[1991] OLRB Rep. August 996
2765-90-U Sheet Metal Workers' International Association, Local 473, Complainant v. J.M.R. Electric Ltd., Respondent
BEFORE: Ken Petryshen, Vice-Chair, and Board Members G. O. Shamanski and K. Davies.
APPEARANCES: J. Raso, John Brennan and Lorne Cudmore for the complainant; Paul Brooks and John Rasenberg for the respondent.
DECISION OF KEN PETRYSHEN, VICE-CHAIR, AND BOARD MEMBER K. DAVIES; August 26, 1991
This is a section 89 complaint in which the Sheet Metal Workers' International Association, Local 473 (hereinafter referred to as "Local 473") alleges that J.M.R. Electric Ltd. (hereinafter referred to as "J.M.R.") has contravened section 66 of the Labour Relations Act in its dealings with J. Brennan and L. Cudmore.
It did not take a long time to hear the evidence of the three witnesses who testified given the issue in dispute between the parties. J. Rasenberg, the owner of J.M.R., gave evidence on behalf of J.M.R. Brennan and Cudmore testified in support of the complaint. The Board has carefully reviewed the oral and documentary evidence and the parties' submissions relating thereto.
Brennan and Cudmore are both experienced journeymen sheet metal workers who live in London, Ontario. Both men have worked in the trade for at least twenty years. During this time, they have been members of Local 473 and for the most part have worked on union jobs. J.M.R. is an electrical and mechanical contractor located in Exeter, Ontario. Its mechanical operation is staffed with plumbers and sheet metal workers. On November 16, 1990, J.M.R. placed an advertisement in the London Free Press for licensed sheet metal workers, fourth and fifth term apprentices and provided a telephone number for prospective applicants to call. Brennan and Cudmore saw J.M.R.'s ad on November 16, 1990 and responded by calling J.M.R. shortly after the noon hour on that day. Brennan and Cudmore briefly spoke to Rasenberg. What Rasenberg allegedly said to both men forms the basis of this complaint. The evidence of Brennan and Cudmore concerning what was discussed during the telephone conversation and the evidence of Rasenberg in this regard differs considerably.
In essence, the evidence of Brennan and Cudmore concerning the conversation each had with Rasenberg is similar. Cudmore and Brennan asked Rasenberg about employment as sheet metal workers with J.M.R. Rasenberg asked both of them questions about their work experience. When Cudmore and Brennan disclosed the companies they had previously worked for, it was clear that both men were members of the Sheet Metal Workers Union. Rasenberg asked both men whether they were unionized sheet metal workers and they confirmed that they were. Rasenberg then advised them that he was not hiring any unionized sheet metal workers. Cudmore and Brennan testified that they were acting independently in calling J.M.R. Shortly after the conversation with Rasenberg, both men called their union representative about work and mentioned their telephone conversation with Rasenberg. Their union representative asked both of them to make a note of the conversation and both of them complied with this request. The notes made by Cud-more and Brennan of their telephone conversation with Rasenberg were filed and marked as exhibits in this proceeding.
Rasenberg testified that he received numerous telephone calls in response to J.M.R.'s ad. It was the usual practice to have any employment enquiries directed to him. Rasenberg stated that all callers were asked to fill out an application or to send in a resume. On the basis of the application or resume it was decided who would be interviewed. He testified that he remembered the two telephone calls at issue. Although he could not recall which call came first, Rasenberg recalled that the first caller did provide a list of places where he had worked. The caller did confirm that the employers were all union companies. Rasenberg then stated that he advised the caller that J.M.R. is a non-union shop and asked whether the caller needed permission from the union to work there. The caller replied that obtaining permission would not be a problem. Rasenberg recalled the second call did not take as long as the first. He testified that he told both of these callers to send in an application or a resume.
J.M.R. hired three sheet metal workers between November 30, 1990 and December 10,
The Board did hear a considerable amount of evidence from Rasenberg concerning all of the applicants, their qualifications and why he hired the three individuals. He testified that he did not consider Cudmore and Brennan for employment since they did not send an application or a resume to J.M.R.
After carefully reviewing the evidence before it and after utilizing the usual tests to resolve credibility issues, the Board prefers the evidence of Cudmore and Brennan to that of Rasenberg. In the Board's view, Cudmore and Brennan gave their evidence in an honest and straightforward manner. Shortly after their conversation with Rasenberg, they made notes of the discussion and the contents of the notes are consistent with their evidence. The Board accepts as true the evidence of Cudmore and Brennan that Rasenberg did not advise them to put in an application or resume. Both men had been out of work for some time and our conclusion from the evidence is that they would have pursued employment with J.M.R. if such a request had been made. The Board finds that Rasenberg did advise Cudmore and Brennan that J.M.R. would not hire any unionized sheet metal workers. This conduct on the part of J.M.R. constitutes a contravention of section 66 of the Act. The breach arises as a result of J.M.R.'s refusal to permit Cudmore and Brennan to participate in the hiring process because these two individuals were members of Local 473.
The parties' submissions concentrated on which version of events should be accepted. Very little time was devoted to the issue of the appropriate remedy. Local 473 did request an order directing J.M.R. to offer employment to the grievors, damages, and the usual posting order. Having determined that J.M.R. has contravened the Act, and where the issue of remedy is somewhat novel, the Board has determined that the appropriate course is to remit the matter of remedy back to the parties for resolution. It is hoped that the parties would be able to resolve the remedy issue between themselves now that it has been determined that J.M.R. contravened the Act. The Board hereby appoints a Labour Relations Officer in order to assist the parties with the resolution of the remedy issue.
DECISION OF BOARD MEMBER G. O. SHAMANSKI; August 26, 1991
I dissent.
I am not persuaded by the evidence of Cudmore or Brenner that J.M.R. Electric did not hire them for the vacant positions of sheetmetal workers because of their association with a trade union.
I am satisfied that the evidence given by Rasenberg with respect to the filling of the sheet metal classification vacancies within his company was achieved in a manner that did not in any way contravene section 66 of the Act.
The evidence of Cudmore and Brenner is so similar in nature, i.e. - The timing of their telephone calls to Rasenberg - What transpired in respect to their calls - What they allege in respect to their treatment by Rasenberg - The reporting of the alleged incidents to the Union. The whole substance of their testimony suggest this incident was prefabricated for self-serving interests.
I would dismiss this application.