Ontario Labour Relations Board

[1987] OLRB Rep. November 1347

1256-87-G Ben Plastering Limited, carrying on business as Belmont Plastering Co., Applicant v. Drywall, Acoustic, Lathing and Insulation, Local 675, United Broth­erhood of Carpenters and Joiners of America, Respondent

BEFORE: Robert D. Howe, Vice-Chair, and Board Members J. A. Ronson and J. Redshaw.

APPEARANCES: Michael B. Fraleigh, Arnold Olyan and Fred Bonotto for the applicant; Elizabeth M. Mitchell for the respondent.

DECISION OF THE BOARD; November 20, 1987

1. This is a referral of a grievance to the Board pursuant to section 124 of the Labour Relations Act.

2. The grievance was delivered to the respondent (also referred to in this decision as the "Union") on August 6, 1987. Further particulars of the grievance were provided to the respondent by counsel for the applicant (also referred to in this decision as the "Company") in a letter dated August 18, 1987. The Company alleges that the Union has violated Article 4 of the July 7,1986 to April 30, 1988 collective agreement between the Interior Systems Contractors Association of Ontario and the Union, which provides as follows:

ARTICLE 4- NO STRIKE - NO LOCKOUT

4.01 There shall be no strike, as defined by the Labour Relations Act by the Union and no lock­out, as defined by the Labour Relations Act by the employer during the terms [sic] of this Agreement.

The applicant and the respondent were bound by that collective agreement at all material times. The remedies sought by the applicant are damages and a declaration that the collective agreement has been violated.

3. This referral was filed with the Board on August 10, 1987. The hearing commenced on August 24 and continued on October 7, 1987. On the first day of hearing, the Board heard the evidence of five witnesses who were called by the Company. At the conclusion of the Company's case, counsel for the Union advised the Board that her client would not be calling any evidence. Since there was not enough time available that day to complete the hearing, the matter was listed for continuation of hearing on October 7, 1987. At the continuation of hearing, counsel for the Union sought to reopen the evidentiary portion of the case for the purpose of introducing a State­ment of Claim dated September 28, 1987, which had been issued by Fred Bonotto, the President of the Company, against Gus Simone, the President of the Union. Company counsel objected to the introduction of that document. After hearing and considering submissions regarding that matter, we upheld the objection as we were not satisfied that the Statement of Claim was of any relevance to the instant case. We then proceeded to hear argument regarding the merits of the grievance.

4. The facts set forth in this decision are based upon the candid and credible testimony of the five witnesses called by the applicant, and the inferences which may reasonably be drawn from the totality of the circumstances, including the fact that neither Mr. Simone nor any other Union official testified at the hearing of this matter. Mr. Bonotto, the applicant's first witness, told the Board that at the end of May (of 1987), Mr. Simone asked Mr. Bonotto to lend him $10,000. Mr. Bonotto did not want to do so, but was afraid, on the basis of previous experience, that if he did not lend him the money, Mr. Simone would "pull the men off the job". Mr. Bonotto spoke with a lawyer regarding Mr. Simone's request, and arranged for a promissory note to be prepared, pro­viding for repayment by Mr. Simone of a ten thousand dollar loan (from the Company) through monthly payments of $1,000 each, commencing on July 15, 1987, with interest at the rate of 11.5% per annum (which was the interest rate at which the Company borrowed funds from its bank). On the advice of his lawyer, Mr. Bonotto, who had previously lent money to Mr. Simone and not been repaid, requested Mr. Simone to provide the Company with a mortgage on his home as security for the loan. Mr. Simone promised to do so, but failed to honour that promise.

5. After several unsuccessful attempts to contact Mr. Bonotto at the applicant's office between July 10 and 15, Mr. Simone telephoned Mr. Bonotto at home after 10:00 p.m. on July 15 and asked, "Where's the money?" When Mr. Bonotto replied that the money would not be advanced until he provided a collateral mortgage, Mr. Simone told Mr. Bonotto, "I'm going to go all the way. You're going to find out how much it's going to cost you." He also told Mr. Bonotto to drop a contract which Mr. Bonotto had entered into regarding work to be performed in November or December of 1987 at an apartment building project in the Yonge and Sheppard area, because he (Mr. Bonnotto) was "not going to have any men to do that building". Following that conversa­tion, Mr. Bonotto called the police (with whom he had previously been in contact regarding Mr. Simone), and arranged for them to be present on the following morning at the Hillcrest Gate project ("Hillcrest") in Richmond Hill, where approximately fourteen Union members were work­ing for the Company.

6. Two Union representatives, Len Ballantyne and Helmut Redermeir, attended at Hill­crest on July 16 prior to the employees' 7:00 a.m. start time, and directed the employees to cease working on that project and to accompany them to the Union office. The reason which they gave employees for directing them to leave the site was that Mr. Bonotto was not remitting to the Union the payments required to provide them with pension and welfare coverage. (Union grievances alleging non-payment of pension and welfare remittances are currently before another panel of the Board, in File Nos. 1129-87-G and 1130-87-G. It is unnecessary, for the purposes of this decision, to determine or comment upon the validity of those grievances.) Messrs. Ballantyne and Reder­meir also told the Company's Hillcrest employees that the Union would send them elsewhere to work. Steve Calusic, who was one of the Company's drywall workers on that project (and one of the witnesses who testified in these proceedings), was acting as the foreman at Hillcrest that morn­ing (because the regular foreman was at another job and did not arrive at Hillcrest until later that day). Mr. Calusic telephoned Mr. Bonotto at home a few minutes before 7:00 o'clock that morning to apprise him of the situation. After telling Mr. Calusic to ask the men to remain at the project until he arrived there, Mr. Bonotto drove directly to Hillcrest. When he reached the project around 8:00 a.m., Mr. Bonotto found Mr. Calusic and about a dozen other employees of the Company sitting in the parking lot. Before speaking with them, Mr. Bonotto talked for ten or fifteen minutes with the police officers who were on the project that morning. He then spoke to the employees and asked Mr. Redermeir, in their presence, what the trouble was. When Mr. Redermeir did not answer, Mr. Bonotto said, "You come to my office and I'll prove what's going on." Mr. Bonotto's request, the employees followed him to the Company's office on Penne Drive (in the Finch-Weston Road area), which is about a twenty-five minute drive from Hillcrest. At the office, Mr. Bonotto instructed his secretary to photocopy the aforementioned promissory note and to give a copy of it to each employee. When Mr. Redermeir arrived at the office a few minutes lat­er, Mr. Bonotto gave him a copy of the promissory note, and told Mr. Redermeir and the employ­es about his telephone conversation with Mr. Simone. After reading the promissory note and lis­tening to Mr. Bonotto's description of that telephone conversation, Mr. Redermeir told the workers, "Sorry boys. Go back on the job." Some of them then asked Mr. Redermeir, "Who's going to pay for the time that we lost?" When Mr. Redermeir did not respond, the employees egan to argue among themselves. Mr. Bonotto calmed them down by telling them, "Don't worry I’ll look after it." The workers left the office at approximately 11:15 a.m. and returned to Hillcrest, where most of them resumed work after eating lunch. However, Mr. Calusic did not return to work that day. After driving some of the workers back to Hillcrest from Mr. Bonotto's office, he left the project and went home because he did not want to become involved in any controversy with Mr. Simone.

7. Four other persons employed by the Company at Hillcrest (namely, Dobro Bosnjak, Guido Anzivino, Tony Anzivino, and Mike Sikic) also did not work at all on July 16. When Mr. Bosnjak arrived at Hillcrest that morning at approximately 6:45, he was told by some of his fellow employees, "We've had a visit from the Union and we can't work today." He then left the site and returned home. When he was asked (at the hearing of this matter) why he did so, Mr. Bosnjak stated, "Because everyone was leaving so I did also." When the Anzivino brothers arrived at Hill-rest that morning in Guido's car, Messrs. Ballantyne and Redermeir came up to the car and told ~hem that they could not work for the Company because it had "problems" with the Union. Upon hearing that, Guido Anzivino said, "If they have problems, I'll go home." In explaining why he did not work that day, Mr. Anzivino told the Board, "If I'd gone onto the work site they'd have given me a fine."

8. Guido Anzivino, Steve Calusic, and all the other employees were paid for a full day's work in respect of July 16. When he was asked why he was paid for that day, Mr. Anzivino testified as follows: "Because if the Company wouldn't have paid me, I would have gone home ecause the Union offered me another job." That offer was made to Mr. Anzivino by Mr. Simone on July 18, when Mr. Anzivino returned to Hillcrest to pick up his tools for use at home. (Mr. $imone, who was at the project that morning, told Mr. Anzivino not to work for the Company "because they have problems". He then offered him an opportunity to work for another employees.) Mr. Calusic also received a full day's wages for July 16. In explaining why he did not lose any wages for not working that day, Mr. Calusic testified as follows: "Because I told [Mr. Bonotto] that if he expects me to work for him I've got to be paid for every day.... If he didn't pay me for that day then I would not work for him...."

9. While Mr. Redermeir and the workers from Hillcrest were in his office on July 16, Mr. Bonotto was advised by Chuck Wing, the Company's estimator, that Union officials had attempted to prevent the Company's employees from going to work on two other projects: an apartment building at Chestnut and Dundas Street (the "Chestnut project"), and an office building on Eliza­beth Street. After the Hillcrest workers left his office, Mr. Bonotto contacted Naz Natorianni, a working foreman on those two projects, to find out more about the situation. Mr. Natorianni also testified before the Board in these proceedings. It was his evidence that Louis Jugloff, a Union rep­resentative, came to the Chestnut project at about 7:10 a.m. on July 16 and told him and four other Company employees to leave the job. When they asked him why, Mr. Jugloff said that Mr. Simone had told him that the Company had not "sent in their hours" for pension and benefits. In the ensuing discussion, Mr. Natorianni stated that he was not leaving until he and his men were paid for the day. When Mr. Natorianni became aware that Mr. Jugloff had not personally checked to determine whether or not the Company had sent in the remittances in question, Mr. Natorianni asked him to check for them. Mr. Jugloff agreed to do so. The discussion continued, with no work being performed, until Mr. Jugloff left around 8:00 a.m. Following his departure, the five employ­ees resumed work, but their productivity was reduced by about fifty per cent for the balance of the day, as they continued to discuss the situation among themselves. Mr. Jugloff returned to the project on the following day and told them that "all of their hours were in'. He also visited the project on July 21 and said, during the course of a conversation with Mr. Natorianni, that the Union had "no right to push [Mr. Natorianni and his men] off the job." In spite of their with­drawal of services and reduced productivity, Mr. Natorianni and the other employees at Chestnut were paid by the Company for a full work day in respect of July 16. When asked what would have happened if the Company had not paid employees their full wages for that day, Mr. Natorianni told the Board, "They'd walk off the job. If there's a problem between the Union and Mr. Bonot­to, that's got nothing to do with us. All we care about is our hours, and if our benefits go in.

10. After working on some other jobs on Friday, July 17, and Monday, July 20, Mr. Calusic returned to Hillcrest on July 21. When he arrived at the project at approximately 6:45 that morn­ing, Messrs. Simone and Redermeir approached him and other employees, and told them to leave the project. Once again the reason given for their not being permitted to remain on the project was that the Company had not made the remittances required by the collective agreement. After being called at home that morning and advised of the situation, Mr. Bonotto drove to the Company's office and spoke with Mr. Calusic, who had gone to the office to express his dissatisfaction about being "pursued" by Union representatives on the job site. After speaking with Mr. Calusic, Mr. Bonotto contacted the Company's lawyer at approximately 9:00 a.m., and was advised to direct the employees to return to work. Mr. Bonotto then telephoned the superintendent at Hillcrest, who advised him that Messrs. Simone and Redermeir had left the project between 7:45 and 8:00, but that Mr. Redermeir had returned shortly after 8:00. He also told Mr. Bonotto that Mr. Redermeir had departed from the site at about 9:00 o'clock, after the police arrived, and that the employees had then resumed work. Mr. Calusic remained at the office while Mr. Bonotto telephoned the Company's lawyer, the police, and people at other projects (to determine if the Union had dis­rupted them too). He then returned to Hillcrest and began to work at approximately 11:00 a.m. He was paid by the Company as if he had worked a full day on July 21, as were all of the other employees on the project.

11. One of the other employees who was approached by Messrs. Simone and Redermeir at Hillcrest on July 21 was Guido Anzivino. In his testimony before the Board, Mr. Anzivino stated that after speaking with Messrs. Simone and Redermeir, he and his brother-in-law "hung around for a bit" and then went for a coffee. When they returned at about 9:15, they saw that the Union representatives had left and that the other employees had started work. Accordingly, they too began to work.

12. On July 21 Dobro Bosnjak was scheduled to work at the Company's Bough Beaches Boulevard project in Mississauga (the "Bough Beaches project"). When he arrived there at 6:45 hat morning, a Union representative told him, "You can't start working today." When Mr. osnjak asked why, the Union representative replied, "We have a problem with your boss.... nobody works today. Everyone is at the Union office." After trying unsuccessfully to contact Mr. Bonotto at the Company office, Mr. Bosnjak went to the Union office (at Finch and Keele) and spoke with Mr. Simone. Although no one was there from Mr. Bosnjak's work group, Mr. Simone old him that the others would be arriving soon. Mr. Simone also attempted to persuade Mr. Bosnjak to go to work for another employer, but he declined to do so. After waiting there for an our and a half, during which no other Company employees arrived despite repeated assurances from Mr. Simone that they were "on their way", Mr. Bosnjak left the Union hall and went to Hill­crest at the suggestion of Mr. Simone, who said, "Take your car and go check at [Hillcrest]. You'll see that no one is working over there." When he arrived at Hillcrest, Mr. Bosnjak found that the employees were working. He then returned to the Bough Beaches project and began work there at about 10:30 a.m. He was paid for the full day, including the three and a half hours that he did not work as a result of going to the Union hall and to Hillcrest. His evidence (in chief) concerning that payment was, "I spoke to my boss and my boss said, 'You can write down the number of hours that you've lost. You'll get paid.'

13. On the morning of July 21, Mr. Bonotto also spoke with Mr. Jugloff and another Union representative regarding the Chestnut project. They advised him that Mr. Simone had told them to ~o there and "stop the job", but assured him that although they were going to visit the Chestnut project that morning, they would not interfere with the job. It was Mr. Bonotto's evidence that the Union representatives kept their word in that regard. When he went to the project between 10:30 and 10:45 a.m. "to make sure that the men were working", he found that they were.

14. As indicated above, Article 4.01 of the collective agreement provides that "[t]here shall be no strike, as defined by the Labour Relations Act by the Union ... during the terms [sic] of this Agreement." Section 1(1)(o) of the Labour Relations Act defines "strike" as follows:

"strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output....

15. The uncontradicted evidence adduced before us in the instant case clearly establishes that employees of the applicant ceased working, or refused to work or to continue to work, in con­ert or in accordance with a common understanding on July 16 at the Hillcrest and Chestnut pro­jects, and on July 21 at the Hillcrest and Bough Beaches projects. Those work stoppages were inst­gated by Mr. Simone and by other Union officials acting pursuant to instructions from Mr. Simone. Although the preponderance of arbitration awards dealing with a trade union's liability for damages arising out of a strike prohibited by a collective agreement (and by section 72 of the Labour Relations Act) have held that clauses akin to Article 4.01 do not impose strict or absolute liability on a trade union, it is well established that under such a clause a trade union may be made vicariously liable in damages by the conduct of its officers and officials where the clause has been breached: see, for example, Dominion Bridge Company Limited, [1983] OLRB Rep. Apr. 503, at paragraph 24, and Polymer Corp. Ltd. (1958), 10 L.A.C. 31 (Laskin). As noted by the Board in Dominion Bridge Company Limited, [1983] OLRB Rep. Nov. 1801, at paragraph 8, a trade union "has an obligation to enforce a no-strike provision in a collective agreement by refraining from instigating, participating [in] or condoning strikes during the term of a collective agreement; by making reasonable efforts to head off a likely strike; and by acting promptly to end a strike". In the present case, the aforementioned strikes were instigated by Union representatives, in clear vio­lation of Article 4.01. (In view of that conclusion, we find it unnecessary to address Company counsel's submission that the Union also violated Article 13 of the collective agreement, as a finding that Article 13 had been contravened would not expand the scope of the appropriate reme­dial relief in the circumstances of this case.)

16. The particulars filed by counsel for the Company also allege that Mr. Simone inter­rupted Guido Anzivino in the performance of his work at Hillcrest on July 18, and that on July 21, a Union representative interfered with five of the Company's employees in the performance of their work at the Chestnut project. However, as contended by counsel for the Union, those allega­tions are not supported by the evidence adduced before us in these proceedings. As noted above, Mr. Anzivino encountered Mr. Simone when he went to Hillcrest on Saturday, July 18. However, there is no evidence that Mr. Anzivino was supposed to be working there that day. The only evi­dence regarding the purpose of his visit to the project on July 18 is his testimony that he went there to pick up his tools for use at home. With respect to the Chestnut project, as indicated above, the evidence indicates that although Mr. Jugloff and another Union representative visited the site on July 21, they did not "stop the job" or otherwise interfere with the performance of work by the Company's employees.

17. Counsel for the Union asked the Board to refrain from granting a declaration in the cir­cumstances of this case, on the basis that the case involves only a "technical breach". However, we find no merit in that submission. The evidence adduced before us establishes a number of flagrant contraventions of Article 4.01, initiated by Union representatives at the behest of the Union Presi­dent, who was using the powers of his office to punish Mr. Bonotto for refusing to give him an unsecured personal loan of $10,000. Under the circumstances, a declaration is clearly warranted, as is an order that the Union compensate the Company for all losses sustained by it as a result of the Union's contraventions of Article 4.01, including the wages which the Company paid to its employees for hours which they did not work on July 16 and 21. In this regard, we are satisfied on the totality of the evidence that Mr. Bonotto acted reasonably in authorizing those payments with a view to retaining the Company's work force and restoring normal operations as soon as possible. The same is true of Mr. Bonotto's request that the striking employees (and Mr. Redermeir) follow him to the Company office on July 16, so that he could show them the aforementioned promissory note and thereby "prove" what was going on. Accordingly, we reject Union counsel's submission that the respondent should not be liable for any losses incurred by the Company during that peri­od.

18. We are also unpersuaded by Union counsel's submission that Mr. Bosnjak was not involved in a concerted work stoppage on July 21. Although he was the only employee who left the Bough Beaches project that morning, he did so because of a directive given to him by a Union rep­resentative, who advised him that no one would be working for the Company that day, and that everyone would be at the Union office. At or about the same time, Messrs. Simone and Redermeir were at Hillcrest directing employees to leave that project. As noted above, some of them did so, while others remained at Hillcrest but did not commence work until about 9:00 a.m. Thus, in leav­ing the Bough Beaches project that morning, Mr. Bosnjak not only believed himself to be, but also was in fact, acting in concert with other employees or in accordance with a common understanding.

19. For the foregoing reasons, the Board hereby declares that the respondent, through its President and its aforementioned business representatives, violated Article 4.01 of the collective agreement by instigating strikes at the applicant's Hillcrest and Chestnut projects on July 16, 1987, and at the applicant's Hillcrest and Bough Beaches projects on July 21, 1987. Furthermore, we hereby direct the respondent to compensate the applicant for all losses sustained by it as a result of the applicant's contraventions of Article 4.01, including the wages which the applicant paid to its employees on those projects for hours which they did not work on those days.

20. The Board will remain seized of this matter for the purpose of resolving any disputes which may arise between the parties with respect to quantification of the Board's compensation order.