[1985] OLRB Rep. March 476
2024-83-M The Bricklayers, Masons Independent Union of Canada Local 1, Applicant, v. The Masonry Contractors Association of Toronto Inc. and Skyline Construction Masonry Limited, Respondents
BEFORE: Paula Knopf, Vice-Chairman, and Board Members A. Grant and H. Kobryn.
APPEARANCES: Maureen Farson and John Meiorin for the applicant; David R. Rothwell and Bernardo Mattacchione for the respondents.
DECISION OF THE BOARD; March 21, 1985
This matter arose because of the respondent, Skyline Construction Masonry Limited's (Skyline) request for the Board to deal with matters concerning an earlier award of the Board between the parties on a section 124 application of the union. The history of these proceedings are unusual.
The union referred a grievance to the Board pursuant to section 124 alleging that Skyline and the Masonry Contractors Association of Toronto Inc. had violated the travel expense provisions of their relevant collective agreements. In a decision dated August 1 3, 1984, the Board found that the collective agreements had been violated when Skyline issued travel expense cheques to employees in order to appear to be in compliance with the collective agreement, but then required that the employees return the monies to the company. This is outlined in paragraph 21 of the Board's decision:
We have no hesitation in concluding that the company's actions were in violation of article 14 of the collective agreements, for in the end the employees did not receive the required amount of travel expenses. In our view, nothing turns on the fact that at one point some of the employees indicated that they were prepared not to receive travel expenses. The requirement that travel expenses be paid is found in the collective agreements with the trade union, and not with the employees.
After reaching this conclusion, the Board turned to the issue of which employees had been denied their travel expenses. The Board concluded in paragraph 25:
Having regard to all of the above, we are satisfied that the following employees are due the following sums....
W. Kronberg$468.97
P. Parravano 504.97
L. Parravano 564.00
D. Perum 336.00
G. Lelonzi 924.00
G. Sousa 312.00
F. Pulsanelli 12.00
A. Prata 936.00
A. Margotta 936.00
G. Capisciolti 912.00
A. Ferreira 936.00
V. DiLeta 936.00
F. Pellizzer 780.00
A. Petrozzi 564.00
C. Micera 365.00
F. Santoli 24.00
D. D'Urzo 420.00
B. Fry 84.00
In addition, the Board also ordered Skyline to pay 10% interest on all the monies owing plus $500.00 because of the parties' provisions for such payments in their collective agreements. The final order of the Board in paragraph 31 reads:
Having regard to the above, we hereby direct Skyline Bricklayers Ltd. to pay to the applicant, in trust for the employees, the amounts referred to in paragraph 24 above, with an additional 10% interest on each case. We further direct Skyline Bricklayers Ltd. to pay to the applicant for its own use, the sum of $500.00.
Following the issuance of the award, Skyline paid the full amounts ordered by the Board to the union. However, we were told that shortly thereafter Skyline developed a concern upon discovering that the union had not paid the money over to the named workmen. Instead, it was said that the union had required the workers to issue directions authorizing the union to retain the monies received in trust on the members behalf. (For purposes of these proceedings we are simply assuming that the alleged facts are true without having gone into the merits of the allegation.) Because of Skyline's concern, it requested that the Board convene and compel the union to pay the stated amounts over to the named workers in compliance with the Board's earlier award.
At the outset of the hearing, counsel for the union raised a preliminary objection to the proceedings, arguing that the Board has no jurisdiction to enforce its awards and that the employer has no authority to act on behalf of the employees. Without admitting that the union had acted wrongly in any way, it was submitted that even if any wrong had been done, only the employees have status to raise such a complaint. Counsel for the union referred us to the following cases:
Re Consumers' Gas Co. (1974) 1974 CanLII 2324 (ON LA), 6 L.A.C. (2d) 61, Operative Plasterers' and Cement Masons' International Association of the United States of America, Local 48, [1974] OLRB Rep. March 169, International Association of Bridge, Structural & Ornamental Iron Workers, [1982] OLRB Rep. Feb. 233 and Labourers International Union of North America, Local 527. [1981] OLRB Rep. Dec. 1775.
- Counsel for Skyline argued that the Board must have jurisdiction to ensure compliance when it orders monies to be paid in trust for named employees. Skyline submitted its status to bring these proceedings arises from its role as the settlor of the trust for the employees and that as such, it has the right to ensure that the terms of the trust are being faithfully fulfilled. Finally, Skyline stressed that the Board ought to be able to assist individual union members in rectifying an alleged "misappropriation" of funds in order to avoid the necessity of individuals lodging costly and lengthy civil proceedings.
Decision
The Board ruled on the preliminary issue at the hearing and promised that these reasons would follow.
When the parties first came before this Board on this issue, it was by way of a section 124 referral of a grievance. Thus, the Board was called upon to act as an arbitration board in a dispute in the construction industry. Section 124(3) provides that section 44(11) of the Act applies in such arbitrations. Section 124(3) simply gives the Board jurisdiction to deal with the "differences or allegations" raised in the grievance:
Upon a referral under subsection (I), 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), (II) and (12) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.
Section 44(11) sets out the jurisdiction and procedure with regard to the enforcement of decisions:
Where a party, employer, trade union or employee has failed to comply with any of the terms of the decision of an arbitrator or arbitration board, any party, employer, trade union or employee affected by the decision may file in the office of the Registrar of the Supreme Court a copy of the decision, exclusive of the reasons therefor, in the prescribed form, whereupon the decision shall be entered in the same way as a judgment or order of that court and is enforceable as such.
It is clear that the Act does not give this Board or an arbitration board the power to enforce its awards. Instead, the Act creates a mechanism for a party to utilize in order to ensure enforcement.
What Skyline is essentially requesting in this proceeding is that the Board compel enforcement of its earlier decision between the parties. Skyline alleges that the union has breached the award by failing to honour the trust created by the Board on behalf of the employees. While such an allegation may give rise to rights of employees or the respondent to bring an application under another section of this Act, or it may inspire them to seek assistance in the civil courts, this Board does not have jurisdiction to deal with the matter under these circumstances. A case comes before us not as an independent application, but as a request by the respondent in a section 124 application for enforcement. Section 124 allows us only to deal with the "differences or allegations raised in the grievance." That was done in the August 13th decision of the Board and in that regard, the Board is now fund us. Being a creature of statute with no inherent powers, this Board has now no jurisdiction to compel the enforcement of the terms of its August 13th decision because no such jurisdiction is conferred by the Act. Instead, the Act spells out in section 44(11) how enforcement can be achieved. The Act also creates rights of individuals and organizations with regard to violations of the Act.
Having regard to these considerations, we advised the parties at the hearing that, pursuant to section 71(1) of the Board's Rules of Procedure, we were dismissing Skyline's application without a hearing because Skyline had been unable to establish a prima facie case for the remedy it seeks. However, the dismissal is without prejudice to any rights the employer and/or individual employees may have to pursue further action on the matters raised before this panel before the Board or the civil courts, should any such party so desire.
This decision confirms the decision communicated to the parties at the hearing.
ADDENDUM BY BOARD MEMBER A. GRANT;
Technically I must agree with the decision; consequently an unanimous decision issues.
To record my discomfort in so doing is to understate my position as, in my view, the union has breached the intent of an earlier award of the Board.