[1987] OLRB Rep. June 803
0341-87-G International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Lodge 128, Applicant v. Catalyst Technology (Canada) Ltd., Respondent
BEFORE: Robert D. Howe, Vice-Chair, and Board Members G. O. Shamanski and D. A. Patterson.
APPEARANCES: A. J. Ahee and J. Maloney for the applicant; no one appearing for the respondent.
DECISION OF THE BOARD; June 5,1987
This is a referral of a grievance to the Board for final and binding determination under section 124 of the Labour Relations Act.
The applicant filed this section 124 referral on May 4,1987. On May 7, 1987, the Board's Registrar forwarded to the respondent by priority post a copy of the referral (Form 104), blank reply forms (Form 107), and a Notice to Respondent of Referral of a Grievance to Arbitration under Section 124 and of Hearing (Form 105), along with the following letter:
I am enclosing herewith a Notice to Respondent of Referral of a Grievance to Arbitration under Section 124 and of Hearing (Form 105) with a copy of the application, attached.
Also enclosed are reply forms (Form 107). Your reply, if any, should be filed in the offices of the Board, 4th Floor, 400 University Avenue, Toronto, Ontario at any time prior to the hearing.
Mr. N. Harper, an Officer of the Board, has been appointed by the Board to confer with the parties to endeavour to effect a settlement of the grievance in this case.
It should be noted that any person or representative who appears at the hearing will be required to testify or produce a witness or witnesses who will be able to testify from his or their personal knowledge as to the facts related to the issues that may arise in connection with the application.
Your attention is directed to paragraph 6 of the Notice of Referral of Grievance (Form 105).
The Form 105 Notice included the following information:
TAKE NOTICE that the applicant, on the 4th day of May 1987, referred a grievance to the Ontario Labour Relations Board for a final and binding determination. A copy of the referral is attached.
You shall send your reply to this referral accompanied by the collective agreement to the Board so that,
(a) it is received by the Board;
(b) at its office, 400 University Avenue, Toronto, Ontario, M7A 1V4 at any time prior to the hearing.
If you tail to send your reply to the Board, as set out in paragraph 2, the Board may dispose of the application on the evidence and representations placed before it by the applicant.
AND FURTHER TAKE NOTICE that the hearing of the referral by the Board will take place at the Board Room, 400 University Avenue, Toronto, Ontario, on Wednesday, the 20th day of May, 1987, at 9:30 o'clock in the forenoon (EDT).
THE PURPOSE OF THE HEARING is to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to, the referral mentioned in paragraph 1.
IF YOU DO NOT ATTEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS.
The respondent did not file a reply to the referral.
Since no one appeared on behalf of the respondent at 9:30 a.m. on May 20, 1987, the matter was recessed until 10:00 a.m. as a matter of courtesy in view of the possibility that the representative(s) of the respondent might have been delayed. However, since no one had appeared on behalf of the respondent by 10:00 a.m. that day, the matter proceeded in the absence of the respondent.
The hearing of this matter concluded at 12:15 p.m. on May 20, 1987, at which time we reserved our decision and indicated that the Board would issue a written decision as soon as possible. On the following day, the Board's attention was drawn to the following telex message:
MAY 19/87 4:45 p M
TO NORM HARPER FROM JAMES R. MOSES CATALYST TECHNOLOGY (CANADA) LTD. RE: FILE NUMBER 0341-87-G AND 0340-87-U
AS DISCUSSED WITH MR. [sic] SKINNER WE WOULD LIKE TO RE-SCHEDULE THE ABOVE NOTED HEARING TO A DAY IN THE WEEK OF JUNE 1,1987 THAT IS CONVENIENT TO ALL PARTIES.
PLEASE ADVISE ONCE A DAY HAS BEEN SELECITED.
YOURS TRULY
CATALYST TECHNOLOGY (CANADA) LTD.
JAMES R. MOSES
VICE PRESIDENT AND GENERAL MANAGER
That message was received by the Board's telex operator on May 20, 1987 at 8:40 a.m. and was subsequently placed on the desk of Norman Harper, a Labour Relations Officer who had been appointed by the Board, pursuant to section 124(2) of the Act, to endeavour to effect a settlement of the grievance. At approximately 4:50 p.m. on May 19, 1987, Mr. Moses attempted to telephone Mr. Harper at the Board's office but was unable to reach him as he had left for the day. Mr. Moses spoke with Ms. Donna Skinner, the Board clerk who answered the telephone when he called, and left a message for Mr. Harper that he was unable to attend the hearing on May 20 and that he would like to reschedule it for the week of June 1. That telephone message was also placed on Mr. Harper's desk. However, neither it nor the aforementioned telex message came to Mr. Harper's attention until May 21, 1987, as he was out of the office all day on May 20 on another assignment. Upon becoming aware of those messages, Mr. Harper drew them to the Board's attention.
- The usual practice of the Board is to grant an adjournment only on the consent of all of the parties to a proceeding, or where a request for an adjournment is based on circumstances which are beyond the control of the party making the request and where to proceed would seriously prejudice such party. See, for example, Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138, in which the Board wrote, in part, as follows (at paragraph 7):
…The Board has a discretion to adjourn any hearing, if it considers it advisable in the interests of justice, for such time and to such place and upon such terms as it considers fit (see section 82(1) of the Board's Rules of Procedure; see also section 21 of the Statutory Powers Procedures Act, R.S.O. 1980, c. 484). In exercising this discretion, the Board has adopted a policy which recognizes the great importance of expedition to the efficacious administration of the Labour Relations Act. In Labour Relations Bureau of Ontario General Contractors Association, [1979] OLRB Rep. 1036, at paragraph 8, the Board stated:
“….The usual practice of the Board is to grant adjoumments only on the consent of all of the parties to a proceeding. With respect to situations where one party is not prepared to agree to an adjournment, in the Baycrest Centre of Geriatric Care case, [1976] OLRB Rep. 432, the Board stated at page 433:
- The Board policy with respect to adjournments has been capsulized in the Nick Masney case [1968] OLRB Rep. 823 (upheld in the Ontario Court of Appeal, ¶70 CLLC 14,024) wherein 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 serious illness...'"
The powers of the Board with respect to adjournments were confirmed by the Ontario Divisional Court in Re Flamboro Downs Holdings Ltd. and Teamsters Local 879 (1979), 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400, at pages 404 and 405:
"Clearly, an administrative tribunal such as the Labour Relations Board is entitled to determine its own practices and procedures. Whether in a given case an adjournment should or should not be granted is a matter to be determined by the Board charged as it is with the responsibility of administering a comprehensive statute regulating labour relations. In the administration of that statute the Board is required to make many determinations of both fact and of law and to exercise its discretion in a variety of situations. In the case of a request for adjournment, it is manifestly in the best position to decide whether, having regard to the nature of the substantive application before it, the adjournment should be granted or whether the interests of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the party seeking it. As a matter of jurisdiction, it is for the Board to decide whether it should adjourn proceedings before it and in what circumstances.
This is not to say that there cannot be situations in which a refusal to grant an adjournment might amount to a denial of natural justice. There are circumstances in which that might be so: see, for example, R. v. Ontario Labour Relations Board, Ex p. Nick Masney Hotels Ltd., 1970 CanLII 478 (ON CA), [1970] 3 OR. 461, 13 D.L.R. (3d) 289 (C.A.); Re Gill Lumber Chipman (1973) Ltd. and United Brotherhood of Carpenters & Joiners of America, Local Union 2142 (1973), 1973 CanLII 1231 (NB CA), 42 D.L.R. (3d) 271, 7 N.B.R. (2d) 41. It is necessary to examine the facts of each case to determine if the tribunal acted, as it must, in a fair and reasonable way. It must, of course, comply with the provisions of the Statutory Powers Procedure Act 1971 (Ont.) c. 47, and afford the parties the opportunity to be present and be represented if they wish by counsel. But a party who has adequate notice of the hearing does not have a right to an adjournment and is not entitled to insist on one for his convenience or the convenience of his representative. It is for the Board to determine whether to adjourn on the basis of the obvious desirability of speedy and expeditious proceedings in labour relations matters, the background of the particular case, the issues involved, the reason for the request and other like factors.
It cannot be suggested that the Board may not in the exercise of its discretion adopt a general policy respecting adjournments of its proceedings: see The King v. Port of London Authority, Ex p. Kynock, Ltd., [1919] 1 K.B. 176. That policy is obviously necessary to the proper administration of the Board's process....
The need for expedition in the context of referrals of construction industry grievances to the Board pursuant to section 124 of the Act is given express legislative recognition by section 124(2), which requires the Board to "appoint a date for and hold a hearing within 14 days after receipt of the referral". In commenting on the implications of that provision in the context of a unilateral request for an adjournment, the Board wrote, in part, as follows in Osgood Floor Coverings Limited, [1983] OLRB Rep. June 936:
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.
As noted above, Mr. Moses' aforementioned brief telephone and telex messages to Mr. Harper were not drawn to the Board's attention until after the hearing of this matter had been completed. However, if they had come to our attention at or before 10:00 a.m. on May 20, 1987, they would not have prompted us to adjourn the hearing as they provide no indication - much less proof of the type which the Board would require in the absence of agreement by the applicant -that the respondent was unable, due to circumstances beyond its control, to have Mr. Moses or another representative in attendance at the hearing. Thus, in view of the desirability of an expeditious adjudication of this referral, the nature of the grievance, and the background of the case (which includes substantial efforts on the part of the applicant to persuade its members to refrain from embarking upon an illegal strike while awaiting an adjudication of the grievance), an adjournment of the matter would not have been granted on the basis of Mr. Moses' aforementioned telephone and telex messages, and is not now appropriate on that basis.
The grievance was delivered to the respondent by telepost on April 29, 1987. It alleged that the respondent was performing the work of "discharging and loading of catalyst" on the Suncor Project in Sarnia with employees who were not members of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (also referred to in this decision as the "Union"), in breach of the applicable collective agreement.
The respondent is a member of the Boilermaker Contractors' Association (the "Association") and was, at all material times, bound by a collective agreement dated November 1, 1986 between the Union and the Association. That collective agreement provides, in part, as follows:
ARTICLE 2:00 - RECOGNITION AND CRAFT JURISDICTION
2.02
The Employer recognizes the jurisdictional claims of the Union as provided for in the Charter Grant issued by the American Federation of Labour to the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, it being understood that the claims are subject to trade agreements and final decisions of the A.F.L. -ClO. as well as the decisions rendered by the Impartial Jurisdictional Disputes Board.
For the purpose of clarification, the jurisdictional claims of the Union are contained in the Addendum attached hereto.
ARTICLE 4:00- UNION SECURITY AND DUES COLLECTION
4.01
The Employer agrees to employ as employees, members of the Union in the performance of all work within the scope of this Agreement and to continue in its employ, only employees who are members in good standing with the Union. Except as otherwise provided, all such employees shall be hired through the Union offices. The Employer shall advise the appropriate Union office, in advance of the start of a job, except in cases of emergency work where the Employer is unable to contact the Union office in which case he may commence work and notify the Union office as soon as possible.
4.02
The Union agrees to furnish competent available workmen to the Employer on request, provided however, that the Employer shall have the right to determine the competency and qualifications of its employees and to discharge any employee for any just and sufficient cause. The Employer shall not discriminate against any employee by reason of his membership in the Union or his participation in its lawful activities.
4.03
After the Employer has requested the Union office to furnish workmen to perform work within
the scope of this Agreement, and the required number of workmen are not furnished:
(i) within two working days in cities in which the Local Lodge maintains its Head Office, from that area;
(ii) within three working days in other areas;
after the date for which the workmen are requested, the Employer shall have the right to procure and retain until layoff the required number of workmen from other available sources, provided that the Employer shall notify the union office when exercising this right.
Such workmen obtained from other available sources shall be required by the Employer to apply to join the Union not later than fifteen (15) days after hiring. The Union shall admit such applicants to membership providing they are qualified, and except for just and sufficient cause.
(ADDENDUM]
CLARIFICATION OF
CRAFT JURISDICTION
ARTICLE 2:00-SectIon 2:02
The Boilermakers' jurisdiction shall include installations such as, but not limited to, all types of Oil Refineries....
The Boilermakers' jurisdiction shall include but not be limited to ... [tihe following work in and around refineries, heavy water plants and chemical plants viz: ... catalysts hoppers, reaction boilers....
The factual findings contained in this decision are based upon the candid and credible testimony of Joe Maloney, who is the President and Assistant Business Representative of the applicant, and upon the documentary evidence filed with the Board in respect of this matter. The respondent commenced performing the work of discharging and loading of catalyst on the Suncor Project on April 24, 1987, and continued to perform that work until May 8, 1987, using employees who were not members of the Union and who were not hired through the Union offices. Some of those employees were brought in by the respondent from Alberta and from Texas. Others were "hired off the street" in Sarnia through a local hiring agency. The respondent's use of those employees was a cause of great concern among the Union members who were employed on the project by another company. However, Mr. Maloney persuaded the employees to refrain from engaging in an unlawful strike over the matter, and to allow it to be dealt with by legal means.
James R. Moses, who was the respondent's managerial representative at the site, told Mr. Maloney that the respondent would be using about eight employees per shift to perform the work in question. In a grievance dated April 27, 1987, the applicant offered to "settle for [the respondent] having four (4) Boilermakers each shift for duration of the job to assist on project". However, that offer was rejected by the respondent. Although the applicant, through Mr. Maloney, repeatedly advised the respondent, through Mr. Moses, that the applicant had qualified members available to perform the work in question, the respondent persisted in using employees who were not members of the Union to perform the work in question, in contravention of Article 4:01 of the collective agreement. In doing so, the respondent used twelve employees on twelve-hour day shifts for a total of twelve days, and also used twelve employees on twelve-hour night shifts for a total of twelve nights. It is clear from the evidence that the applicant had qualified members available to perform the work in question and that, but for the respondent's contravention of the collective agreement, they would have been employed to perform that work.
Having regard to all of the evidence and the submissions of counsel for the applicant, we are satisfied that the appropriate remedy in the instant case is an award of compensation framed in accordance with the principles referred to in Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199 (Ont. C.A.), leave to appeal to the Supreme Court of Canada refused on November 17, 1975. (See also Arlington Crane Service Limited, [1985] OLRB Rep. Nov. 1547, at paragraph 17, and the cases cited therein.) Those principles recognize that an employer's breach of a union security clause of the type contained in Article 4 of the aforementioned collective agreement deprives Union members of wages and benefits which would have been paid to them (or to the Union on their behalf) if the employer had complied with his obligation to hire members of the Union through the Union offices. Accordingly, the appropriate way to (insofar as is possible) place the injured parties in the position they would have been in if the collective agreement had not been violated is to direct the respondent to pay to the applicant in trust (for distribution to its members who were wrongfully denied an opportunity to work for the respondent, and to the applicable plans) the wages, vacation pay, statutory holiday pay, health and welfare fund contributions, pension fund contributions, educational training fund contributions, apprenticeship fund contributions, and administration of collective agreement contributions, which should have been paid by the respondent in respect of the aforementioned work which the respondent performed by using employees who were not members of the Union and who were not hired through the Union offices, in contravention of the collective agreement.
Having regard to the provisions of the collective agreement, we find that the total amount of compensation to be paid by the respondent to the applicant (in trust) in the instant case is $124,176.96. That total is based about the journeyman base hourly rate of $19.40 (set forth in Appendix "D" to the collective agreement), plus hourly benefits of $4.96 (as specified in Appendix "D"). It also takes into account the fact that under the applicable provisions of the collective agreement, overtime is payable "at double time rates" for all hours worked in excess of seven and one half hours on week days, and that shift premium is payable in respect of the night shift.
For the foregoing reasons, the Board, pursuant to section 124 of the Labour Relations Act, hereby makes the following determination:
(1) the respondent is, and was at all material times, bound by the collective agreement dated November 1, 1986 between the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, and the Boilermaker Contractors' Association;
(2) the respondent violated Article 4:01 of that collective agreement by employing persons who were not members of the Union, and who were not hired through the Union offices, to perform the work of discharging and loading of catalyst on the Suncor Project in Sarnia during the period from April 24 to May 8, 1987; and
(3) the respondent shall forthwith pay to the applicant in trust (for distribution to its members who, as a result of the respondent's violation of Article 4:01 of the collective agreement, were wrongfully denied an opportunity to perform the aforementioned work for the respondent, and to the pertinent funds, including the Union's National Health and Welfare Fund, National Pension Fund, Educational Training Fund, and Apprenticeship Fund) the sum of $124,176.96.