Ontario Labour Relations Board
[1981] OLRB Rep. December 1750
1367-81-M United Brotherhood of Carpenters and Joiners of America, Local 38, Applicant, v. Carwood Store Fixtures Limited, Respondent.
BEFORE: R. A. Furness, Furness, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: David McKee and B. Wunovic for the applicant; Ron Mark and Norbert Englisch for the respondent; Bruce Binning and Jim Thomson for the employer bargaining agency.
DECISION OF R. A. FURNESS, VICE-CHAIRMAN AND BOARD MEMBER H. J. F. ADE; December 23, 1981
The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination.
The applicant has alleged that the respondent has violated Articles 6.05 and 6.07 of the provincial collective agreement between The Carpenters' Employer Bargaining Agency and The Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America (O.P.C.) effective from July 7, 1980, to April 30, 1982, (the "collective agreement"). It is agreed that the collective agreement is binding on the parties to this grievance. Articles 6.05 and 6.07 state:
6.05 When an employee is laid off from a job on a scheduled regular layoff he shall receive one hour's notice with pay and he will be permitted to leave the job immediately after the one hour's notice is given. If the employer fails to give the employer one hour's notice in advance of layoff, the employee shall be paid an additional one hour's pay at straight time rates. At the time of layoff the employee shall be paid in full and given possession of all his documents. If the employee cannot be paid and be given his documents at that time, he shall receive his pay and documents within 48 hours. The 48 hour period is exclusive of Saturdays, Sundays and Statutory Holidays. If this provision is not complied with, the provisions of 6.07 hereof shall apply.
6.07 If an employee fails to receive wages and documents in accordance with the provisions of Article 6.05 or 6.06, he shall after notice be paid waiting time at straight time rates not to exceed eight (8) hours in any day for each regular working day until the employee is in possession of such wages and documents. It is understood and agreed that all fringe benefits will be paid as per the agreement.
This grievance has been filed on behalf of Peter Hanshar and Patrick O'Shea. The applicant is seeking wages and fringe benefits for waiting time. The respondent denied that it had violated Articles 6.05 and 6.07 of the collective agreement and adopted the position that cheques and termination documents were prepared and mailed on Wednesday, September 9, 1981.
The evidence established that Mr. Hanshar and Mr. O'Shea were laid off from a job in Niagara Falls by the respondent on Friday, September 4, 1981. The following Monday was Labour Day. On September 9, 1981, Patricia Blakely, a secretary employed by the applicant in Niagara Falls, telephoned the respondent in Kitchener. Mrs. Blakely made this telephone call (the first telephone call) in connection with an inquiry about the "papers" for another employee named Clem Tonnies. Subsequently, Mrs. Blakely made another telephone call to the respondent (the second telephone call) on September 15, 1981, in response to an inquiry from Mr. Hanshar who had not received his pay cheque. On the first occasion Mrs. Blakely asked to speak to someone in the payroll department and spoke to a person who was identified at the hearing as Donna Horseley, the respondent's bookkeeper and payroll clerk. On the second occasion, Mrs. Blakely asked to speak to the same person in the payroll department. She was informed that the person she had spoken to previously was not at work. At this point, Mrs. Blakely asked to speak to someone else and was referred to a man who was working in the respondent's office.
The contents of these two telephone calls is in dispute with the evidence of Mrs. Blakely and Mrs. Horseley differing in certain key areas. There is no doubt, however, that Mr. Hanshar received his cheque at his home on Friday, September 18, 1981, and that Mr. O'Shea received his cheque at his home on Thursday, September 17, 1981.
It is clear that the grievors did not receive their pay within the time limits set forth in Article 6.05. One question to be determined is whether notice was given as required by Article 6.07 in order for the penalty provisions therein to be brought in to play. Another question to be considered is the conduct of the parties both generally and specifically in connection with the circumstances which give rise to these grievances.
In considering the evidence of Mrs. Blakely and Mrs. Horseley, the Board believes that both of them gave their evidence to the best of their ability. The difference in their testimonies, in our view, arises from the accuracy of their memories. In giving her evidence, Mrs. Blakely qualified some of her answers with "I think" and "I don't recall" and in cross-examination she was not sure of the time of day of the first telephone call and conceded that Mrs. Horseley may have said that the cheques were prepared and ready to go out in the mail. On the other hand, Mrs. Horseley's evidence was not qualified in this way. In our view, Mrs. Horseley had better recollection of the relevant events which occurred in September of 1981 and the Board accepts the evidence of Mrs. Horseley in preference to the evidence of Mrs. Blakely where their evidence is not in agreement.
Mrs. Horseley testified that she is in charge of the respondent's payroll office and that the respondent is engaged in performing work in Ontario and throughout Canada. The respondent and its payroll office are located in Kitchener, Ontario. During 1981 the respondent has laid off between thirty and forty employees under the terms of the collective agreement. It has been the practice of the respondent to mail wages and documents to persons who have been laid off in Ontario. Up to the time of the filing of these grievances, the respondent had not received any objections to this practice. While previously there had not been any problems in Ontario; the respondent has, where problems have been encountered, made bank transfers to employees who have been laid off. In using the services of the Post Office to forward wages and documents to employees who have been laid off, the respondent has not previously received any complaints from the applicant.
When Mrs. Horseley arrived at work on the morning of September 8, 1981, there were five time sheets on her desk. The time sheets of Mr. Hanshar and Mr. O'Shea were included in the five time sheets. The calculations for wages and deductions were made on September 8, 1981, with respect to the persons whose names appeard on the time sheets. It is the job of Angela Proksch to type the cheques. Miss Proksch recieved the information for the cheques at the end of the working day at five minutes to five on September 8, 1981. Miss Proksch typed these cheques during the morning of September 9, 1981. These cheques were signed during that morning by Norbert Englisch, the owner of the respondent. Once the cheques were signed by Mr. Englisch, Mrs. Horseley before mid-day placed the cheques together with the appropriate documents in envelopes. At this point it is the responsibility of Miss Proksch to affix sufficient postage and mail the letters.
Mrs. Horseley gave evidence that she spoke to Mrs. Blakely on the telephone between 4:00 and 4:30 p.m. on September 9, 1981. According to Mrs. Horseley, Mrs. Blakely said she was calling from the St. Catharine's union and was inquiring where was the money for the carpenters. Mrs. Horsely responded that she had put the money in the respondent's mail for two of the carpenters, was unaware that three others were finished, and had made up cheques for these three carpenters. There was still some confusion over the actual state of affairs because when Mrs. Horseley said these three cheques would be sent to the job site, Mrs. Blakely advised her that these three carpenters were no longer working at the job site. Mrs. Horseley's understanding was that the cheques and documents were to be out of the respondent's office on September 9, 1981. She explained to the Board that when she informed Mrs. Blakely that the cheques were in the respondent's mail she meant that the cheques were in the mail tray and not that they had been deposited with the Post Office. With respect to the other three carpenters, Mrs. Horseley informed Mrs. Blakely that she would have to telephone the foreman or the supervisor at the job site to see if they had been terminated. Mrs. Horseley gave evidence that she told Mrs. Blakely that she would work overtime in order to make these inquiries. A telephone call was made which confirmed the terminations. At this point, Mrs. Horseley contacted Mr. Englisch and the cheques were prepared by 4:45 p.m. Subsequently, these cheques and accompanying documents wre mailed by the respondent. No grievance has been filed with respect to these three carpenters.
Angela Proksch is employed by the respondent as a receptionist/clerk. She testified that on September 8, 1981, she was working in the respondent's office and explained that she receives cheques, types and bonds them and gives them to Mr. Englisch for signature. Miss Proksch gave evidence that she prepared the cheques for Mr. Hanshar and Mr. O'Shea on September 9, 1981, and that the cheques had been given to her to prepare at about 4:50 p.m. on September 8, 1981. She informed the Board that Mr. Englisch signed the cheques on September 9, 1981, and that she gave the completed cheques to Mrs. Horseley on the same date. Miss Proksch testified that it is her practice to collect the mail on her desk from the mail tray, put it through the postage machine and deposit the mail in a mailbox on her way home between 5:00 p.m. and 6:00 p.m. She informed the Board that she placed the letters for Mr. Hanshar and Mr. O'Shea in a mailbox on her way home from work on September 9, 1981. The two envelopes which contained the cheques and documents and which were addressed to Mr. Hanshar and Mr. O'Shea were filed in evidence and bear a metered cancellation dated September 9, 1981. These two envelopes also bear an additional cancellation (presumably by the Post Office) dated September 15, 1981.
Mrs. Blakely was not sure whether she referred to the period of forty-eight hours in Article 5.05 and she agreed in cross-examination that when she said that the wages and documents had to be "out" she meant "out to the men or sent out" and that she did not indiciate that placing the cheques and documents in the mail was unsatisfactory. The Board finds that there was no unequivocal notice given to the respondent on September 9, 1981. Indeed, even if notice had been given by Mrs. Blakely on behalf of either the applicant or the respondent's former employees it could only have related to Clem Tonnies (who is not a grievor). If notice had clearly been given to Mrs. Horseley on behalf of the respondent, the wages and documents for all five carpenters could have been delivered personally. Similarly, the second telephone call, even assuming that it was meant to be notice under Article 6.07, only related to Mr. Hanshar. By this time the wages and documents for Mr. Hanshar (and Mr. O'Shea) had already been mailed on September 9, 1981 and the respondent was not be expected to provide duplicate material for Mr. Hanshar. The Board finds that Mrs. Blakely, in acting as an agent for the applicant, by the necessary implication of her words, gave the respondent an assurance that the mailing of wages and documents was satisfactory. The Board further finds that the respondent relied on the assurances and a promissory estoppel arose even if the second telephone call constituted notice on behalf of Mr. Hanshar under Article 6.07. See Combe v. Combe [1951] 1 All E.R. 767, 770.
In these circumstances, the Board finds that the respondent has not violated Articles 6.05 and 6.07 of the collective agreement. This application is dismissed.
DECISION OF BOARD MEMBER C. A. BALLENTINE;
I dissent from the majority decision in this case. It is my view that the evidence of the respondent company is, for the most part, irrelevant, and there is no ambiguity in regard to Articles 6.05 and 6.07 of the collective agreement.
It is clear the object of Article 6.05 is that when employees are laid off they will not be kept waiting for documents and wages. Article 6.05 reads, in part, "At time of layoff the employee shall be paid in full and given possession of all his documents." (emphasis added). However, Article 6.05 allows that if the company cannot comply with the foregoing they will be given 48 hours (2 working days) to have the wages and documents in the employee's possession.
Article 6.07 is a penalty provision against the company for failing to comply with Article 6.05 and the 48 hour provision. Article 6.07 reads, in part, "If an employee fails to receive wages and documents in accordance with the provisions of Article 6.05 or 6.06, he shall after notice be paid waiting time at straight time rates not to exceed eight (8) hours in any day for each regular working day until the employee is in possession of such wages and documents." (emphasis added)
The issue of whether or when notice was given is a technicality. The fact is clear that the company was quite aware that the grievors were not in possession of their wages starting on September 4, 1981, and it was the company's obligation to have such wages in the possession of the employees within 48 hours (2 working day) after layoff. Mr. Hanshar, one of the grievors, gave evidence that he advised the project foreman about the provisions of the collective agreement on September 4th, the day of layoff. He stated that he told the foreman that his pay was to be in his hands by Wednesday, September 9th, and he also stated that the foreman said it would be there. The fact is Mr. Hanshar did not receive his pay until September 18th, some full fourteen days and nine working days after he was expected to receive it upon layoff.
It is my position that the respondent company violated Articles 6.05 and 6.07 of the collective agreement and, therefore, should have paid a penalty as prescribed in the agreement. The majority should not have dismissed this application.