Ontario Labour Relations Board
[1989] OLRB Rep. April 348
2753-88-G United Brotherhood of Carpenters and Joiners of America, Local 2041, Applicant v. F & R Charbonneau Construction Enr., Respondent.
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members M. Eayrs and N. A. Wilson.
APPEARANCES: Sean T. Mc Gee and Maurice Potvin for the applicant; no one appearing for the respondent.
DECISION OF THE BOARD; April 17, 1989
1The name of the respondent is amended to read: "F & R Charbonneau Construction Enr.".
2The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration.
3When the hearing convened at 9:30 a.m. on Thursday, March 9,1989, the respondent had not appeared. The parties had been duly notified by the Registrar of the date, time, place and purpose of the hearing. The Board adjourned the hearing for 30 minutes in the event the respondent had been delayed for reasons beyond its control. The hearing resumed at 10:05 a.m. The respondent was not in attendance at that time. The Board concluded hearing the evidence and the submissions of the applicant at 11:15 a.m. and the respondent had still not appeared.
4The Board heard the evidence of Mr. Maurice Potvin who is employed as a field representative by the applicant trade union. He has been so employed for the past three years. For seventeen years prior to his employment with the applicant, Mr. Potvin had worked as a carpenter in the construction industry.
5Based on the evidence of Mr. Potvin we are satisfied that the respondent is bound to the provincial collective agreement ("the ICI agreement") between the Carpenters Employer Bargaining Agency and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America (O.P.C.). The applicant is an affiliated bargaining agent of the O.P.C.
6The applicant alleges that the respondent violated that ICI agreement when it employed persons who were not members of the applicant union to perform work at a construction project, namely the remodelling of a pharmacy known as the Pharmacie Desjardins at 116 Clarence Street in the City of Ottawa ("the project"). The work on that project involved the installation of a suspended ceiling, some office partitions, a new store front entrance, and some acoustic and drywall work on the first and second floor of the building. The applicant alleges that the work performed at that project was work covered by the collective agreement and was work normally performed by the applicant's members. Based on the evidence of Mr. Potvin, we are satisfied that the "work" done on that project is construction work which is covered by the ICI agreement, and is work normally done by the applicant's members.
7Based on the evidence of Mr. Potvin, we are also satisfied that the applicant had unemployed members ready and able to perform the work required on that construction project.
8In order for the applicant to succeed in its grievance however, it is not sufficient for the applicant merely to establish the facts set out in paragraphs 5, 6 and 7. In order for this grievance to be allowed, the applicant must also prove, on a balance of probabilities that the work at the project was performed by persons who were employed by the respondent, and that those persons were employed in violation of the ICI agreement. Given the nature of this grievance and the damages requested, the applicant must also prove that the respondent failed to remit union dues or make the other remittances required under the ICI agreement to the union. In our view, the applicant has failed to prove the necessary elements of the grievance.
9The only evidence tendered by the applicant in support of its assertion that the respondent had violated the ICI agreement came from Mr. Potvin. Mr. Potvin attended the project on December 5, 1988. While on site, Mr. Potvin spoke to Mr. Sylvain Mongeon who, according to Mr. Potvin, appeared to be the person "in charge". When he first approached Mr. Mongeon, Mr. Mongeon was carrying on a conversation with Mr. Charbonneau. Mr. Charbonneau is the principal owner of the respondent. Mr. Potvin did not however, speak to Mr. Charbonneau. When Mr. Potvin spoke to Mr. Mongeon, Mr. Charbonneau had left the area and, according to Mr. Potvin had gone to another part of the building. Mr. Potvin asked Mr. Mongeon if he worked for Mr. Charbonneau. Mr. Mongeon responded in the affirmative. Mr. Potvin then asked if Mr. Mongeon was a member of the applicant or any of its affiliated locals. Mr. Mongeon replied in the negative. When Mr. Potvin explained that the respondent was bound to a collective agreement which obliged him to employ union members, Mr. Mongeon advised Mr. Potvin that he would have to take that up with Mr. Charbonneau. While at the project, Mr. Potvin also spoke to an unidentified male. Mr. Potvin asked this person if he was a member of the union and received a negative response. This person also instructed Mr. Potvin to speak to Mr. Charbonneau. Thereafter this person left the premises and went outside. There is no evidence before us to indicate that Mr. Potvin saw anyone doing work normally performed by the applicant's members on that day.
10Mr. Potvin did not in fact speak to Mr. Charbonneau on that day. Mr. Potvin testified that he attempted to seek out Mr. Charbonneau following his conversation with Mr. Mongeon but was unsuccessful. Mr. Potvin did not however speak to Mr. Charbonneau at any other time. He did not try to contact Mr. Charbonneau either at his office, in person or via telephone. Mr. Potvin did not return to the project after December 5th. This grievance was filed with the Board on February 6, 1989 and had been delivered to the respondent on or about December 16, 1988.
11The respondent did not make any remittances to the union for the month of November, 1988 and, pursuant to Article 9.11 of the ICI agreement, sent in a "nil" report. Pursuant to that article, a nil report is sent by an employer bound to the ICI agreement where the employer does not remit any "contributions and/or deductions" to the union because the "employer does not have any employees in his employ." Although the respondent made certain remittances to the union for December, 1988, the respondent did not make any remittances on behalf of Mr. Mongeon or the unidentified male to whom Mr. Potvin spoke while at the project on December 5, 1988.
12Mr. Potvin had not attended at the project prior to December 5th. Based on his experience in the industry however, he estimated that prior to his attendance on December 5th, the work that had been completed would have required approximately two persons working for five weeks for a total of 400 hours. The applicant's measure of damages based on the principle set out in Blouin Drywall, 1975 CanLII 707 (ON CA), 8 OR. (2d) 103 (C.A.) is $9,624.00.
13In the absence of the respondent, (or perhaps more accurately in the absence of the records of the respondent) on an objective basis there would appear to be some difficulty for an applicant to acquire, and subsequently tender evidence sufficient to prove its case in grievances of this nature. It is therefore not unusual in this type of situation, that where the respondent does not attend the hearing, the applicant requests an adjournment in order to serve a subpoena duces tecum upon the owner or an officer of the respondent employer. In this instance, counsel indicated that the applicant wished to proceed with its case notwithstanding the absence of the respondent. Counsel referred the Board to an unreported decision of this Board in 141527 Canada Inc., carrying on business as Geracon Drywall (Board File No. 0559-87-G, a decision released July 30, 1987) and submitted that in the past, the Board had upheld a similar grievance, based on evidence similar in nature to the evidence adduced in the case before us. The Board has reviewed the decision cited by counsel and finds that it offers little assistance to this Board. The Board in Geracon Drywall merely finds that, on the evidence before it, the applicant in that case proved the respondent had violated the collective agreement. That decision does not indicate the nature of the evidence tendered by the applicant. The decision merely recites, in effect, that the evidence tendered was sufficient to prove the case. In the present circumstances, we are not satisfied that the evidence establishes the violation of the collective agreement alleged by the applicant.
14Based on the evidence, the applicant asks us to draw an inference that the acoustic, ceiling, and drywall work which had been performed at the project prior to December 5th, had been performed by the respondent and that the respondent had employed persons in contravention of the collective agreement to do that work. The applicant submits that these inferences can be drawn from the fact that in November, 1988 the respondent submitted a "nil" report. Counsel submits that on December 5, 1988, the respondent performed work at the project and did so by employing two persons who had been hired in contravention of the collective agreement. Counsel asserts that, as the respondent did not make any contributions or submit a report to the union in respect of those two individuals, an inference can be drawn that the respondent had used persons who had been hired in contravention of the collective agreement on the project for the five weeks preceding December 5, 1988. In this regard the applicant points to the credible evidence of Mr. Potvin, an experienced tradesman that, in his estimation, the work which had been performed up to December 5, 1988 would have required approximately two persons working for five weeks. To assist us in drawing this inference, counsel also points to the fact that the respondent failed to attend the hearing and failed to file a reply, thereby, in effect, indicating that there was no defence.
15We accept Mr. Potvin's evidence in respect of the probable length of the job. The Board has in the past accepted similar evidence where the applicant union adduces credible evidence through the testimony of experienced tradesmen which the respondent is unable or unwilling to rebut. Thus, for example, in AGIP Structural Steel Limited, [1983] OLRB Rep. Aug. 1237, the Board accepted the evidence of two "experienced tradesmen" as to the probable length of the job notwithstanding the respondent employer's evidence regarding how much time, in fact, was spent on the job. In so doing, the Board stated
4.... The applicant called two experienced witnesses, ... and their estimate of the job was that it would take a crew of four men a minimum of five days to complete. Apart from that, the applicant has no evidence as to when the job commenced or was completed. Mr. Ciotoli was summonsed by the applicant in the normal course to bring to the hearing all of his payroll records and other documentation which would substantiate the extent of the job, but Mr. Ciotoli produced no documentary evidence whatever in support of his own testimony.... The Board is left, therefore, with having to weigh the applicant's estimate as to how long the job could be expected to take against Mr. Ciotoli's unsubstantiated claim as to how much time in fact was spent.
- ... On the other hand, the applicant's witnesses were experienced tradesmen, had a good opportunity to examine the job in progress, and were credible in their evidence. The normal method of verifying the number of man hours involved in the job was pursued by the union, but bore no fruit only because of the employer's failure to keep proper records. It is the view of the Board that where the union is in a position to produce, as here, credible evidence as to the approximate size of the job, and the employer has elected, for his own reasons, not to keep the proper records which could rebut that evidence, the union's estimate can be accepted.
16The Board has also admitted hearsay evidence to establish a violation of the collective agreement where the respondent leads no evidence to contradict such hearsay evidence. (See for example, Reimer Overhead Doors Ltd., [1984] OLRB Rep. Oct. 1493). In our view, however, there is a substantial difference between the Board's acceptance and reliance upon hearsay evidence, in circumstances where that is the best or only evidence available, and the conjecture or supposition of the applicant in this case.
17On the basis of the evidence before us we are not satisfied that the applicant has established, on the balance of probabilities, that work performed on the project was work performed by the respondent. Moreover, even if we were to accept counsel's submissions that the evidence established that the work was performed by the respondent, on the evidence before us we are not satisfied that the applicant has established, on a balance of probabilities, that the work was performed by persons employed contrary to the collective agreement. In the instant case we do not have even hearsay evidence which could cause us to find as fact the assumptions made and asserted by the applicant in this case. Representatives of the applicant did not speak to, or even attempt to contact, Mr. Charbonneau, the principal of the respondent, to discuss this project prior to the filing of this grievance. Neither did any representative attempt to ascertain from any person on site (for example, the owner of the pharmacy or the persons to whom Mr. Potvin spoke on December 5th) such basic facts as, when the job commenced, whether the respondent had performed work on the project prior to December 5,1988, and if so whether the persons who had performed that work were members of the applicant, or whether the persons to whom Mr. Potvin spoke worked on that site on that day or at any previous time. In our view, the applicant has failed to observe even the minimum standards which would enable it to ultimately prove the violation of the collective agreement which it alleges.
18We do not agree with counsel's assertion that the evidence before us establishes, on a balance of probabilities that the respondent performed work at the project on December 5, 1988 and did so by employing two persons who had been hired in contravention of the collective agreement. Moreover, even if we did agree with that assertion, we are not prepared to infer that, because the respondent failed to submit a report to the union in respect of those two individuals, the respondent has somehow admitted a violation of the collective agreement by sending in a "nil" report for the month of November 1988. The "nil" report is equally consistent with the inference that the respondent did not have any employees in its employ. Alternatively, a "nil" report is also consistent with the inference that the respondent did have employees in its employ and those persons were members of the applicant union (or another affiliated local) but the respondent merely failed to make the appropriate deductions and/or contributions to the union. Similarly, the failure of the respondent to file a reply or attend at the hearing is consistent with the respondent's right to require the applicant to prove its case. That fact does not cause us to draw an adverse inference, nor do we consider the respondent's failure to attend as an admission that it violated the collective agreement.
19For these reasons the grievance is dismissed.