0049-00-G International Union of Operating Engineers, Local 793, Applicant v. 1130887 Ontario Inc. o/a Latta Crane Services, Responding Party.
BEFORE: David A. McKee, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
APPEARANCES: Ben Barnes, Ken Lew, David Morris and John Monti for the applicant; Gary Latta and Tim Flannery for the responding party.
DECISION OF THE BOARD; June 19, 2000
This is a referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”). The applicant, the International Union of Operating Engineers, Local 793 (“the union”) alleges that 1130887 Ontario Inc. o/a Latta Crane Services (“the employer” or “Latta”) has violated Article 9.3 of the Master Portion of the collective agreement between the union and the Operating Engineers Employer Bargaining Agency (“EBA”). The union alleges the employer has done so in purporting to reject the appointment of Mr. David Morris as steward for the Toronto yard.
The collective agreement is composed of a Master Portion and several different types of appendices. The Master Portion in which Article 9.3 is found contains the basic structure of the collective agreement. Schedules “E” to “N” are appendices which deal with the wage rates and other monetary provisions for each geographic area of the Province. Each schedule is stated to apply to “Building and Construction Work”. Schedule “O” deals with survey work and is similar in structure to the others. Schedules “A” to “D” apply to specific types of employers and specific types of work. Schedule “A” is the applicable one for this grievance and deals with employers who carry on business as Crane and Equipment Rental Companies. It contains similar provisions to those in Schedules E to O with respect to wages and monetary allowances, but contains additional provisions which are specific to the crane and equipment rental business.
Articles 9.3 and 9.4 of the Master Portion provide as follows:
9.3 It is agreed that for each project the Union may appoint one employee per Employer per shift to act as Steward, and shall give the Employer notice, in writing, of such appointment and changes thereafter. The Union shall have the authority to appoint an alternate to act as Steward in the absence of the regular Steward. The Union may request the appointment of additional Stewards where considered necessary. Such request shall not be unreasonably withheld. It is further understood and agreed that on mutual agreement of the Union and Employer a Steward appointed shall be considered a company-wide Steward. Such request from the Union shall not be unreasonably denied.
9.4 The Steward shall be one of the last two employees covered under the terms of this Agreement to remain working provided he is competent and capable of performing the remaining work.
The facts are very brief. On December 15, 1999 the union sent a letter to the employer appointing David Morris as a union steward for Latta Crane Services “at the Toronto yard”. Latta refused to accept this appointment. Latta took the position that this appointment was of a “company-wide steward” and that its consent was required. It refused to give that consent, for what it believed were good reasons. The union takes the position that this appointment was made under the first sentence of Article 9.3 and that no consent from the employer is required. As the parties were unable to resolve this difference, it was referred to arbitration.
The grievance must be seen in the context of the employer’s operation. Like most crane and equipment rental businesses, it maintains its equipment at a yard. This equipment is dispatched to locations at which the equipment is used and, usually, an operator performs specific tasks for a limited time period. Though there may be 20 operators on one site for a limited time, more typical is the single operator (perhaps with an oiler and/or driver) and a piece of equipment for a limited period of time. Operators are dispatched from and return to the yard.
Latta has three yards. The location will dictate the distribution of work to some extent, but there are no boundaries among the three yards as to job sites to be serviced. Employees from the Toronto yard may be dispatched anywhere in the Province. For many years, Latta had only one yard in Kitchener. It expanded to Toronto in the mid-1990’s and now has a London yard. Mr. Morris worked out of the Toronto yard and the union wished to appoint him as a steward in respect of employees working out of that yard.
One of the features of Schedule “A”, dealing with crane and equipment rental companies, is Article 2 which deals with seniority. This is an unusual provision in a construction industry agreement. This article provides as follows:
ARTICLE 2 – SENIORITY
2.1 When a new employee has accumulated sixty (60) working days of employment within a period of three hundred and sixty-five (365) consecutive calendar days, he shall be defined as a regular employee, and his seniority will then date back to his original starting date with the Employer.
2.2 When it is necessary to lay-off regular employees or rehire regular employees who have been laid off, the employees to be laid off or rehired shall be selected on the basis of seniority combined with performance of work assigned within their classifications. Seniority records shall be maintained by the employer and shall be posted, and the Union shall be issued a copy on request.
Latta has (the Board was advised) produced seniority lists and presented them to the union. Each yard is treated as a separate group for purposes of seniority. Both parties have treated “seniority with the employer” in Article 2 of Schedule A as “seniority with the employer at a yard”. Latta has most recently produced three seniority lists. When the yard was opened in Toronto, both parties agreed that employees transferring from Kitchener to Toronto would bring their “employer seniority date” with them, provided they transferred within six months of the opening of the Toronto yard. After that time, any employee wishing to transfer from Kitchener to Toronto would be treated as a new employee for the purposes of seniority in the Toronto yard.
The employer’s position is that Article 9.3 recognizes two types of stewards: a steward “for each project” and a “company-wide steward”. It argues that a yard cannot be a project. A project must be a place where actual construction work is being performed. It follows, therefore, that the only type of steward the union can appoint to represent all employees in a particular yard is a “company-wide steward” and that it has the right to refuse to accept this appointment on reasonable grounds. The union argues that a yard is simply one type of project and that it has the right to appoint a steward unilaterally. Only if the Board decides otherwise would the union argue in the alternative that it was entitled to appoint him as a company-wide steward.
The Board accepts that the union did not attempt to appoint Mr. Morris as a company-wide steward. Pursuant to Article 9.4 of the Master Portion, to have done this would be to give him seniority ranking over persons in the London and Kitchener yard. The union has an obligation to represent the employees in these yards. If it chose not to embark on a course which would have the effect of altering the seniority standing of those employees, the Board will not “deem” it to have done so. The question is, therefore, whether Mr. Morris was a steward appointed for a “project”, i.e. the Toronto yard.
In attempting to define the word “project”, both parties referred to some past practice. The word “project” is potentially ambiguous, and extrinsic evidence may be used in interpreting ambiguous provisions of an agreement if such evidence demonstrates a shared intention of the parties which was expressed ambiguously in writing (see Leitch Gold Mines Ltd. v. Texas Gulf Sulphur Co. (Inc.) (1971) 1968 CanLII 405 (ON HCJ), 3 DLR (3d) 161 (HCJ) at pp. 215-218). However in this case none of the evidence we heard demonstrated a shared intention as to the meaning of the word.
The union relied on the fact that it has appointed stewards in each yard of every other employer covered by Schedule “A” in the Province. However, there was no evidence that Latta knew of this or accepted it as applying to its operations. Additionally, the absence of a conflict when the union appoints such stewards does not necessarily indicate a widespread understanding and acceptance of a particular view of the collective agreement.
Latta relied on two pieces of evidence. When the Union appointed Germaine Gravel as steward in Kitchener, he was explicitly appointed as a “company-wide steward”. While this does suggest that the union was of the same view as the employer, it is also true that at the time, the Kitchener yard was the only one operated by Latta. We are troubled by this evidence, but we cannot find it as proof of a shared intention. Unlike the production of a “yard” seniority list by the employer, and acceptance of and reliance on it by the union for the purposes of the administration of the collective agreement, this evidence is not clearly indicative of a shared intention to choose one of two possible meanings of a term in the collective agreement. Secondly, one year later, the union appointed a Mr. Massimo as steward for the Toronto yard. Latta purported to reject him as well, relying on its belief that it had a right to do so with respect to a company-wide steward. The union protested verbally, but it did nothing else at the time. The Board heard no explanation from the union as to which business representative might have been responsible for the Latta yard and recommending the appointment of Mr. Massimo at the time or whether he or she was available to be called as a witness. However, given that the dispute centred on a different individual who may well have been reluctant to become involved in a grievance or about whom the union may have had second thoughts, this evidence too is not sufficiently clear to be of assistance to the Board.
The employer also based an estoppel argument on these same facts. In the absence of a clear representation from the union, and more importantly any evidence at all of detrimental reliance by the employer, there is no basis for the application of the doctrine of estoppel.
This leaves us, then, with the task of interpreting the plain language of the collective agreement. The employer argues that the word “project” must mean a location at which construction work is carried on. This is certainly one meaning which can easily be given to the word. However, the word “project” is sufficiently broad to encompass a number of meanings. The Dictionary of Canadian Law (2nd ed), ed. Dukelow (Carswell, 1995) contains the following entry:
PROJECT. n. 1. A place where the building, construction, improvement, repair, alteration, reconstruction, demolition or excavating of any building structure, road, bridge, pipeline, wharf or marine structure, excavation or tunnel is being carried on. 2. Any project heretofore or hereafter undertaken under the authority of the Prairie Farm Rehabilitation Act (Canada), including the establishment of community pastures and grazing reserves and the construction of works for irrigation or water supply purposes. The Expropriation (Rehabilitation Projects) Act, R.S.S. 1978, C. E-17, s.2. 3. Any work proposed or developed under The Water Rights Act or under any Act providing for the improvement, development, utilization or control of water or land resources. The Watershed Associations Act, R.S.S. 1978, c. W-11, s.2. 4. A project for: (i) the more efficient use and economic development of lands; (ii) the development of income and employment opportunities in rural areas and improving standards of living in those areas; or (iii) the development and conservation for agricultural purposes of water supplies and for soil improvement and conservation that will improve agricultural efficiency. Agricultural Rehabilitation and Development Act (Ontario), R.S.O. 1980, c. 11, s.1. 5. A pool or part of a pool in which operations in accordance with a scheme for enhanced recovery of oil, approved by the Board, are conducted; or, if the scheme provides for the application of more than one recovery mechanism, the part of the area subject to the scheme which is subject to one such recovery mechanism. Oil and Gas Conservation Act, R.S.A. 1980, c. 0-5, s.1.
In KBM Forestry Consultants Inc., [1987] OLRB Rep. Mar. 309, the Board defined “project” for the purposes of the, then, Successor Rights (Crown Transfers) Act as “the interrelated steps or functions (or “the work”) established for the purpose of achieving a particular objective”. None of these definitions is helpful. They simply demonstrate the variety of meanings that a particular context can give to this very general word.
Further, on the simplest level, it cannot be said that no work covered by the collective agreement is performed in a Toronto yard. The cleaning, oiling and maintaining of equipment goes on there and cranes and equipment are driven to and from the yard to job sit locations. Bargaining unit employees are paid under the collective agreement to perform this work (see, for example, Articles 1.10, 1.12 and Article 2.7(c) of Schedule “A”). The yard is, itself, a location at which work covered by the collective agreement is performed. This does not answer the question fully, however, as the union clearly intends Mr. Morris to be able to carry out his duties in respect of problems encountered by employees at locations to which they are dispatched from the yard.
The collective agreement does not provide a consistent use of vocabulary to provide us with a dictionary or a guide. In Schedule “A”, travelling expenses are dealt with in Article 3. Article 3.2 refers to time spent travelling “from yard to job, job to job, and job to yard”. Other Articles in the Schedule refer to “job sites”. However, in Article 3.2, the opportunity to distinguish between a “yard” and a “project” was not utilized by the parties. The location at which work is performed is generally not described by a single noun in the collective agreement, and especially in the travel allowance provisions. Usually, the collective agreement uses language such as: “when an employee is required to work more than ninety kilometres from [some fixed point or boundary]”. Where a single noun is used, it is more frequently “site” (e.g. page 19 and page 91) or “job” (e.g. pages 119, 128 and 172). Only once does the word “project” appear to be used (page 139, Schedule “H”, Building and Construction Work in the Niagara area). Thus, the parties have not used language in the collective agreement in a careful and deliberate manner so as to give the words a specific meaning.
In giving meaning to Article 9.3, it is therefore even more important than usual to give a meaning to the word used which is consistent with the purpose of the specific provision in which the word occurs, having regard to the context of the entire collective agreement.
The right to appoint stewards is found in virtually every collective agreement. Presence of stewards is generally of critical importance to the operations of the union. In an organizational sense, stewards are the foundation of the union structure. They convey information from the bargaining unit to union officers, and vice versa. Stewards are, or should be, familiar with the collective agreement and can act as a ready reference for any bargaining unit member. The union’s duty of fair representation is greatly enhanced by having persons relatively close to the work situation who can respond to the issues of members. Good labour relations requires the early resolution of disputes, where possible, by those closest to the issues at first instance, in a manner which is both quick and informal.
Important as the role of the steward may be, there is no statutory status for him or her. As a matter of internal organization or administration of a trade union, the union has the right to appoint any number of stewards and to assign them any duties it sees fit. Arguably an employer would be obliged to deal with all of them as officers of the union or face an allegation of a violation of section 70 or 72. However, the effect of being a steward on an employee’s rights in an employment context are entirely a matter of contract. The union must bargain for any special provisions applicable to stewards, such as super seniority, it seeks to have. Usually one sees in a collective agreement an unfettered right to appoint a steward. Any limitations are generally in terms of the rights and privileges which attach to stewardship. In this Agreement, in Article 9.3, the union did agree to a substantial limitation on its rights to appoint a company-wide steward. It retained the right unilaterally to appoint a steward “for each project”. The distinction between the two types of stewards is therefore purely a matter of contract interpretation
The issue in this case is what sort of meaning the parties have given to the word “project”. The employer’s argument would produce a very strange result. If a project is the location at which Latta’s customers’ work is done, that suggests a very large number of stewards. The Board did hear evidence that on one occasion a large number of employees were dispatched to work on one job for a duration of several months, but that this is not the norm. More typically, an employee or a small crew consisting of an operator, an oiler and perhaps a driver, briefly, is dispatched. To use the employer’s interpretation would mean that half or more of the bargaining unit could potentially be appointed as stewards. This result seems inconsistent with the representative role of the steward, and does not really address the objectives for having union stewards in the first place.
Further, it gives an odd meaning to Article 9.4 of the Master Portion in the context of Schedule “A”. Schedule “A” creates a seniority group for employees at the Toronto yard. The purpose of Article 9.4 is to protect the right of the steward from lay-off where there is no seniority, or to give him “super seniority” where there is a seniority list. The purpose, quite simply, is to enable the steward to perform his or her duties without fear that any friction or ill-will generated thereby will affect his or her employment negatively. If the steward has “super seniority” only for the duration of one customer’s job, it is virtually meaningless. Further, if Article 9.4 is effective only on each job site location, as among the two or three employees present there, when the employer proposes to lay off an operator under Article 2.2 of Schedule “A” (where lay-off is by classification), the employee’s only option would be to displace his or her own oiler under Article 9.4 of the Master Portion. This would leave the job without an operator. If, on the other hand, the protection offered to a steward in Article 9.4 is to be exercised within the yard seniority list by the many “stewards” (who may make up close to half the bargaining unit) appointed on each project, it is difficult to see how the “super-seniority” is to be exercised. If the employer’s definition of “project” is adopted, it is very difficult to see how the Master Portion in Schedule “A” could be made to work sensibly, or at all.
If the union is correct in stating that, for the purposes of employers under Schedule “A”, the project is the yard, these difficulties disappear. The steward is the union representative for a larger group of employees, all of whom have a regular, though not daily, connection to the yard. Employees can arrange to meet with the steward at the yard in a way that does not require extended absences from a job location. It is easy to see how super seniority for one person in a single seniority group would apply. If the employer laid off a steward who is an operator with low seniority, he or she could, by virtue of Article 9.4, insist that a more senior operator be laid off first. Thus, the employer’s complement of employees by classification would not be distorted, nor would a steward displace an employee in another classification with a lower rate of pay or in a manner which might raise skill and ability issues.
On balance, then, the interpretation urged by the union is more consistent with the nature and purpose of the rest of the collective agreement. We therefore find that, in this case, the “project” for the purposes of Article 9.3 for Latta Crane Services is the Toronto yard. The union had the right unilaterally to appoint David Morris and the employer violated the collective agreement in refusing to accept him as a steward. Latta is therefore directed to recognize David Morris as steward.
This was a bona fide dispute about the proper interpretation of a less than clear provision of the collective agreement. In the circumstances, an order to reimburse the applicant for its fees under section 133(13) would be inappropriate and no such order will be made.
Since we have found that the union had the right to appoint Mr. Morris as steward, it would be unnecessary and inappropriate to comment on the alternative issue of whether the employer’s reasons for refusing to consent to Mr. Morris’ appointment as a company wide steward were reasonable. Suffice it to say that the Board does not accept, in the abstract, all of the criteria argued by the employer. While we too are concerned with some of the alleged details concerning Mr. Morris’ work history, it would be unfair to him to comment on them. He did not, after all, hear any of the allegations until the day of hearing. If the incidents were in fact as serious as they are alleged to have been (particularly the Bennett & Wright letter of September 30, 1999) it is not only necessary for the company and the safety of those working on the same sites as the company, but also a matter of fairness to Mr. Morris, that they be brought to his attention in a timely and appropriate fashion. If necessary, this may involve the discipline process. The Board would suggest, however, that a counseling or disciplinary meeting is the more appropriate forum in which to have raised these issues with Mr. Morris and the union than at the point at which the union seeks to appoint him as a steward.
“David A. McKee”
for the Board