[1990] OLRB Rep. February 214
0859-89-G United Brotherhood of Carpenters and Joiners of America, Local 785, Applicant v. Rosmar Drywall & Acoustics Limited, Respondent
BEFORE: R. A. Furness, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
APPEARANCES: David McKee and Karl Ball for the applicant; David Gorelle and Al M. Beingessner for the respondent.
DECISION OF THE BOARD; February 7, 1990
The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination.
In a previous decision in this matter dated July 27, 1989, the Board dismissed a motion by the respondent that this grievance is untimely. The Board proceeded to hear evidence and representations on the merits of this grievance.
The applicant has alleged that the respondent failed to pay wages and benefits to thirty-one members of the applicant who attended a WHMIS training programme on Friday, February 3, 1989, for four and a half hours between 1:00 p.m. and 5:30 p.m. The applicant alleged that the respondent had violated articles 6, 7, 9 and 10 of the Master Portion of the current collective agreement and/or the Acoustic and Drywall Appendix and any other relevant articles of that current collective agreement. The applicant requested that payment be made to it for all hours at the appropriate rate in the current collective agreement so that the applicant could distribute the same to its members. At the commencement of the hearing on the merits, the parties agreed that the Board determine the issue of liability, if any, and remain seized on the issue of the amount of wages and benefits which the respondent may be required to make. The applicant and the respondent agreed that they are bound by the provincial collective agreement between The Carpenters Employer Bargaining Agency and The Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America effective June 23, 1988, to April 30, 1990 (the "collective agreement").
The Board heard testimony from Karl Ball, a business representative of the applicant and Kenneth Picken and Gerald Wilson owner/managers of the respondent.
The evidence established that Mr. Picken organized a WHMIS course. WHMIS is the acronym for "Workplace Hazardous Materials Information System". By virtue of a regulation under the Occupational Health and Safety Act certain duties of the workplace are set out with regard to labels, the provisions of material safety data sheets and worker training. It is the obligation of an employer under that Act to see that its employees are instructed in the use of hazardous materials in the workplace.
Mr. Picken contacted an instructor with the Construction Safety Association and discussed how to make the required knowledge available to the respondent's employees. Mr. Picken was informed that there were three methods, namely, a two and a half to three day course to which the respondent could send a key person to be trained as a qualified instructor; a four and a half hour to five hour course in order to become a card holder; and a half hour to one hour course for information training. Mr. Picken informed the Board that he chose the second method as a course to be offered to key personnel, office staff and union business representatives. He gave evidence that it was his intention to offer the third method of the one half hour to one hour course to the respondent's other employees. With a view to implementing his decision, he told the respondent's foremen at a foremen's meeting of his plans to arrange for a four and a half hour to five hour course. He also told the office staff of the course. It was Mr. Picken's testimony that the foremen and office staff were invited to attend on a voluntary basis. However, upon cross-examination of Mr. Picken and Mr. Wilson, it became clear that those who were present during the exchange of information would have understood that they were required to attend the course.
Mr. Picken was then faced with arranging for a place in which to hold the course. He asked Mr. Ball if the applicant's hall was available for the course. Mr. Ball informed him that the hall was available to anyone if they were union members. Mr. Picken assured Mr. Ball that those in attendance would be union members. The course was arranged to be given during the afternoon of Friday, February 3, 1989. Mr. Picken gave evidence that the foremen were told of the date some two weeks prior thereto and were instructed to close down the construction sites at noon on that date. With regard to the information conveyed to the employees, the evidence was much less satisfactory. Mr. Picken thought that the foremen probably told the employees the next day but "did not know for sure". The Board observes at this point that there was no evidence from a foreman or any employee as to what was actually said or the impression conveyed or received about the course to be held at the applicant's hall on February 3. Such evidence would have been extremely helpful and quite possibly determinative of this grievance. However, the facts which underlie this grievance will have to be gathered in part by the conduct of the parties with respect to events which occurred at the course on February 3.
Mr. Picken and Mr. Ball had agreed that the applicant's business representatives could and would attend the course. There was a further agreement that Mr. Ball would provide donuts and Mr. Picken would provide beer for the participants. Mr. Picken and Mr. Ball were expecting about twenty persons to attend the course. Mr. Picken ordered twenty-five guides for the course and Mr. Ball set up chairs for about twenty participants. On the afternoon of February 3 some forty-seven persons showed up with a view to attending the course. Mr. Picken and Mr. Ball were flabbergasted and the instructor was initially reluctant to proceed with the course. However, more chairs were set out, those present "buddied up" on the guides and the instructor gave the course to all who were in attendance. Cards were subsequently issued which set forth the names of the persons who were in attendance for the course.
It is the position of the applicant that the employees covered by the collective agreement ought to have been paid for the time spent attending the course. It is the position of the respondent that there was no violation of the collective agreement. In the alternative, the respondent argued that none of the grievors were directed to attend the course and so were not entitled to renumeration. In the further alternative, the respondent argued that it had planned for the grievors to attend the shortest of the three courses for non-foremen and that accordingly, any damages which are awarded ought to be limited to one hour's pay.
The issue before the Board is whether the thirty-one members of the applicant who attended the course on February 3, 1989, were employees of the respondent employed pursuant to the collective agreement and whether their status at the course was that of employees or volunteers? At the outset it is worth noting that the instruction of employees is an obligation imposed under the Occupational Health and Safety Act. Mr. Picken recognized this obligation and conceded it in his evidence. While there is no guidance in that legislation on the requirement to reimburse or pay wages, there is before the Board a guideline from an inspector under the Occupational Health and Safety Act to the effect that employees who receive the training ought to be paid. However, such a guideline does not have the force of law and is not determinative of this grievance under a collective agreement. The Board has considered the authorities referred to it by counsel. None of these authorities was on point. Duties inferred under other statutes and interpretations of various conduct under other collective agreements have not assisted the Board.
In the context of the construction industry, where employment relationships are constantly being created and re-created, an individual employer may well be reluctant to assume the cost of a safety programme which may fall disproportionately on its financial resources rather than be spread evenly in the industry or, indeed, shared by other parties. It is apparent that the respondent preferred to participate in the course without cost or at a minimal cost to itself. This grievance, however, goes beyond the intention of the respondent. This grievance involves an examination of the instructions received by the grievors with respect to the course.
As was stated previously, there was no evidence before the Board as to what was actually said to the employees on the various construction sites, prior to the shutdown on February 3. It appears that, at the very least, a problem occurred in communication between management and the employees (other than the foremen) on the twelve to fourteen sites. It was readily apparent to Mr. Picken that many employees were in attendance for the course. He could have cleared up the apparent lack of communication between management and these employees by informing them that they had not been invited and would not be paid for their time spent on the course. The Board readily understands the stated position of Mr. Picken that he felt he could not ask union members to leave their union hall. However, Mr. Picken could have made an announcement that they were not there by the direction of the respondent, that they were on their own time after midday and that they would not be paid for the time they spent on the course. He could have told the employees that they were to be offered the shortest course on the topic to be given on a subsequent date. There were so many ways management could have communicated to these employees. There is no evidence before the Board that it effectively communicated to these employees that their working day was over at midday on February 3 either prior to that point in time or subsequently when these employees accompanied their foremen to the union hall. While there is provision in the collective agreement for the exercise of management rights, such rights must be exercised and communicated to employees.
The Board finds that the respondent has violated the articles referred to in the grievance in the collective agreement and the Acoustic and Drywall Appendix thereto with respect to the employees covered therein including the foremen who may be also covered therein. The Board determines that the respondent pay the wages and various benefits required (and which have not been paid by reason of its violations of the collective agreement) to the applicant for distribution to the appropriate persons.
The Board remains seized with respect to any matter arising out of the implementation of the determination of the Board in this grievance.