Ontario Labour Relations Board
File No.: 1821-99-U Date: August 23, 2000
Giancarlo Cesaroni, Applicant v. The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, Responding Party.
Before: Laura Trachuk, Vice-Chair.
Appearances: Giancarlo Cesaroni and Leslie Swan for the applicant; Laurence C. Arnold and David Clarke for the responding party.
Decision of the Board
1This is an application under section 96 of the Labour Relations Act, 1995 (the "Act") alleging that the responding party (referred to as the "union") violated section 74. A consultation was conducted with respect to this matter. After a consultation the Board may decide to allow the complaint, to dismiss the application or, in rare cases, to expand the consultation to a hearing and hear viva voce evidence. In the circumstances of this case the Board sees no need for viva voce evidence and can decide the matter on the information presented at the consultation.
2The following facts were disclosed at the consultation and in the materials. The applicant is a member of the union. The union and Robert B. Somerville Co. Ltd. are bound to the Pipe Line Contractors Association of Canada and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (referred to as the "UA Pipeline Agreement"). On or about May 28, 1999, the applicant was dispatched from the union's office to the Somerville work site. He was dispatched as a "ditch side spacer". Prior to that date the ditch side spacer on the crew had been the son of the steward, Ed Laughlin. However, Mr. Laughlin was not qualified to work as a ditch side spacer and the applicant was sent to replace him. The applicant asserts that this earned him the enmity of the steward.
3Mr. Cesaroni was dispatched to a "pipe gang" which included a foreman, a stabber, a clampman, a work side spacer, a straw as well as a number of welders and others. A pipe gang is required to have at least five journeymen under the collective agreement.
4The pipe gang was involved in laying and welding pipe using a device called the inside clamp. The work of the pipe gang was substantially finished on or about June 19, 1999. The applicant claims there was still some pipe to be laid at that time. The union says that the foreman, Shawn Kerr decided which members of the crew should be laid off in accordance with the collective agreement. Altogether 20 members were laid off. The union claims that this decision was made on June 18 and communicated to the workers. Mr. Cesaroni claims that he was not advised until June 19. On June 19 he was asked if he would trade jobs with the clamp man, Ken Reid, for the day so that Mr. Reid could get some experience in the spacer job and he agreed. The union says this request was made in the context of it being the last day on the job and that Mr. Cesaroni knew that. Mr. Cesaroni claims he did not know that it was the last day until he was told he was laid off after commencing the clamp man duties. As Mr. Reid was not laid off that day Mr. Cesaroni claims he was asked to transfer to the clamp man's job specifically so that he would be laid off while Mr. Reid was retained as a spacer. The union denies that Mr. Reid was retained as a spacer. It says he was kept on for four days on a "poor boy crew". Mr. Cesaroni claims that if that is the case then the last pipes were not laid in accordance with the collective agreement and the union should have filed a grievance about that.
5The UA Pipeline Agreement provides that 50% of the employees on the job can be selected by Somerville and 50% must be provided by the union. That ratio is maintained throughout the job. When it comes to a lay off, the individuals with the skills necessary to perform the remaining work must be retained but otherwise the ratio must be maintained. The UA chooses which of its members must be laid off, after those with the necessary skills are retained, in reverse order of hiring. However, any members working on travel cards from another local are laid off first. In this case, the work side spacer, who was on a travel card was laid off, as was the applicant who was the last to be hired. The welders and helpers were also laid off. The "poor boy crew" which remained did miscellaneous pipe welding of smaller sections of pipe and related work using an outside clamp which does not require a designated ditch side spacer or work side spacer. Ken Reid was hired three weeks before Mr. Cesaroni and was therefore retained on the poor boy crew for three days according to the last in, first out practice.
6The Somerville documents submitted by the union support the union's explanation. They refer to the crew the applicant was on as the "pipe gang" and indicate that in the last two days it was doing 20 to 30 joints per day. The union indicated that were averaging 30 to 40 joints per day. The documents refer to the crew remaining after the lay-off as the "poor boy" crew and indicate that it was doing a few joints and a number of other tasks for four days. Mr. Reid was laid off after three days.
7The applicant sent a letter to the union's business agent complaining that he should not have been laid off. The business agent investigated and then wrote to Mr. Cesaroni advising that it appeared he was laid off in accordance with the collective agreement and the union's practice. However he indicated that he would investigate further. Counsel for the union subsequently wrote to the applicant advising him that there did not appear to be any basis upon which to file a grievance. Mr. Cesaroni wrote back complaining that the decision was wrong because the "outside clamp" is spacer's work. He then filed this application with the Board.
Decision
8Section 74 of the Act 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.
9The Board has carefully considered the facts and submissions of the parties. There is no basis for a determination that the union represented the applicant arbitrarily, discriminatorily or in bad faith. Although Mr. Cesaroni asserts that he was told he was the most hated man on the job, there is no evidence that the union represented him improperly. The applicant was laid off at the same time as the other spacer and a number of other workers. He was the last one hired and should therefore be the first one laid off. There is no evidence he was "bumped" as the inside clamp was not used after his layoff. The union investigated his claim that he was improperly laid off and reasonably concluded that there was no basis upon which to file a grievance.
10The Board does not find that the union violated the Act in its representation of Mr. Cesaroni and this application is therefore hereby dismissed.
"Laura Trachuk"
for the Board