mr. Plennevaux was not supposed to be soliciting work, that he knew better, and that he knew the proper way to go about it. At this point, Ms. Peron came to Mr. Suppa and told him that there were three men wishing to transfer from London rather than two. Mr. Suppa then spoke to Mr. Emsley and pointed out that they had agreed that two men would be allowed to transfer in, that he didn't care which two they were, but that there would only be two. He then went and spoke to Mr. Plennevaux again while two of the three men from London filled out all the papers and deposited their transfer cards. When this was done, Mr. Suppa instructed Ms. Peron to issue referral slips to them.
During this period of time at the office, Mr. Suppa received a call from Stone and Webster Limited, another masonry contractor, requesting three cement finishers for the next morning. However, the caller from Stone & Webster advised him that if one of the cement finishers was Mr. Plennevaux, the company did not want him. Mr. Suppa replied that if Mr. Plennevaux was one of the first three cement finishers on the list, he would be referred. However, he asked why the company did not want Mr. Plennevaux. The reason given related to lay-off in 1985 where it is alleged Mr. Plennevaux threatened to kill a number of people in the company.
Mr. Suppa then ascertained that the next three cement finishers on the out-of-work list included Mr. Plennevaux. He told Mr. Plennevaux that he was going to send him to Stone and Webster. However, if the company refused to hire him, Mr. Suppa instructed him not to argue or "threaten to blow up Algoma Steel" but rather to simply come back and Mr. Suppa would see if he had a grievance. He then instructed Ms. Peron to make out a referral slip for Mr. Plennevaux for Stone and Webster.
Stone and Webster did indeed refuse to hire Mr. Plennevaux. The respondent filed a grievance on Mr. Plennevaux's behalf, which was settled in August of 1989 in a manner involving the payment of $3,000.00 from Stone and Webster for Mr. Plennevaux. Mr. Plennevaux subsequently filed this complaint.
Counsel for the complainant agreed that his client's referral to Stone and Webster and the events following that referral were not the subject of the complaint. Rather, it was the respondent's treatment of Mr. Plennevaux prior to the Stone and Webster referral, and in particular, the failure to refer him to the City Block site which he alleged constituted a violation of section 69.
Section 69 provides as follows:
Where, pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith.
The Board has said that section 69 does not in itself require that hiring halls be operated on the basis of strict "first in, first out" referrals from the out-of-work list, nor does it preclude the use of discretion on the part of union officials in making referrals (Maurice Berlinquette, [1986] OLRB Rep. Feb. 194; John Cooper, [1984] OLRB Rep. Jan. 6, and Raphael A. Julien, [1985] OLRB Rep. April 537). As a result, the mere fact that Mr. Plennevaux was higher on the list than one of the men referred to City Block in the last week of April does not necessarily point to a violation of section 69. Rather, we must examine the respondent's referral system and determine whether either the system or its application in this case is arbitrary, discriminatory or involves bad faith.
The respondent's referral system is based on the use of a computer to compile and update the out-of-work list and to ascertain the positions of members on that list. A number of precautions have been taken to ensure the integrity of the system, including the automatic logging into the computer of telephone calls made to members for job referrals. In this regard, the computer records the time of calls, the name of the employer and the category of work. If the member declines the work, the reason is also recorded. It was agreed by the parties that there are a number of specialized skills within the designation of labourer, and that it was important that the respondent refer people for jobs skilled in those specialities where requested. The reasons for this from the point of view of the union include the nature of the particular skills necessary and the protection of work jurisdiction by the union. From the point of view of employers, referring individuals by skill increases productivity and reduces the need for on the job training. The collective agreement in its wage provisions and other appendices and schedules contemplates quite a number of these sub-categories, including mason tender and cement finisher.
Mr. Suppa and Mr. Lewis testified that when a request came in for a particular speciality, they would obtain a listing from the computer showing the first people on the out-of-work list who had those skills. Members are entitled to list up to three specialities next to their names in the computer system. If they possess more skills than that, this can be noted by an entry which refers the inquirer to the member's individual file. It was not disputed that it is the responsibility of each member to ensure that their skills or classifications are listed and kept up to date, and indeed, this is specifically set out in the respondent's by-laws. Members may check the out-of-work list at any time during office hours. Mr. Plennevaux is listed on the computer as a cement finisher, and as having a surveying certificate. He is not listed as a mason tender.
Mr. Lewis and Mr. Suppa testified that to become listed as possessing a particular skill, a member must either have a government certificate of qualification or letters from employers indicating that the individual had performed this work. It was not suggested that Mr. Plennevaux had submitted such material. Indeed, Mr. Plennevaux testified that he had never asked the union to be considered for mason tender jobs. Since 1973 when Mr. Lewis became the business manager of the respondent, Mr. Plennevaux has never been dispatched as a mason tender. It appears that Mr. Plennevaux was familiar with the system because when he obtained his surveying certificate, he went to the respondent and requested that this qualification be listed beside his name, which the respondent did.
There is nothing about this system in itself which can be considered arbitrary, discriminatory or indicative of bad faith. The calling up of names from the list by skill as well as list position is a rational approach, and there was no dispute about either the reasons for referring members in this manner or the importance of those reasons. In addition, the evidence indicates that City Block requested three mason tenders, that the first three mason tenders on the list were referred, and that Mr. Plennevaux is not listed, nor has he made any attempt to be listed, as a mason tender. In these circumstances, the mere fact that Mr. Plennevaux was higher on the out-of-work list than one of the men referred does not demonstrate a violation of section 69.
Counsel for the complainant asserts that in light of the fact that Mr. Plennevaux and the third London man were employed by City Block, the company must have needed two more men from the hiring hall on May 1st. He argues that Mr. Suppa should have inquired of Mr. Emsley with respect to the company's needs when he came down to the respondent's office, and then ascertained from Mr. Plennevaux whether he could perform the work. Instead, counsel claims that these considerations were overshadowed because Mr. Suppa preferred to chastise Mr. Plennevaux for soliciting his own work. Mr. Suppa's failure to make these inquires is alleged to be a violation of section 69.
I observe at the outset that there is no evidence that City Block requested additional members on May 1st to replace either the third London man or Mr. Plennevaux. Given the wide range of options available to an employer with respect to the deployment of manpower, I am not prepared to conclude that City Block requested additional referrals in the face of sworn testimony to the contrary. Neither can it be said Mr. Suppa was guilty of wrongdoing by not making inquiries of Mr. Emsley in this regard. The collective agreement between the parties sets out in detail how employees are to be hired, and includes the following paragraphs:
ARTICLE 3- HIRING OF EMPLOYEES
3.01 "The following provisions, will apply to the hiring of all Employees except as specifically provided for elsewhere in the Master Portion, Trade Appendices and Local Schedules."
(a) The Employer agrees to call the Local Union by 1:00 p.m. for its needed supply of men for the following day. All Employees hired through the Union shall present to the Employer a referral slip from the Union prior to commencing employment. It is understood that if the Local Union having jurisdiction over the work is unable to provide the required men within 24 hours the Employer is free to hire such labour as is available, but such labour shall acquire a referral slip, prior to commencing work on the second day after hiring, and as a condition of employment, either be in good standing or apply for membership in the Union within seven (7) days.
The Local Unions shall be allowed forty-eight (48) hours to supply men to jobs beyond thirty (30) road miles from the point of origin as defined in Schedule "B" hereto.
(b) The Employer shall have the right to name hire one foreman per project, providing such foreman is a member in good standing of the Local Union having jurisdiction over the area and the employee is registered on the Local Union unemployment list.
In light of such specific terms, Mr. Suppa was entitled to rely on Mr. Emsley requesting all the referrals he needed, and he was not required by section 69 to make any additional inquiries. Similarly, there was no onus on Mr. Suppa under section 69 to ask Mr. Plennevaux what work he could perform. Certainly if the respondent is going to refer members based on skill as well as their list position, there must be some method for ascertaining those skills. However, in this case, the respondent's method was to hold members responsible for notifying the union of their skills. As noted earlier, Mr. Plennevaux was quite aware of this process as he had used it himself, and it is stated clearly in the respondent's by-laws that "each member shall be responsible to have their skills or classifications listed and kept up to date". In addition, the parties agreed upon this fact. It seems safe to assume that members themselves are in the best position to know their own skills and any changes in this regard. Moreover, there were over 300 people on the out-of-work list at the time. Considering the number of members involved and the nature of the information required, the respondent's method of ascertaining skills was a reasonable one, and in light of the fact that it was set out in the by-laws and known to Mr. Plennevaux, Mr. Suppa was entitled to rely on it. In these circumstances, section 69 cannot be read as imposing a duty on Mr. Suppa to make inquires of Mr. Plennevaux.
Much of Mr. Plennevaux's evidence seemed to relate to the proposition that he could in fact perform work as a mason tender. I do not find this particularly helpful. If the respondent's system for ascertaining members' qualifications and subsequently referring them on that basis does not violate section 69, as I have found, the real question is whether Mr. Plennevaux informed the respondent of his skills. Since he did not seek to have himself listed as a mason tender, it is hardly surprising that he was not referred as one, and whether he could actually perform such work does not shed much light on whether the respondent's conduct was illegal.
Finally, I do not find that Mr. Suppa's chastisement of Mr. Plennevaux reflects any animosity towards the latter, or dominated Mr. Suppa's conduct toward him. By soliciting his own work, Mr. Plennevaux had broken one of the respondent's by-laws, and it is readily apparent that if such a practise were to become widespread, the respondent's hiring hall would become undermined to a very significant degree. There was no evidence that Mr. Suppa's reaction was excessive, or indeed anything more than simple irritation. Not only did he immediately refer Mr. Plennevaux to Stone and Webster when the request for cement finishers came in, but the respondent filed and pursued a grievance on the complainant's behalf when Stone and Webster refused to hire him. There is nothing about these events which suggests that the respondent acted towards Mr. Plennevaux in a manner that was arbitrary, discriminatory or indicative of bad faith.
The evidence before me indicates that there has been no violation of section 69. This complaint is dismissed.