International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 v. B & D Insulation Inc., 1994 CanLII 9805

[1994] OLRB Rep. December 1625

2463-94-G International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Applicant v. B & D Insulation Inc., Responding Party

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. N. Fraser and G. McMenemy.

APPEARANCES: Bernard Fishbein, Joe de Wit and Jim Bourne for the applicant; Bruce Binning, John Beernink, Jim Beernink and Peter Woloszanskys for the responding party.

DECISION OF THE BOARD; December 1, 1994

1This referral of a grievance pursuant to section 126 of the Act was heard by the Board on November 23, 1994. For ease of reference the applicant will be referred to as "the union" and the responding party will be referred to as "the employer" throughout the remainder of this deci­sion.

2The union asserts that the employer has violated Article 2.02 of the collective agree­ment between the Master Insulators' Association of Ontario Inc. and the International Association of Heat and Frost Insulators and Asbestos Workers, and the International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 ("the collective agreement") to which the employer is bound. That Article states:

The Union agrees to give preference to and furnish the most competent available employees to the employers on request, provided however, that the employer shall have the right to deter­mine the competence and qualifications of its employees, and to discharge or refuse to employ, in his or her sole discretion, and employee for any just and sufficient cause. The employer shall not discriminate against any employee by reason of his or her membership in the Union or his or her participation in its lawful activities.

(emphasis added)

3It is the union's position that the employer discriminated against Mr. Dan Labelle when, on the weekend of September 24 and 25, 1994, it did not offer Mr. Labelle the opportunity to work overtime. The union asserts that on that weekend all other employees of the employer were either offered overtime work or actually performed overtime work. Mr. Labelle was the only employee who did not work any overtime that weekend or who was not offered the opportunity to work overtime. The union asserts that this discriminatory conduct was undertaken by the employer because Mr. Labelle had previously participated in the union's lawful activities by filing a grievance alleging that he had been improperly laid-off. That grievance had been settled by the parties on September 13, 1994. Mr. Labelle was re-employed by the employer on September 21, 1994 in accordance with the terms of the minutes of settlement. Although the trade union does not assert that the employer has violated the minutes of settlement~ the trade union does assert that the employer's failure to provide Mr. Labelle with the opportunity to work overtime was prompted and motivated by the fact that he had filed the earlier grievance.

4The employer disputes the union's allegations and submits that the earlier grievance was a grievance filed by the union and not Mr. Labelle in which the union alleged that Mr. Labelle was a union steward and had therefore been improperly laid-off. That grievance was therefore not "participation" by Mr. Labelle "in [the union's] lawful activities" so that there could not be discri­minatory conduct by the employer against Mr. Labelle by reason of the filing of that grievance. The employer noted also that the minutes of settlement did not indicate that the employer had vio­lated the collective agreement, did suggest an admission of incorrect conduct in the process of the naming of a union steward on the part of the trade union, and simply provided that the employer would offer Mr. Labelle the next employment opportunity it had as a benefit to Mr. Labelle and without any admission of wrongdoing. Having voluntarily given that benefit to Mr. Labelle the employer had no reason to "discriminate" against him when he was again employed.

5The employer's witness, J. Beernink also testified about the method and rationale he applied in selecting employees to meet the employer's overtime requirements for the September 24 and 25 weekend. In so doing Mr. Beernink indicated that he was motivated by the requirements of the job, the skill and ability of the employees and the seniority of the employees. It was his testi­mony that he was not motivated or influenced by the earlier grievance or the settlement of that grievance.

6The relevant and in large part undisputed evidence in this matter can be briefly summa­rized as follows. On September 23rd, Mr. Beernink determined that the employer needed 30 per­sons to perform overtime work at its "Nova shutdown" project. The employer had 19 persons working at that site and decided that those employees would remain at that site to perform the overtime work. It therefore offered the opportunity to work overtime to those people on site first. Four of these persons had been called from the union hall and had commenced work at that site on September 22nd and thus had less seniority than Mr. Labelle.

7In addition to the employees working at the Nova shutdown project, the employer had

a number of other employees working at other sites. The employer decided to offer overtime work to other employees working at these other locations.

8Mr. Labelle was working at the employer's Imperial Oil project. There were five per­sons working at that site. By the time Mr. Beernink spoke to John Pavli, the foreman at that site, he needed only three more persons to work overtime to meet the thirty (30) person workforce he had determined was necessary to meet the requirement of the client/owner (Nova). Mr. Beernink instructed Mr. Pavli to offer overtime work to Tom Klompster, Dave Pavli and Dave Thoms. In addition Mr. John Pavli was himself given the opportunity to work overtime. Thus, although the employer required only three more persons to work overtime, it offered the overtime opportunity to four of its employees at that site. Mr. Beernink testified that if all four persons had accepted the overtime opportunity, he would have had to decide which three of the four persons would actually work the overtime. In the result, of the five persons on the Imperial Oil site only four were pro­vided with the opportunity to work overtime. Mr. Labelle was not provided with that opportunity because he was the last person to have started work on that site. As it happened Mr. Thoms indi­cated that he did not want to work overtime that weekend so that it became unnecessary for Mr. Beernink to "cut" one of the four persons to whom overtime work was offered.

9The only other of the employer's employees who was not offered the opportunity to work overtime that weekend was Mr. Fred Muscat. Mr. Muscat was working at the employer's Amoco project. Mr. Muscat is one of the employer's long service employees. The Amoco project is one of the employer's maintenance contracts. Mr. Muscat is regularly assigned to work at Amoco and has worked on behalf of the employer (or its predecessor) at the Amoco site for the past twelve years. That appears to be his primary job on behalf of the employer although Mr. Mus­cat is not employed exclusively at that site. As a result of his regular presence at that site, and the nature of the work performed by Mr. Muscat, it is not unusual for the owner/client Amoco to request Mr. Muscat to perform work at specific times, or to tell him that his work is "caught up" and he need not return for a period of time. Similarly, it is not unusual for Amoco to request Mr. Muscat to work overtime directly and without the prior knowledge or approval of the employer. That is what happened on September 24th when Amoco called Mr. Muscat and requested him to work overtime. Unbeknownst to the employer until Tuesday September 27th, Mr. Muscat worked six (6) hours of overtime on Saturday September 24th at the Amoco site.

10In the result the evidence indicates that all employees except Mr. Labelle and Mr. Mus­cat were given the opportunity to work weekend overtime by the employer. Although not offered overtime work by the employer, Mr. Muscat nevertheless ended up working overtime. Thus, the only person who was not offered overtime or who did not work overtime that weekend was Mr. Labelle.

11To complete the evidentiary picture we note that not all of the persons who had indi­cated they would work the overtime showed up to perform the overtime work. As a result, on Sat­urday September 24, there were only 28 persons working overtime at the Nova shutdown project. Initially the employer had not anticipated overtime work for Sunday September 25th. However, on Saturday the employees were offered further overtime work for the Sunday and in fact 27 persons worked overtime at the Nova shutdown project on that day. An emergency call from another cus­tomer caused two persons (John and Dave Pavli) to work overtime at another site.

Decision

12In a grievance of this nature the onus to prove that there has been a violation of the col­lective agreement rests with the party which asserts a violation. Unlike for example an unfair labour practice complaint under the Labour Relations Act, there is no reverse onus so that the maxim "he who asserts must prove" continues to express the legal burden of proof.

13The assertion in this grievance however concerns an allegation that the employer's conduct was discriminatory because of Mr. Labelle's participation in lawful union activities. In con­tested grievances of this nature one would not normally expect an employer to openly admit that it violated the collective agreement by discriminating against an employee because that employee participated in lawful union activities. The legal onus or burden of proof is therefore not generally met with the presentation of direct evidence, but of necessity results in the presentation of circum­stantial evidence from which inferences must be drawn. An employer does not normally incrimi­nate himself, and yet the real reason for the employer's actions lie within the employer's knowl­edge. Thus, where the union leads evidence of the employer's actions and establishes circumstances which appear to result in discriminatory conduct, an evidentiary onus shifts to the employer to provide an explanation for those actions or that conduct to refute the determination which might otherwise be made (based on inferential reasoning) that the discriminatory conduct was motivated by the employer's response to the employee's participation in lawful union activity. These legal and evidentiary burdens of proof therefore require this Board of arbitration to look at all of the circumstances to determine whether or not the employer's conduct was "discriminatory" and was undertaken "by reason of' Mr. Labelle's participation in lawful union activities.

14We start with the proposition that the evidence does establish sufficient circumstances which point to discriminatory conduct (we hasten to add that "discriminate" in this sense refers to differential treatment rather than any human rights sense of the word). While all other employees were either offered the opportunity to work overtime or did in fact work overtime, only Mr. Labelle did not have that opportunity. Similarly, we accept that filing, pursuing and settling griev­ances constitutes "participation in the [trade union's] lawful activities" (by way of analogy see Ontario Nurses Association, [1982] OLRB Rep. Oct. 1546 where giving testimony at an arbitration hearing was found to be protected activity under what is now section 82 of the Labour Relations Act). Thus, in the absence of an explanation from the employer, this board of arbitration could by inferential reasoning conclude that the reason Mr. Labelle was treated differently (or "discrimi­nated against") was because he had recently been responsible for the filing of a grievance against the employer.

15We turn then to an examination of the surrounding circumstances and the employer's explanation. We do so in the context of Article 17.01 of the collective agreement entitled "man­agement rights" which provides, inter alia, that the employer has the "exclusive right to manage the business" including the right "to determine qualifications, transfer... increase and decrease working forces" and "to determine.., scheduling of work". We do so also in the context of the norms of the construction industry where employment relationships are often transitory, where work opportunities and an employer's workforces are necessarily fluid, and where the non-con­struction or industrial union concepts of "seniority" have a different significance or importance.

16In that context we find that the employer's explanation that overtime work was first offered to the employees already on site to be reasonable even though the effect of that determina­tion meant that employees with less "seniority" than Mr. Labelle (having come to the Nova site on September 22) worked overtime while he did not. That type of determination is not unusual in the construction industry when employers may have various projects on the go at the same time with different crews at each project. The decision to offer overtime work to the Nova site employees in preference to Mr. Labelle therefore does not point to discriminatory conduct by reason of Mr. Labelle's union activity when viewed in the context of the employer's explanation. That explana­tion is consistent with industry practice and the collective agreement provisions including the man­agement rights article.

17Similarly, the employers apparent decision to offer overtime work to employees work­ing in crews at other projects in preference to offering that opportunity to Mr. Labelle or the other

employees with whom he was working at the Imperial Oil site does not point to a violation of the collective agreement. The employer's determination to offer overtime to all employees working at a particular site before extending that offer to employees at another site, or in place of offering overtime on a more piece meal basis to various employees working at different sites is not unusual in the construction industry, and is consistent with the management's rights provisions of the col­lective agreement. In the construction industry where the traditional concepts of "seniority" are rarely found in collective agreements (and is not found in this collective agreement) because of the importance attached to an employee's "seniority" in the hiring hall and his/her placement on the hiring hall dispatch list, it is not unusual for an employer to transfer its entire complement of employees from one site to work overtime at another site rather than selecting a few employees from one project and then a few more from another project to do that overtime work.

18We do not however understand and do not accept as reasonable the employers explana­tion why only four of the five employees in the Imperial Oil crew were offered overtime work while Mr. Labelle was not. The employer's explanation that Mr. Labelle was the least senior employee in that crew is reasonable and makes sense only if the employer had actually required four more persons to work overtime. By the employer's own admission however, by the time the Imperial Oil crew was offered overtime work, the need for employees to work overtime was only 3 so that if all 4 employees had accepted overtime work, the employer would have had to eliminate at least 1 employee from the overtime work opportunity. The employer offered no explanation why 4 persons were offered overtime when only 3 were required, or why, if it was going to offer overtime to more employees than it actually required it did not also extend that opportunity to Mr. Labelle.

19In this case, where the employer's specific and conscious decision (the evidence disclos­ing that Mr. Beernink specifically named the four employees when he told the foreman to offer overtime work) not to offer an overtime opportunity to Mr. Labelle is made in the shadow of Mr. Labelle's recent grievance, and Mr. Labelle's reinstatement 3 days earlier in accordance with the settlement of that grievance, a reasonable inference to be drawn is that Mr. Labelle was not offered the opportunity to work overtime because of his past participation in the union's lawful activities. Moreover, these circumstances tend to "taint" what we would otherwise have concluded was a plausible and reasonable explanation why Mr. Labelle was not offered the opportunity to work overtime.

20Having examined all of the facts and circumstances we have therefore concluded that the employer did violate Article 2.02 of the collective agreement when it did not on September 23rd offer the opportunity to work overtime to Mr. Labelle insofar as the employer did "discrimi­nate against [Mr. Labelle] by reasons of his... participation in [the union's] lawful activities". We so declare.

21The remaining issue is what, if any remedy flows from the employer's violation of the collective agreement. That issue has been troublesome. There was little evidence led which was applicable to that issue and the evidence before the Board from which it can fashion an appropri­ate remedy (aside from the declaratory relief) is at best sketchy. Thus for example we have no evi­dence that Mr. Labelle would have accepted the offer to work overtime on either Saturday or Sun­day. We have some evidence from which we could conclude that if Mr. Labelle had accepted, the employer would nevertheless have been forced to "cut" him (or some other employee) as it intended to do if Mr. Thoms had accepted the overtime work. Similarly, there is insufficient evi­dence to indicate that even if he had worked overtime on Saturday, Mr. Labelle would have been offered or would have worked overtime on Sunday. The evidence does establish that all of the overtime work required to be done on that weekend was performed without any difficulty with an

employee complement that was less than the 30 employees projected by the employer as necessary at the commencement of the weekend. That evidence, together with a lack of other evidence, sug­gests that a claim for 16 hours overtime pay may be speculative and may not accurately reflect the actual damages flowing from the violation. In the circumstances the Board makes no order with respect to any monetary damages but will remain seized of that issue in the event the parties are unable to agree upon the matter.