Ontario Labour Relations Board
1623-01-G International Brotherhood of Electrical Workers, Local 303, Applicant v. CCS Multi-Trades Inc., Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair, and Board Members J. Knight and G. McMenemy
APPEARANCES: Robert Gibson, Garry Sorley and Jim Skilton for the applicant; no one appearing for the responding party.
DECISION OF THE BOARD; October 10, 2001
1This is a referral of grievance to arbitration in the construction industry under the Labour Relations Act, 1995 (the “Act”).
2The application was referred to the Board on September 7, 2001.
3On the date scheduled for hearing in this matter, no one appeared for the responding party. The Board proceeded with the hearing at 10:00 a.m. The Board’s Notice of Hearing sets out the consequences of failing to attend at the hearing. Paragraph 5 of the Notice of Hearing states:
IF YOU DO NOT ATTEND THE HEARING, THE BOARD MAY DECIDE THE REFERRAL WITHOUT FURTHER NOTICE TO YOU AND WITHOUT CONSIDERING ANY DOCUMENT YOU MAY HAVE FILED.
4The Board heard the testimony of Garry Sorley, the Business Manager of the applicant, and of Mr. Skilton, a member of the applicant and an appointed steward. Mr. Sorley and Mr. Skilton confirmed the material facts which were included in the referral of the grievances to arbitration. Those material facts are set out as follows:
a) CCS Multi-Trades Inc. (“CCS”) is bound to the collective agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario, effective from May 1st, 2001 until April 30, 2004 (the “collective agreement”);
b) CCS was engaged in electrical construction work at the John Deere project in Welland, Ontario at all relevant times. On March 30, 2001, Mr. Sorley appointed Mr. Skilton as steward on the John Deere project in accordance with section 5 of the collective agreement. The relevant portions of section 5 read as follows:
502 Stewards
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 the Collective 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.
c) Mr. Skilton is a member of the applicant and is a licensed journeyman electrician;
d) CCS laid-off Mr. Skilton claiming a lack of work. At the time of lay-off, CCS continued to employ 7 licensed electricians indicating that the John Deere project was far from being nearly complete;
e) the applicant filed a grievance on August 16, 2001 with respect to Mr. Skilton’s lay-off. On August 21, 2001, CCS called Mr. Skilton and requested that he return to work. The applicant contends that upon returning to work, Mr. Skilton was provided with a disciplinary letter. Although the Board has doubts whether the letter is properly classified as disciplinary, the employer, by failing to participate in these proceedings, has lost the opportunity to argue this point. Therefore, for the purpose of this decision only, the Board shall assume that the letter issued to Mr. Skilton on April 21, 2001 was disciplinary in nature.
5The applicant asserts that CCS violated section 5 of the collective agreement when it laid off Mr. Skilton and when it provided him with a disciplinary letter on August 21, 2001. With respect to the lay-off, the applicant asserts that it was improper because the John Deere project was not nearing completion and as many as 7 other electricians were still working. The applicant further asserts that the lay-off was a form of discrimination against Mr. Skilton for performing his duties as Steward on the John Deere project. The applicant contends that the letter issued on August 21, 2001 was another form of unwarranted discipline against Mr. Skilton again in relation to his performing the duties as Steward on the John Deere project.
6After considering the evidence, both documentary and viva voce, the Board:
(a) declares that CCS is bound to the collective agreement;
(b) declares that CCS violated section 5 of the collective agreement by improperly laying-off Mr. Skilton on August 16, 2001 as CCS was not nearing the completion of the John Deere project and continued to employ as many as 7 electricians when Mr. Skilton was laid-off;
(c) declares that CCS violated article 5 of the collective agreement when it issued the disciplinary letter to Mr. Skilton on August 21, 2001;
(d) orders CCS to forthwith remove and rescind from Mr. Skilton’s personnel file the disciplinary letter issued to him on August 21, 2001 and orders that CCS shall not rely or refer to that letter in any manner or for any purpose whatsoever;
(e) orders CCS to pay forthwith to the applicant the sum of $749.00 in accordance with section 133(13) of the Act.
“John Morgan Lewis”
for the Board