1497-99-U Matti A. Rissanen, Applicant v. United Brotherhood of Carpenters and Joiners of America, Local 446, Responding Party v. Carwell Construction Limited and Primal Contracting Company Ltd., Intervenors.
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Matti Rissanen and Marcel Jolie for the applicant; Micheil Russell and Gilbert Scott for the responding party; William Anderson and Oriana Lazzaro for the intervenors.
DECISION OF THE BOARD; May 24, 2000
This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party (referred to as the “union”) has violated section 74. A consultation with respect to this matter was held on March 22, 2000. Section 74 of the Labour Relations Act, 1995 provides as follows:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
The Board does not find that the union represented Mr. Rissanen arbitrarily, discriminatorily or in bad faith. Mr. Rissanen is an engineering technologist who has been a member of the union for many years. He explained that he usually works in a “supervisory” role on jobs due to his experience and expertise. He also has a disability related to his back, which places physical limitations on the jobs he can do. He cannot lift heavy loads or engage in repeated stretching or bending.
Mr. Rissanen says that he has a “gentleman’s agreement” with the union’s business agent, Gilbert Scott with respect to his disability. According to Mr. Rissanen when his name comes to the top of the referral list and a request comes to the hall for a foreman, Mr. Scott will try to ascertain the job’s requirements. He will then describe them to Mr. Rissanen who will decide if he can perform the duties. In or around June 15, 1999, Sherwood Carr the project superintendent for Carwell Construction Limited at the Cambrian Mall site in Sault Ste. Marie, contacted the union and asked it to refer a carpenter’s foreman to Primal Contracting. Mr. Rissanen was referred to the job pursuant to the arrangement with Mr. Scott referred to above. It was Mr. Rissanen’s understanding that the job involved supervising the sub-trades. He explained that Mr. Carr told him that he would be “babysitting” the trades. (Mr. Carr denies making the statement). There were also three carpenters referred by the applicant whose work Mr. Rissanen was to oversee or coordinate.
Mr. Rissanen worked on the job for about three weeks. On Friday, July 9, the three carpenters were laid off. Mr. Carr called Mr. Scott the same day and advised him that Mr. Rissanen would be laid off on Monday. Mr. Scott asked Mr. Carr to wait until he could speak to Mr. Rissanen before laying him off as he knew he would be upset. However, Mr. Carr called Mr. Rissanen at 7:00 a.m. Monday morning, July 12, and advised him that he was laid off. Mr. Rissanen objected and later came to the job site to collect his things. He called Mr. Scott who also attended at the job site. Mr. Scott then had a meeting with Mr. Carr in which he asked him not to lay Mr. Rissanen off. However Mr. Carr responded that he had no work for Mr. Rissanen to do as there was no one for him to supervise since the carpenters had been laid off. Mr. Scott accepted that there was no work for Mr. Rissanen. Mr. Rissanen asked Mr. Scott to file a grievance but he refused as he had assessed the situation as a legitimate lay off.
Later that afternoon the union received a call from the intervenor for a “working foreman” who could work with the tools. The union dispatched a different member. There is a note on this member’s referral slip which says “working foreman”. The collective agreement refers to “carpenter’s foreman” and “leader” but not “working foreman”. It is not clear whether he was paid the same rate as Mr. Rissanen. At the consultation Mr. Rissanen claims he could have done the carpentry work that he understood was required on the job at that time.
Mr. Carr provided the union with a letter setting out various complaints about Mr. Rissanen relating to his inability to work with the tools due to his back and leg pain. This letter does therefore suggest that the company had reasons in addition to the lay off of the other carpenters for “laying off” Mr. Rissanen.
A few weeks after the lay off, Mr. Rissanen was offered a referral to another job as a carpenter’s foreman but turned it down as it involved heavy lifting.
The Board does not find that Mr. Scott acted arbitrarily, discriminatory or in bad faith in refusing to file a grievance on Mr. Rissanen’s behalf. A union is not required to file a grievance on behalf of a member if, after fairly considering the matter, it does not consider it to be justified. In this case, Mr. Scott and Mr. Rissanen had worked out an arrangement to accommodate his disability which had benefited him for a number of years. There was no claim by Mr. Rissanen that there was anything discriminatory or inappropriate about this “gentleman’s agreement”, in fact, he was the one who relied upon it. Furthermore, he declined a referral two weeks later pursuant to this arrangement. As a result of this past relationship Mr. Scott had learned what Mr. Rissanen’s capabilities were and tried to refer him to jobs that he could do. It appears that this meant that he would try to ascertain whether the contractor really needed a foreman who could work with the tools as well as supervise. If it looked like a contractor needed someone who could supervise but perform little or no physical work he would refer Mr. Rissanen if he agreed. However, there would be no arrangement with the contractor about any limitation on the physical duties that Mr. Rissanen could perform. The contractor would not necessarily know that Mr. Rissanen could not perform a full range of duties. It seems therefore, that Mr. Rissanen and Mr. Scott were banking on their assessment of the work requirements of any referral being correct as well as the fact that carpenter’s foremen do not always have to work with the tools. However, it appears that in this case the intervenor was not satisfied with a carpenter’s foreman who could not do the full range of duties it wanted to impose. Mr. Scott reasonably concluded that the intervenor required more duties to be performed than he and Mr. Rissanen had expected. The other three carpenters were laid off the same day so there were no carpenters to supervise but also no carpenters to actually work with the tools. Mr. Rissanen asserts that he understood he was to “baby-sit” the trades but it turned out that the job required more than that. There was, therefore, no job available which was limited to the supervisory duties he customarily performs.
For all of the above reasons the Board finds that the union did not violate the Act in its representation of Mr. Rissanen and this application is therefore dismissed.
“Laura Trachuk”
for the Board