3749-98-G International Brotherhood of Electrical Workers, Local 530, Applicant v. C & C Enterprises Electrical Construction, Responding Party.

BEFORE: John Morgan Lewis, Vice-Chair, and Board Members G. Pickell and A. Haward.

APPEARANCES: Bernard Fishbein, Jack Dowding, Ron Chivers, Ivan Chapdelaine for the applicant; Ray Werry, Ed Braithwaite, Ross Harris, John Baxter and Andy Pilat for the responding party.

DECISION OF THE BOARD; December 4, 2000

1This is a referral of a grievance to arbitration in the construction industry pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”).

2The applicant alleges that the grievor, Mr. Ron Chivers (“Chivers”), was improperly laid off by the responding party, C & C Enterprises Electrical Construction (“C & C”), on December 23, 1998. The applicant contends that the lay-off was improper as Chivers was the appointed “shop steward” for C & C and that there were other employees still in the employ of C & C (albeit on different job sites) on December 23, 1998 when Chivers was laid off. The applicant asserts that the lay-off was in violation of Article 503 of the Master portion of the collective agreement between the Electrical Contractors Association of Ontario and the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario effective from May 1, 1998 until April 30, 2001 (the “collective agreement”). The applicant also maintains that Chivers was laid-off by C & C as a result of carrying out his duties as a steward. The applicant seeks a declaration that the lay-off was in violation of Article 503 of the collective agreement and that this panel of the Board remain seized to deal with the issue of the appropriate relief flowing from such a declaration.

3C & C concedes that Chivers was the appointed steward on the Blue Water Bridge project in Sarnia and that he was part of the last group of employees working on this project when he was laid off. C & C further concedes that there were other employees on different job sites who remained in its employ when Chivers was laid off. C & C disputes that the collective agreement provides for a “shop steward” who possesses a “super-seniority” with respect to its entire work force. C & C denies that the activities of Chivers, in carrying out his duties as a steward, were a factor in laying him off.

4The underlying issue between the parties is whether the collective agreement permits the appointment of a shop steward who is to be among the last group of employees working not just in reference to a particular job site but rather, with respect to all job sites on which a company may be working.

5The relevant provisions of the collective agreement as set out as follows:

502 STEWARDS

The Business Manager reserves the right to appoint or remove a Steward or Stewards on any job where workmen are employed under the terms of this Agreement.

The Contractor shall be notified in writing when a Steward is appointed.

The Steward will be responsible for his regularly assigned work on behalf of the Contractor.

Such Stewards shall be allowed sufficient time to see that the provisions of this Agreement are observed.

503 STEWARDS

No Steward shall be discriminated against by the Contractor because of the performance of his duties as a Steward.

The Steward shall have the opportunity to work on all overtime and shall be notified in advance of all overtime.

The Steward shall not have his employment terminated until as near as possible to the completion of the job, unless with just cause and unless prior notification has been given to the Business Manager.

504 STEWARDS

If it is desired to transfer the Job Steward to another job, such transfer must be approved by the Local Union Business Manager.

The Facts

6Chivers has been a member of the applicant for twenty-three years and has been a journeyman electrician for the last eighteen years. Chivers commenced his employment with C & C in April of 1994.

7Jack Dowding (“Dowding”) has been the Business Manager of the applicant for 7 years. Prior to his election as Business Manager, Dowding served on the Executive Board from 1986 to 1988. Dowding is a certified electrician and has been a member of the applicant for twenty-five years.

8On March 4, 1996, Dowding wrote to C & C advising that he had appointed Chivers as shop steward effective February 29, 1996. The letter is addressed to Ed Braithwaite (“Braithwaite”), President of C & C and reads as follows:

Please be advised that Ron Chivers will assume the role of shop steward representing IBEW Local 530 at C & C Enterprises effective February 29, 1996.

It is my wish to combine the Certified Worker role with that of the Shop Steward.

Brother Ken Everleigh has been gracious enough to relinquish this title after many years of exemplary service.

Brother Everleigh will retain the position of job steward on any site he is employed on with the exception of the Maintenance Crew at Bayer Rubber Co. Both will report to me.

9On March 6, 1996, Braithwaite replied in writing with respect to the appointment of Chivers as a shop steward. The correspondence is addressed to Dowding and is set out below:

We are in receipt of your letter dated March 4, 1996, taking effect February 29, 1996. C & C Electrical Construction Limited’s interpretation of Clause 502 of the Principal Agreement is that a Business Manager has the right to appoint a Steward on any job where workmen are employed under the terms of this Agreement. In the context [sic] our collective agreement, job refers to one particular construction project, not to a shop as you have suggested. Therefore the appointment of Ron Chivers as the “Shop Steward” is not a valid appointment.

Furthermore, I fail to see a clause in the collective agreement, which gives a Business Manager the authority to appoint a Health and Safety representative for a Contractor. I am certain that a great deal of effort was expended on your part to determine a suitable health and safety representative, however I would like to point out that our company takes safety very seriously and therefore a three week course in health and safety is certainly not sufficient enough to replace our current Health and Safety representative who has many years of experience and has been thoroughly trained by the “Quality Connection Health and Safety” program.

After careful review of this request, C & C Enterprises has decided not to recognize Ron Chivers as a steward, however we will continue to recognize Ken Everleigh as a job steward. I certainly hope this matter can be rectified quickly so that we may both get to the business of doing the work we are being paid to perform. May I suggest that in the future a common courtesy phone call would be more appropriate in dealing with such a matter.

10Dowding wrote again to Braithwaite on March 7, 1996 in which he re-affirmed the appointment of Chivers as a shop steward. Dowding writes:

Enclosed, please find a copy of I.B.E.W. Local Bylaw as pertains to Shop Stewards.

I recognize your concern with my letter dated March 4/96 and for that reason I also include the OHSA Section: (1), (5), (10).

Please be informed Brother Ron Chivers will replace Brother Ken Everleigh as Shop Steward. Brother Everleigh will remain as job steward for any job on which he is employed save and except those where Ron Chivers is also employed and like wise your maintenance project at Bayer Rubber.

11A copy of Article IX of the Bylaws referred to in the correspondence was introduced at the hearing. The Bylaws, not forming part of the collective agreement, are not binding on C & C. Nevertheless, the Board notes that term shop steward is not used in the Bylaws. The only reference is to the term steward. Section 2(b) of Article IX does refer to a shop or job. It was the position of Chivers that the terms steward and shop steward can and should be used interchangeably.

12According to Dowding, Ken Everleigh (“Everleigh”) had been the appointed shop steward for C & C for fifteen years. It was asserted that during his tenure with C & C, Everleigh had been transferred between jobs from time to time but he remained the steward on any job he worked by virtue of his position as shop steward. When Chivers replaced Everleigh as the shop steward, Dowding maintained that Chivers acted in a similar manner and was treated as a shop steward by C & C up until his lay-off on December 23, 1998.

13Chivers provided a number of examples in which he exercised the duties, which, Chivers argued, could only be identified as those of a shop steward and in which C & C did not take issue with his participation. We briefly summarize these instances as follows.

Blue Water Bridge (1997) – Employees who were fabricating lane indicators in C & C’s shop complained that they were not being paid in accordance with the collective agreement. The employees raised the matter with Chivers who was working on the bridge itself. Chivers confronted Ross Harris, Vice-President for C & Ct, who explained that the work in question did not fall under the terms of the collective agreement. The applicant did not accept this explanation and the matter was referred to the Board.

Blue Water Bridge – Height Premium for Apprentices (1997) – Chivers was approached by an apprentice who claimed that he was not receiving the full premium for working in high locations in accordance with the collective agreement. Chivers brought this matter to the attention of Braithwaite. The matter was unresolved and Dowding subsequently filed a grievance, which was referred to arbitration at the Board.

Lay-off of Carey Kohut (1997) - Chivers was working on the Blue Water Bridge at this time. Mr. Kohut is a member of the applicant and had been working at the Bayer Plant. Mr. Kohut had developed a medical condition and had been laid off by C & C. A meeting was called to discuss the possibility of placing Mr. Kohut on temporary lay-off (a status under the collective agreement in which a company maintains an individual’s health and welfare benefits in exchange for the company being permitted to recall the individual to work without having to comply with the applicant’s hiring hall procedures). Attending the meeting were Dowding, Braithwaite, Harris and Chivers. Jim Mills, the steward on the Bayer Rubber Plant, was not in attendance.

Bayer Plant – Night Shift (July, 1998) – Chivers was working on the day shift. He was advised that the employees working on the night shift were not receiving a meal as required under the collective agreement. Chivers raised this matter with the general foreman for C & C and the employees were compensated for the missed meals.

Meeting with Braithwaite (Beginning of 1998) – Chivers was called to a meeting with Dowding and Braithwaite to discuss improving the relationship between the applicant and C & C. The meeting took place at C & C’s office. The evidence was unclear as to who invited Chivers to the meeting.

Nova Styrene Plant – Hazardous materials (Fall of 1998) - On Chivers’ first day on this job he viewed a cement finisher mixing hazardous materials in close proximity of employees of C & C. Chivers cleared all of the electricians from the immediate area and raised his concerns with the cement finisher. It was agreed that the mixing of the materials would not take place in such close proximity.

Nova Styrene Plant – Lunch facilities (October 1998) – Due to insufficient lunch facilities, the employees of C & C were forced to eat their lunch outside. Chivers spoke to a technician for the plant and arranged for an extra lunchroom.

Blue Water Bridge – Lunch trailer (November 1998) – Chivers was working on the Blue Water Bridge. The employees of C & C were taking their breaks and eating their lunch on the bridge. Chivers requested that they be allowed to make use of the lunch trailer located at the base of the bridge. Chivers spoke to C & C’s foreman who agreed to allow the men to use the trailer.

Blue Water Bridge – Kevin Lupton (Fall of 1998) – Under the terms of the collective agreement, no employees shall use their own vehicle for company purposes unless they are paid. Chivers was advised that Mr. Lupton had been using his truck for delivering materials on the project. Chivers spoke to Mr. Lupton as well as Harris regarding this matter.

Temporary Lay-Off Calculations – As noted earlier, the collective agreement permits employees to be on temporary lay-off if an employer pays their health and welfare benefits. By placing an employee on temporary lay-off, an employer is permitted to recall an individual for work without having to utilize the applicant’s hiring hall. Chivers testified that he was responsible for ensuring that C & C accurately paid health and welfare benefits for those on temporary lay-off. In carrying out this responsibility, Chivers spoke directly with Harris. If a discrepancy arose, Chivers would refer the matter to Dowding.

14In June of 1998 Chivers was working at the Bayer Rubber Plant, a project on which C & C acknowledges that Chivers was the job steward. On June 11, 1998, C & C laid off ten men at approximately 10:30 a.m. Later that day C & C was requested by the owner of the plant to expedite certain work. To meet this request C & C requested that the remaining employees work overtime. In accordance with his duties as steward, Chivers was notified of the overtime request and met with the remaining employees to determine who wanted to work the overtime. As it turned out, none of the remaining employees agreed to work overtime. Braithwaite testified that this failure to complete the requested work caused harm to C & C in its working relationship with the owner. Braithwaite sent a letter to the applicant accusing Chivers of instigating the refusal to work overtime. Braithwaite then demanded that Chivers be removed as steward. The applicant cites this incident, as well as the other incidents in which Chivers was carrying out his duties as steward as the cause for his lay-off on December 23, 1998.

15Chivers testified that he had been placed on temporary lay-off on one occasion by C & C during his term as steward. The length of the temporary lay-off was eight weeks. C & C continued to employ other workers when Chivers was laid off. Chivers did not object to the lay-off at that time as he did not think it was fair to exercise his bumping rights to the detriment of the other employees of C & C. This is a curious response in light of the fact that the instant grievance relates to his being laid off by C & C.

16In addition to the enhanced security from lay-off, Chivers also was of the belief that as shop steward he was entitled to all opportunities for overtime on all job sites at which C & C was performing work. Chivers testified that he did not take advantage of this opportunity as he felt it would not be fair to those employees working on the job sites.

17Dowding testified that the appointing of shop stewards had been a long-standing practice in the Sarnia area. Shop stewards would only be appointed to larger companies having a number of job sites at which work would be performed simultaneously. According to Dowding, in such circumstances it was far more convenient to appoint one shop steward rather than a number of stewards for each of the job sites.

18Dowding also noted that a number of companies working in the Sarnia area had employees who were dispatched from the hiring hall report to the shop rather than a specific job. The referral slip would identify the shop as the work location. The pre-printed referral slips also identify the shop steward for the company. A number of referrals were introduced at the hearing for employees referred to C & C. The referrals listed the shop as the work location and identified Chivers as the shop steward. Dowding acknowledged, however, that the pre-printed referral slips were prepared by the applicant without either the input or the approval of C & C with respect to form or contents thereof. Braithwaite explained why employees were referred to the shop rather than a specific job site. According to Braithwaite, employees were referred to the shop in order to complete payroll information and receive a company orientation with respect to safety policies. Once these administrative functions were carried out the employees were dispatched to the respective job site.

19Dowding testified that he has also appointed a job steward for a company, which already had an appointed shop steward. In the eventuality that a shop steward was transferred to a job with a job steward, the shop steward would typically assume responsibility for the job site. In some instances, if Dowding anticipated that a shop steward was to be transferred to a job site, he considered appointing an interim job steward for that job until such time as the shop steward arrived on the job site. The Board heard from Ivan Chapdelaine, who is a member of the applicant and was appointed an interim job steward on the Nova Styrene Plant project in October 1998. According to Mr. Chapdelaine, he was the acting job steward until Chivers was transferred to the project. At that time, Chivers assumed responsibility for the project.

20Dowding acknowledged that the collective agreement makes no reference to either a shop steward or an interim job steward. His authority for appointing a shop steward rests in large part upon the long-standing practice in the Sarnia area to make such appointments. Even though it would appear that Dowding was made aware as early as March 1997 that at least C & C disputed that there was such a position as a shop steward, he did not raise the issue in the most recent negotiations for the collective agreement which was renewed on May 1, 1998. According to Dowding, there was no need to raise the issue as the current language was satisfactory in light of the area practice.

21John Baxter (“Baxter”) has been the owner and operator of Tee Jay Instrumentation for over twenty years. The applicant produced two letters indicating that two shop stewards had been appointed to Tee Jay Instrumentation in November 1997 and September 1998. Baxter testified that notwithstanding the reference to a shop steward in the letters, the individuals named acted as nothing more than a job steward in the manner contemplated by the collective agreement. Baxter stated that one of the stewards identified by the applicant to be a shop steward had been placed on temporary lay-off. According to Baxter, there had been other job sites to which the steward could have been transferred but had not been, and the applicant had not filed a grievance regarding the temporary lay-off of the steward. Baxter also testified that he was not aware of a practice in the Sarnia area for the applicant to appoint shop stewards. The only form of steward he was aware of was the reference to job steward in the collective agreement.

22Andy Pilat (“Pilat”) has been the General Manager of the Sarnia Construction Association since 1982. Pilat is involved in the negotiations of the collective agreement and deals with contractor members on a day-to-day basis with respect to issues arising under the collective agreement. Pilat testified that during his tenure, he had never been made aware of a practice in the Sarnia area of the appointment of shop stewards.

23Braithwaite has been the President of C & C since 1985 and has been working in the electrical business in the Sarnia area since 1979. Braithwaite testified that he first became aware of the issue of a shop steward when he received the correspondence from the applicant appointing Chivers. He denied that Everleigh had ever acted in the role as a shop steward during his employment with C & C. Braithwaite was of the view that Everleigh had been a Health and Safety representative and a job steward but not a shop steward. As set out in his response to the appointment of Chivers, Braithwaite was and remains of the view that the collective agreement does not refer to a shop steward. Braithwaite confirmed the evidence of Baxter and Pilat that he was not aware of any practice in the Sarnia area regarding the appointment of shop stewards.

24Braithwaite conceded that C & C continued to employ approximately twenty employees at two different job sites when Chivers was laid off from the Blue Water Bridge on December 23, 1998. C & C employed over one hundred employees during the summer and fall of 1998. Nearing the end of 1998, however, C & C was forced to reduce its workforce in response to a downturn in business. In fact, after the lay-offs in December 1998, C & C did not require any increase in staff until May 1999.

25Any decisions with respect to the workforce are made by Braithwaite and Harris. Accordingly, they made the decision to lay-off Chivers. Braithwaite denied that the decision to lay-off Chivers was in any way related to his activities as steward and in particular the incidents giving rise to his charges that Chivers had engaged in a wild cat strike on June 11, 1998. Braithwaite testified that notwithstanding the contents of the letter he sent to the applicant, he did attributed blame not to Chivers but rather to the applicant itself. It was Braithwaite’s understanding that Chivers was merely following the orders of Dowding and was therefore not blameworthy. Braithwaite testified that he had only written the letter to appease his client who had been upset that members of the applicant had refused to work overtime on that particular day. Braithwaite pointed out that he had not seriously pursued having Chivers removed as the job steward and had not even attempted to discipline Chivers. Braithwaite commented that Chivers was laid off several months after this incident and that he had been transferred to the Blue Water Bridge in the interim. It was suggested that these are not actions of an employer who is seeking to punish an employee.

26Braithwaite conceded that Chivers was the job steward on the Bayer Plant site as well as on the Blue Water Bridge project. Braithwaite was less clear as to how he had been advised by the applicant of the appointment of Chivers as a job steward on these projects. According to Braithwaite, he was verbally notified of Chivers’ appointment by Dowding. Dowding expressly denied this and pointed out that the collective agreement required the appointment of a steward be made in writing. Braithwaite was aware of this requirement but explained that he never raised any objection to verbal notification as he was extremely busy at the time.

27Braithwaite disagreed that the actions of Chivers as set out in paragraph 13 herein necessarily reflect his status as a shop steward. For the most part, Braithwaite was unaware of Chivers dealing with the various workplace issues, which would arise from time to time. Braithwaite also suggested that the actions of Chivers would be consistent with that of a job steward as some of the examples cited arose on the same job site at which he was working. Braithwaite acknowledged that Chivers did attend the meeting dealing with Carey Kohut and the informal meeting aimed at improving the relationship between the applicant and C & C. Braithwaite agreed that he never questioned the presence of Chivers at these meetings as he thought it was ultimately a decision for Dowding to decide who would attend such meetings with him representing the applicant. Braithwaite reasoned that it would be inappropriate for him to question who Dowding decided to bring with him to these meetings. C & C argued that the failure to object to Chivers’ presence at these meetings should not be interpreted as indicating that C & C was somehow consenting to Chivers acting as a shop steward. Finally, Braithwaite testified that he understood that Chivers had spoken to Harris regarding an alleged discrepancy concerning the payment of health and welfare benefits on behalf of those employees on temporary lay-off. Braithwaite was not aware of the scope of the conversation between Harris and Chivers but testified that he resolved the matter by dealing directly with Dowding.

Decision

28After carefully reviewing the evidence, both documentary and viva voce, and considering the submissions of the parties, the Board hereby dismisses the grievance. Our reasons are as follows.

29The collective agreement permits a Business Manager of a local union to appoint a steward to a company on a job site on which its members are working. Stewards play a vital role in a number of areas for a local union. They are, in effect, the eyes and ears of the local union on a job site. They monitor work jurisdiction, health and safety concerns as well as issues pertaining to the administration of the collective agreement. The efficient and effective administration of a collective agreement is significantly attributable to the qualities of the stewards of a local union.

30In recognition of the vital role they play for the local union, stewards are afforded certain rights under most, if not all, collective agreements in the construction industry. Under the terms of this collective agreement, for example, a steward may not be discriminated against because of the performance of his duties as a steward. Further, a steward must be notified of all overtime work, and is entitled to such work.

31A steward can often times be placed in a difficult position in which his loyalties and duties as an employee may be in conflict with his obligations to his fellow union members and local union. This paradigm of conflicting duties is unique to a steward and is not experienced to the same degree by union representatives. Union representatives are, after all, employed by their local union. While they are required to treat employers bound by the collective agreement in a fair manner, they are not employed by the employer.

32In enforcing the terms and conditions of the collective agreement, a steward may be placed in direct conflict with his employer. This could place the employment status of a steward in jeopardy. Accordingly, the collective agreement provides an additional form of employment security for stewards in order to protect them from acts of reprisals by an employer. Under the terms of this collective agreement, this form of protection is described as a guarantee of employment until as near as possible to the end of a job. This form of job security is designed to enable a steward to carry out his duties free from the fear of job loss.

33The protections afforded a steward, however, are not limitless. They are enumerated in the terms and conditions of the collective agreement negotiated by the parties. In our view, the collective agreement does not permit the applicant to appoint a shop steward. The terms steward and shop steward cannot be used interchangeably as was suggested by Chivers. This is particularly true given the almost limitless job security which would be available to a shop steward. In essence, a shop steward would be guaranteed employment with a company as long as it was in business. This may or may not be a worthwhile objective, but it is a result which must be clearly spelled out in the collective agreement as negotiated by the parties.

34We are also not convinced that the applicant has established that there has been an established practice in the Sarnia area with respect to the appointment of shop stewards. Assuming without deciding that it is possible for a local union and a contractor or a group of contractors to create an enforceable practice outside of the terms and conditions of the Master Portion of the collective agreement, any form of waiver which may have existed was surely brought to an end when C & C wrote to the applicant on March 6, 1996 disputing the appointment of Chivers as a shop steward.

35Further, the various actions undertaken by Chivers during his tenure with C & C do not, in our view, transform him into a shop steward with the corollary rights attached thereto. Most of the initiatives carried out by Chivers were consistent with his being a job steward at the Bayer Rubber Plant and the Blue Water Bridge. His presence at the meetings with C & C does not make him a shop steward. We are confident that if C & C understood that such a result might occur, it would have objected strenuously to his presence at these meetings.

36The Board is also not persuaded that Chivers was laid off on December 23, 1998 as a reprisal for carrying out his duties as a job steward. There is no doubt Chivers was a diligent and often times zealous steward acting to protect the interests of his fellow union members. We are certain that Chivers was a source of irritation to Braithwaite from time to time in ensuring adherence to the terms of the collective agreement. Braithwaite was clearly upset when his employees refused to work overtime on June 11, 1998 and we are certain that some of his anger was directed at Chivers as well as at Dowding. Despite his obvious frustration, Braithwaite did not discipline Chivers. Moreover, Chivers continued to work for the C & C for a further six months before being laid off when Chivers was part of the last group working at the Blue Water Bridge. We accept that C & C was reducing its work force in December 1998 as its business was reduced considerably. In such circumstances, we are of the view that Chivers was not laid off as a result of his activities as steward.

37The grievance is hereby dismissed.

“John Morgan Lewis”

for the Board