Ontario Sheet Metal and Air Handling Group v. Acme Plumbing and Heating, 1983 CanLII 845

Ontario Labour Relations Board

Parties and Appearances

[1983] OLRB Rep. November 1769

0346-83-U Ontario Sheet Metal and Air Handling Group, Complainant, v. Acme Plumbing and Heating, Respondent

BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. Kobryn and W. H. Wightman.

APPEARANCES: Martin Addario, T K. Billings, L. Cianfarani and W. H. T Wilson for the complainant; K. W Kort, Joel Trudeau and V. Trudeau for the respondent.

DECISION OF THE BOARD; November 30, 1983

Decision of the Board

1. In this complaint under section 89 of the Labour Relations Act, the complainant has been dealt with by the respondent contrary to the provisions of section 147(2) of the Act.

2. It is the position of the complainant that it is a designated employer bargaining agency within the meaning of sections 137(1)(d) and 139(1)(b) of the Act and that it has recognized the Mechanical Contractors Association of Kingston ("MCAK") as a Local Association of Sheet Metal Contractors and has delegated to it responsibility and authority with respect to labour relations matters including the levying of assessments for employers covered by the provincial collective agreement between the complainant and Sheet Metal Workers International Conference ("SMWIC") effective from May 1, 1982, through April 30, 1984, and for all previous relevant provincial collective agreements.

3. The complainant alleged that the respondent was bound by the current collective agreement referred to in the preceding paragraph and was also bound by the provincial collective agreements effective from May 1, 1980, to April 30, 1982, and from May 1, 1978, to April 30, 1980. It was also the position of the complainant that the respondent has been party to a series of collective agreements with Local Union No. 269 since at least May 22, 1975.

4. The complainant referred to article 34 of the current collective agreement and Appendix C, clause 18, which require employers bound by the collective agreement to pay an assessment as may be determined by the directors to the complainant. It is the position of the complainant that these payments are to be made through the Local Employer Trade Association (the "Association") having jurisdiction in the area where the work is being performed, whether or not the respondent making such payment is a member of the Association. It was also the position of the complainant that the respondent has continually refused on numerous occasions to pay industry fund assessments required by the collective agreement and Appendix C in the period from June, 1978, to date. It was alleged by the complainant that the amount of assessments owing for the period from June, 1978, to August 31, 1982, is $10,443.43. The complainant grieved on its own behalf and on behalf of the MCAK that the respondent is in breach of the collective agreement and Appendix C and section 147(2) of the Act.

5. It was the position of the respondent that the Board did not have jurisdiction to deal with this complaint because the complaint and particulars did not disclose any contravention of the Act. The respondent adopted the position that the complainant had .failed to promptly bring to the attention of the Board any alleged violations of the Act. Subsequently, the respondent conceded that the Board had jurisdiction to entertain this complaint and admitted its liability for dues and assessments claimed under the provincial collective agreement in the industrial, commercial and institutional sector only. The respondent also informed the Board that it was henceforth prepared to comply with the assessment provisions of the collective agreement with respect to work performed in the industrial, commercial and institutional sector of the construction industry. The respondent also agreed that in terms of the matter of quantum, the onus was on the respondent to establish which work was included in the industrial, commercial and institutional sector of the construction industry. However, the respondent did argue that the delay by the complainant in making this complaint ought to limit the liability of the respondent to pay assessments.

6. Mr. W.H.T. Wilson gave evidence that he has been the secretary of the MCAK since its inception in 1974. In a letter dated February 4, 1977, Mr. Wilson wrote to the complainant the following letter:

Dear Lou:

Re: Industry Fund Collections

There are a group of Belleville Sheet Metal Contractors who collectively refuse to pay into the Industry Fund called for in the Agreement, even though we are covered by an Accreditation Order covering these contractors.

Attached is a report of the situation given to these contractors' representatives at a meeting held in Belleville on January 13th. At that meeting, it was made clear that they were not willing to join the Association nor had they any intention of paying to the Industry Fund.

They feel that there are mitigating circumstances, accept the facts laid out in the report but quote the Ottawa case where the Ontario Labour Relations Board is unable to enforce a breach of the collective agreement when the grievance is between an employer and an accredited employers’ organization.

The Association has been unwilling to initiate legal action up to now because, firstly it would tend to lessen the likelihood of reaching an amicable solution to the problem, secondly the amount of money involved is not large, and thirdly a precedent may be established when the Ottawa case is heard later.

Is there anything that your Association can do to advise or help us?

Since this is of general interest and it affects the membership of the Ontario Association and the payments to the Provincial Association, would you be prepared to provide financial or other assistance if it was decided to take legal action?

The respondent was one of the contractors referred to in the second paragraph of this letter. The reference to the decision of the Board is a reference to J. G. Rivard Limited, [1976] OLRB Rep. Sept. 540.

7. On July 16, 1979, Mr. Wilson on behalf of the MCAK wrote to the respondent as follows:

re: Remittances, M.C.A. Kingston Industry Fund

Gentlemen:

As you are aware, we have, on numerous occasions, asked that you remit to the Industry Fund that has been included in Collective Agreements covering Sheet Metal Workers, since 1975.

We have also considered taking action to enforce the Collective Agreement, but have preferred to have you pay your share on a voluntary basis.

As you are aware Ammendments [sic] to the Labour Relations Act covered in Bill 22, provide for Provincial bargaining.

A Memorandum of Agreement was signed between OSM & AH Gp. and the Provincial Council of the Sheet Metal Workers International Association. This agreement came into force on May 29th, 1978 and calls for .10¢ per man hour worked to be paid to M.C.A. Kingston.

O.S.M. & A.H. Gp are insisting that these funds be collected and they are prepared to take action under the Agreement and the provisions of the Ammended [sic] Act.

We would, therefore, request that you send your remittance covering the payments called for on the attached sheet.

If you have any questions or would like to discuss this, I would be happy to call on you at your convenience.

In order that we may advise O.S.M. & A.H. Gp of the status of this account, may we please have your payment by the 15th of August, 1979 for hours worked up to the end of July, 1979.

Remittance Forms are enclosed for current and future payments.

Attached to this letter were calculations for various months in 1978 and 1979 and a claim based on apparent data for six months in the amount of $588.55. Mr. Wilson had discussions with Joel Trudeau, one of the principals of the respondent, on August 27, 1979, about the survival of unionized metal contractors in Belleville and referred to the above-mentioned claim.

8. On February 8, 1980, Mr. Wilson again wrote to the respondent on behalf of the MCAK the following letter:

Dear Sirs:

re: Industry Fund

We still have not received payment as request in our earlier letters.

A revised list of payments due under the Provincial Collective Agreement, is as follows:

1978 June 1153 .10 $115.30 July ? August 1320 132.00 September ? October ? November 1050 105.00 December 1058 105.80

1979 January 1304.50 .10 $130.45 February ? March ? April 612 .10 61.20

May 1004 .10 100.40

June ?

July 1148 .10 114.80

August 1195 .10 119.50

September 1100 .10 110.00

May have we your payment.

On April 22, 1980, Mr. Wilson spent an hour in a meeting with Vincent Trudeau, one of the principals of the respondent, and went over the whole situation in the Kingston area and provincially and explained that it was the view of the board of directors that the respondent should pay the assessments. He asked for Mr. Vincent Trudeau's co-operation and explained the certificate of accreditation which covered the respondent and the affects of provincial bargaining. Mr. Wilson testified that Mr. Vincent Trudeau's position was one of understanding but that he was non-committal and appeared not to regard reference to further action as a threat.

9. Mr. Wilson had other discussions with Joel and Vincent Trudeau concerning the payment of assessments. On August 6, 1980, Mr. Wilson again wrote to the respondent on behalf of the MCAK as follows:

Dear Sirs:

re: Industry Fund

Further to our registered letters of July 16th, 1979 and February 8, 1980, we still have not received payment of the amounts listed on the attached sheet.

We would again advise that these payments are not dependant [sic] on membership in the Association, but are called for in the Provincial Collective Agreement between Ontario Sheet Metal and Air Handling Group, and the Sheet Metal Association. Copy of Article 40 of the current Agreement is attached, as is Article 18 of the Local Appendix covering this area.

In order that we may advise OSM & AH Gp. of the status of this account, may we please have payment of this account by September 1st, 1980 for hours worked to the end of July 1980.

If you have any questions or would like to discuss this, I would be pleased to call on you at your convenience.

Attached to this letter was an itemized claim for assessments plus liquidated damages and interest covering the period from June, 1978 to June, 1980.

10. On April 6, 1981, Mr. Wilson again wrote to the respondent on behalf of the MCAK as follows:

Dear Sirs:

re: Industry Fund

Further to our previous letters of July 16th, 1979, February 8, 1980 and August 6, 1980, we still have not received payment of the amounts listed on the attached sheet.

We would again advise that these payments are not dependent on membership in the Association, but are called for in the Provincial Collective Agreement between Ontario Sheet Metal and Air Handling Group, and the Sheet Metal Workers Association. Copy of Article 33 of the current Agreement is attached, as is Article 18 of the Local Appendix covering this area.

In order that we may advise OSM & AH Gp. of the status of this account, may we please have payment of this account by May 1st, 1981, for hours worked to the end of March 1981.

If you have any questions or would like to discuss this, I would be pleased to call on you at your convenience.

Attached to this letter there was a statement regarding "remittances past due" in the amounts of $458.10 for 1978, $1,039.25 for 1979, and $1,317.60 for 1980. The statement, in addition, also claimed liquidated damages and interest.

11. Once more, on November 29, 1982, Mr. Wilson wrote to the respondent on behalf of the MCAK and stated:

Dear Sirs:

re: Industry Fund

We have written on several occasions in the past, drawing your attention to the fact that you have not remitted Industry Fund payments in accordance with Article 33, Body of Agreement and Clauses 18.6, 18.7, 18.8, Kingston Appendix "C" of the Provincial Collective Agreement between the Ontario Sheet Metal and Air Handing Group and the Ontario Sheet Metal Workers' Conference. Copies of the 1978 and 1980 Articles are attached.

During the last few months, the Ontario Labour Relations Board has upheld the right of the Association to collect Industry Fund in similar circumstances.

The Ontario Sheet Metal and Air Handling Group have advised that as signatories to this Agreement, they are prepared to assist us to take this particular case to the Board and have requested that we make a last attempt to collect these Funds.

If we do not receive payment for the amount shown on the attached statement in full, by December 15th, 1982, we will pass this account to Ontario Sheet Metal and Air Handling Group so that they may take the matter to the O.L.R.B.

Attached to this letter was an itemized statement covering the period from June of 1978, until August of 1982 in the amount of $10,443.43. This amount included monies with respect to penalties. The only response to any of these letters was a response to the letter dated February 8, 1980, when a person, who was believed to be in the respondent's accounting department, telephoned Mr. Wilson. This person said she would speak to the Trudeaus and call Mr. Wilson. However, Mr. Wilson did not receive further calls from this person.

12. On April 22, 1983, the solicitors for the complainant and the MCAK wrote the following letter to the respondent:

Dear Sirs:

Re: Mechanical Contractors Association of Kingston and Provincial Collective Agreement between Ontario Sheet Metal and Air Handling Group and Sheet Metal Workers' International Conference for Locals 30, 47, 235, 269, 392 397, 473, 504, 537 and 562

We act for the Ontario Sheet Metal and Air Handling Group and the sheet metal division of the Mechanical Contractors Association of Kingston.

By virtue of provisions contained in the above referenced Collective Agreement, to which you are a party, by operation of law, you are required to pay an assessment to the Ontario Sheet Metal and Air Handling Group as may be determined from time to time by the Directors of that Group. These payments are to be made to the local Employer Trade Association having jurisdiction in the area where the work in question is being performed, whether or not the Employer making such payment is a member of the Employers' Association.

The Ontario Sheet Metal and Air Handling Group has recognized the Mechanical Contractors Association of Kingston as a Local Association of sheet metal contractors and delegated to it responsibility and authority with respect to labour relations matters including the levying of assessments for Employers covered by the Agreement in your local area.

We understand that notwithstanding frequent demands by the Mechanical Contractors Association of Kingston and the Ontario Sheet Metal and Air Handling Group for payment of assessments levied pursuant to the Collective Agreement, you continue to refuse to meet your obligations as an Employer bound by the Collective Agreement.

As at August 31, 1982, you have refused to pay assessments of $10443.43.

Accordingly, please treat this letter as a formal demand by our client, the Ontario Sheet Metal and Air Handling Group on its own behalf and on behalf of the Mechanical Contractors Association of Kingston for payment of $10443.43, being the amount assessed to the end of August 31, 1982 pursuant to the provisions of the Collective Agreement.

Should you fail to remit this amount by certified cheque within ten days from the date of this letter, we have been instructed to institute legal proceedings against you for the recovery thereof.

13. Mr. Wilson gave evidence that there was no collection of the amounts owing by the respondents because it was hoped to resolve the claims without litigation. Two similar claims against employers had been settled without litigation. Mr. Wilson explained that he regarded the outcome of the first Rivard case, supra, in 1976 as being indecisive and that with the decision of the Board in J. G. Rivard Limited and Michel Rivard Plumbing Limited, [1980] OLRB Rep. July 1009, it was felt that the claim in this complaint should be proceeded with. This complaint was filed in May of 1983.

14. Vincent Trudeau recalled meetings with Mr. Wilson in 1977. He believed that the respondent did not have to pay the assessments, had never heard of the Rivard case until this hearing and had attended meetings but had "never given in". Mr. Trudeau gave evidence that the respondent did not respond to the letters because there was nothing to negotiate. He ignored the letters because he thought they were "nit picking". While he saw the amounts and penalties accumulating, he did not seek legal advice and felt the respondent was not legally bound to pay the assessments.

15. The issue for the Board to determine, since the respondent admits its liability to pay assessments under the provincial collective agreement, is to determine the extent of its liability in terms of the period during which the liability arose. The parties have agreed to meet and endeavour to determine the amount owing by the respondent in accordance with the parameters set by the Board.

16. In the Rivard case in 1976, the Mechanical Contractors Association of Ottawa (the "MCAO") referred a grievance to arbitration under the provisions of section 112a [now section 1241 of the Act wherein the MCAO alleged that J. G. Rivard Limited had breached the terms of a collective agreement in that it had not made certain payments to the industry fund as provided for in the collective agreement. In dismissing the referral, the Board concluded that notwithstanding the fact that the dispute arose out of the wording of the collective agreement, the dispute was a matter arising between two entities of like interest and constituted an internal dispute between them, and not a dispute between "either party" to the collective agreement within the meaning of section 112a of the Act. The Board concluded it had no jurisdiction to deal with the referral. The conventional wisdom in 1976 was therefore that a claim such as the one before the Board in the instant referral would have been unenforceable in a referral to arbitration. Indeed, the decision of the Board in Rivard in 1976, was taken to the Divisional Court and the application for review was dismissed on November 23, 1976. The Court stated that it was in complete agreement with the Board's decision.

17. On July 31, 1980, the Board released its decision in J. G. Rivard and Michel Rivard Plumbing Limited, supra, ("Rivard No.2"). Once again the MCAO referred a grievance to the Board under section 112a [now section 124]. Once again there was an attempt to recover industry fund dues pursuant to the provisions of a collective agreement. In Rivard No. 2, the Board noted changes had been made to section 112a and that additional provisions had been added to the Act under the regime of provincial collective agreements. The Board determined that the non-payment of industry fund dues was a violation of section 134(2) [now section 147(2)] of the Act and that substantive relief was available by grounding a request for relief under sections 79(1) and 79(4) [now sections 89(1) and 89(4)] of the Act. In making its decision, the Board noted the comments of the High Court in Regina v. Ontario Labour Relations Board ex parte Genaire Ltd. 1958 CanLII 130 (ON HCJ), [1958] OR. 637, that the Board may exercise any jurisdiction given to it under the Act, notwithstanding that a particular section of the Act is referred to in the formal application.

18. While this matter has been framed as a proceeding under section 89 of the Act, it does bear similarities to grievance procedures in collective agreements where a time limit has not been set out in the relevant collective agreement. In dealing with such a situation aboard of arbitration stated in Re Canadian General Electric Company and United Electrical, Radio and Machine Workers of America (1952), 3 L.A.C. 980, at page 982:

Neither the Agreement under which this grievance was filed nor the preceding Agreement contains any time limitations for the filing of grievances. Is there, then, any basis on which a grievance can justly be declared "stale" or "out of time", and thus subject to rejection without consideration of its merits? And if there is such a basis of rejection, is this case within its limits? In considering this problem it is safe to start with the proposition abstract though it may be, that a grievance about an alleged violation of a Collective Agreement should be brought within a reasonable time after the alleged violation has occurred. It should make no difference to the application of this proposition that the grievors were unaware that they had a right to complain, unless they were in some way misled by the Company. A Collective Agreement is binding on the Union and employees as well as on the employer, and it is a chief function of a Union as a Collective Bargaining Agent for employees to be zealous in asserting rights of employees under a Collective Agreement. Absent bad faith on the part of the employer, a Union which misconceives its rights or those of employees and thereby fails to press them, should not be permitted to make a retroactive claim to re-open, after the lapse of a reasonable time, transaction which have been completed, as, for example, cases of piece-work jobs for which payment has been made and accepted without expression of dissatisfaction.

Where the alleged violation by the Company is of a continuing nature, in the sense that the jobs or situations giving rise to the violation are of a recurring kind, it does not follow that failure of the Union or an em­ployee to press for relief on certain of those jobs or matters bars them from raising the question in any subsequent case. Again, the relevant inquiry is whether the claim for relief was made within a reasonable time after the matter in issue arose. It is not, in this Board's view, a tenable principle that waiver of rights in any one case amounts to a complete waiver for all like cases. So long as the Collective Agreement affords a basis for relief against any situation, the party entitled to its benefits may assert its rights or refrain from asserting them in any particular instance, subject, perhaps to estoppel if there has been any misleading representation upon which the other party has relied to its detriment.

19. With respect to the jurisdiction of a board of arbitration to go beyond a current collective agreement in making an award, a board of arbitration has determined it had jurisdiction to give a remedy which dated back almost a decade over several collective agreements. See Re Clarke Institute of Psychiatry and Ontario Nurses Association (1982), 1982 CanLII 5115 (ON LA), 5 L.A.C. (3d) 155, 163-4. In the instant complaint the MCAK has shown considerable forebearance in pressing its claims against the respondent. It is also true, however, that up until July of 1980, the complainant had grounds for believing its claim was legally unenforceable following the decision of the Board in Rivard in 1976. On the other hand, despite its cavalier attitude, the respondent was constantly kept informed of the claims against it. Without securing a legal opinion it adopted the policy that if the claims were ignored they might go away. The respondent can hardly claim prejudice since it has been aware of the amounts claimed since 1979 and the claim for liquidated damages and interest since August of 1980.

20. In our opinion, the appropriate balance is to be struck from the date when the Board's jurisprudence indicated that a complaint such as the instant complaint could be successfully presented before the Board. Up until that time, July 31, 1980, the complainant and the respondent, objectively speaking, could have reasonably believed that the claims were legally unenforceable. However, both parties ought to have known with competent legal advice that the claims of the complainant were recoverable before the Board after July of 1980. The violation by the respondent is of a contining nature, and, it does not follow that the failure of the complainant to press for relief before the Board immediately in August of 1980 bars it from recovery from that date. It is important to bear in mind two factors. Firstly, the respondent has repeatedly been made aware of the claims of the MCAK and such claims have been carefully quantified by the MCAK. On this ground alone there can be no prejudice to the respondent. The respondent was always in a position to investigate and verify these claims. Secondly, the forebearance shown by the MCAK is entirely understandable. With employers who are bound by a common collective agreement there ought to be a common and friendly identity of interests. Repeated attempts at friendly persuasion ought not to be discounted or regarded as a surrender of a legal claim in the circumstances of this complaint - given the identity of interests of the complainant, the MCAK and the respondent in the process of collective bargaining. It is therefore the decision of the Board that the complainant is entitled to recover, together with the penalties which are provided in the collective agreements, the claims it has made against the respondent under the relevant collective agreements the assessments and dues provided which became due and payable from and including August of 1980.

21. The Board remains seized with the complaint pending the inability of the parties to agree on the amount which shall be payable to the complainant.