[1980] OLRB Rep. February 260
2097-78-M Labourers' International Union of North America, Local 506, Applicant, v. Napev Construction Limited and General Contractors Section, Toronto Construction Association, Respondents
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members W. Gibson and W. F. Rutherford.
APPEARANCES: Stephen H. Grant, Gil Cragg and Peter Hitchen for the applicant; Steven McCormack aid P. Shishkov for the respondents.
DECISION OF THE BOARD; February 8, 1980
This matters arises out of the referral to the Board of a grievance in the construction industry pursuant to section 1 12a of The Labour Relations Act. The Board issued a decision April 4, 1)79, in which it found, among other things, that the respondent, Napev Construction Limited ("Napev") had refused to observe the terms of the provincial agreement to which it and the applicant were bound. The Provincial agreement is a collective agreement between the Labour Relations Bureau of the Ontario General Contractors Association, Ontario Masonry Contractors Association, Industrial Contractors Association of Canada, Waterproofing Contractors Association of Ontario (employer bargaining agency) and the Labourers' International Union of North America and the Labourers International Union of North America Ontario Provincial District Council, on behalf of its affiliated Local Unions 183, 247, 491, 493, 506, 527, 607, 625, 749, 837, 1036, 1059, 1081 and 1089 (employee bargaining agency).
In its decision the Board directed that Napev abide by the terms of the provincial agreement in so far as it applied to Board area #8 (i.e., the geographical area within which the applicant held bargaining rights for construction labourers employed by Napev) and, further, to complete and return to the applicant the employer remittance forms required under article 19 of the provincial agreement. The Board further directed the applicant and Napev to meet with a Labour Relations Officer of the Board and endeavour to determine the quantum of compensation owed by Napev to the applicant.
Napev filed the remittance forms as directed and the parties met but were unable to agree on the amount of compensation owing to the applicant. Consequently a hearing was scheduled at the request of the applicant for June 19th, for the purpose of having the Board determine the amount of compensation owing to the applicant. At the hearing the parties consented to an adjournment on the agreement of Napev that an auditor appointed by the applicant attend at Napev's office and conduct an audit of all of its records relevant to the determination of compensation owing in this matter. The audit was conducted and the auditor filed a written report with the applicant dated September 4, 1979. A copy of the auditor's report was sent to Napev together with a letter dated September 18, 1979 from the applicant. In the letter the applicant claimed payment of compensation by Napev for the following amounts:
832.50 working hours lost at $10.32 per hour $8,591.39
313 welfare hours short at 1.04 pe hour 325.52
Legal fee incurred 845.05
$9,761.96
The letter brought no response from Napev, consequently the applicant asked the Board again to schedule a hearing for the purpose of determining the amount of compensation payable to the applicant. Its request was accompanied by a copy of the auditor's report and a copy of the applicant's letter of September 18th to Napev setting out the compensation being sought by the applicant. A hearing was held for this purpose on January 9, 1980.
Counsel for Napev advised the Board at the hearing that it did not challenge the accuracy of the auditor's report. The report reveals that, during the times material to the applicant's claim, Napev employed 12 labourers who were not members of the applicant and who were hired contrary to the provisions of clause 2.01 of Article 2- Union Security, Work Jurisdiction, Assignment of Work, Sub-contracting and clause 3.01 of Article 3 - Hiring of Employees. These labourers worked a total of 832.50 hours which the applicant is claiming would have been worked by its members had Napev complied with the hiring provisions of the provincial agreement. The applicant is claiming compensation at the rate of $10.32 an hour, the lowest wage rate for labourers set out in clause 2.01 of Article II - Wage Rates, Classifications and Vacation Pay of the "Toronto Schedule" to the provincial agreement. The report also reveals that the hours reported on the remittance forms filed by Napev pursuant to article 19 of the Provincial Agreement were deficient by 313 hours in respect of the total hours worked by construction labourers employed by Napev during the times material to this referral, including the 12 non members and 14 construction labourers who were members of the applicant. The applicant is claiming compensation for the 313 hours at a rate of $1.04 per hour, the aggregate rate of hourly contributions required under Article 4 - Union Dues and Check-off of the provincial agreement and clauses 8.1, 8.2 and 8.3 of Article VIII - Welfare, Training & Pension of the "Toronto Schedule" to the provincial agreement. The respondent does not dispute that these clauses of the agreement were violated. Mr. G. Craggs, Field Representative of the applicant, testified at the hearing as to the procedures by which the applicant's unemployed members are refered to employers under clause 3.01 of the provincial agreement and filed with the Board lists of unemployed members registered in the ledger of unemployed members of the applicant. The Board is satisfied on this evidence that at the times material to this referral, the applicant had sufficient members available to fulfill any orders from Napev for construction labourers pursuant to the terms of clause 3.01.
On this evidence, the Board's finding in its decision issued April 4th, 1979, may now be refined and stated in specific terms of the clauses of the provincial agreement which have been violated. Accordingly, the Board finds that Napev has violated clauses 2.01 and 3.01 of the agreement by hiring persons other than members of the applicant in a manner contrary to the provisions of those two clauses and employed them for a total of 832.50 hours. The Board finds that Napev has violated Article 4 of the agreement and clauses 8.1, 8.2 and 8.3 of Article VIII of the "Toronto Schedule" to the agreement by not reporting 313 hours of work on which contributions should have been made at the aggregate rate of $1.04 per hour.
Insofar as the amount of compensation owing by Napev to the applicant is concerned, Napev's counsel contends that the only compensation which the applicant is entitled to claim, legal costs aside for the moment, is the payment which it would have received in union dues under Article 4 of the agreement had Napev not violated the union security and hiring clauses. The foundation of counsel's contention, briefly stated, is that the applicant is not entitled to claim the unpaid wages and trust funds contributions except on behalf of those of its members for whom it can establish were available for and willing to accept employment with Napev at the material times. If the applicant is unable to do so, in counsel's view it is not entitled to claim the unpaid wages and contributions as general damages. Applicant counsel argues that it is entitled to compensation on behalf of its members to the extent that they, as a group, have suffered damages in the form of lost opportunities to earn wages and to have contributions paid to their benefit into the relevant trust funds. Were the Board to accept Napev's argument, the effect would be that, aside from any union dues payable, the only relief to which the applicant would be entitled for th breaches of the agreement which the Board has found, would be the declaration that Napev had refused to observe the agreement and the direction that it abide by the terms of the collective agreement in future. This would be little comfort for the applicant which, in addition to its responsibilities as bargaining agent of its members employed by Napev, has the responsibility of maintaining the integrity of the provincial agreement insofar as it concerns the interest of all of the applicant's members who may from time to time be eligible for employment by Napev under the terms of the agreement. If an employer can violate the union's security and hiring provisions of the provincial agreement and face only the consequent risk of having to pay as compensation to the union only those union dues lost to it, there is little security for the bargaining agent when such a result is viewed in the context of the nature of the employment relationships and the employment patterns and practices in the construction industry. Were the Board to take this limited view of the available remedies, it would be addressing only the superficial result of the breach of the agreement and ignoring the real complaint underlying the grievance. The real complaint is that members of the applicant who should have been employed by Napev were not and thus were deprived of wages and contributions to the various trust funds and the applicant was deprived of the dues payable under Article 4. This is the complaint which must be redressed by the remedy in a way which will give effect to the agreement provisions which were violated.
For the foregoing reasons, since the applicant's members have been denied the opportunity to earn wages amounting to $8,591.39 as a result of Napev's breach of clauses 2.01 and 3.01; and since Napev's failure to report 313 hours worked in accordance with Article 19 of the agreement (and as required by Article 4 and clauses 8.1, 8.2 and 8.3 of the "Toronto Schedule") has deprived the applicant or its members of the benefit of $325.52 in contributions to those funds, we find the applicant to be entitled to the following sums: $8,591.39 in respect of the breach of clauses 2.01 and 3.01 of the provincial agreement and $352.52 in respect of violation of clauses 8.1, 8.2 and 8.3 of Article VIII of the "Toronto Schedule" to the agreement. The Board sees nothing in the nature of this case, however, which would cause it to vary from its consistent policy of not awarding as damages the legal costs of proceedings before the Board. Therefore the applicant's claim for $845.05 in damages for legal costs is denied.
We find support for the relief granted in this case in the similarity of its situation with that in Re McKenna Brothers Ltd. and Plumbers Union, Local 527, 1975 CanLII 2128 (ON LA), 10 LAC (2d) 273 (Shime). In that case the arbitrator was dealing with a construction industry employer who, in employing persons other than members of Local 527 to do its work, had violated the hiring clause of the collective agreement between them and the arbitrator awarded compensatory damages to the union in the form and amount of wages and contributions to trust funds which would have been paid to members of the union had there been no breach of the agreement. In the words of that decision, "The company is in breach of the collective agreement and by this breach it has deprived the members of the union of earnings which it has paid to non-union members,... Accordingly, the only way to place the injured party in the same position is to make a monetary award in that amount.". In so doing, the arbitrator was following the decision of the Ontario Court of Appeal in Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, 1975 CanLII 707 (ON CA), 57 DLR (3d) 199. That decision set aside a judgment of the Divisional Court and restored the award of a board of arbitration which had awarded sums of money to the union for lost earnings of its members who had been available but not hired to do work which had been done by persons who were not members of the union, as well as for breaches of the vacation pay and welfare provisions of the collective agreement.
Having regard for all of the foregoing, the Board makes the following determination and direction pursuant to section 112a of The Labour Relations Act:
(a) Napev Construction Limited has violated clauses 2.01 and 3.01 of the provincial agreement as well as clauses 8.1, 8.2 and 8.3 of Article VIII of the "Toronto Schedule" to that agreement between the Labour Relations Bureau of the Ontario General Contractors Association, Ontario Masonry Contractors Association, Industrial Contractors Association of Canada, Water-proofing Contractors Association of Ontario and Concrete Floor Contractors Association of Ontario (Employer bargaining agency) and the Labourers' International Union of North America and the Labourers' International Union of North America Ontario Provincial District Council on behalf of its affiliated Local Unions 183, 247, 491, 493, 506, 527, 597, 607, 625, 749, 837, 1036, 1059, 1081 and 1089 (employee bargaining agency (which is effective from September 19, 1978 until April 30, 1980 and to which Napev Construction Limited and the Labourers' International Union of North America, Local 506 are bound.
(b) Napev Construction Limited shall pay to the Labourers' International Union of North America, Local 506 the sum of $8,916.91 made up as follows: $8,591.39 for violation of Articles 2 and 3 of the provincial agreement and $325.52 for violation of Article 4 of the provincial agreement and Article VIII of the Toronto Schedule of that agreement. The total sum of $8,916.91 is paid in trust to the Labourers' International Union of North America, Local 506 for the general benefit of its members. The amount of $325.52 may be distributed in accordance with the aforesaid Articles 4 and VIII and the terms of the trusts therein established.