International Union of Operating Engineers, Local 793 v. Piggott Construction Limited, 1987 CanLII 3255

International Union of Operating Engineers, Local 793 v. Piggott Construction Limited

[1987] OLRB Rep. April 599

0130-85-M International Union of Operating Engineers, Local 793, Applicant v. Piggott Construction Limited, Respondent

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members J. Wilson and N. Wilson.

DECISION OF THE BOARD; April 2, 1987

Reasons for Decision

1This is an application for reconsideration of the Board's decision in which it found that the employer had contravened the subcontracting provisions of the collective agreement but held that the union had failed to establish that it or its members had suffered any loss as a result of the contravention. Consequently, the Board held that it had no basis for awarding damages.

2Counsel for the applicant filed lengthy submissions in support of the application for reconsideration. It is not necessary to set out these submissions in detail. The grounds for reconsid­eration are summarized in the applicant's submissions as follows:

The Applicant's request for reconsideration is made on two grounds. Firstly, it is submitted that the Board ignored or failed to evaluate the considerable evidence adduced by the Applicant that there were subcontractors with employees who were members of the Applicant available to per­form the work described in the grievance. This constitutes a denial of natural justice to the Applicant and the commission of a jurisdictional error by the Board (See Re OPSEU and The Queen in Right of Ontario (1984), 1984 CanLII 2204 (ON HCJ), 45 OR. (2d) 70 (Div. Ct.)). In the alternative, it is submitted that the Board made a fundamental error of law and policy in not awarding damages to the Applicant after it had found the Respondent had violated the collective agreement by having non-union personnel perform bargaining unit work, regardless of whether there were unem­ployed union members at the time the work was being performed.

3In support of the first ground the applicant contends that it "adduced considerable evi­dence to prove that there were subcontractors with employees who were members of the applicant available to perform the work described in the grievance".

4The Board's initial decision included conclusions contrary to that claim. Assuming for purposes of this request for reconsideration, that the applicant did establish that there were dam­ages recoverable, whether by evidence that there were subcontractors in a collective bargaining relationship with the applicant which were available to perform the work, or evidence that there were sufficient unemployed members of the applicant available under the hiring provisions of the collective agreement. Even so, the Board still had no evidence before it from which it could quan­tify the loss. The applicant did not adduce evidence either by cross-examination of the respon­dent's witness, or through the direct knowledge of its own witnesses, which provided any basis for putting a dollar value on the loss of its members. For example, the cross-examination of the res­pondent's witness does not establish a global "labour cost" component of the respondent's own estimate of the job cost, and the direct evidence of the applicant's own witnesses does not reveal any direct knowledge of the hours worked in contravention of the collective agreement. One of the obvious means available to the applicant to adduce such evidence was to summons the subcontrac­tor and the time records for his equipment and employees. The evidence which the applicant elec­ted to rely on consisted of an estimate of the dollar value of wages and benefits lost based on observations of the number of days the subcontractor had equipment and operators on the job site. The observations were supplied by a member of the applicant employed on the job site, but not by the respondent or its subcontractor. The witness through whom the document containing the sum­mary was introduced had no direct knowledge of the number of days that the subcontractor had equipment and operators on the respondent's job or on the job site. The person who had made the observations was not called to testify. Therefore, the very basis on which the applicant's summary of losses was calculated is hearsay.

5This is not a situation where it can be said that hearsay was either the only evidence or the best evidence available to the applicant. While the case law cited by applicant counsel in his request for reconsideration may suggest that the Board, when sitting as a board of arbitration under section 124 of the Act, may admit hearsay evidence, nothing requires the Board to rely on it. The Board's decision shows that it chose not to rely on the applicant's evidence described above. The reconsideration raises no grounds which would cause the Board to vary or revoke that part of its decision.

6We turn now to the applicant's alternate grounds for reconsideration, namely, that it is entitled to damages whether or not it had established that it had union members available who would have performed the work in question if not for the respondent's violation. This is not a ques­tion of the Board relying on a technicality and ignoring the substance. Nothing in the law cited by the applicant refutes the proposition that the authority and jurisdiction of the Board acting under section 124 is to compensate for loss suffered as a result of the violation. The Board has no author­ity to punish an employer for a breach. If the result is to permit an employer who had violated the collective agreement not having to remedy the violation, it is not because of the ineffectiveness of the arbitration process, as the applicant characterizes it. The arbitration process is intended as a means of remedying losses suffered as a result of a violation. If no remedy is forthcoming, it is because of the applicant's inability or failure to establish that the violation resulted in any loss. This the Board finds not to be contrary to the policy behind the arbitration process or of the Labour Relations Act.

7In view of the foregoing, the Board is of the view that there is nothing in the submis­sions of the applicant which warrants reconsideration of the Board's decision. Accordingly, this application for reconsideration is dismissed.