[1983] OLRB Rep. April 503
0018-82-M The Ontario Erectors Association, Ralph M. Moore Industrial Installations Limited and Dominion Bridge Company Limited, Applicants, v. International Association of Bridge Structural and Ornamental Ironworkers Local 786, International Association of Bridge Structural and Ornamental Ironworkers, the Ironworkers District Council of Ontario, those persons listed on Schedule A and V. Boulard, Respondents
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members M. Eayers and C. A. Ballentine.
APPEARANCES: Robin B. Cumine, Q. C., D. Boulanger and R. A. Speight for the applicants; Maurice A. Green and Gordon Verdecchia for the International Association of Bridge Structural and Ornamental Iron workers Local 786, and those persons listed on Schedule A; Glen Whyte for the International Association of Bridge Structural and Ornamental Iron workers, the Iron workers District Council of Ontario; Mary Cornish and V. Boulard for V. Boulard.
DECISION OF THE BOARD; April 21, 1983
The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board pursuant to section 124 of the Labour Relations Act for final and binding arbitration.
Schedule "A" to the referral names some 54 persons who are alleged to be employees either of the applicant Ralph M. Moore Industrial Installations Limited ("Moore") or the applicant Dominion Bridge Company Limited ("Dominion Bridge"). During the course of representations on some preliminary issues, the applicants sought to withdraw the complaint against the International Association of Bridge, Structural and Ornamental Ironworkers ("the International") and the Ironworkers District Council of Ontario ("the Council"). For reasons given orally in the hearing, the Board dismissed the referral with respect to those two respondents and it hereby confirms that decision.
The applicant Ontario Erectors Association ("the Association") is the designated employer bargaining agency for the employers of journeymen and apprentice ironworkers employed in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario for whom the International and its affiliated bargaining agents hold bargaining rights. Moore and Dominion Bridge are employers represented by the Association and are bound to the provincial agreement ("the Agreement") between it and the International and the Council which was in effect from May 1, 1980 to April 30, 1982. The applicants' grievance alleges that Local 786, one Victor Boulard and the persons named on Schedule "A" engaged in an unlawful strike on March 12th, 1982 in violation of Article 26 (No Strike or Lockout) of the Agreement. The grievance alleges further that the strike was at the instance, direction and encouragement of Boulard, a job steward. The relief sought by the applicants includes a request for damages against each of the respondents for the monetary damage suffered by Moore and Dominion Bridge as a consequence of the strike.
During representations on certain preliminary matters it came to light that, through inadvertence, Boulard's name was omitted from the style of cause of the referral, including Schedule "A", although the letter from the solicitors for the applicants dated March 25, 1982 which initiated the grievance was addressed to Boulard as well as to the union parties named as respondents. At the request of counsel for the applicants, unopposed, the Board made Boulard a respondent to the referral, subject to the ultimate disposition of a preliminary objection referred to below with respect to whether individual employees are proper respondents to a grievance.
This referral was made on April 2nd, 1982 and was first scheduled for hearing on April 20th, 1982. The Board consented to adjourn that hearing and rescheduled it for June 25th, 1982, on the agreement of the parties made prior to the hearing. On April 28th, 1982, Local 786 referred a grievance against Moore to the Board on behalf of Boulard (Board File No. 0220-82-M). Because of a potential conflict of interest for the solicitors for Local 786 with respect to that grievance and the instant one, separate counsel was retained on June 4th to act for Boulard in the instant referral and for Local 786 with respect to the grievance referral in Board File No. 0220-82-M. Counsel for Boulard appeared at a hearing into that matter on June 7th, 1982 and succeeded in getting the Board to adjourn it until June 25th.
The two referrals were listed for hearing together on June 25th and when they came on for hearing, counsel herein for Boulard was unable to attend and had been unsuccessful in gaining consent for an adjournment prior to the hearing. Consequently, counsel for Local 786 in the instant matter requested adjournment of both referrals on behalf of Local 786 because the local's counsel with respect to Board File No. 0220-82-M was unable to attend the hearing and on behalf of Boulard because he had been unable to engage alternate counsel to act for him in the instant referral. The Board heard and considered the representations of the parties on the request for adjournment and on the further preliminary issue of whether the Board should consolidate both referrals for the purpose of the hearing. The parties acknowledged, with respect to this latter issue, that the issues in the two referrals were different, although some of the evidence might be common to both. The Board refused to consent to an adjournment of the hearing into the instant referral because Boulard had had reasonable time in all of the circumstances to engage competent counsel. The Board also declined to consolidate the two referrals because of the common view of the parties that they involved different issues. Should, however, the applicant and respondent in Board File No. 0220-82-M agree, evidence in the instant referral relevant to the other one could be applied to it.
Accordingly, the Board adjourned the hearing into the Board File No. 0220-82-M and proceeded with the hearing into this referral, continuing it for two further days, September 14th and 15th. Boulard acted for himself on June 25th and was represented by counsel on September 14th and 15th. The grievance in Board File No. 0220-82-M was heard on October 15th and November 23rd, 1982.
Counsel for Local 786 raised a further preliminary objection at the June 25th hearing. He contended that Boulard and the persons listed on Schedule "A" were not proper respondents to the referral of a grievance under section 124 of the Act. The Board heard the representations of the parties on this issue and the related one of whether Boulard and the employees named on Schedule "A" could be made liable in damages should any be assessed by the Board. The Board reserved its decision subject to the parties having the opportunity to make additional representations later in the proceedings.
The Board heard the testimony of 13 witnesses and the findings of fact herein have been made after taking into account the consistency of each witness' evidence, their ability to recall the events about which they were testifying, the firmness of their memories, their ability to resist the influence of self-interest to modify their recollections, their ability to express their recollections clearly and their demeanor. On the basis of those criteria, the Board does not rely on the evidence of Victor Boulard except to the extent it was corroborated by another witness or other witnesses.
Moore and Dominion Bridge are contractors to E. B. Eddy Forest Products Limited on the modernization and expansion of its pulp mill at Espanola, Ontario. Moore was working on the assembly and installation of a lime burning kiln and employed three ironworkers on that job, including Boulard, at times material to this referral. Dominion Bridge had contracts for the supply and erection of structural steel on the No. 3 boiler recovery building and for a new pulp machine. They are two of at least four contractors on the project which employ ironworkers, the other two being "Noront Steel" and "Comstock." As the Board stated above, Moore and Dominion Bridge were bound to the Agreement. So is Local 786 and it can be inferred readily from the evidence that Noront and Comstock were bound to it also with respect to the ironworkers employed by them on the E. B. Eddy project. Article 26 — No Strike or Lockout states as follows:
No employees bound by this Agreement shall strike, and no Employer bound by this Agreement shall lockout his employees.
Boulard had worked on the project as a foreman for Comstock for some six months until he was laid off on March 9th, 1982. He was hired by Moore as a welder on Wednesday, March 10th having been referred by Local 786 in response to a name request by Omer Vondette, Moore's ironworker foreman. Boulard had approached Vondette on March 9th about being hired by Moore. Boulard became steward for Moore's ironworkers immediately upon reporting for work on March 10th. He started working with a third ironworker, Roland Dallaire, already employed by Moore and early in his shift he discovered that two millwrights whom he knew were working on aligning the kiln, work which he concluded came within the trade jurisdiction claimed by the ironworkers.
Boulard went immediately to Moore's office trailer and introduced himself as ironworker job steward to Ernest Davidson, project manager for Moore. Davidson explained the assignment of the work of aligning the kiln to the millwrights as being in accordance with an agreement between the international trade union parents of the two trades. Boulard was not satisfied with the explanation and, in Davidson's presence, telephoned Jim Lajeunesse, President of Local 786. Lajeunesse told Boulard that he or Gordon Verdecchia, business manager for the local, would come to the project the next day and look at the work.
Verdecchia, who has been business manager of Local 786 for seven years, came to the site at 2:30 p.m. on March 11th. He first went alone to look at the work at issue and then he discussed with Davidson in Boulard's presence the basis for the work assignment to the millwrights; confirmed with Denis Boulanger, a vice-president of Moore, that the work was the same as had been assigned to the millwrights on another job within Local 786's territory and informed Boulard, after discussing it with him, that the work was properly assigned. Boulard disagreed with Verdecchia and they went together to the kiln. They met two Noront Steel employees there who were told by Verdecchia that ironworkers would not be aligning the kiln, whereupon an argument erupted. Verdecchia gave the two Noront ironworkers a copy of the ironworkers/millwrights agreement on which he had based his decision. He had given a copy previously to Boulard and Dallaire. Verdeechia left the project without altering his decision that the work in question was not going to be done by ironworkers.
Boulard came to work Friday morning, March 12th, but did not work. He went at approximately 8:10 a.m. to Moore's office trailer to speak to Davidson. He was on the job, so Boulard left a message with Paul Merrill, Moore's project superintendent and Robert Hilts, the timekeeper that he and Dallaire had "wobbled" the job because the millwrights had been doing ironworkers' work. Boulard returned at 8:35 and repeated to Davidson what he had said to Merrill and Hilts and stated that he would do it again on Monday if the millwrights had done any more of the ironworkers' work. Within 10 minutes the ironworkers employed by Dominion Bridge started coming down from the steel which they were raising. Within approximately 30 minutes Moore's three ironworkers, four or five ironworkers employed by each of Noront Steel and Comstock and all of Dominion Bridge's ironworkers except for two job stewards, seven foremen and a five-man raising crew which was finishing unloading a truckload of steel, had left the job. By 9:30 a.m. all of the ironworkers had left the site. Dominion Bridge employed approximately 65 of them, including the foremen. Approximately 10 were members of Local 786, the rest were from out of town. There were approximately 15 Local 786 members employed on the project plus approximately 10 permit card workers. The remainder were working out of Local 786 on travel cards from other ironworkers' locals.
Dominion Bridge's ironworkers had started work at 7:30 a.m. and Clyde Fitzgerald, site superintendent for Dominion Bridge, first learned of his men starting to leave the job at approximately 8:45 when John Powers, chief steward and Al McNeil, job steward for the ironworkers employed by Dominion Bridge, came to his office. Powers told him that the ironworkers employed by Moore and the other companies had walked out, and Dominion Bridge's ironworkers may go too.
Powers has worked off and on for Dominion Bridge for some 30 years and has been a steward on nearly every job on which he has worked for the company. He heard at lunch on March 11th from a Noront ironworker about a possible dispute about work on the kiln and he was aware by the end of the day that the ironworkers working for Moore, Noront and Comstock disagreed with the assignment of the kiln alignment work to millwrights. He knew that Boulard was steward for Moore's ironworkers and was upset by the work assignment. Powers made no attempt to advise Verdecchia or Lajeunesse of the situation. Powers was working on the "star" raising gang on the boiler recovery building on Friday morning when his connectors, who were up on the steel, told him some ironworkers were leaving the site. They were passing right by his crew's crane and when Powers spoke to them they told him that they disagreed with Verdecchia about the work assignment on the kiln. Boulard was amongst the ironworkers leaving the site and when Powers spoke to him, Boulard stated that he disagreed with Verdecchia's decision that the kiln alignment was not ironworkers' work. While Powers had not spoken to Boulard about the kiln work before, it was his understanding that it was Boulard who had brought about the walkout.
Powers told his crew to stay put while he looked for McNeil but they left the job and went to their changing rooms. Other Dominion Bridge ironworkers were doing the same. He told them all to wait, that he was going to call Verdecchia. While he and McNeil were at Fitzgerald's office, Powers spoke on the telephone with Lajeunesse who told him to try and keep the men on the site and he would come down immediately from Sudbury. He relayed this instruction to about 35 men waiting in three changing rooms then went onto the site with Jim Toms, General Structural Superintendent for Dominion Bridge. The raising gangs were in the process of securing their rigging preparatory to leaving the job. Toms and Powers tried unsuccessfully to get them to stay on the job. According to Powers, most of these men merely responded that they were from out of town and "were going home." As Powers explained to the Board when you are working in another local's territory and the local members go off the job, if you want to work there again, you go with them. He explained his understanding that Boulard had started the walkout in similar terms: "You've got to understand the trade. When you see your fellow members going out, you've got to go with them."
James Phair, general organizer for the Ironworkers in Canada, was summoned to testify in reply for the applicants. He told the Board that he had been assigned by the International office to investigate charges that Boulard had shut down Dominion Bridge's jobs on the E. B. Eddy project. He made an investigation during which Boulard admitted to Phair that he had been involved in taking the ironworkers off the E. B. Eddy job; that he had gone around the site to where contractors other than Moore were working in order to take their ironworkers off the job; and that he had encountered two stewards on his way off the job on March 12th and had asked for their support. Boulard had denied in his testimony that he had done any of these things but, for the reasons given earlier, the Board is not prepared to rely on his evidence.
Boulard has been a member of Local 786 since 1967, has been a steward before and served for four years as a member of its executive board. He was well known to members of Local 786 on the project; they knew that he was steward for ironworkers employed for Moore; and Powers, McNeil and Boulard acknowledged that Boulard is the person to whom they would look to represent their interests with respect to the work on the kiln, or for information about it. There had been no dispute about the kiln alignment work until Boulard went to work for Moore and questioned its assignment to the millwrights.
Article 26 of the Agreement makes it an offence for employees bound by it to strike. It does not define a strike and nor is strike defined elsewhere in the Agreement. Clause (o) of section 1(1) of the Act gives the following definition:
"strike: includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding or a slow-down or other concerted activity on the part of employees designed to restrict or limit output.
Furthermore, section 72(1) of the Act expressly prohibits strikes and lockouts during the term of a collective agreement:
Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee; and
section 74 prohibits a trade union from, inter alia, calling or authorizing a strike or its officers or agents from counselling, procuring, supporting or encouraging an unlawful strike:
No trade union or council of trade unions shall call or authorize or threaten to call or authorize an unlawful strike and no officer, official or agent of a trade union or council of trade unions shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike.
The definition of strike in clause (o) of section 1(1) establishes two key elements for employees' actions to constitute a strike: there must be an actual or threatened disruption of the employer's operation and the employees must have acted in concert. See Domglas Ltd., [1976] OLRB Rep. Oct. 569, at paragraph 12. The facts leave no doubt here, nor was it contested, that the operations of Moore and Dominion Bridge were disrupted on March 12th. The facts also satisfy the Board that the employees acted in concert to cause that disruption. Boulard, a job steward for Local 786 who was known to its members to be such and a person to whom they would look for leadership on the work assignment issue, an issue which had become known at least to some of the ironworkers employed by other contractors on the E. B. Eddy project, was actively involved in taking the ironworkers off the job. A fact admitted by him to a senior officer of his union.
Absent that admission, the Board would still find that the employees acted in concert. There is no credible or convincing explanation for the ironworkers employed by Moore and Dominion Bridge in particular, or for those employed by the other contractors, Noront Steel and Comstock, for leaving their jobs on Friday, March 12th. The Board, therefore, draws the inference that they have acted in concert and that their actions constitute a strike. That strike having occurred during the term of the Agreement is a violation of section 72 of the Act and Article 26 of the Agreement.
The applicants are seeking relief, inter alia, in the form of damages payable to Moore and Dominion Bridge for monetary damages suffered by reason of the breach of Article 26 of the Agreement. In view of the preliminary issue of whether Boulard and the other persons named as respondents to the referral are proper parties, the Board will deal first with the question of whether Local 786 would be liable in damages if there are damages arising out of the unlawful strike.
While the preponderance of arbitration awards dealing with a trade union's liability for damages arising out of an unlawful strike long have held that clauses similar to Article 26 do not impose an absolute liability on a union, it is well settled that a union, under such a clause, may be made vicariously liable in damages by the conduct of its officers and officials where the clause has been breached. In respect of liability arising out of the conduct of stewards, Prof. Bora Laskin, as he then was, stated as follows in one of the leading cases, Polymer Corp. Ltd. (1958), 10 LAC 31 (Laskin), p. 39:
Stewards or committeemen who are put forward by a union as its representatives for departmental or area grievance adjustment must be expected to know that their very status and function underlines the impropriety as well as the illegality of a strike while the collective agreement is in force. Thus it follows that a strike called or instigated by a steward or committeeman in his area is a strike for which the union must accept liability under art. 8.01. Steward action is union action in this respect.
- Article 23 of the Agreement, which states in major part as set out below, leaves no doubt that an Ironworkers' job steward represents the interests of the union and its members under the Agreement.
There shall be a steward appointed by the Business Agent, on each job at all times during assigned working hours and all overtime hours, who shall be a Local Union member in good standing.... The Steward shall be given reasonable time during his shift to fulfill his duties and obligations. The Job Steward shall be notified when overtime is to be worked. The Steward shall keep a record of employees hired, laid off and discharged, and shall take up all grievances on the job and try to have same adjusted. In the event he cannot adjust them, he must promptly report that fact to the Business Agent of the Local Union so that Step 2 of the grievance procedure can be followed through. He shall see that the provisions of this Agreement are complied with and report the true conditions and facts.... The Employer agrees that when employees are laid off, the Steward shall be notified prior to the lay-offs, and all things being equal, the Steward will be the last man laid off. The Employer further agrees that the Steward will not be transferred to another jobsite unless mutually agreed by the Employer's Representative and the Local Union Business Agent. The Steward shall be a member of the Local Union in whose territory the work is being performed.
Those were the contractual obligations bearing on Boulard when he became job steward for Moore's ironworkers. Those are not his only contractual obligations as a steward. He shares with Local 786 an obligation under Article 26 with respect to the prohibition that "No employees bound by this Agreement shall strike " Prof. Laskin in the Polymer award, supra, having rejected the proposition that provisions of that nature impose an automatic liability on the union whenever its members engaged in an unlawful strike, goes on, at page 34, to define from language of similar meaning as herein the scope of a union's obligation. In so doing, he adopts the interpretation given to similar language by the arbitrator in Canadian General Electric Co. Ltd. (1951), 2 LAC (Laskin) and concludes that a reasonable standard of conduct for a union under such language is that it ..... will not through its proper officers sanction or direct or condone or encourage stoppages by any person in the bargaining unit."
Applying that standard of conduct to the facts before this Board establishes unequivocally that Boulard instigated the unlawful strike of Moore's and Dominion Bridge's ironworker employees on March 12th. Therefore, he has created a clear breach of Article 26 and, being an official and agent of Local 786, has made it liable for the strike. His actions also constitute a breach of the prohibitions in section 74 of the Act.
As the Board commented above, even if it did not rely on Phair's evidence that Boulard admitted leading the walkout, it would have found that the employees had acted in concert in walking off the job on March 12th. Similarly, the Board would find that their concerted action was instigated by Boulard.
Boulard was already familiar with the E. B. Eddy project when he began to work for Moore on March 10th. He immediately became steward for Moore's ironworkers and raised the issue over assignment of the kiln alignment work. Word of the issue had spread sufficiently so that Powers was aware by the end of March 11th of its existence and of the dissatisfaction of Boulard and some of the ironworkers employed by Noront Steel and Comstock with Verdecchia's ruling that the kiln work at issue was not that of ironworkers. Boulard was known to these men and at least to other members of Local 786 to be the steward for Moore's ironworkers and he, Powers and McNeil acknowledged that Boulard was the person other ironworkers would look to for direction and information about the work assignment issue. Their views are consistent with the obligations of the steward spelled out in Article 23 of the Agreement. On Friday morning, March 12th, within a half hour of Boulard leaving the job with Dallaire followed by the Noront Steel and Comstock ironworkers, over 50 of Dominion Bridge's ironworkers had laid down their tools and left the site. When Powers intercepted Boulard to find out what was happening, he did not see Boulard doing anything to dissuade the other ironworkers from leaving.
Even were the Board to ignore the evidence of Boulard's admission that he led the walkout and that he had been around the site to get other ironworkers to leave the job and the obvious inference to be drawn from that evidence, given the compressed time period in which the entire scenario developed from Boulard's initiation of the work assignment issue on Wednesday morning through to the evacuation of all ironworkers from the site by 9:30 a.m. on Friday and the speed with which all but a small group of ironworkers cleared the site after Boulard was seen leaving, the inescapable conclusion at least is that the other ironworkers who walked off the job were following the example of a steward, Boulard. Therefore Boulard, by his example encouraged the unlawful strike of other ironworkers on the project.
There is some additional support for this reading of the facts from the evidence of Lajeunesse and Powers. When Lajeunesse came to the site Friday morning, he was asked by Davidson and by a Mr. Corber, who was in charge of the job for E. B. Eddy, to remove Boulard from the project. He advised against such action because of an expectation that it would create problems for getting the men back on the job on Monday. Powers stated quite candidly that, when you are a member of one local and working in another local's territory, if that local's members walk off the job, you go with them if you want to work there again. That reasoning would be even more compelling when one of the local's stewards is in the vanguard of those walking out.
Thus, as a result of Boulard's conduct in instigating the unlawful strike, Local 786 must accept liability for its occurrence. Lajeunesse and Verdecchia acted promptly to limit that liability by taking steps over the weekend to ensure an orderly return to work on Monday. All of the ironworkers for Moore and Dominion Bridge returned to work without further incident on the Monday and there is no evidence of ironworkers for the other contractors being scheduled for work and not working. While Local 786 officials acted promptly, positively and decisively in that respect, the Board has some remaining doubt as to how they discharged their responsibility under Article 26 to prevent the unlawful strike of their members.
Verdecchia admits that there was a heated discussion between him and the two Noront Steel ironworkers when he and Boulard went to the kiln together Thursday afteroon. He told the Board that, when he left the project after the encounter, he did not suspect that the work assignment issue would become the cause of an unlawful strike. If he had suspected that to be the likely reaction of his members, he would have stayed in the area to deal with the event, as he claims he had done in circumstances where he thought that precaution was needed. Powers was aware by the end of the same day, Thursday, that Verdecchia had come to the project, that Boulard and some other ironworkers disputed Verdecchia's judgment on the work assignment. But he did not see the need to alert Verdecchia or Lajeunesse to the possibility of that dissatisfaction spreading.
While the Board has the advantage of the accuracy of hindsight, the failure of both Verdecchia and Powers to recognize the circumstances with which they were confronted on Thursday as the forerunner of Friday's strike seems inconsistent with their experience as union officials in their trade. Both must be aware that work jurisdiction problems are one of the more common causes of work stoppages on construction sites. When you add to that context Power's graphic description of how members of the trade respond when any of their brothers in the trade walk off the job, their failure to accurately assess the temper of the membership on Thursday raises reasonable doubt as to whether Local 786 officials acted with appropriate diligence to avert the strike. It is unnecessary for the Board to make a finding with respect to Verdecchia's and Power's conduct in this case because of the clear evidence with respect to Boulard's complicity in the strike. Absent such evidence, however, Local 786 might still have been found liable for the strike on the basis of the failure of its officials to properly assess the need for action to avert it.
It has become well established since the decision in Re Polymer Corp. Ltd. (1959), 10 LAC 51 (Laskin) affirmed 1962 CanLII 3 (SCC), 33 D.L.R. (2d) 124, [1962] S.C.R. 338, sub nom. Imbleau v. Laskin, that arbitrators have the authority to award damages for proven losses attributable to an unlawful strike. The Board has found Local 786 to be liable for the unlawful strike on Friday, March 12th, 1982 of the ironworkers employed by Moore and Dominion Bridge. Therefore, Local 786 would be liable for losses suffered by those two applicants as a result of the strike and it remains to be determined whether there are damages to be assessed against Local 786.
Moore and Dominion Bridge are claiming for certain costs which they contend were incurred as a direct result of the unlawful strike on March 12th. Their claims are summarized below:
Moore
Indirect (i.e., overhead) costs $100.00 Salary for Ernest Davidson for time spent dealing with the strike on March 12th. 250.00 Reporting pay for Omer Vondette, ironworker foreman, for time not worked on March 12th. 31.00 Miscellaneous expenses 50.00 $431.00
Dominion Bridge
Cost of site supervision, site services and equipment operators for March 12th. $ 4,800.00 Cost of idle equipment. 3,694.00 Cost of making up for the delay in the construction schedule. $13,120.00 $21,614.00
In general, both companies are seeking to recover the costs of payments made to employees whose terms of employment required it but who, because of the strike, were unable to perform productive work on March 12th; for the costs of equipment idled by the strike; and for other unrecovered overhead expense. Both companies are working under fixed-price contracts. Therefore, to the extent that the cost of performing the job would be increased as a result of the strike, the mark-up (or profit) remaining between the estimated cost and the fixed-price of the contract would be reduced. That is the principal basis for their claims. While it would not be possible to determine the cost impact of the strike until the job is finished, and at that time it might be difficult to do it with any precision, the Board finds the general premise of the two employer applicants that the duration of their jobs, therefore their costs, will be extended by one day to be a reasonable one for calculating costs, particularly since the strike was not in any way influenced by any act or omission of the employers. Moore and Dominion Bridge calculated the costs of their claims for these types of expenses on the same basis as they had bid the jobs.
- The Board, in assessing Moore's claim as summarized above, is not satisfied that the claim for $250 for Davidson's time spent on the strike is substantiated. Moore has a variety of trades and work on the project for all of which Davidson is responsible. In the Board's view, this circumstance makes the premise that his time on the project would be extended by one day mainly because of the strike sufficiently questionable not to allow that part of Moore's claim. The Board is satisfied on the basis of the evidence which it heard and has considered that the other costs are a reasonable consequence of the strike. The Board finds therefore that Moore has incurred additional costs directly attributable to the unlawful strike as follows:
Indirect (i.e. overhead) costs $100.00 Reporting pay for Omer Vondette 31.00 Miscellaneous expenses 50.00 $181.00
Turning to Dominion Bridge's claim, its only jobs are the two referred to above. Consequently, all of Dominion Bridge's work was halted by the strike and, except as specifically noted hereafter, those employees providing supervision and other site services were idled by the strike. The damages claimed for site supervision, site services and equipment operators are based on the payment to 20 employees of wages and living allowances for the day, a payment required whether or not work was performed. The costs have been estimated on eight hours at an average hourly cost of $25.00, plus living allowance. Approximately two hours work was performed on March 12th, so the claim is reduced by 25 per cent to $3,600. The equipment operators are paid for eight hours whether or not there is eight hours work for them. On March 12th, they performed service work on their equipment which they would do ordinarily when it was idled by weather or on overtime. Thus they were not being paid for idle time, which is the justification for this item. Any overtime for which they were paid after the strike is reflected in the claim for the cost of making up for the schedule delay. Therefore, this item should be reduced by a further $1,600 (8 employees x 8 hoursX$25.00). These costs are further reduced by $200.00 to delete Dominion Bridge's claim with respect to Malcolm Tike, General Foreman, who performed a full shift of productive work. The allowable costs for this part of the claim are thus $1,800.00.
Dominion Bridge's claim for the costs of idle equipment is based on its daily book costs for owned equipment assigned to their two contracts according to the bid costs. It is equipment which would ordinarily be rented out or assigned to another project if not in use. There was no opportunity to rent it on the day of the strike and the loss of the shift would ultimately result in delaying the availability of the equipment for use on other projects by one day. The Board is satisfied that this claim reasonably represents the additional equipment cost to Dominion Bridge caused by the strike.
It is also claiming for the cost of making up for the delay in the construction schedule resulting from the work time lost on March 12th. That part of its claim constitutes approximately 60 per cent of the total claims of the two companies. Dominion Bridge, on average, was at least one month behind schedule for meeting the projected completion dates for its two contracts. This problem had been caused primarily by weather conditions which had prevented ironworkers from working on the steel. Its most critical deadline was for placing the roof beams on the boiler recovery building. E. B. Eddy had given Dominion Bridge an extension until March 23rd on the completion date. No other contractors scheduled to work on the building could begin their work until at least half of the roof was on. As of March 12th there were only 12 more beams to place before the roofers could begin to roof the first half of the building. March 12th was an exceptionally good day for raising steel and Dominion Bridge expected to get most of the work done by the end of the shift. Toward this end, McNeil's crew, which had been working on the pulp machine, had been moved over to help the raising gangs on the boiler recovery job. Dominion Bridge was employing the maximum number of ironworkers that the job would absorb so, prior to the strike, in order to make up for the time lost previously and to meet their completion dates, they had been working daily overtime when weather permitted and on every other weekend with the ironworkers who wanted the weekend work.
Dominion Bridge's claim for $13,120.00 costs of catching up for the schedule delay caused by the strike is based on the fact that it had been working consistent overtime prior to the strike in order to meet its completion dates and, therefore, it had to make up for the lost day by working 80 employees the equivalent of one eight-hour shift of overtime. It is claiming the additional cost of the overtime calculated at 640 man hours at the average hourly cost of $20.50. The detailed records for the two contracts reveal that, during the month following the strike, overtime slightly in excess of 640 man hours was worked. The documentary evidence does not specifically connect that overtime to the strike, but the evidence of witnesses was that Dominion Bridge concentrated its efforts on the boiler recovery building and the overtime worked on it between March 15th and 23rd was a direct consequence of the delay caused by the strike and essential to meeting that target date for having the building ready for the roofers. After that it was necessary to put a similar effort into catching up on the balance of their contracts. The company's records of overtime work seem to bear out that evidence and generally supports this part of its damage claims.
The Board finds, therefore, that Dominion Bridge has incurred additional costs directly attributable to the unlawful strike as follows:
Cost of site supervision, site services and equipment operators $ 1,800.00 Cost of idle equipment 3,694.00 Cost of making up for the delay in the construction schedule 13,120.00 $18,614.00
- Therefore, as a result of the unlawful strike which took place on March 12th, 1982, in violation of Article 26 — No Strike No Lockout of the agreement and having regard for the Board's finding Local 786 would be liable for any damages suffered by Moore and Dominion Bridge as a direct consequence of the strike, Local 786 owes them the following amounts:
Moore $ 181.00 Dominion Bridge 18,614.00
$18,795.00
In view of that result, it is not necessary for the Board to deal with the claim for damages against Boulard and the persons named on Schedule "A", and with the related question of whether they are proper respondents to a referral of a grievance under section 124 of the Act.
Having regard to the evidence before the Board, its findings of fact thereon and pursuant to section 124 of the Labour Relations Act, the Board determines that:
(a) the International Association of Bridge, Structural and Ornamental Ironworkers Local 786 ("Local 786") and the Ontario Erectors Association, Ralph M. Moore Industrial Installations Limited ("Moore") and Dominion Bridge Company Limited ("Dominion Bridge") are bound to the provincial agreement ("the Agreement") between The Ontario Erectors Association and The Ironworkers District Council of Ontario and International Association of Bridge Structural and Ornamental Ironworkers Local Unions 700, 721, 736, 759, 765 and 786 which was in effect from May 1st, 1980 to April 30th, 1982;
(b) Local 786 has violated Article 26 — No Strike or Lockout of the Agreement as a result of an unlawful strike, on March 12th, 1982, of ironworkers employed by Moore and Dominion Bridge and represented by Local 786;
(c) Local 786 owes to Moore and Dominion Bridge as a result of its violation of the Agreement the sum of $18,795.00 made up as follows:
Moore $ 181.00 Dominion Bridge 18,614,00 $18,795.00
and
(d) Local 786 shall pay forthwith to Moore the sum of $181.00 and to Dominion Bridge, the sum of $18,614.00.