0801-81-M United Brotherhood of Carpenters and Joiners of America, Local Union 446, Applicant, v. Eton Construction Limited, Respondent
BEFORE: E. Norris Davis, Vice-Chairman and Board Members C. A. Ballentine and C. G. Bourne.
APPEARANCES: Douglas J. Wray and Matti Rissanen for the applicant; Peter Fletcher and Peter Funduk for the respondent.
DECISION OF VICE-CHAIRMAN E. NORRIS DAVIS AND BOARD MEMBER C. A. BALLENTINE; July 30, 1981
This is an application under section 1 12a for arbitration of a contract grievance arising out of a collective agreement between the parties.
The applicant seeks a declaration that the respondent violated Article 4.01 of the collective agreement in sub-contracting work, falling within the ambit of the agreement, to an employer who was not bound by this collective agreement. The application also seeks damages claimed to flow from such violation.
There is no dispute but that the work which gave rise to the grievance was work falling within the collective agreement.
Mr. Matt Rissanen, Business Representative of the Local testified that he was present at the job site (an extension to a shopping mall) on June 30, 1981, observed two persons doing carpentry work and, on inquiry of them, was told they were employed by Rili Construction. Rissanen testified that Rili Construction was not a party to a collective agreement with the applicant. Rissanen spoke to Mr. Funduk, the respondent's job superintendent and advised him that there was no collective agreement with Rili, to which Rissanen stated Funduk "seemed surprised". Rissanen thinks Funduk then undertook that if Rili was not under union contract he would "get rid of them". In any event the job was completed by a member of the applicant directly employed by the respondent.
On July 7, 1981 Rissanen again spoke with Funduk to advise him the union was seeking compensation in respect to the work done by Rili and asked how much work had been done by non-union men. Funduk responded that there had been two men working for six days and that no compensation would be paid. Rissanen then wrote to Funduk on July 8, 1981 claiming compensation of $1,540.80, which figure he arrived at by applying the hourly total compensation figure (i.e. hourly rate, vacation pay, holiday pay, Health and Welfare contribution, and Pension contribution) appearing in Article 6, schedule D of the collective agreement. Rissanen accepted Funduk's response of the previous day to establish that there had been 96 hours of work which should be paid at this rate.
Mr. S. Funduk, Job Superintendent testified that work on the job site commenced in September 1980 and first hired carpenters in late October building up to a peak employment of 12 carpenters through February 1981 when he started laying off and ultimately retained four carpenters. He stated he had met Rissanen in the parking lot in early June and was asked if the respondent was contemplating lay-offs. Funduk asked if Rissanen was short of men and Rissanen confirmed that. Funduk then told Rissanen that he intended to retain the three carpenters he then had for another four to six weeks. He stated it was then his intention to do the work giving rise to this grievance with these three carpenters; however, two of these three quit, one on June 5th and one on June 12th. As a result Funduk stated he was then forced to sub-contract carpenter work to Brunswick Drywall, a sub-contractor in the job who was then employing about 20 carpenters. Funduk stated that the sub-contracting arrangements with Brunswick came to an end on June 28th or early July because Brunswick "could no longer handle it".
Funduk stated that he entered into an arrangement on a time and material basis with an Elois Renault acting through Rili Construction and that he was aware at the time that Renault was acting as a contractor. Funduk stated that before Renault started on the job on June 18th, Funduk had asked him if he was a union member and received an affirmative reply and also a statement that another person Dumont Percy who would be working was a union member. Funduk stated he never questioned whether Renault had a collective agreement with the applicant and that he, Funduk, had not during the month of June 1981 applied to the union to be supplied with carpenters. He stated Renault and Percy did not come on the job through the union office.
Funduk stated Rili Construction started on the job on June 18th with Renault and Percy. Percy quit on June 23rd or 24th and Renault then worked alone for two days at which time Renault brought in another employee. Renault "pulled out June 26" and brought in another carpenter and they worked until June 30th "when Rissanen pulled them off the job." Rissanen testified that the two men he observed on the job on June 30th were not union members.
Funduk stated that when he had told Rissanen that there had been two "non-union" men working for six days he was really referring to the total work performed through Rili Construction and that his records showed that there had been 48 hours put in by Renault and Percy and 47 hours by the two other carpenters. No records were produced to establish how much money had been paid by the respondent to Rili or in respect to hours worked by individuals. Funduk stated that the particular work which was being done as of June 30th probably started on June 23rd and that 47 hours of work on that job was done by those persons working June 30th and an additional 16 hours of work done by Renault and/or Percy.
The Board is satisfied that the arrangement with Rili Construction was in violation of Article 4.01 of the collective agreement. The respondent argued that Renault was not a contractor but "hired by the hour". In our view the evidence of Funduk is clear the respondent considered the arrangement one of sub-contracting, and was aware that Renault was acting as an employer in the hiring of Percy and subsequently, two others. Further, the total lack of effort by the respondent to even ascertain the availability of union members at the time of making the arrangement with Renault (as it is required to do pursuant to Article 5 of the agreement), the fact that Renault did not come on thejob by a referral from the union, and the fact that the respondent did not consider the terms of the collective agreement applicable, can only fortify the conclusion that Renault was considered to be and was in fact acting as an employer.
As to the union's claim for compensatory damages we consider it to be now well-established that the appropriate redress of a complaint such as is before us includes payment by the employer of an amount equal to the contributions to various trust funds, which would have accrued to members of the applicant who would have been employed by the respondent save for the respondent's violation of the collective agreement. See Labourers International Union of North America, Local 506 and Napev Construction Limited [1980] OLRB Rep. February 260. As was said by the Board in that case, at paragraph 8,
"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, has 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 (3rd) 199. That decision set aside a judgment of the Divisional Court and restored the award of the 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."
The respondent in the instant case argued that since Renault and Percy were members of the applicant at the time of working for Rili Construction, that no damages have been suffered by the applicant in respect to the hours worked by those two individuals, and that the Board should restrict itself to considering only those hours worked by other than those two individuals as representing what is required to place the applicant in the same position as it would have been had there been no violation of the agreement.
In our view the membership status of Renault and Dumont in the instant circumstances is incidental inasmuch as it was not pursuant to such status that employment was acquired nor were the terms and conditions of employment those provided under that agreement. The union has a responsibility to all its members to maintain the integrity of the distribution of job opportunities available through the collective agreement, and to ensure the application of the terms and conditions of employment established in the collective agreement in respect to it's scope of coverage. Had the respondent here complied with Article 4.01 and sub-contracted to an employer bound by the collective agreement, that employer bound by the collective agreement, that employer would have been obligated to have complied with Article 5.01(a) and (b) of the agreement and hired employees through the offices of the applicant by way of a referral slip issued by the applicant, and the terms and conditions of employment would have been governed by the collective agreement. To accept the respondent's argument is to conclude that the employer in its contravention of the agreement can effectively obliterate the union s rights and responsibilities in the distribution of employment opportunities on whatever basis the collectivity within its own structure has decided to be appropriate, and to leave the terms and conditions unenforceable under the agreement. By by-passing the referral slip system the employer has deprived those union members who would have been entitled to referral to the specific job opportunities to which they were entitled. The happenstance that in this particular case the lost job opportunity was lost to one who also had status as a union member seems to us to be irrelevant. The total terms and conditions of employment as set out in the collective agreement did not apply to the employment of these persons, but rather their contract of employment was determined solely by whatever arrangement entered with Rili Construction who is a stranger to the collective agreement. These persons were employed completely outside the collective bargaining relationship and, not in consequence of any "union member status" and the impact on the union in respect to lost job opportunities is of the same order as if those persons had had no "union member status".
Rissanen testified that union members were available for referral through the referral slip system at the time the respondent entered into its arrangements with Rili Construction. The union relied on Funduk's July 7th admission that the work involved two men for six days, which the union calculated as 96 hours. Funduk's testimony was that there was a total of 97 hours work performed by Rili Construction. The applicant's claim for compensation in the amount of $1,540.80 should be allowed.
DECISION OF BOARD MEMBER C. G. BOURNE.
The decision of Board Member C. G. Bourne will follow at a later date.