Ontario Labour Relations Board
[1986] OLRB Rep. April 509
3082-85-M Labourers' International Union of North America, Local 506, Applicant, v. Highrock Structural Limited, Respondent
BEFORE: Harry Freedman, Vice-Chairman, and Board Members J. P. Wilson and H. Kobryn.
APPEARANCES: Bois P. Wilson and Tony Neil for the applicant; Domenic Cipriani for the respondent.
DECISION OF THE BOARD; April 5, 1986
1The Board delivered the following decision orally at its hearing in this matter on April 1, 1986:
This is a referral of a grievance to arbitration under section 124 of the Labour Relations Act.
The parties agreed that the applicant and respondent were bound by the industrial, commercial and institutional sector provincial agreement between the Labourers' Employer Bargaining Agency and the Labourers' International Union of North America and the Labourers' International Union of North America, Ontario Provincial District Council. The parties further agreed that five employees of the respondent were not paid vacation pay for a period of time prior to December, 1985.
The respondent was a sub-contractor to Konvey Construction prior to December 1, 1985. On or about that date, Konvey took over the sub-contract and hired the employees of the respondent. After those employees were hired by Konvey, Konvey made the necessary payments under the provincial agreement in respect of the employees it had hired who were formally employed by the respondent, on and after the time they became its employees. The parties also agreed that Konvey was bound to the provincial agreement to which the applicant and respondent were bound.
The respondent signed a direction and authorization directing Konvey to pay all of the obligations that arose from the respondent being a sub-contractor to Konvey. These payments were to be made from the funds that Konvey owed to the respondent. While Konvey made many payments to the respondent's creditors, it did not pay the five employees the vacation pay they had earned while employed by the respondent. The applicant was not a party to the authorization and direction signed by the respondent.
The respondent's representative submitted that the applicant should seek the vacation pay owed to the employees from Konvey because of the authorization and direction that it had signed. He also submitted that Konvey should have paid the employees before paying the suppliers that the respondent owed money to and further that Konvey should have inquired whether the employees had been paid prior to them being hired by Konvey.
In our opinion, the authorization and direction, while creating rights as between the respondent and Konvey, cannot affect the obligations that the respondent has to the applicant and its members under the provincial agreement. The respondent was the employer of the employees for the time that those employees earned vacation day. The arrangement between Konvey and the respondent, to which the applicant was not a party, cannot affect the applicant's right to seek payment from the respondent under the provincial agreement. Whether the respondent can make a claim against Konvey for the vacation pay that is owed to the five employees is another matter that may be dealt with in another forum.
While the respondent's position is understandable, we are satisfied that whether Konvey ought to have paid employees before paying suppliers or whether Konvey should have inquired whether employees were owed money before being hired cannot affect the obligations that the respondent has to pay vacation pay to the five employees represented by the applicant while they worked for the respondent pursuant to the provincial agreement.
Therefore, the Board hereby directs the respondent to pay to the applicant the vacation pay that is owing to the five employees.
The parties further agreed that this panel of the Board should remain seized of the issue of the amount the five employees are entitled to if the parties cannot agree to the amount.
2After we delivered our oral decision, we recessed in order to permit the parties to meet and attempt to agree on the amounts of vacation pay owing to each of the five employees. Upon our return, the parties advised us that they had agreed on the amounts owing to each of the five employees.
3Therefore, having regard to the agreement of the parties, the Board hereby directs the respondent to forthwith pay to the applicant the following amounts on behalf of the following employees:
R. Allen - $564.73 G. Iannaci - $710.00 A. Mantini - $584.43 A. Tavares - $670.74 A. Tomasoni - $830.00
4The parties also advised the Board that one issue remained in dispute. The applicant contends that the respondent owes G. Iannaci an additional $500.00. The respondent contends that it paid G. Iannaci the additional $500.00 that the applicant claims he is owed. The parties agreed that the issue of whether the respondent owes the applicant on behalf of G. Iannaci an additional $500.00 may be resolved after further meetings between the parties. The parties requested that the Board adjourn this matter sine die.
5Therefore, having regard to the agreement of the parties, the Board hereby adjourns this matter sine die for a period not exceeding one year. Unless within that time the parties request that the Board proceed with the matter, it will be terminated.
6This panel of the Board is not seized with this matter.