United Brotherhood of Carpenters and Joiners of America, Local 1316 v. Terrence Broome, 1987 CanLII 2996

[1987] OLRB Rep. January 13

2480-86-M United Brotherhood of Carpenters and Joiners of America, Local 1316, Applicant v. Terrence Broome, Respondent

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members D. A. MacDonald and C. A. Bal­lentine.

APPEARANCES: David A. McKee and Rick Harkness for the applicant; Terry Broome and Robert 0. Ranner for the respondent.

DECISION OF THE BOARD; January 14, 1987

1. Terrence Broome is engaged in the drywall contracting business. In an oral decision delivered November 17, 1986, (and issued in writing November 27, 1986) in Board File No. 0697-86-R, another panel of this Board made a declaration under subsection 1(4) of the Act that Ter­rence W. Broome, William J. Broome, Merit Drywall & Acoustics Limited, Central Drywall & Acoustics Company and William J. Broome Ltd. constitute a single employer for the purposes of the Labour Relations Act ("the Act"). As a result, Terrence Broome is and at all material times was bound by the provisions of the current provincial collective agreement between the Carpenters Employer Bargaining Agency and the Ontario Provincial Council, United Brotherhood of Carpen­ters & Joiners of America. The applicant is the local of the United Brotherhood of Carpenters & Joiners of America with jurisdiction over drywall and acoustic work in a geographic area which includes the City of London. This proceeding is a referral to arbitration under section 124 of the Act of a grievance that Terrence Broome breached that collective agreement by performing acous­tic and drywall work on projects in the industrial, commercial and institutional ("ICI") sector of the construction industry without obtaining his workers on those projects from the applicant's hir­ing hall.

2. When this referral came on for hearing December 17, 1986, counsel for Mr. Broome sought an adjournment. He said Mr. Broome had only the previous day raised the funds necessary to properly retain him and that he had not had an opportunity to prepare. He complained that nei­ther he nor his client had been provided with a copy of the collective agreement on which the grievance was based, despite the requirement in Form 104, the document by which a referral under section 124 is initiated, that a copy of the collective agreement be appended to it when filed with the Board. He acknowledged that neither he nor his client had asked for a copy of the collective agreement during the previous proceedings, at the meeting convened by a labour relations officer after this referral was filed in an attempt to settle the matter or at any other time prior to the morn­ing of the hearing.

3. Counsel for the applicant noted that Mr. Broome's counsel had acted for him in the November proceedings which had resulted in the single employer declaration (hereafter referred to as "the subsection 1(4) proceedings"). He said that all but one of the projects in respect of which the applicant claimed damages were projects described by Mr. Broome in his testimony in those proceedings. Counsel for the applicant was prepared to (and later did) withdraw the applicant's claim with respect to that one project (involving a contract with Z Realty to perform work at a strip mall on Highway 135) from these proceedings (without prejudice to a fresh grievance and referral with respect thereto) if counsel for the respondent was not prepared to deal with it, but argued that the respondent ought to be prepared to deal with his obligations in respect of the work to which he had referred in the earlier proceedings. As for the collective agreement, counsel acknowledged that the applicant had not appended a copy to the referral. He submitted that it was not the practice of union counsel to append copies of provincial collective agreements to every referral thereunder, as that this would result in the Board's having boxes full of copies of those agreements and it was not imagined that this would be of assistance to the Board. If the failure to file one was a defect, he argued, it was a technical defect which the Board could ignore.

4. The filing of a copy of the collective agreement with the referral is not a statutory prere­quisite to jurisdiction; it is a procedural requirement of the Board's Rules of Procedure and Forms promulgated therewith. The applicable rules and forms also require that the respondent file a reply and, with it, a copy of the relevant collective agreement -- requirements with which this respondent did not comply. The Board's Rules of Procedure do not contemplate the Board's forwarding to either party a copy of the collective agreement filed by the other, and the Board does not do so. The applicant's failure to file a copy of the collective agreement with its referral, therefore, had no effect on the respondent. We therefore gave the following oral ruling:

We are satisfied that we do have jurisdiction to proceed, notwithstanding that the union did not file a copy of the provincial agreement with its refer­ral. The respondent had not before today requested a copy of the collective agreement or of any other document on which the applicant relies and, hav­ing failed to so ask, should not now be given an adjournment on the ground that he did not receive a copy of the collective agreement until this morning, when he first asked for it.

The Board's approach to requests for adjournment is well known. As the

Board noted in Osgood Floor Coverings Limited, (1983] OLRB Rep. June

936:

5. The Board's general policy with respect to adjournments was capsulized in the Nick

Masney case 11968] OLRB Rep. 823 (upheld in the Ontario Court of Appeal. 70 CLLC ¶14,024)where the Board stated:

".. the Board's decision to deny the respondent's request for an adjourn­ment was based on the Board's practice to grant adjournments only on con­sent of the parties or where the request is based on circumstances which are completely out of the control of the party making the request and where to proceed would seriously prejudice such party, i.e., where it is proven that a witness essential to the party's case is unable to attend because of a serious illness..."

In line with this general practice, the Board in the WEB Offset Publications Limited case [1978] OLRB Rep. Nov. 1052, indicated that if a party's first choice of counsel is not available to act on a date set for a hearing, that party is expected to retain other counsel who is available to act.

6. Because of the fluctuating nature of employment in the construction industry, the time required for "normal" arbitration procedures often results in those procedures being unsuitable. In the result, prior to the enactment of what is now section 124 of the Act it was not unusual for parties to engage in "self-help" remedies in response to alleged violations of collective agreements. Through the enactment of section 124 the Legislature sought to remedy this situation by providing for the arbitration of con­struction industry grievances by this Board and by requiring that grievances be listed for hearing within fourteen days of being referred to the Board. These considerations strongly weigh against any departure from the Board's general adjournment practice when dealing with section 124 grievance referrals.

We propose to commence hearing the applicant's case. If any aspect of that case genuinely catches the respondent by surprise, the question of an adjournment may be raised again at that point.

We note there was no subsequent claim that any aspect of the applicant's case caught the respon­dent by surprise (other than the aspect which, as we noted earlier, the applicant withdrew without prejudice), and there was no further request for adjournment.

5. The applicant called one witness: Richard Harkness. Mr. Harkness has been the appli­cant's business representative for six years. He did drywall and acoustic work as a journeyman for 10 years before that. As business representative, Mr. Harkness runs the applicant's hiring hall and personally deals with all employer requests for referral of workers pursuant to the terms of the pro­vincial collective agreement. He testified that there had been no such requests from the respon­dent, or from any of the other entities to which the Board's single employer declaration applies, in the relevant period: since June 1986. He also testified that there were always a number of union members unemployed during the relevant period.

6. Mr. Harkness was present throughout the subsection 1(4) proceedings. He made notes of the evidence Terrence Broome gave in those proceedings about the nature and contract price of drywall and acoustic projects he performed during the relevant period, and he kept copies of the documents filed by Broome with respect to those projects. Thirteen of those projects involved work within the applicant's territorial jurisdiction in the ICI sector to which the provincial collec­tive agreement applies. Mr. Harkness had only seen two of these projects himself: a job at a new branch of Canada Trust in London and a job at London City Hall. Based on his experience in working with the tools and his experience as a business representative, Mr. Harkness estimated that the Canada Trust project would have required four 40 hour weeks' work by three or four jour­neymen and that the City Hall project would have required two to three 40 hour weeks' work by two journeymen and an apprentice. $21.82 is the total amount payable per hour to or on behalf of a journeyman for wages and benefits under the collective agreement from and after June 9, 1986. $7.30 is the corresponding hourly amount for a first year apprentice.

7. In the course of his evidence in chief with respect to the labour involved in the Canada Trust pro ject~ Mr. Harkness observed that, as a rule of thumb, half of the contract price on drywall and acoustic jobs represented the cost of labour. The application of the union rate to the hours Mr. Harkness estimated on that project results in a labour cost greater than 50% of the respondent's contract price. Anticipating a possible attack on that basis, applicant's counsel's examination in chief entered upon a review of the individual items in the detailed written estimate the respondent had prepared when bidding on the Canada Trust project. He began by inviting his witness to com­ment on the figure of $2.XIO per foot used by Broome in making his estimate with respect to sus­pended drywall ceilings. Mr. Harkness prefaced his answer by saying that he was not an estimator, then began "but on the basis of people I've spoken to ..." At that point, counsel for the respon­dent objected on two grounds: that the Board should not receive expert evidence from a non-ex­pert in this hearsay manner and that the Board should not receive hearsay evidence about Mr. Broome's testimony in the previous proceedings. We declined to entertain testimony about what unnamed persons had to say about such detailed matters of cost estimating, particularly when pre­sented only in anticipation of a possible defence. Although it was not particularly germane to the question objected to, we also dealt with counsel's second ground of objection, ruling that we would indeed entertain the applicant's evidence about what the respondent himself had said in the subsec­tion 1(4) proceedings about matters relevant to this proceeding.

8. With respect to the 11 other ICI projects among those to which Mr. Broome had refer­red in his testimony in the subsection 1(4) proceedings, Mr. Harkness had noted the contract prices revealed by Broome in that testimony. On his recital before us, those contract prices totalled $58,800.00. As we noted earlier, Mr. Harkness had not personally inspected the sites of these pro­jects and, therefore, could not say from inspection and experience what number of hours of labour would be required to perform them. Mr. Harkness returned to his earlier observation that one-half of the price of a job generally represents the cost of labour. Counsel for the respondent objected to our receiving that statement in evidence, arguing that this was a matter for the expertise of an esti­mator, which Mr. Harkness had earlier admitted he was not. Mr. Harkness had testified, however, that there had been a period during which employers bound to the provincial agreement in the London area could obtain a reduction of the wage payable on a project under certain conditions. Those conditions included a requirement that the employer reveal its contract price for the project to Mr. Harkness on behalf of the union. As a result of the operation of that arrangement and his dispatching of workers to projects which satisfied the necessary conditions, Mr. Harkness would have gained some appreciation for the relationship between contract price and layout cost, even though he would not have acquired an estimator's expertise with respect to the individual elements which went into contractors' bids, like the cost per foot of suspended drywall ceiling. Based on that appreciation, his experience in dealing with contractors as business representative on the wage roll­back arrangement and other matters and his general experience in the industry, we were not pre­pared to rule that Mr. Harkness' evidence on this point should and would be given no weight what­soever, and so advised the parties.

9. When counsel for the respondent pursued the basis of the one-half labour cost rule of thumb in cross-examination, Mr. Harkness testified that he had once suggested to William J. Broome that labour cost typically represented one-third of the contract price and that William Broome had retorted that one-half was the correct figure. William J. Broome is one of the persons who, together with the respondent, were declared to constitute a single employer for the purposes of the Act. It is apparent from the reasons of the panel that granted that declaration that William J. Broome (the respondent's father) was an active participant in the business of Terrence Broome, whivh that panel regarded as the continuation, in a different guise, of a family drywall contracting business which, in its various manifestations, had involved William J. Broome for some time. Hav­ing elicited evidence of it, counsel for the respondent did not cross-examine Mr. Harkness with respect to this conversation with William J. Broome.

10. Terrence Broome was present throughout our hearing. At one point during Mr. Hark-ness' recital of the nature and contract price of each project about which Mr. Broome had testified in the subsection 1(4) proceedings, in the hope of narrowing the issues and discovering the basis of opposition to the grievance, we invited both parties to set out in writing their positions on the hours of labour involved in each of the projects in question. While the union responded, the res­pondent declined the invitation. He was not prepared to admit in these proceedings that any num­ber of hours of work had been expended on any project. Rather than delay the proceedings by insisting on a detailed pleading of the parties' positions, we directed that the applicant complete the presentation of its case, which it did. Mr. Broome did not then testify. His counsel called no witnesses. He argued that there was no evidentiary basis on which we could award damages for breach of the collective agreement. His major arguments were that we could not rely on the one-half rule of thumb, that the union's estimate failed to take into account the possibility that Broome himself had performed part of the work and that there was no admissible evidence that any work had been performed under the contracts in question.

11. Dealing with the last point first, we note that Mr. Harkness did say that Broome's testi­mony in the subsection 1(4) proceedings had covered contracts then in progress as well as contracts which had been completed at the time of that testimony. He also said Broome's testimony covered residential projects as well as projects in the ICI sector. With respect to those projects in respect of which damages are claimed, counsel's questions in chief and the answers given were in terms of work done, not contracts obtained. With respect to the projects to which he referred in his testimo­ny, it was not put to Mr. Harkness in cross-examination that Mr. Broome had been testifying about incomplete jobs or that any of the jobs was, in fact, incomplete. When he had the opportu­nity in these proceedings to explain or contradict it or correct any misstatement Mr. Harkness may have made of it, we fail to see how the respondent can complain about our acting on evidence of what he said under oath in another proceeding before the Board.

12. As for the possibility of Broome's having performed some of the work himself, that pos­sibility was not put to Mr. Harkness in cross-examination and we therefore have no evidence at all as to the probability that this could have occurred. The respondent could have put such evidence before us, but chose to remain silent. In those circumstances, we see no reason to weigh that factor in our assessment of damages.

13. We are prepared to act on the rule of thumb espoused by Mr. Harkness, as its bases include both his personal experience and an assertion by a principal of the single employer of which the respondent is a constituent part. The respondent had the opportunity to say what hours of work had been performed on the projects in question. He chose not to take that opportunity. While the onus of proof rests on the applicant, in matters in which a respondent may be expected to have the most direct, personal and easily accessed knowledge of a matter in issue it may not take a great deal from the applicant to shift the burden of adducing evidence to the respondent. Starting with the proposition that labour cost is about one half of contract price on projects of the sort under consideration, we note that one-half of the contract price will be a conservative estimate of damages if the respondent prepared his bids on the basis of, and paid, an hourly labour cost which was less than that imposed by the collective agreement.

14. We find that the respondent breached the collective agreement by which he was bound by failing to employ workers obtained from the applicant's hiring hall on the aforementioned pro­jects. We are satisfied that this resulted in a loss of earnings for union members who were unem­ployed at the time these projects were performed. With respect to the Canada Trust job, we find that the loss amounts to $10,910.00, representing 500 hours of work at $21.82 per hour. With respect to the London City Hall job, we find that the loss amounts to $5,100.00, representing 200 hours of work at $21.82 per hour plus 100 hours of work at $7.30 per hour, rounded to the nearest $10.00. With respect to the 11 other projects whose contract prices totalled $58,800.00 we find that the loss amounts to $29,400.00. In accordance with the principles referred to in Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, 1974 CanLII 751 (ON HCJDC), 48 D.L.R. (3d) 191 (Ont. Div. Ct.) and (1976), 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199 (Ont. C.A.), we direct that the respondent forthwith pay the sum of $45,410.00 to the applicant in trust for distribution to and on behalf of the affected parties who were denied an opportunity to work on the 13 jobs in question.