[1984] OLRB Rep. November 1622
1465-84-M; 1529-84-U International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Applicant/Complainant, v. Standard Insulation Ltd., Respondent
BEFORE: F. Norris Davis, Vice-Chairman, and Board Members A. Grant and L. C. Collins.
APPEARANCES: Mark Zigler and J. DeWit for the applicant; no one appearing for the respondent.
DECISION OF THE BOARD; November 15, 1984
These are a referral of grievance under section 124 of the Act and a complaint filed under section 89 of the Act alleging contraventions of sections 50, 51 and 147(2). Both matters are rooted in the same set of circumstances and the remedial relief sought is identical. The Board hereby consolidates the two files for hearing.
It is noted that no one appeared for or on behalf of the respondent in either matter, and that Freddie L. Pilgrim, an official of the respondent was served on a timely basis with a subpoena duces tecum and failed to respond, howbeit a phone message was received in the Board's offices on the morning of September 20th, 1984, the day of hearing, stating that Pilgrim's truck had broken down the previous night and he would be unable to attend. Even if we were to accept the explanation given to the Board's offices, we view it as patently insufficient for us to excuse Pilgrim's failure to respond. The Board canvassed with counsel for the union as to whether the proceedings should be adjourned to permit the issuing and serving of a bench warrant to have Pilgrim brought before the Board and it was counsel's view that such evidence as could be adduced should be led and that the Board should issue a bench warrant returnable on some future date. The Board indicated that in its view the subpoena to appear on September 20th, 1984 and for continuing days might well be spent by the non-appearance of Pilgrim before the Board on that day, and would be ineffective to ensure attendance at a future date. It was the decision of counsel to proceed in the absence of Pilgrim. The Board now confirms that in Pilgrim not appearing on September 20th and his attendance not then enforced so that he was before the Board it made it impossible for the Board to bind him over to any continuation of hearing. The subpoena is affectively spent.
The parties were bound by a collective agreement running from January 12th, 1983 to April 30, 1984 and are bound by the renewal collective agreement which will continue in effect until April 30, 1986. Article 15 of the collective agreement sets forth contributions to be made by the employer in respect to each hour worked by an employee to be used for the purpose of "providing health, welfare and pension benefits" to eligible employees. The agreement also requires payment of contributions ear-marked for the Insulation Industry Development Fund and to the Joint Apprenticeship Committee. All contributions going into the Local 95 benefit fund are under the control of joint trustees representing the Master Insulators Association and the union. Article 15.02 requires the employer to report all hours worked (or to make a Master Insulators' report) and to forward a cheque with the report to the Administrator of the Fund before the fifteenth day of the month following the month in which the hours are worked.
The current collective agreement provides for the treatment of delinquent employers in the following language,
(in) The trustees may require a delinquent employer to pay for the costs, legal or otherwise, of collective the amount owing.
(ii) Notwithstanding (in) above, there will be a surcharge of fifty dollars ($50.00) or ten percent (10%) of the amount owing, whichever is the greater, for all payments not received by the Administrator of the Funds, (Murray G. Bulger Administrative Services Limited or successors) by the 22nd day of the month in which the payment is due. This surcharge applies only to any and all arrears of the monthly remittances, and applies only once to the remittance for each month.
The imposting of the surcharge the first time is at the discretion of the Trustees, thereafter it shall be automatically imposed.
Testimony was heard from Mrs. Katherine Rae who is employed by Murray Bulger & Associates as the Administrator of the Asbestos Workers Local 95 Benefit Fund and has acted in that capacity for twelve years. She testified that prior to 1982 they were experiencing a large number of delinquencies and it was a cause of concern inasmuch as the receipt of contributions jeopardized the insurance and other coverages of members. At that time the Benefit Fund was experiencing some fourteen delinquencies per month. In that negotiation of a renewal agreement a procedure to deal with delinquencies was introduced requiring the Administrator to notify a delinquent employer by registered mail and unless within 7 days later the Administrator was required to inform the trustees, the union and association and the trustees were authorized to take "whatever action is necessary against such employer to enforce payment". Following this amendment to the agreement the practice has been that if payments are not received by the 18th of the month a grievance is prepared by the Administrator, signed by an appropriate union representative and then mailed to the employer by the Administrator. If corrective action is not taken within 7 working days the Administrator prepares a referral under section 124 of the Labour Relations Act which is signed by the union representative and mailed by him to the Registrar. This change in the agreement and consequent procedure resulted in very substantially reducing the number of delinquencies each month.
Original records and a prepared summary establish that in the 43 month period from November 1980 to May 1984 the respondent has been delinquent in all but 3 months. Beyond that period the reports and remittances for the month of June 1984 due on July 15th, 1984 were not received until September 10, 1984; similarly the reports and remittances for the month of July 1984 due on August 15th, 1984 were received on September 10th. The report and remittance for the month of August 1984 had not been received as of the date of this hearing. The evidence was that this employer's record in respect to remittance delinquencies was unique amongst all employers covered by the collective agreement.
Mrs. Rae testified from her files that between March 18th, 1982 and May 29th, 1984 there have been 20 grievances filed against the respondent for failure to provide reports and remittances on a timely basis. In 9 of those cases the respondent cured his violation by providing the report and the remittance: in 11 of these cases the grievance was referred to arbitration under section 124 of the Act and resulted in the employer bringing himself into compliance on the day before the matter was scheduled to come before the Board and in some instances on the day of such hearing. In no case was the matter heard by the Board or a Board order made.
Mr. Joe DeWit has been a Business Agent for Local 95 for some two years, and since January 1, 1984 has been a member of the Board of Trustees of the Asbestos Workers Local 95 Benefit Fund. Additionally since June 1st, 1984 he has been interim Business Manager of Local 95.
He testified that he had signed the grievances filed against the respondent. He also testified to having attended a meeting of Trustees on June 13th, 1984 at which he reported having received a monthly report directed by the respondent to him and the accompanying cheque was made payable to Local 95. A motion was approved by the Trustees that in respect to Standard Insulation as follows:
The cheque for the work-month of April is to be returned by the Union office indicating that the Union cannot accept monthly remittance cheques on behalf of the Benefit Fund.
A grievance is to be filed with a view to laying criminal charges.
The Pension Commission of Ontario is to be contacted to determine whether or not a charge can be laid by them for late submission of pension contributions.
It is also noted in those minutes that the Administrator was to provide the union's solicitor with "details of late submissions or N.S.F. cheques made by Standard Insulation, back to December 1983" and to report the charges incurred with respect to this assignment. The trustees requested the union to file a special grievance against the respondent under Article 15 to recoup costs of collection etc. and to provide for remedial relief against future continued problems.
- On August 13th, 1984 the union, through its solicitor, filed a grievance "re: violations of the Collective Agreement by Standard Insulation Ltd." in which it set forth the reasons for the grievance as follows:
(i) From and after January 1, 1981 and continuing to date, the Employer has persistently been delinquent in forwarding monthly contribution reports and remittances for employee benefits required by the Collective Agreement and, more particularly, during the currency of the Collective Agreement, the Employer has persistently, on a monthly basis, refused to make remittances, as required by Article 15.02 of the Collective Agreement, on or before the 15th day of the month following the month in which such hours are worked. Such violations have occurred, notwithstanding numerous grievances filed and referrals to arbitration before the Ontario Labour Relations Board during the currency of the current Collective Agreement.
(ii) In respect of the work month of May, 1984 and continuing to date, the Employer has failed to report the hours worked for each employee and has failed to pay the required contributions and deductions, as and when required by the Collective Agreement, to the Asbestos Workers' Local 95 Benefit Fund with respect to health, welfare and pension benefits, union dues, Insulation Industry Development Fund and Joint Apprenticeship Committee and to the Asbestos Workers' Local 95 Living Allowance Trust Fund, contrary to the Collective Agreement, and, without limiting the generality of the foregoing, contrary to Articles 15, 16 and 18 thereof.
At the time of filing this grievance the respondent had failed to submit reports or remittances for the month of June, 1984 and which should have been submitted by July 15th, 1984. The union acknowledges having subsequently received these on September 10, 1984 (the referral to arbitration and the section 89 complaint having been filed with the Board on September 7th, 1984). additionally, for the month of May, 1984 in accordance with the collective agreement the employer should have remitted $420.88 to the fund but instead remitted only $284.25, a difference of $136.63.
It appears that the $136.63 represents an amount claimed by the respondent for materials supplied by it sometime in 1983 to a school set up under the supervision of the Joint Apprenticeship Committee. DeWit who now administers the Apprentice Schools, but did not at the time of the transaction, testified that he had investigated the matter with some difficulty because of lack of records, but that he ultimately advised the respondent to forward an invoice and it would be paid. He testified no invoice has been received to date and that in any event there is no authority for the employer to make a withholding from contributions due in respect to it.
The evidence establishes that the respondent over a long period of time has persistently, repetitively and knowingly engaged in many violations of the collective agreement, all of which have been of the same type. It is an unquestioned conclusion that these violations arose not from any difference in opinion as to how the contract was to be interpreted and applied or by any inadvertence on the part of the respondent, but were motivated by the respondent's desire to harass the union by highly unreasonable and unfair conduct by intentionally refusing to fulfill his obligations which are clear and unambiguous in the contract. That the respondent on twenty out of twenty three occurrences complied with his contractual obligations only after forcing the union to take steps to cure the violation, speaks for itself as establishing a motive of harassment. While it is well-established that matters of dispute regarding collective agreement application and interpretation are the province of arbitral tribunals and not of the Ontario Labour Relations Board (save for the provisions of section 124 of the Act). The conduct with which we are faced here extends beyond that function and is challenging of the public policy declared by the Legislature in the Act. There is really no dispute by the respondent that he has an obligation to submit reports and remittances by the 15th day of each month but repetitively takes the position of forcing the union to take steps to enforce his obligation. In our view that is clearly conduct which is in contravention of section 50 of the Act which reads,
A collective agreement is, subject to and for the purposes of this Act, bringing upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.
Section 147(2) reads as follows:
147.-(2) A provincial agreement is, subject to and for the purposes of this Act, binding upon the employer bargaining agency, the employers represented by the employer bargaining agency, the employee bargaining agency, the affiliated bargaining agents represented by the employee bargaining agency, the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e), and upon such employers, affiliated bargaining agents and employees as may be subsequently bound by the said agreement.
It is also established that a breach of the above section may found a basis for the Labour Relations Board exercising its broad remedial powers pursuant to section 89 of the Act. See Carrol Electric Ltd., [1983] OLRB Rep. Aug. 1282 and the cases cited therein of J. G. Rivard Limited, [1980] OLRB Rep. July 1009, Eastern Sheet Metal & Mechanical Construction, [1981 OLRB Rep. Jan.26 and Imperial Tobacco Products (Ontario) Limited, [1974] OLRB Rep. July 418. In the instant case we find the respondent has contravened section 50 of the Act in repetitively refusing to be bound by the obligations arising out of article 15 of the collective agreement. Inasmuch as the remedial relief available to the union within the terms of the collective agreement is in our view adequate we intend to deal with the matter within the context of the section 124 referral to arbitration.
At the time the referral to arbitration was made i.e. September 7th, 1984 there were outstanding reports and remittances for the months of June and July 1984. Subsequent to the referral the respondent made belated reports and remittances in respect to these two months. Also at the time of referral there was the amount of $136.63 by which the June 15th, 1984 remittance for May 1984 remittance was short. It is our view that the union is entitled to receive $136.63 together with interest thereon from June 15th, 1984 up to the date of this award, and that the union is similarly entitled to receive interest in respect to the remittances for the month of June between July 15th, 1984 and September 10th, 1984 and is similarly entitled to interest in respect to the remittance for the month of July between August 15th, 1984 and September 10th, 1984.
While it is well accepted that there is no jurisdiction in an arbitral tribunal to award costs in respect to an arbitration proceeding, the parties to this collective agreement have provided express language on that subject insofar as the grievance arbitration is founded on contract violations arising our of article 15 of the collective agreement. In our view, this panel of the Board, constituted with the powers of a Board of Arbitration must act in accordance with that expressed intention of the parties.
The evidence established that Mrs. Rae, the Administrator has been spending some four excess hours per month dealing with the delinquent reports and remittances of the respondent. Her employer, Murray Bulger & Associates bills the Fund on the basis of $35.00 per hour. Rae's work involves special checking of accounts, following of receipt of reports and remittances and phone calls to the company in connection therewith, consulting with legal counsel, dealing with members' enquiries relative to benefit coverage dependant on remittances, preparation of grievances for filing including meetings etc. with other staff members, preparation of arbitration referral for filing. On this basis the excess cost which is involved because of the respondent's conduct is 4 hours for each of the months of May, June and July except that in respect to these months, subject of this arbitration the accumulation of data, consultations etc. there was an additional six hours spent. Thus there is a total of 1 8 hours billed at $35.00 per hour, or a total cost of $630.00.
Mr. DeWit, business agent who, in respect to these delinquencies spends between 4 — 6 hours per month based on research in office to prepare materials, contacts with staff and outside personnel, attendance at meetings including settlement officers of the Board etc. We think it not unreasonable to conclude that some 4 hours per month at a cost of $20.96 per hour in each of the three months relates to the respondent's conduct. That is a total cost of $251.52.
Rae's costs and DeWit's costs are clearly as a result of their efforts to collect the delinquent accounts and fall within Article 1 5.03(i) of the agreement. In addition there are the legal costs involved in respect to this particular grievance which were not itemized before us.
In addition to these costs the collective agreement provides a "surcharge" of $50.00 or 10% of the amount of contribution, if greater, in respect to a monthly payment not received by the Administrator by the 22nd day of the month in which such payment is due. The amounts here involved in the months of May, June and July are such that the $50.00 surcharge is applicable and hence a total amount of $150.00.
It is therefore our conclusion that the union is entitled to receive, and the Board so orders:
(i) damages in respect to costs as expressly provided in the collective agreement amount to $881.52 with interest. In addition the union is entitled to receive re-imbursement for out of pocket reasonable legal costs.
(ii) payment of $136.63 wrongfully withheld in respect to the remittance for the month of May, 1984 with interest.
(iii) Interest payment in respect to the time delay in making remittances for the months of June and July 1984.
(iv) A surcharge of $50.00 in respect to each of the months of May, June and July 1984.
Where the Board has ordered payments together with interest, or payment of interest, the calculation of interest will be done in accordance with the Board's practice note and based on the formula set forth in the decision regarding Hallowell House Limited, [1980] OLRB Rep. Jan. 35.
In addition to the above remedial relief directed by the Board pursuant to its authority under section 124 of the Act, the Board directs further remedial relief pursuant to its broad powers pursuant to section 89 of the Act. The Board orders and directs that the respondent, Standard Insulation Ltd. from the date of this Order shall not violate the collective agreement by failing or refusing to submit reports of hours worked as provided in Articled 15.02 of the collective agreement by the 15th day of any month following the month in which hours are worked, and shall not violate the collective agreement by failing or refusing to make payments to the Asbestos Workers Local 95 Benefit Fund by the 15th day of any month following the month in which hours are worked, or in any other manner. The Board further orders and directs that any reports due at the time of this Order under the collective agreement and any remittances required to be made pursuant thereto and which have not been made on a timely basis, be made to the Administrator of Benefit Fund within five working days of the date of this Order.
The Board further orders that the respondent post copies of the attached notice marked, "Appendix", after being duly signed by the respondent's representative, in conspicuous places on its premises where it is likely to come to the attention of the employees, and keep the notices posted for sixty consecutive working days. Reasonable steps shall be taken by the respondent to ensure that the said notices are not altered, defaced or covered by any other material. Reasonable physical access to the project shall be given by the respondent to a representative of the complainant so that the complainant can satisfy itself that this requirement of posting is being complied with.
In view of the broad relief provided the Board is of the opinion that it is not necessary or appropriate as requested by the complainant, to order the posting of a cash bond against future delinquencies or to appoint a public accountant for the monthly auditing of the respondent's compliance.
The Board will remain seized of this matter in the event the parties are unable to agree as to the implementation of the Board's orders.
Appendix
The Labour Relations Act
NOTICE TO EMPLOYEES
Posted by Order of the Ontario Labour Relations Board
WE HAVE ISSUER THIS NOTICE TO ALL EMPLOYEES IN ORDER TO COMPLY WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD. THAT ORDER WAS MADE AFTER A HEARING AT WHICH ALL INTERESTED PARTIES HAD THE OPPORTUNITY TO BE PRESENT AND TO PRESENT EVIDENCE. THE BOARD FOUND THAT WE HAD REPETITIVELY OVER A TWO YEAR PERIOD VIOLATED ARTICLE 15 OF THE COLLE TIVE AGREEMENT AND THEREBY COMMITTED A CONTRAVENTION OF SECTION 50 OF THE ONTARIO LABOUR RELATI0NS ACT WHICH PROVIDES,
A COLLECTIVE AGREEMENT IS, SUBJECT TO AND FOR THE PURPOSES OF THIS ACT, BINDING UPON THE EMPLOYER AND UPON THE TRADE UNION THAT IS A PARTY TO THE AGREEMENT WHETHER OR NOT THE TRADE UNION IS CERTIFIED AND UPON THE EMPLOYEES IN THE BARGAINING UNIT DEFINED IN THE AGREEMENT.
THE BOARD HAS ORDERED THAT FROM THE DATE OF ITS ORDER WE SHALL NOT VIOLATE ARTICLE 15 OF THE COLLECTIVE AGREEMENT BY FAILING OR REFUSING TO SUBMIT REPORTS TO THE ASBESTOS AND WORKER LOCAL 95 BENEFIT FUND TOGETHER WITH THE APPROPRIATE REMITTANCE BY THE 15TH DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HOURS ARE WORKED.
WE WILL COMPLY WITH THE BOARD'S ORDER.
STANDARD INSULATION LTD.
PER: (AUTHORIZED REPRESENTATIVE)
This is an official notice of the Board and must not be removed or defaced.
This notice must remain posted for 60 consecutive working days.
DATID this 15TH day of NOVEMBER , 1984.