[1991] OLRB Rep. March 330
2739-90-G United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 221, Applicant v. Lewin Kingston, A Division of Brousseau-Robidoux Enterprises Ltd., Respondent
BEFORE: Robert Herman, Vice-Chair, and Board Members J. Lear and C. A. Ballentine.
APPEARANCES: A. J. Ahee and I. Telford for the applicant; Douglas Robidoux and Robert Little for the respondent.
DECISION OF THE BOARD; March 1, 1991
The applicant has referred this grievance to the Board pursuant to section 124 of the Labour Relations Act.
At the conclusion of the hearing on February 5, 1991, the Board provided an oral decision, upholding the grievance, and remaining seized with respect to damages. We now provide our reasons.
The grievance alleges that the respondent employer has improperly hired non-union members, in breach of various provisions of the collective agreement. Alternatively, the applicant argues that the employer has improperly subcontracted or otherwise transferred work coming under the collective agreement.
With a few exceptions, the facts were not in dispute. For many years, the company has operated its business in the Kingston area. The principal owner for most of this period was Douglas Robidoux. He is also the current President of the Mechanical Contractors Association of Kingston. It is common ground that the company was engaged in doing work in the industrial, commercial, and institutional sector of the construction industry ("I.C.I.") and that the work in question is work covered by the ICI collective agreement, to which the employer is bound.
For a number of years, in addition to employing union members, Douglas Robidoux hired various close relatives to work for the business. Douglas and his brother Harold were union members. However, several other brothers (Frank, David, and Stanley Robidoux) working for the company never joined the union, although they were continuously performing ICI bargaining unit work. There was also one other employee, Norman Proulx, who was performing bargaining unit work and was not a union member. Up until approximately May, 1989, the business agent of the union did not object to the brothers who were not members of the union, or to Norman Proulx, working for the company. The business agent died and a new business agent was chosen, John Telford. Mr. Telford shortly thereafter became aware that the company was employing numerous family members, and Mr. Proulx, who were not members of the union, in apparent violation of the collective agreement. Nevertheless, no steps were taken against the company at that time.
In May, 1990, during the province-wide strike in the ICI sector by members of the union, the company continued work on its projects, largely because it was employing non-union Robidoux family members. The union then objected to these employees performing bargaining unit work.
After the strike ended and a new collective agreement was signed, the company continued to employ its non-union family members and Mr. Proulx, along with employees who were members of the union. The union was unable to get the company to comply with its collective agreement obligations in respect of hiring only union members and filed a grievance in November, 1990. That grievance was settled and endorsed by Board decision, the company acknowledging that it was bound by the ICI collective agreement, that it had breached that agreement (in particular Article 12), and agreeing to pay $8,000.00 by way of damages for that breach.
Shortly after that grievance was settled, in a conversation with John Telford, Mr. Robidoux agreed that the only Robidoux family members who would work on ICI sites thereafter would be himself and Harold, both of whom were union members. Mr. Telford repeated and maintained the union's position, that non- members of the union could not perform bargaining unit work. Mr. Telford did agree, however, to provide a period of grace of approximately two weeks to Mr. Robidoux, in order to enable him to restructure the workplace. This two week period was to allow Mr. Robidoux to deal with his family and Mr. Proulx, who would either have to cease being employees, or would have to try to join the union. This interval was also granted so the company could continue working on its on-going projects while Mr. Robidoux arranged to comply with the collective agreement provisions. It would serve neither party if the company had to abandon its projects.
Shortly after this conversation with Mr. Telford, Mr. Robidoux arranged a meeting with counsel for the company. As a result, the company was restructured, with common shares issued, and Douglas Robidoux transferred or assigned some of his common shares in the company to each of Frank, David and Stanley Robidoux, his brothers who were non-union members, and to Laurie Robidoux, another non-union relative working for the company. And Harold Robidoux transferred some of his common shares to Norman Proulx. Now all the non-union employees had become shareholders. The shareholders then held the first annual meeting and voted to make themselves directors in the corporation. The non-union employees had now also become directors. For purposes of our decision, we accept counsel's assertion that the family members and Mr. Proulx owned one hundred per cent of the common shares in the company.
There was no accompanying change of any sort in the employment duties and responsibilities of the new directors and shareholders, nor in the work they did, their manner of payment, and so on. Their employment relation with the company and the work they were performing did not change. Douglas Robidoux testified that he "understood that restructuring the company would allow him to do the work he had been doing for years."
A few weeks later, on one of his periodic checks of work sites, Mr. Telford discovered that the company was still employing the non-union Robidoux family members and Mr. Proulx to perform bargaining unit work. Accordingly, the union filed the instant grievance, dated December 21, 1990. After receipt of the grievance, counsel for the company advised the union of the corporate restructuring and his conclusion that the company was therefore not in breach of the collective agreement.
Turning to the individuals in question, Frank Robidoux has been an employee for 6 years and an apprentice plumber and steamfitter for approximately two and a half years. From time to time, he is the most senior employee on a particular job site, and may be involved in projects at more than one site. Stanley Robidoux has been employed by the company for nine years, and acts primarily as a service man. He has no licence nor is he an apprentice. He is a gas fitter, and usually goes out on service calls on his own. If he feels that additional help is needed on a call, he will phone for additional people and when they arrive tell them what to do. David Robidoux has been an employee for three years. He is a welder, but neither an apprentice or journeyman plumber or steamfitter. On occasion, he will call for others to come and assist him with his welding. Norman Proulx has only been employed for one year. He is a second year apprentice, doing service and repair work, and his duties and responsibilities are similar to those of Stanley Robidoux. Both Stanley and David Robidoux have been laid off on several occasions in the past, the most recent lay-off being David's in July, 1989. Frank, Stanley and Norman have all on occasion received bonuses upon completion of a particular job.
Douglas Robidoux testified that management decisions have often been made at meetings of this group of family members and Mr. Proulx. Joint decisions were said to be made on occasion.
The applicable provisions of the collective agreement read as follows:
ARTICLE 11-SUB-CONTRACTING
11.1 Recognizing that the Contractor can sub-contract, no Contractor shall directly or indirectly sublet or sub-contract or otherwise transfer to any employee or any other employer not signatory to a U.A. agreement any of the work coming under the jurisdiction of this agreement
ARTICLE 12- UNION SECURITY
12.1 As condition of employment, an employee must be in good standing with the Union.
APPENDIX 12
ZONE 12 KINGSTON - LOCAL UNION 221
HIRING
Article 101
101.1 The Company agrees to hire only members of Local 221 as long as the Union is able to supply mechanics and apprentices to take care of the needs of the employer, and the Company, when hiring, shall give the Union fair notice of their requirements, which shall be at least three days where possible. If the Union cannot supply mechanics who are members of the United Association, Local 221, the Union will supply mechanics who are members of the United Association.
OWNERS AND MANAGERS
Article 113
113.1 Owners and Managers whose duties involve supervising the work of others are not included in the bargaining unit.
The employer claims that the corporate restructuring was in no way a plan or an attempt to evade the requirements of the Labour Relations Act. Rather, it was a restructuring to reflect the reality of the company and how it had actually been operating. The employer acknowledged that there was no change in job-related duties or responsibilities of the new shareholders and directors. The employer submits that because of past practice, as the union had not initially or earlier objected to the Robidoux non-union family members working, it would not be fair to now allow the union to object. It submits since the current collective agreement has already been signed, that it would not be fair for the union to obtain any remedy until the current agreement has expired. Alternatively, the employer submits that the shareholder-directors fall within the provisions of Article 113.1 of Appendix 12, and the company is not therefore in breach of the collective agreement. Under the provisions of that Article, owners and managers whose duties involve supervising the work of others are not included in the bargaining unit. The employer submits that the individuals in question are now both owner-operators and are engaged in supervising the work of others, and therefore do not fall within the bargaining unit. The company concedes that for Article 113.1 to apply, an individual must be found by the Board to both be an owner (or manager) and be involved in supervising the work of others.
The first submission, that because of past practice it would be inequitable for the union to succeed in the instant grievance, can be disposed of quickly. At the time the current agreement was still being negotiated, the union's business agent put the company on notice that it objected to the use of non-union members by the company, as such practice breached the agreement. At that point, the company knew of the union's position. In the face of the known objection by the union, the company continued to employ non-union members. That the union had allowed this leeway in the past is no reason to preclude it from insisting on its rights in the future, provided ample notice is given. We note as well that the earlier grievance was settled on the basis that the employer admitted its breach of Article 12 of the collective agreement. Article 12.1 requires, as a condition of employment, that an employee must be in good standing with the union. The company has acknowledged that it cannot employ non-union members. The Board is satisfied that past practice would not lead us to restrict the remedy we would otherwise provide.
The alternative argument is that the individuals fall within Article 113.1 of Appendix 12 of the collective agreement, and therefore can perform bargaining unit work even though they are not union members. As noted, the employer acknowledges that for Article 113.1 to apply, one must both be an owner or manager and have duties involving the supervising of work of others.
We are satisfied that none of the four men (Frank, Stanley, and David Robidoux, and Norman Proulx), is involved in "supervising the work of others" within the meaning of this Article. Even though some of these employees on occasion call other employees to come and assist them on sites, they would not "supervise" their work. In the skilled plumbing trade, it would be difficult for an employee without plumbing and pipefitting qualifications, to meaningfully supervise the work of journeymen. "Supervising" in Article 113.1 involves more than requesting and utilizing assistance on a job. It involves some meaningful direction and control over the employees. We had no evidence of that. These people were clearly "employees" before the corporate restructuring, and there has been no change in their jobs or treatment since the restructuring. Whatever the effect of their becoming directors and shareholders, the nature of their employment remained unchanged. For the vast majority of their time, these four individuals work with the tools, often performing ICI work. It is clear, both before and after the corporate restructuring, that their jobs were to perform bargaining unit work. Their duties did not include "supervising the work of others" within the meaning of Article 113.1.
The other requirement under Article 113.1 is that these people be "owners" of the company. We have some serious doubt that they would be "owners" within the meaning of that Article, given the circumstances. In this respect, see, for example, Family Services of Hamilton-Wentworth Inc. 1980 [OLRB] Rep. Feb. 204. However, given our decision that the employees in question were not involved in "supervising the work of others", we need not decide this issue.
In final submissions, the union argued that breaches of Articles 12.1 and 101.1 of Appendix 12 had occurred. For the reasons expressed above, we were satisfied that the company had breached those two articles, and the grievance was therefore upheld.
As agreed at the hearing, the Board will remain seized with respect to remedial relief. We note that the union agreed that it would only be seeking token damages from the employer.