[1999] OLRB REP. SEPTEMBER/OCTOBER 821
1629-99-U; 1796-99-JD Labourers' International Union of North America, Local 1089, Applicant v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663; Eastern Construction Limited; Norman Brandon Limited, Nordell Excavating Limited and Anderson Webb Limited, Responding Parties
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: John Moszynski, Robert Leone and Rick Vani for the applicant; Paul Falzone and Robert Humphreys for United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663; Erin R. Kuzz, Steve Ewasko and Rod Petrie for Eastern Construction Limited; no one appearing for the other responding parties.
DECISION OF THE BOARD; October 5, 1999
This is an application for relief under section 144 of the Labour Relations Act, 1995, S.O. 1995, c. 1 (the "Act") (Board File No. 1629-99-U) and a complaint concerning a work assignment under section 99 of the Act (Board File No. 1796-99-JD). The Chair of the Board authorized me to sit alone to hear and determine these matters pursuant to section 110(14)(a) of the Act.
The Board, by decision dated September 23, 1999, referred these matters to the Registrar to be listed together for September 30, 1999. At the commencement of the hearing, counsel for the applicant advised the Board that the applicant was withdrawing its application under section 144 alleging an unlawful lockout against Eastern Construction Limited. Although the applicant did not withdraw the application against the other employers named in the section 144 application, the evidence and argument proceeded in the section 144 application against the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663 (Local 663). Counsel for the applicant also indicated at the beginning of the hearing that if the applicant were successful in obtaining the relief sought in Board File No. 1629-99-U, it would be seeking to withdraw the work assignment complaint in Board File No. 1796-99-JD. Therefore, the consultation scheduled in Board File No. 1796-99-U did not proceed on September 30, 1999. The only matter heard by me on that date was the application under section 144 of the Act in Board File No. 1629-99-U alleging an unlawful strike and threatening an unlawful strike.
After hearing the evidence called by the parties and the submissions of the applicant, I advised the parties that I did not need to hear any submissions from the responding parties and for brief reasons delivered at the conclusion of the hearing which I will now elaborate, I dismissed the application in Board File No. 1629-99-U.
The applicant's members were assigned work in relation to the installation of sewers and watermains on the Point Edward Casino Project (the "Project") by the Nordell Excavating Limited ("Nordell") who was engaged by Norman Brandon Limited, a subcontractor to Eastern Construction Limited, ("Eastern") the general contractor on that project, to install site services (storm sewers, including the interceptor and outfall pipe, sanitary sewers and water lines, both fire protection and potable) from the property line to approximately 3 to 5 feet from the building line. Robert Humphreys, the Business Manager of Local 663, when he learned of the assignment, sought to have members of Local 663 employed to perform the laying of pipe from beyond the building line to the property line. He had understood from his earlier discussions with Kerry Macdonald, Senior Vice-President of Eastern, that the entire Project, that is everything within the property boundary perimeter, was being treated by Eastern as being an ICI project, and therefore his members had jurisdiction over the sewer and water pipe installation.
On Monday August 30, 1999 at approximately 10:30 a.m., Mr. Humphreys went to the project. He had been told that Robert Leone, business manager of the applicant, had been at the project that morning and had advised the members of the applicant that they were to continue working on laying pipe. (Mr. Leone had not, in fact, attended at the Project that morning.) Mr. Humphreys, who had been expecting a call from Mr. Leone that morning, and who had not been able to reach anyone at Eastern, decided that he would go to the area where the labourers were laying pipe. He went down into the trench after a section of pipe had been installed and the labourers had climbed out to get the next section of pipe. He stood in the trench, looked around and then placed a five-foot pry bar in the ground in front of the last piece of pipe that the labourers had placed in the trench. Because Mr. Humphreys was down in the trench, standing with a prybar in front of the pipe and would not move away from it, the members of the applicant who had been installing pipe before Mr. Humphreys went into the trench were unable to do any more work.
Steve Ewasko, the job superintendent for Eastern at the Project, came to see Mr. Humphreys after having been told that some site service installation work had stopped. Mr. Ewasko went into the trench to speak with Mr. Humphreys. Mr. Humphreys told Mr. Ewasko that the installation of sewer and water pipe was to have been assigned to members of Local 663 and that the work had to stop until members of Local 663 were employed to install the pipe. Mr. Humphreys also made it clear to Mr. Ewasko that he would not come out of the trench until he was assured that the work would not continue unless members of Local 663 were given that work. Mr. Ewasko suggested to Mr. Humphreys that they meet in his office to discuss the issue over the lunch period, which was getting close. They then agreed that no work would be done until they had an opportunity to discuss the issue. Mr. Humphreys removed the prybar and climbed out of the trench. Mr. Ewasko, who had also climbed out of trench, advised Nordell to cease work until after lunch. They then walked to Eastern's offices at the Project.
Mr. Leone had arrived at the job site while Mr. Humphreys and Mr. Ewasko were talking to one another. While he did not join them in the trench, he went to the office with them. During their meeting in the office, Mr. Humphreys had said, according to Mr. Leone, that "there was a lot of U.A. work here and that his members are not happy." Mr. Humphreys acknowledged saying in that meeting that there was a lot of U.A. work on that project, that his members were watching the work being done by members of the applicant and that "our guys are not happy". Mr. Leone explained that he understood Mr. Humphreys to mean that there would be problems if things were not done the way he wanted. Mr. Leone also said that the statement Mr. Humphreys made about his members being unhappy was the kind of statement local union business managers make when they want to indicate that there will be problems on a job site.
During that meeting Mr. Ewasko placed a call to Mr. Macdonald, who joined the meeting by way of speakerphone. The meeting concluded with Mr. Ewasko advising everyone that Eastern would make a decision about the issue that afternoon by 4 o'clock. Mr. Humphreys and Mr. Ewasko agreed that the work would resume that afternoon with the labourers continuing to do the work they had been doing. Members of the applicant resumed their work as soon as Nordell was advised that the work was to continue.
Eastern decided that afternoon that a composite crew would be assigned to do the work, with two members of Local 663 assigned to each crew of labourers to handle the pipe. That decision was communicated to Mr. Humphreys and Mr. Leone the next day at a meeting convened by Mr. Ewasko. During that meeting on Tuesday, Mr. Leone said that Mr. Ewasko had said that as there was no flexibility, the U.A. was going to do that work and that was it.
Both Mr. Ewasko, who was called by the applicant as its witness, and Rod Petrie, the project manager on the Project and the person to whom Mr. Ewasko reports and who was called by Local 663 as its witness, testified that it was Eastern's understanding that all of the work on the entire Project was ICI work, including the installation of site services, and that it was Eastern's intention from the outset that members of Local 663 were to have been assigned the pipe installation work. Mr. Ewasko did not recall hearing any threats from Mr. Humphreys. Mr. Petrie, despite a very rigorous cross-examination, was steadfast in maintaining that Eastern had not been threatened with a work stoppage by Mr. Humphreys and that what Mr. Humphreys had done on Monday to prevent the labourers from carrying on their work for a short period of time had nothing to do with Eastern's decision to direct its site services subcontractor to use a composite crew comprised of members of the applicant and members of Local 663 to do the site service installation work.
Mr. Petrie was adamant that Eastern had made the decision (and he was part of the Eastern management group making the decision) to assign a composite crew because the entire project was treated by Eastern as an ICI project and because Mr. Macdonald had decided before the site service work had begun that the laying of pipe was to be done by members of Local 663. Mr. Macdonald had confirmed that directive in his telephone attendance at the meeting convened by Mr. Ewasko on Monday, August 30.
The evidence was clear that Mr. Humphreys had secured Mr. Macdonald's agreement to use members of Local 663 to do the site service work without Mr. Leone having had any say in the matter. (Eastern had not convened a pre-job conference to discuss work assignments on the Project.) It was also clear that Mr. Humphreys and Mr. Leone (and others in their respective offices) had had discussions about this work assignment on Friday August 27 and over the weekend. The applicant's members had been assigned to do the work and, according to Mr. Leone, it was their work because that was the practice in the area. He was not prepared to agree to have members of Local 663 do work that belonged to members of the applicant. Mr. Leone was adamant that if Mr. Humphreys had a problem with the work assignment made to members of the applicant, his recourse was to seek a Board order changing the assignment. Mr. Humphreys was also insistent that Eastern had not lived up to the assignment promised to him by Mr. Macdonald, so rather than go to the Board, he decided he needed to bring that error to the attention of Eastern.
Mr. Humphreys certainly got the attention of Eastern when he stood in the trench, physically obstructing the labourers from performing further work. He was also successful in persuading Eastern to have the work assignment changed shortly after the site service work on the Project had started. The applicant claimed that Mr. Humphreys and Local 663 had engaged in an illegal strike, called an illegal strike and threatened to call or engage in an illegal strike. The applicant also claims that Eastern was a party to the illegal conduct of Mr. Humphreys and Local 663 by permitting the work to stop and then rewarding Mr. Humphreys' illegal conduct by changing the work assignment.
Counsel for the applicant relied on the definition of "strike" in section 1(1) of the Act and alleged that the applicant, through the actions of Mr. Humphreys for which it is liable, relying on section 107(2), violated sections 81 and 83 of the Act. Counsel submitted that the applicant is entitled to remedies under section 144 on the basis that Mr. Humphreys engaged in an unlawful strike, engaged in conduct that he knew would cause an unlawful strike, and threatened to call or authorize an unlawful strike, all for the purpose of having Eastern change the assignment of pipe laying work in relation to the installation of site services. Counsel for the applicant submitted that Local 663 and Mr. Humphreys should not be allowed to benefit from their illegal conduct and the Board should therefore find that the work assignment to the applicant was proper and that Mr. Humphreys and Local 663 should be prohibited from interfering in any further assignments given to members of the applicant. Counsel argued that if the Board were not to grant relief to the applicant in this case, it would encourage self-help and illegal conduct by those unions unhappy with a work assignment. He submitted that Mr. Humphreys had simply bypassed the established procedures for dealing with work assignment issues by taking the law into his own hands. Counsel argued that the Board should send a strong message to Mr. Humphreys (whom the Board had declared had threatened an unlawful strike and "had acted in a manner which he knew or ought to have known that, as a reasonable and probable consequence of which, employees . . .would engage in an unlawful strike." See Sarnia Construction Association, [1996] OLRB Rep. May/June 488 that he cannot continue to flout the law and engage in illegal conduct with impunity.
I understand the frustration of the applicant, seeing the work that had been assigned to its members taken away from them after Mr. Humphreys physically obstructed their work by standing in the trench where the work was taking place and after a meeting with the general contractor where he talked about his members being unhappy while there was a lot of U.A. work to be done on the Project. The applicant asserts that the action taken by Mr. Humphreys was intended to send a clear message to Eastern; either give my members the work or there will be work stoppages on the project. One can also appreciate that it was reasonable for the applicant to assume that the Eastern responded to what the applicant thought was a clear threat of work disruptions by members of Local 663 on a time sensitive job.
A close examination of the evidence does not support those assumptions. The evidence did not establish that an unlawful strike had started on Monday August 30 after Mr. Humphreys climbed down into the trench and, more importantly, there was no evidence of a threat of a strike by members of Local 663.
When members of the applicant stopped laying pipe on Monday August 30, they did so because Mr. Humphreys was in the trench and they were physically obstructed from carrying out their work assignment. They were not engaged in "a refusal to work or to continue to work.. .in combination or in concert or in accordance with a common understanding...." The evidence was clear that they were prevented physically from performing their work. In my view, employees who are prepared to continue working but are simply unable to work because someone or something has physically prevented them from doing so cannot be said to be engaging in a strike. On the applicant's theory, any cessation of work by a group of employees would be a strike, no matter the reason. I did not accept that theory.
As for Mr. Humphreys engaging in a strike, he is not an employee who refused to continue to work. Rather, he was obviously working for his employer (Local 663) when he was in the trench. Finally, the alleged work stoppage continued for, at best, 45 minutes. Once Eastern had instructed its subcontractor to cease working, the applicant's members were no longer expected to engage in work. Clearly, their alleged work stoppage did not continue during their lunch period, when they would not be working in any event. In my view, employees cannot be participating in a strike when their employer either directs or permits them to stop performing work. The members of the applicant resumed working after Mr. Humphreys and Eastern agreed that they would do so pending a review of the situation and a decision by Eastern over the work assignment that afternoon. Even if there was a strike by the labourers, which I am satisfied there was not, it was over in about 45 minutes, which would be another reason not to grant declaratory relief.
Eastern denied it had been threatened by Mr. Humphreys. The officials of Eastern who made the decision to change the assignment of work from the applicant's members to the members of Local 663 did so because they had undertaken earlier to have the site services work done by members of Local 663. That was their testimony. The only direct evidence from the applicant of Mr. Humphreys engaging in a threat was when he told officials of Eastern during his meeting with them (and with Mr. Leone and others) on Monday August 30 that there was a lot of U.A. work and his members are not happy. Mr. Humphreys, in his testimony, acknowledged saying during the meeting that there was a lot of U.A. work on the project, that his members were watching members of the applicant doing the work that U.A. members should be doing and they were not happy.
While one could interpret those comments in many different ways (indeed, even Mr. Leone did not say that Mr. Humphreys was threatening that members of Local 663 would stop work; rather Mr. Leone said in his examination in chief that Mr. Humphreys' statement was what business managers say to let employers know that there will be problems if things are not done the way the business manager wants) they do not, by themselves, constitute a threat of an unlawful strike. Having problems on a job can mean any number of things that fall far short of an illegal strike. Where the alleged victim of the threat, in this case Eastern, does not interpret what was said as a threat of an illegal strike, and where it changed its work assignment, according to the evidence of the two senior management people on the Project because members of Local 663 were to have done that work, then there is no basis for me to find that Local 663 had threatened an unlawful strike.
For these reasons, the application was dismissed at the conclusion of the hearing.
The decision made in Board File No. 1629-99-U does not affect the application made by the applicant in Board File No. 1796-99-JD. That application is to continue before the Board. The responding parties in Board File No. 1796-99-JD are directed to file their responding material in accordance with the Board's Rules.
The application in Board File No. 1796-99-JD is referred to the Registrar.
This panel of the Board is not seized with this matter.