United Brotherhood of Carpenters and Joiners of America, Local Union 1669 v. Reimer Overhead Doors Ltd., 1984 CanLII 1099

[1984] OLRB Rep. October 1493

2908-83-M United Brotherhood of Carpenters and Joiners of America, Local Union 1669, Applicant, v. Reimer Overhead Doors Ltd., Respondent

BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. Kobryn and I. Stamp.

APPEARANCES: Douglas J. Wray, Win. Sherman and Walter Sohlman for the applicant; Robin B. Cumine for the respondent.

DECISION OF THE BOARD; October 2, 1984

1. The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination.

2. The applicant alleged in its grievance that the respondent had violated the collective agreement presently in effect between the applicant and the respondent with respect to two jobs — one in the town of Kenora and one in the city of Thunder Bay. The respondent is described in the application as having its address in Steinbach, Manitoba. The hearing in this matter was held in Toronto. The applicant appeared before the Board in the person of its business representatives, William Sherman and Walter Sohlman, and counsel. The respondent did not file a formal reply in Form 107. However, the respondent advised the Board in a letter from counsel that it denied the allegations contained in the grievance and put the applicant to the strict proof thereof. Counsel appeared at the hearing on behalf of the respondent. At the commencement of the hearing, counsel for the respondent advised the Board that the respondent was in disagreement with the applicant's claim of bargaining rights and its grievance with respect to both jobs. Counsel for the respondent characterized the applicant's allegations as containing positional and factual errors.

3. Mr. Sherman and Mr. Sohlman gave evidence before the Board and were cross-examined by counsel for the respondent. Counsel for the respondent did not call any evidence. The evidence established that on April 23, 1982, the Board issued two certificates with respect to employees of the respondent. In the first certificate the Board certified the applicant as the bargaining agent for all carpenters and carpenters' apprentices in the employ of the respondent, in the District of Rainy River, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman. In the second certificate the Board certified the applicant on its own behalf and on behalf of all other affiliated bargaining agents of the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America, a designated employee bargaining agency, as the bargaining agent for all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

4. Mr. Sherman is responsible for the District of Kenora (including the Patricia portion) and Rainy River. Mr. Sohlman is responsible for the District of Thunder Bay. In the course of performing his duties, Mr. Sohlman observed a job in the city of Thunder Bay at the P & J Tire Centre. He observed two men in the respondent's truck. He spoke to one of the men and was informed that the boss was in Winnipeg and they were there to hang doors. Mr. Sohlman observed the two men prop up a door with timber and gave evidence that there were two two-men doors and two single-man doors to be installed. He informed the Board that such work would require fifty man-hours for a carpenter to complete. He did not see whether the two men attached the necessary hardware to the doors. He estimated that it would have taken six to eight hours to attach the necessary hardware. Mr. Sohlman gave evidence that the two men were not members of the applicant and that the applicant had members out of work who were ready, willing and able to do the work performed by these two men.

5. Mr. Sherman gave evidence that he visited the Wally Newfield Auto Service garage in Kenora and observed that two overhead doors had been installed at that garage. He did not see the doors installed. The owner of the garage informed Mr. Sherman that the respondent had installed the two doors and that it had taken two men ten hours to install the doors. Mr. Sherman identified a copy of the provincial collective agreement between the Carpenters Employer Bargaining Agency and the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America effective from June 21, 1982, until April 30, 1984 (the "collective agreement"). He gave evidence that he had signed up employees of the respondent at the time of the certification. While the applicant accepted the cards of the employees who signed applications for membership in the applicant, these employees were not present to be admitted into membership in the applicant. He explained that as of the date of the projects being grieved, the persons who signed applications for membership at the time of the certifica­tion were not members in good standing. Mr. Sherman informed the Board that the work of installing overhead doors was work performed by carpenters and that the work at the Wally Newfield Auto Service was not performed by members of the applicant. He testified that there were unemployed members of the applicant who were willing and able to perform the work.

6. The applicant claimed compensation under the provisions of the collective agreement by virtue of violations of article 5.01(a) and 5.01(b). This article states:

ARTICLE 5 — UNION SECURITY

5.01(a) The employer agrees to hire and continue to employ employees covered by this Agreement who are members in good standing of the United Brotherhood of Carpenters and Joiners of America as long as the Local Union or the District Council of the United Brotherhood of Carpenters and Joiners of America in the Province of Ontario can supply qualified employ­ees in sufficient numbers who are capable of performing the work required.

(b) Except as modified by the provision of sub-section (c) of this Article, all employees covered by this Agreement shall be hired by the employer through the offices of the Local Unions and District Councils having jurisdiction over the geographical area, set out in Schedule "B", where work by the employer is to be performed. Such hiring shall be done by way of a referral slip issued by the Local Union or District Council.

Schedule "B" of the collective agreement provides:

Local 1669, THUNDER BAY, ONTARIO

Districts of Rainy River, Kenora (including Patricia Portion), Thunder Bay and that part of the Districts of Algoma and Cochrane lying north of the 49th parallel and all of the area lying west of the North Driftwood River, Abitibi River and Moose River, including the rivers herein named.

Schedule "D" of the collective agreement provides for the wages and related payments to be made to employees working under the collective agreement in the geographic area affected by this grievance. Effective May 1, 1983, the hourly rate was $19.03 with ten per cent vacation pay at $1.90 per hour and employer contributions and employee deductions to the Apprentice­ship Fund, the Association Administration Fund and the Union Administration Fund set at fourteen cents per hour. The total hourly rate and related payments is therefore $21.07 per hour.

7. The Board finds that the installation of the doors in Kenora and Thunder Bay is work performed by carpenters within the industrial, commercial and institutional sector of the construction industry. The Board further finds that by virtue of the decision of the Board dated April 23, 1982, and pursuant to the provisions of sections 137(2) and 145 of the Labour Relations Act, the respondent and the applicant are bound by the provisions of the collective agreement.

8. The respondent argued that the applicant had not proven its grievance before the Board. The respondent argued that the Board had virtually no evidence that was admissible. The respondent stressed that the evidence with respect to the job in the town of Kenora was totally hearsay and that the evidence as a whole was limited to brief periods of time while the claim related to several hours of work. The respondent argued that someone from the respondent could have been subpoenaed to bring records and that the hearing could have been held closer to the respondent's home. The Board heard the briefest of arguments with respect to the hearsay nature of the evidence. At the invitation of the Board, the parties subsequently made written submissions on the issue of the admission of the hearsay evidence before the Board.

9. In section 103(1) of the Labour Relations Act, the Board is directed to exercise such powers and perform such duties as are conferred or imposed upon it by or under the Act. Section 103(2)(c) of the Act provides:

10. -(2) Without limiting the generality of subsection (1), the Board has power,

(c) to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not.

This referral has been made under the provisions of section 124 of the Labour Relations Act. Section 124(3) states:

124. -(3) Upon a referral under subsection (1), the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and the provisions of subsections 44(6), (8), (9), (10), (11) and (12) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

Section 44(8)(c) states:

44. -(8).. .an arbitrator or an arbitration board, as the case may be, has power,

(c) to accept such oral or written evidence as the arbitrator or the arbitration board, as the case may be, in its discretion considers proper, whether admissible in a court of law or not.

Quite clearly the Board has the power to accept oral or written evidence whether admissible in a court of law or not under the general provisions of section 103(2)(c) and also when entertaining a reference under section 124 by virtue of the specific provisions of section 44(8).

10. Hearsay may be defined as a third person's assertion narrated to the Board by a witness for the purpose of establishing the truth of that which was asserted. The Board has regularly admitted hearsay evidence and has then addressed the issue of the weight to be given, if any, to such evidence. See, for example, DuPont of Canada Limited, [1961] OLRB Rep. Jan. 360 (harassment); Lindhaven Home for the Aged, [1962] OLRB Rep. May 66 (intimida­tion or coercion); Beef Terminals Limited, [1971] OLRB Rep. May 300 (merger, amalgama­tion or transfer of jurisdiction by a trade union); Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138 (coercion). In these cases the Board has generally not been prepared to give weight to hearsay evidence where the persons directly involved neither testified nor gave any explanation for the failure of such persons to testify. The Board has always accepted and relied upon, in the absence of evidence to the contrary, documentary evidence of membership in a trade union. Such evidence is, of course, hearsay in nature. Moreover, the Board accepts hearsay evidence in the form of statements of desire in applications for certification and in applications to terminate bargaining rights.

11. The approach of boards of arbitration to hearsay evidence has undergone a process of evolution. In Re United Electrical Workers Local 514 and Amalgamated Electric Corp. Ltd. (1961), 12 L.A.C. 180, the Board stated at pages 184 to 185:

This Board, of course, is permitted to entertain testimony which would not be considered evidence in a court of law, but nevertheless arbitrators should be careful to apply the best evidence rule whenever possible, and the best evidence is, of course, testimony given by witnesses who saw the events which are described or made the statements attributed to them. This Board, therefore proposes to eliminate from its consideration anything but first hand evidence adduced before it in fairness to the grievor, and in view of the fact that a great deal of contradictory evidence was given by the company witnesses.

However, generally speaking the hearsay rule has been followed in arbitration proceedings, and, although arbitrators are, of course, not required to so limit themselves, they have retained the discretion as to whether to admit such evidence, and if admitted, to ascribe to it whatever weight they believe is proper. See Palmer, Collective Agreement Arbitration in Canada (2d Edition 1983, pages 87 to 89); Brown and Beatty, Canadian Labour Arbitration (1st Edition 1977, pages 122 to 123); and also, for example, Re Therrien and Treasury Board (Department of Manpower and Immigration) (1978), 1978 CanLII 3438 (CA LA), 21 L.A.C. (2d) 120 and Re Firestone Steel Products of Canada and United Steelworkers, Local 27(1980), 1980 CanLII 3974 (ON LA), 28 L.A.C. (2d) 173, but contra see Re Barber Hydraulic Turbine Ltd. and United Steelworkers (1978), 1978 CanLII 3537 (ON LA), 19 L.A.C. (2d) 247.

12. The general refusal by arbitrators to make findings of fact on the basis of hearsay evidence is usually based on the decision of the Divisional Court in Re Girvin et al. and Consumers' Gas Co. (1973), 1973 CanLII 706 (ON HCJDC), 40 D.L.R. (3d) 509. Here the Court, after noting the section of the Act granting an arbitrator the discretion to admit hearsay evidence, stated at page 512:

This subsection was considered by the Court of Appeal for Ontario in R. v. Barber et al., Ex p. Warehousemen & Miscellaneous Drivers' Union, Local 419, 1968 CanLII 446 (ON CA), [1968] 2 OR. 245, 68 D.L.R. (2d) 682. Mr. Justice Jessup, for the Court, at p. 252 O.R., p. 689 D.L.R., after quoting the subsection above referred to, said:

By that clause the Legislature recognized that arbitrations will fre­quently be presented before arbitration boards by lay persons. Accord­ingly, it relaxed the strict rules as to the admissibility of evidence and in particular allowed hearsay evidence to be adduced without objection. However, that provision does not relieve a board from acting only on evidence having cogency in law.

It is to be observed that the board in this case made a finding of fact excluding, in effect, the evidence of the grievor and relied exclusively on hearsay evidence, some of which evidence was in conflict. Such evidence may well be admissible by reason of the subsection of the Labour Relations Act above referred to, but it must be borne in mind that in cases of this type the burden is on the employer to show that the employer acted properly in the discharge of the employee and in order to satisfy that burden in this case the employer, in effect, relied exclusively on hearsay evidence. Even though that evidence may well have been admissible we are all of the view that the employee did not receive a fair hearing in the circumstances. His counsel had no real opportunity to cross-examine on the evidence that was presented.

The importance of cross-examination in a case of this type is pointed up by evidence which was hearsay evidence concerning the statements made by Mr. Alexander. To one witness Mr. Alexander apparently said that the installation had been made in the winter and to another in the late spring. The date upon which the installation had been installed was crucial in this case. In the circumstances, we are all of the view that the award should be quashed and the matter remitted to the board of arbitration for further consideration.

[emphasis added]

Girvin had been cited in numerous arbitral awards as the basis for the proposition that no finding should be made exclusively on the basis of hearsay evidence. Though this arguably may be the necessary result of following Girvin, it would seem from that part of the decision reproduced above that whether a finding of fact may be based on hearsay evidence alone in any individual case turns on whether the party, "did not receive a fair hearing in the circumstances," due to his inability to properly cross-examine on the evidence presented and/or contradict by other evidence the evidence presented.

13. The provisions of section 44(8)(c) of the Labour Relations Act have been commented on recently in the marathon case of Re City of Toronto and Canadian Union of Public Employees, Local 79 (1981), 1981 CanLII 1660 (ON HCJ), 125 D.L.R. (3d) 249; (1981), 330.R. (2d) 512 at pages l4 where Van Camp, J. stated:

We are given to understand that it is the practice to exclude hearsay in spite of s.[now 44(8)(c)]. We were referred to four other instances where boards of arbitration have refused to admit in evidence reports of other bodies. In each case, the report itself was considered. There will be cases where such a report will te excluded because it can have no relevancy or because the principles of natural justice were offended or where the employee had little or no opportunity to participate. But in each case the particular report must be considered before the discretion is exercised. Where there is some relevan­cy, the general tendency will be to admit it as the board and the Divisional Court in obiter here indicated it would have done. It may well be that it will have little or no weight but until all the evidence is in the question of weight must remain undecided. The lack of opportunity for cross-examina­tion, for observation of the witness, the absence of other evidence, all would tell against weight.

The report referred to in Re City of Toronto was a report made by a Commission of Inquiry appointed under section 240 of the Municipal Act and on appeal in Re City of Toronto and Canadian Union of Public Employees, Local 79(1982), 1982 CanLII 2229 (ON CA), 133 D.L.R. (3d) 94; (1981), 35 O.R. (2d) 545, the Court of Appeal held that the refusal of the board of arbitration, at a second hearing, to consider the admissibility of the report was a denial of natural justice. Blair, J.A. stated at page 558:

The purpose of arbitration of grievances under collective agreements is to provide an expeditious and fair method of settling disputes which experience was demonstrated are much better solved in this fashion than by complex judicial proceedings. Most arbitrators are laymen who bring the benefit of their experience to the practical solution of complex human problems. Courts consistently have recognized the special role of arbitration boards and have been loathe to interfere with their decisions or proceedings.

The Court of Appeal concluded by stating that such reports should be admitted in evidence subject to contestation by other evidence and the weighing of their probative value by the board of arbitration. This decision has been followed recently in [Re Silverwood Dairies, Division of Silverwood Industries Ltd. and Canadian Union of Operating Engineers and General Workers

(1983), 1982 CanLII 4988 (ON LA)](https://www.minicounsel.ca/olaa/1982/4988), 3 L.A.C. (3d) 289.

14. The weight of recent judicial authority is to admit hearsay evidence and to then consider the weight to be given to such evidence. The weight to be given to any evidence in general depends on its relevance and its trustworthiness. Trustworthiness is determined by such factors as the credibility of a witness, the reliability of the source of the evidence, the existence of any contradictory evidence and the opportunity of the opposing party to call contradictory evidence and/or cross-examine the source of the evidence. The latter is of particular concern with respect to hearsay evidence and the inability to cross-examine the primary source of the evidence often being put forward as the basis for the hearsay exclusion. Necessity has given rise to a number of exceptions to the rule against hearsay. In discussing such exceptions in Sopinka and Lederman, The Law of Evidence in Civil Cases (1974), the authors state at page 49:

The requirement that testimony be subjected to the test of cross-examina­tion has been dispensed with in situations where the declarant of the words in question is unavailable and his oral or written statement was made under such circumstances in which it can be presumed would impress his remarks with a genuinely trustworthy quality. In many situations such declarations are the only cogent evidence available and to exclude them would result in considerable inconvenience.

Exceptions to the Hearsay Rule therefore developed in situations where, as Sir George Jessel, M.R. stated in Sugden v. Lord St. Leonards [1876] 1 P.D. 154, at page 241, the following four characteristics existed:

(1) It was impossible or difficult to secure other evidence.

(2) The author of the statement was not an interested party in the sense that the statement was not in his favour.

(3) The statement was made before the dispute in question arose.

(4) The author of the statement had peculiar means of knowledge not possessed in other cases.

15. In the instant referral the statements attributed to the owner of the garage certainly satisfy the second and third characteristics referred to in Sugden. With respect to the first characteristic, the Board notes that the respondent has its place of business in Manitoba and there was no indication of the availability of officers or servants of the respondent for service of a subpoena in Ontario. The fourth characteristic is apparently not satisfied. The statements of the owner of the garage go part of the way in fulfilling the characteristics referred to in Sugden. The respondent had an opportunity to comment upon the evidence before the Board and of contradicting such evidence and where a tribunal is entitled to accept evidence in accordance with the powers conferred upon under the Labour Relations Act it may act on any evidence which is logically probative. In T. A. Miller, Ltd. v. Minister of Housing and Local Government et al. [1968] 1 W.L.R. 992; [1968] 2 All E.R. 633 (C.A.) an inquiry was held by an inspector who admitted in evidence a letter. Lord Denning, M.R., stated the following at page 634:

The inspector relied on Mr. Fogwill's letter. So did the Minister in his decision. Counsel for the appellants said that they ought not to have relied on it at all. It ought not even to have been admitted because it was hearsay. It was not on oath, no opportunity was given to test it by cross-examination, and it was objected to. Counsel said that in these circumstances, it was contrary to natural justice for it to be admitted.

In my opinion this point is not well founded. A tribunal of this kind is master of its own procedure, provided that the rules of natural justice are applied. Most of the evidence here was on oath, but that is no reason why hearsay should not be admitted where it can fairly be regarded as reliable. Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law (see R. v. Deputy Industrial Injuries Comr., Ex parte Moore (1)). During this very week in Parliament we have had the second reading of the Civil Evidence Bill. The Bill will abolish the rule against hearsay, even in the ordinary court of the land. It allows first-hand hearsay to be admitted in civil proceedings, subject to safeguards. Hearsay is clearly admissible before a tribunal. No doubt in admitting it, the tribunal must observe the rules of natural justice, but this does not mean that it must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and of contradicting it (see Board of Education v. Rice (2) and R. v. Deputy Industrial Injuries Coin r., Exparte Moore (1)). The inspector here did that. Mr. Fogwill's letter of Nov. 19, 1964, was put to the witnesses and they contradicted it. No application was made for an adjournment to deal further with it. In these circumstances I do not see that there was anything contrary to natural justice in admitting it.

16. The question of whether evidence is logically probative or, to use the expression in Barber, has cogency in law requires a consideration of Barber and the cases which have commented upon it. In Barber, supra, at page 252 (O.R.) and page 689 (D.L.R.), Jessup, J.A. after quoting section [now 44(8)(c)] stated:

By that clause the Legislature recognized that arbitrations will frequently be presented before arbitration boards by lay persons. Accordingly, it relaxed the strict rules as to the admissibility of evidence and in particular allowed hearsay evidence to be adduced without objection. However, that provision does not relieve a board from acting only on evidence having cogency in law.

In Barber the Court was dealing with the question of whether the board of arbitration should have considered extrinsic evidence as to the proper interpretation of the collective agreement. The Court held that it should not, as the language of the collective agreement was unambiguous. The lack of cogency in law turned on the rule of contract interpretation as applied to the collective agreement. It may be argued that the Court held in Girvin, supra, that hearsay evidence has no cogency in law. However, though a reading of Girvin may suggest this interpretation, in our view, as stated previously, the real basis for the decision in Girvin was that the employee did not receive a fair hearing in the circumstances. This appears to be the interpretation adopted by the Divisional Court in The United Glass & Ceramic Workers of North America et al. and Pilkington Brothers (Canada) Ltd. et al. (1978), 1978 CanLII 1711 (ON HCJ), 89 D.L.R. (3d) 737.

17. Fortunately, the Court of Appeal has recently commented upon the phrase "cogency in law" in Barber. In Noranda Metal Industries Limited, Fergus Division v. Local Union 2345, International Brotherhood of Electrical Workers and R.J. Roberts [1984] CLLC ¶ 14,024, Dubin, J.A. stated at page 12,098:

As I read that judgment, all that Jessup J.A. stated was that the extrinsic evidence relied upon did not disclose any latent ambiguity and thus was irrelevant as an aid to interpretation. I do not read the judgment as holding that extrinsic evidence could not be resorted to if such evidence could be of assistance to an arbitrator in determining the true intent of the parties. Obviously if evidence is irrelevant, it cannot be relied upon even although it has been admitted. I think that is all that Jessup J.A. meant in stating that the provision of the Labour Relations Act referred to by him "does not relieve a board from acting only on evidence having cogency in law". It is apparent that the present section 44(8)(c) is intended to permit an arbitrator to rely on relevant evidence even where such evidence is not admissible in a court of law.

The Board therefore finds that it has the power to accept and rely upon the evidence of Mr. Sherman with respect to the statements of the garage owner. The respondent did not adduce any evidence to challenge Mr. Sherman's testimony.

18. The respondent, through its counsel, complained that the hearing ought to have been held nearer its home. It is the practice of the Board to consider all requests for a change in venue and to hold hearings outside Toronto when appropriate to do so. This practice is well known to counsel. The Board did not receive any request from the respondent for a change in venue. Reference to a possible change in venue was not made by counsel for the respondent until he was making representations to the Board after the evidence had been heard. Indeed, up until four days before the hearing, the Board had not received any communication from the respondent at all. Four days before the hearing the Board received a brief letter from counsel for the respondent stating that he acted for the respondent and that the respondent denied the allegations contained in the grievance and put the applicant to the strict proof thereof. The Board then sent a copy of this letter to the applicant and its counsel. The applicant set forth particulars of its claim against the respondent in a letter which accompanied the referral of grievance to the Board. The applicant set forth in its letter the article of the collective agreement which was allegedly violated, referred to each of the two jobs, the number of man-hours claimed for each job and the hourly wage and related payments rate which was applicable. Quite clearly, the respondent was made aware of the claim which was being made against it. There was no suggestion by counsel for the respondent that he either possessed or desired to call evidence which was contrary to the evidence given by Mr. Sherman and Mr. Sohlman. The Board notes that counsel for the respondent did not request an adjournment of the hearing.

19. Having regard to the uncontradicted evidence of Mr. Sherman and Mr. Sohlman, the Board finds that the persons who performed the work at the jobs in Kenora and Thunder Bay were not members in good standing of the United Brotherhood of Carpenters and Joiners of America. On the evidence before it, the Board finds that the respondent, in performing the two jobs, has violated articles 5.01(a) and 5.02(b) of the collective agreement at the jobs in the town of Kenora and the city of Thunder Bay in that it did not hire through the offices of the applicant and continue to employ employees covered by the collective agreement who are members in good standing of the United Brotherhood of Carpenters and Joiners of America when qualified employees in sufficient numbers were capable of performing the work required by the respondent.

20. The evidence established that the job in the town of Kenora required twenty man­hours of work at the hourly wage and related payments rate of $21.07. With respect to the job in the city of Thunder Bay, while the Board is satisfied that the respondent erected the doors, it is not satisfied that the respondent attached the hardware. In these circumstances, the Board finds that the job in the city of Thunder Bay required forty-two man-hours of work at the hourly wage and related payments rate of $21.07.

21. The appropriate remedy in this referral is to be framed in accordance with the principles referred to in Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1974 CanLII 751 (ON HCJDC), 48 D.L.R. (3d) 191 (Div. Ct.) and (1976), 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199 (C.A.). The remedy is the award of damages to the applicant in the amount equal to the amount which ought to have been paid to members of the applicant had they performed the work on the two jobs. The sum of sixty-two man-hours at the hourly wage and related payments rate of $21.07 which equals $1,306.34 shall be paid forthwith by the respondent to the applicant in trust for distribution to the affected parties who were denied an opportunity to work on the two jobs.