[1983] OLRB Rep. August 1237
2551-82-M International Association of Bridge, Structural and Ornamental Ironworkers, Local 700, Applicant, v. AGIP Structural Steel Limited, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
APPEARANCES: L. Steinberg and F Marr for the applicant; Vincenzo Ciotoli for the respondent.
DECISION OF THE BOARD; August 15, 1983
This is the referral of a grievance to the Board pursuant to the provisions of section 124 of the Labour Relations Act.
The grievance arises out of a job of the respondent performed for St. Clair College in February of 1983. The respondent appeared without counsel, and was represented by one of its two owners, Vincenzo Ciotoli. Mr. Ciotoli acknowledged that the respondent was bound to the applicant's collective agreement, and that the job in question involved work falling within the scope of that agreement. He took the position, however, that the job was only a small one, and that the union accordingly did not really lose anything. While the Board does not normally entertain evidence of settlement discussions, in this case an actual settlement of the grievance had been reached, reduced to writing, and signed by Mr. Ciotoli. Mr. Ciotoli admits the fact of the settlement, but testified that after signing it, his wife, the other part-owner in the company, returned from vacation and told him he was paying too much. The respondent accordingly has refused to recognize the settlement. The evidence disclosed that Mr. Ciotoli himself has always exercised full signing authority in dealing with the trade union on behalf of the respondent company, without any mention being made of his partner, and the Board would likely have exercised its jurisdiction to direct compliance with the settlement had the union so requested (see Suss Woodcraft Ltd. (unreported), Board File No. 2627-82-M dated April 21, 1983). The union, however, takes the position that it would accept the settlement as an alternative position, but, having now been forced to the expense of attending a further hearing before the Board, seeks as its first claim the full amount of damages due under the grievance. The issue before the Board, therefore, was the question of determining the amount of those damages.
Mr. Ciotoli's evidence is that the bulk of the work on this job was performed by himself. (Mr. Ciotoli is a member of the union, and the applicant does not claim damages for the time worked by Mr. Ciotoli.) Beyond that, Mr. Ciotoli testified that he used his two sons, who were unemployed, to assist him in the erection and installation of this 60' skirting wall. Mr. Ciotoli testified that he was not personally at the job all of the time, and that his two sons together spent three days on the job. He said that their time would have been less if he had been there to supervise them all the time. In addition, the job called for applying a finished coat of paint as well as the priming, and all of the painting was sub-contracted by the respondent to an outside firm. Mr. Ciotoli testified that there were two painters on the job, and he estimated that it took them approximately half a day to do the spot-painting and priming, and another full day to apply the finished coat. The evidence of the union is that their ironworkers might be asked to apply the finished coat on a job of this size.
The union claims that all of the work performed falls within its work jurisdiction under the collective agreement as the "field fabrication, installation, and erection ... of structural and miscellaneous steel". The applicant called two experienced witnesses, one of them a trade instructor at St. Clair College, who, in fact, discovered the job in progress, and their estimate of the job was that it would take a crew of four men a minimum of five days to complete. Apart from that, the applicant has no evidence as to when the job commenced or was completed. Mr. Ciotoli was summonsed by the applicant in the normal course to bring to the hearing all of his payroll records and other documentation which would substantiate the extent of the job, but Mr. Ciotoli produced no documentary evidence whatever in support of his own testimony. Mr. Ciotoli explained that neither he nor his sons appear on the payroll records of his company, and that he did not bring the material pertaining to the painting contract because he did not believe that that was Ironworkers' work. The Board is left, therefore, with having to weigh the applicant's estimate as to how long the job could be expected to take against Mr. Ciotoli's unsubstantiated claim as to how much time in fact was spent.
The task of the Board is a difficult one. Damages are in no way meant to be punitive, and estimates of how long a job "ought" to take can vary widely depending upon the side of the fence on which the speculator was standing. On the other hand, the applicant’s witnesses were experienced tradesmen, had a good opportunity to examine the job in progress, and were credible in their evidence. The normal method of verifying the number of man hours involved in the job was pursued by the union, but bore no fruit only because of the employer’s failure to keep proper records. It is the view of the Board that where the union is in a position to produce, as here, credible evidence as to the approximate size of the job, and the employer has elected, for its own reasons, not to keep the proper records which could rebut that evidence, the union's estimate can be accepted. The Board is not persuaded, however, on the equivocal evidence which it heard, that the contracting out of the finished-painting work on this job was necessarily a violation of the collective agreement. The Board attributes that painting work to roughly one day of the five in the applicant's estimate of the job, and accordingly finds that the applicant has proved its damages to the extent of four days' work for four men, or 16 man days. It is agreed that a normal day under this collective agreement is eight hours, and the applicable rate is $19.79 (excluding the three-cent contribution to the Employer's Fund).
The Board accordingly finds that the respondent has violated the terms of its collective agreement with the applicant, and orders it to pay forthwith to the applicant, for the appropriate distribution amongst its members and Benefit Funds, the amount of $2,533. 12.