Ontario Labour Relations Board

[1983] OLRB Rep. September 1554

1278-82-U Joe Portiss, v. Labourers' International Union of North America, Local 1089, and Rocco D'Andrea, Respondents

BEFORE: Michel G. Picher, Vice-Chairman, and Board Members I. M. Stamp and W. F. Rutherford.

DECISION OF THE BOARD; September 30, 1983

1. By its decision dated July 11, 1983, (Reported at [1983] OLRB Rep. July 1160) the Board found that the respondent union violated section 69 of the Labour Relations Act. It ordered, among other things, that the complainant Joe Portiss be compensated for all wages and benefits lost "as a result of the violations found", and remained seized in the event of any dispute between the parties respecting the implementation of its order. The Board also ordered the appointment of an auditor qualified under the Public Accountancy Act to monitor and report, for a period of two years, to the general membership on the administration of the hiring hall rules and procedures, including job referrals. As the parties were unable to agree on the amount of compensation owing to Mr. Portiss the Board reconvened the hearing for two further days for the purpose of determining the compensation owing. The Board is also in receipt of the lists of auditors proposed by the respective parties, and is in a position to make a selection, the parties having failed to agree on that matter as well.

2. At the initial hearing the Board attempted to assist the parties by making several interim rulings on major points of dispute which stood in the way of an agreement on the calculation of compensation. Due to the acrimony which was present between the parties, and surfaced occasionally in the hearings, the Board met initially on a private, informal basis with counsel for the parties in an attempt to determine compensation, still in the hope that guidance from the Board would assist the parties towards an agreed amount of compensation. Later in the day, when the positions of the parties were more clearly articulated the Board allowed Mr. D'Andrea, the union's business agent, and Mr. Portiss to attend with their counsel, but continued to maintain the privacy of the meeting in hopes of facilitating a mutually acceptable resolution of the issue of compensation. No objection was taken to that procedure.

3. At the end of the first day of hearing on compensation the Board made the fol­lowing interim rulings:

1. That compensation could not be computed for Mr. Portiss by merely ordering the payment to him of the difference between his earnings and those of Onorio Ciechini, who was referred as a foreman to Rankin Con­struction on February 9, 1981 although he stood below Mr. Portiss on the out of work list (see para. 50 of the Board's decision of July 11, 1983). The evidence does not confirm that an adherence to the hiring hall rules in conformity with section 69 of the Act would have resulted in the referral of Mr. Portiss to the job in question. It appears that other mem­bers qualified as foremen who stood ahead of Mr. Portiss were also passed over in favour of Cicchini, and would have been entitled to that referral in preference to Mr. Portiss. Moreover, for reasons elaborated below, the following of any other member does not provide reliable means of estimating what Mr. Portiss' earnings might have been.

2. That allegations referred to in a letter of Mr. Iler dated November 18, 1982 and referred to in general terms in the Board's decision, were prov­able for the purposes of assessing compensation.

3. That compensation would not be ordered for the period from June 4, 1982 to the present because during that time, while he has been on full Workmen's Compensation benefits Mr. Portiss made himself unavailable for work referrals, without adequately explaining to the union that he was physically incapable of accepting referrals except for light duties, or without in fact taking any position with the union that it was under an obligation to direct such referrals to him.

In the result the issue for determination became the amount of compensation owing to Mr. Portiss for the period between November of 1980 and December 24, 1981, the time at which Mr. Portiss became unavailable for work due to his medical disability.

4. At the outset of the second day of the compensation hearing Mr. Portiss requested an adjournment of the hearing. He advised the Board that he had discharged his counsel fol­lowing the initial hearing on compensation and that he needed time to retain and instruct a new lawyer. Counsel for the union did not consent to an adjournment and strenuously objected to any further delay of this matter, which has been ongoing over some fourteen days of hear­ing since the complaint was filed on October 8, 1982.

5. It is the general practice of the Board not to grant an adjournment unless it is agreed to by the parties, except in extraordinary circumstances. Extraordinary circumstances would generally include unforeseen events beyond the control of a party, such as illness or difficulties in travel due to severe weather. The Board does not generally adjourn a hearing on the request of a party for time to seek legal counsel, particularly where that party had ample notice of the hearing and a reasonable time to retain and instruct counsel beforehand. In this case Mr. Portiss had, by his own admission, some nine days between his disagreement with his former counsel and the resumption of the compensation hearing. We do not see in these circum­stances any reason to grant an adjournment merely because the complainant was not entirely satisfied with the Board's interim rulings. Among the items of dissatisfaction Mr. Portiss cited the failure of his counsel to adduce evidence to explain why Mr. Portiss voluntarily took a layoff from a job with Combustion Engineering. Given the Board's determination in paragraph 30 of its decision of July II, 1983 that that event would weigh against Mr. Portiss in the assessment of compensation, we are satisfied that he was or should have been aware of that outcome over two months ago. In our view he had ample time to attempt to retain and instruct counsel, or to weigh and accept the alternative of completing the hearing with the lawyer he initially retained. The Board is also mindful of the prejudice which an indefinite adjournment could cause the respondent union, whose membership has obviously been divided by the on­going controversy surrounding this complaint. Fairness to both parties and concern for the labour relations process require that this matter be disposed of without undue delay, in keeping with the Board's normal rules of procedure. For the foregoing reasons the Board ruled at the hearing that it would not depart from its normal procedures and that Mr. Portiss' request for an adjournment was denied.

6. We turn to the merits of the issue of compensation. Mr. Portiss submits that he should be compensated in an amount of more than $40,000.00. The union argues that he should be paid nothing. Unfortunately that divergence eloquently reflects the flavour of this dispute from its beginning.

7. We consider the arguments of the parties in turn. Mr. Portiss submits that his com­pensation should be calculated by paying him at the rate of $13.78 per hour for 72 working days lost between January 9 and April 14, 1981. That yields a sum of $7,927.28 to which he adds interest calculated at 12%. He submits that the resulting amount are the earnings of which he was deprived in 1981. Subsequently Mr. Portiss was awarded a 10% permanent disability pension, the benefits of which may be paid to him for life, based on his earnings for 1981 as calculated under the Workmen's Compensation Act, R.S.O. 1980 c. 539, s. 43 as amended. He submits that his pension benefits are diminished because the base calculation was made on a diminished wage figure attributable to the respondent union's violations of its duty to fairly provide him job referrals through its hiring hall. On that basis he maintains that he should be awarded 10% of the earnings and interest he would have received multiplied by 43. representing a projected period of 43 years of disability, until he reaches the age of 75. With some admitted discrepancies in the calculation of interest, Mr. Portiss originally com­puted the amount owing following that approach to be $47,046.53.

8. The union submitted a number of alternative means of assessing Mr. Portiss' claim for compensation. Its first alternative is to take the average of earnings for 1981 of five mem­bers classified as "burners", the classification of labourer for which Mr. Portiss was regis­tered and for which the Board found he was wrongfully deprived of referrals. The five burners chosen are those who were wrongfully referred over Mr. Portiss. Mr. Portiss earned $10,928.22 in 1981. It is common ground that there were no violations of the Act affecting him in 1980. The average earnings for the five burners in 1981 is $14,539.22. The union submits that Mr. Portiss should be paid the difference between that figure and his own actual earnings for the year, with deductions for unemployment insurance paid to Mr. Portiss as well as for a period of 19 days during which he was disabled and therefore unavailable for work. It also submits his award of compensation should be reduced by an amount of $2,400.00 which it claims he would have earned but for having voluntarily quit a job at Combustion Engi­neering during the period in question. That calculation would leave Mr. Portiss with little or no compensation, as the deductions would virtually eliminate the difference between his actual earnings and the average calculated for the five burners.

9. Alternatively the union submits that the Board should follow the earnings of union member William Brain in 1981, a labourer who was referred out of turn ahead of Mr. Portiss in January and in whose shoes the union submits he would have been for the entire year but for the violations of the Act found by the Board. Brain's earnings totalled $12,860.86. When the same deductions are applied to that figure Mr. Portiss, it is argued, is entitled to nothing.

10. As a third alternative the union submits that the comparison for Mr. Portiss be based on the wages for the year of Salvatore Gagliardi, the highest earner among the five burners who was referred work ahead of Mr. Portiss. Mr. Gagliardi earned $17,064.25 in 1981. When the deductions listed above are applied to that figure, the union maintains that the difference between Mr. Gagliardi's earnings and Mr. Portiss' earnings is nothing.

11. A fourth alternative advanced by counsel for the union is based on a calculation of the estimated average earnings for the entire membership of Local 1089 for 1981. It is not disputed that the union's records show that in 1981, 1,185,187 hours were worked by the members of the local and that for the same period the average enrolment was 962 members. Assuming an hourly wage rate of $14.31 per hour, which includes the hourly rate and va­cation and statutory holiday pay, the average earning would be $17,408.16. The union submits that that figure should be taken as a base for comparison with the actual earnings of Mr. Por­tiss, and it again submits that the deductions for unemployment insurance, the period of his disability, and his quitting Combustion Engineering would reduce the difference to no more than $518.99, which it maintains is the maximum Mr. Portiss should be allowed to receive.

12. After careful consideration the Board does not accept any of the alternatives ad­vanced by either Mr. Portiss or the union as the most reliable way of fairly assessing the amount of his compensation. Mr. Portiss' approach does not commend itself for a number of reasons. Firstly, it does not allow for the possibility that he may have earned more in 1981 because of the length or nature of the later referrals he did receive. Secondly, it is based on the assumption that he will live a certain number of years and will collect a pension for all of that time. As counsel for the union points out, the correct approach to that head of com­pensation would be to capitalize any projected loss to its present day value, by an actuarial calculation. Thirdly, and most significantly, it is not clear from the evidence before the Board that the Workers' Compensation Board did not assess his pension entitlement by reference to the average earnings of a person in his position, rather than by his actual earnings for 1981. It has the discretion to do so. Even if it did not, it would appear open to that tribunal to adjust Mr. Portiss' pension in light of any finding by this Board that his earnings for 1981 were diminished by the union's breaches of the Labour Relations Act. In our view, consid­eration of that question is best left to the Workers' Compensation Board.

13. The Board has equal concern with the alternative approaches advanced by the union. To compare Mr. Portiss to other members on a selective basis leaves much uncertainty. De­termining the amount that an employee would have earned~ but for the wrongful application of fair hiring hall rules, is a speculative exercishall list are taken into account, it becomes virtually impossible to trace with any certainty the figure, the of employment for the entire year of any particular member referred ahead of him. Nor can there be any precise deter­mination of whether he was in fact better off because a later referral might, for example, have brought him a longer assignment of a job with more overtime. When variables such as job shutdowns because of weather or loss of time due to accidents, illness, an employee's decision to quit and the time elapsed before he re-enters the hiring hall list are taken into account, it becomes virtually impossible to trace with any certainty the road not taken. In these circum­stances we see little reliability in any formula for compensation that attempts to put the com­plainant in the shoes of any selected individual or group of members.

14. The Board recognizes that no formula is absolutely certain. It is satisfied, however, that the justice of the case is more likely to be assured by broadly determining the average earnings of the general membership of the local, and comparing them to the earnings of the complainant, with some allowance for his personal circumstances and his conduct, particularly as the latter reflects any failure to mitigate his losses. The substance of the section 69 com­plaint is that Mr. Portiss was discriminated against; the thrust of the remedy should therefore be to place him, as far as possible, in a position comparable to that of the general mem­bership.

15. It is instructive that the average earnings, for 1981 for the membership of the local are estimated at $17,408.16. That is obviously a low real estimate, given that considerably less than the 962 members enrolled actually worked as labourers for the entire year. The union conceded that the figure of 962 covered all dues paying members and would have included those members who maintained their membership even though they may have been inactive due to disability, employment in other industries, absence from Sarnia or for other reasons. In the Board's experience it would not be excessive to assume an inactive membership of as much as 10% of the dues paying members of the local. Taking that into account, it appears to the Board that a fair base of comparison is between Mr. Portiss and the active members, with allowance for Mr. Portiss' circumstances as elaborated below.

16. Based on the unchallenged figures provided by the union and allowing for unem­ployment, it would not be unfair to assume for the purposes of calculating compensation that the average active member of Local 1089 worked some 34.2 weeks of 40 hours during 1981. That is the number arrived at by dividing the total of hours worked in the year by an active membership of 866 labourers. That is obviously a rough figure; no doubt some worked less and others worked more, with varying rates of job premiums and amounts of overtime going to different individuals. But for the purposes of our calculation it would seem to reflect a rea­sonably realistic average. The wage rate, excluding benefits, for the ICI sector in effect during the greater part of 1981 was $13.38 per hour, which is comprised of hourly wages, vacation pay and statutory holiday pay. Applying that rate to 34.2 weeks of work at 40 hours per week yields an average earnings figure of $18,303.84. That is the figure which the Board deter­mines to be a reasonably reliable bench mark to compare the lot of Mr. Portiss to that of the average of the active members of Local 1089 in that year. Given that the rate under the ICI agreement is the highest base wage available to labourers, selecting that rate tends to give Mr. Portiss the benefit of the doubt.

17. If the average member earned $18,303.84 in 1981, Mr. Portiss earned $10,928.22. The difference is $7,375.62. The Board does not accept the union's contention that Mr. Por­tiss' unemployment insurance benefits should be deducted from the difference for the purposes of calculating his compensation. Firstly, there is no evidence from which the Board can de­termine what proportion of the $2,547.00 Mr. Portiss received in U.I.C. benefits was attrib­utable to periods for which he would have been at work but for the respondent's violations of the Act and what part of it would have been paid to him in any event through the normal incidence of unemployment. More importantly, to the extent that the Board's order of com­pensation is in the nature of damages for the violation of the complainant's right under the Act to a fair access to employment through his hiring hall, and not for remuneration not paid to him, judicial authority would not support the abatement of his claim by the amount of un­employment insurance benefits received (see, Peck v. Levesque Plywood Ltd. (1979), 80 CLLC ¶14,005 (Ont. C.A.)).

18. We are satisfied, however, that the amount of $7,375.62 must be reduced in two ways. Firstly, there must be a reduction by virtue of Mr. Portiss voluntary quitting of his job at Combustion Engineering, a quit for which, as the Board has noted, no explanation was given in evidence. We do not, however, accept the union's submission that Mr. Portiss would necessarily have worked on that job for a further three weeks with substantial amounts of overtime at a net rate of $800.00 per week. In our view that is an inflated figure unsub­stantiated beyond the gratuitous speculation of one witness. In all of the circumstances the Board finds that Mr. Portiss failed to mitigate his losses by quitting his job at Combustion Engineering, and that his claim should therefore be reduced by the amount of $1,000.00.

19. It is also clear that Mr. Portiss was medically disabled and was therefore unavail­able for work for a period of 19 days in May of 1981. The Board accepts the submission of the union that it should not be liable for any deprivation of earnings for that period. Put dif­ferently, Mr. Portiss would, assuming no violation of the Act, still have fallen 19 days short of the average total earning days for the local. The difference between his earnings and those of the average must therefore be reduced by 19 eight hour days at a wage rate of $13.38 per hour, or a total sum of $2,033.76.

20. The Board does not see any other basis to reduce the claim of Mr. Portiss. While he may have refused jobs in October of 1981 for the period of a few days, the evidence dis­closes that the practice of jockeying to avoid unfavourable referrals was not uncommon among the membership, and that a substantial number of employees did it without being penalized on the hiring hall list. While the Board does not approve that conduct, it cannot, in the cir­cumstances, conclude that it should be held against Mr. Portiss in the computation of his com­pensation.

21. For the foregoing reasons the Board orders that the respondent Local 1089 pay forthwith to Mr. Portiss the sum of four thousand three hundred and forty-one dollars and eighty-six cents ($4,341.86), with interest calculated from May 1, 1981, pursuant to the Board's Practice Note 13, as compensation pursuant to the Board's order herein dated July 11, 1983. The respondent shall also make forthwith on behalf of Mr. Portiss all payments to the welfare, dental and pension funds referred to on page 204 of the ICI collective agreement which would have been directed to those funds for his benefit, in amounts corresponding to further earnings of $4,341.86.

22. The Board further directs the respondent to retain the accounting firm of Lorne Coleman, of Chatham, Ontario, for a period of two years for the purposes of auditing the procedures and records of the respondent's hiring hall pursuant to the Board's order of July 11, 1983.