The Electrical Power Systems Construction Association v. Ontario Allied Construction Trades Council, 1992 CanLII 6737

[1992] OLRB Rep. April 445

0762-91-G The Electrical Power Systems Construction Association, Applicant v. Ontario Allied Construction Trades Council, International Association of Heat and Frost Insulators and Asbestos Workers, International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 and James C. Cord, Respon­dents

BEFORE: Robert D. Howe, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

APPEARANCES: John C. Field and V. W. Medri for the applicant; A. M. Minsky, John Marchil­don and Joe de Wit or the respondents.

DECISION OF THE BOARD; April 23, 1992

1. The names of the respondents are amended to read: "Ontario Allied Construction Trades Council, International Association of Heat and Frost Insulators and Asbestos Workers, International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 and James C. Cord".

2. This is a referral of a grievance to arbitration pursuant to section 126 (formerly section 124) of the Labour Relations Act.

3. The grievance, which is dated March 27, 1991, reads as follows:

EPSCA grieves against James Cord and against the Union that James Cord has violated Article 19 of the Master Portion of the EPSCA/OACTC Collective Agreement by improperly claiming and receiving Room and Board Allowance.

EPSCA claims damages in the amount of $11,650.50 the value of Room and Board Allowance monies paid to James Cord, plus all appropriate interest.

4. The grievance was initially addressed only to James Cord and to Joe de Wit, the Busi­ness Manager of the International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 ("Local 95"). However, it was subsequently amended to include as addressees John Mar­childon, the Secretary-Treasurer and Business Manager of the Ontario Allied Construction Trades Council (the "Council") and Andre Chartrand, an International Vice-President of the Interna­tional Association of Heat and Frost Insulators and Asbestos Workers (the "International") and Supervisor of Local 95.

5. This grievance referral was filed with the Board on June 6, 1991, and was initially sched­uled to be heard on June 20, 1991, but was subsequently adjourned to July 18, 1991 on the agree­ment of the parties. When the matter came on for hearing before this panel of the Board on that day, respondents' counsel requested that the referral be dismissed pursuant to section 71(1) of the Board's Rules of Procedure on the grounds that it failed to make out a prima facie case for the remedy requested. After hearing extensive submissions regarding that request, we ruled that we would reserve our decision on that matter and deal with it, if appropriate, after completion of the hearing of the merits. The Board then offered the parties a number of potential hearing dates in the Fall and Winter of 1991, all but the last two of which were rejected by the parties. Thus, the matter was listed for continuation of hearing on December 5 and 12, 1991. However, both of those dates were also adjourned on the agreement of the parties, with the hearing being rescheduled to take place on March 4 and 16, 1992. (The parties initially wished to have this grievance heard together with Mr. Cord's discharge grievance, which has also been referred to the Board pursuant to section 126 of the Act, in File No. 0788-91-G. However, they subsequently elected to defer pro­ceeding with the discharge grievance until after the hearing of the instant referral had been com­pleted.)

6. At the March 4 hearing, applicant's counsel provided the Board with a statement of facts and the nine exhibits referred to therein. Respondents' counsel advised the Board that his cli­ents were not putting the applicant to the strict proof of those facts and documents for the purpose of these proceedings, on the understanding that this would be without prejudice to any position his clients might take in the proceedings in File No. 0788-91-G or in any other proceedings. Similarly, applicant's counsel stipulated that the presentation of the facts in this form was not to be taken as a limiting or prejudicial factor regarding other evidence which might be relied upon in respect of the discharge grievance. Thus, it was common ground among the parties that the following statement of facts should be treated as being undisputed for purposes of the instant case, but without preju­dice to the parties' positions in any other proceedings:

Statement of Facts

1. Ontario Hydro as a member of the Electrical Power Systems Construction Association (here­inafter "EPSCA") is bound by the terms of the Collective Agreement between the Ontario Allied Construction Trades Council (hereinafter "OACTC") and EPSCA.

2. The International Union of Heat and Frost Insulators and Asbestos Workers as a member of the OACTC is bound by the terms of the Collective Agreement between EPSCA and the OACTC.

3. James Cord (hereinafter "Cord") at all material times was an employee of Ontario Hydro and a member of the International Union of Heat and Frost Insulators and Asbestos Workers (hereinafter "the union"). Cord as a member of the union at all material times was bound by the terms and conditions of the Collective Agreement.

4. Cord commenced his employment at Ontario Hydro's Lainbton generating station on August 17, 1989. At that time he applied for a Room and Board Allowance pursuant to the terms of the Collective Agreement. Attached as Exhibit "A" of the Statement of Facts is a copy of the Mas­ter Portion of the Collective Agreement between the OACTC and EPSCA and the Interna­tional Association of Heat and Frost Insulators and Asbestos Workers Appendix.

5. On February 18, 1991, James Cord pleaded guilty to the offence of Fraud Over $1,000.00 (Section 380(l)(a) of the Criminal Code of Canada) as a result of improperly obtaining $11,650 (eleven thousand, six hundred and fifty dollars) in Room and Board Allowance monies from Ontario Hydro from on or between August 17, 1989, and March 28, 1991. Attached as Exhibit "B" is a certified copy of the Information recording Cord's entering of a plea of guilty to the charge of Fraud Over $1,000.00.

6. On August 7, 1989, James Cord and his wife, May Cord, executed an Agreement of Purchase and Sale to purchase 451 Cromwell Street in Sarnia, Ontario. Attached as Exhibit "C" of the Statement of Facts is a copy of the Agreement of Purchase and Sale signed by James and May Cord.

7. On August 23, 1989, a Transfer/Deed of Land form was registered in the Land Registry Office in Sarnia which shows James Cord and his wife as transferees for 451 Cromwell Street, Sarnia, Ontario, taking the property as joint tenants. Attached as Exhibit ~'D" of the Statement of Facts is a copy of the Transfer/Deed of Land form, along with a copy of the Land Transfer Tax Act Affidavit sworn by Cord.

8. Cord, at the time he commenced employment on August 17, 1989, listed as his regular resi­dence on the application for Room and Board Allowance, Unit #22, 75 Ventura Drive, St. Catharines, Ontario. Attached as Exhibit "E" of the Statement of Facts is the application form signed by Cord to obtain Room and Board Allowance.

9. Cord, at the time of his application for Room and Board Allowance on August 17, 1989, pro­vided a copy of his Driver's License showing his residence as 75 Ventura Drive, Unit 22, St. Catharines, Ontario. Attached as Exhibit "F" of the Statement of Facts is a copy of the said Driver's Licence. Attached as Exhibit "G" of the Statement of Facts is a copy of Cord's Driver Licence History from the Ministry of Transportation which shows Cord's address as of Septem­ber 21, 1989, as 451 Cromwell Street, Sarnia, Ontario.

10. On or about January 8, 1991, Cord responded to Ontario Hydro with respect to its request for up-to-date address information for Cord's T4 slip to be sent to his home address. Cord advised Ontario Hydro that he had a new home address, 44 Louis Avenue, St. Catharines, Ontario, and also a temporary address - mailing, as do T. McQueen, 855 Lanark Crescent, Sar­ma. Attached as Exhibit ~'H" of the Statement ofFacts is a copy of the T4 information slip with Cord's response.

11. On March 22, 1991, James Cord completed a second application for a Room and Board Allowance listing 44 Luis [sic] Avenue, St. Catharines, Ontario, as his regular residence. Attached as Exhibit "I" of the Statement of Facts is a copy of the second application signed by Cord for Room and Board Allowance.

[The exhibits referred to in the Statement of Facts have not been reproduced in this decision.]

7. Counsel referred the Board to the following parts of the Master Portion of the Collec­tive Agreement during the course of their able submissions:

Article 19

GENERATION PROJECTS DAILY TRAVEL ALLOWANCE

AND ROOM AND BOARD

ROOM AND BOARD

19.2 The following conditions will apply for employees whose regular residence* is more than 97 radius kilometers from the project:

(a) An Employer may supply either:

(i) Room and board in camp or a good standard of board and lodging within a reasonable distance of a project; or

(ii) a subsistence allowance;

subject to Section 19.2(b), (c) and (d) below.

(b) An employee may exercise his option not to stay in a camp or accept room and board. An employee who exercises this option and qualifies for subsistence allowance shall receive a subsistence allowance of $42.00 per day (effective May 1, 1991, $45.00 per day) for each day worked or reported for subject to Sections 19.2(c) and 192(d) below.

(c) To qualify for subsistence allowance an employee must maintain temporary accom­modation at or near a project. Employees who travel daily to locations beyond 97 radius kilometers from the project will be entitled to $25.50 per day worked or reported for.

(d) An employee employed at the Pickering or Darlington Project who qualifies for a subsistence allowance as provided for above shall receive a subsistence allowance of $27.00 per day for each day worked or reported for.

• An employee's 'regular residence' is:

The place where the employee maintains a self-contained, domestic establishment (a dwelling house, apartment or similar place of residence where a person generally eats and sleeps and for which he can show proof of financial commitment). This is in con­trast to a boarding house facility which is not self-contained; and

2. The employee normally resides in the residence except for those periods of time when, because of the location of the work, the employee is forced to obtain tempo­rary accommodation at that work location.

19.3 An employee shall not qualify for daily travel allowance or room and board allowance as provided for in Sections 19.1 and 19.2 above when such employee reports for work but does not remain at work for his scheduled daily hours unless excused by an autho­rized representative of his Employer.

19.4 An employee who maintained a regular residence within the geographic area for the purposes of employment and who relocates outside the geographic area will not be entitled to an increase in travel or room and board allowance entitlement as a result of this relocation.

Article 29

GRIEVANCE PROCEDURE

29.1 Grievances within the meaning of the grievance and arbitration procedure shall con­sist only of disputes about the interpretation or application of particular clauses of this Agreement and about alleged violations of this Agreement. In the event of any dis­pute concerning the meaning or application of any provision of this Agreement or a dispute concerning an alleged violation of this Agreement, there shall be no suspen­sion or disruption of work, but such dispute shall be treated as a grievance and shall be settled, if possible, by EPSCA and the appropriate Union. In the interests of expe­diting the procedure, the parties shall process grievances in the following manner:

The grievance procedure and arbitration procedure in Article 30 do not apply to juris­dictional disputes.

29.2 PRELIMINARY DISCUSSION

Disputes arising out of the interpretation or alleged violation of this Agreement should, if possible, be settled by discussion between the employee and/or his steward and the employee's supervisor. If the employee affected is a foreman, the preliminary discussion will be between the Accredited Union Representative and the foreman's supervisor.

29.3 FIRST STEP

If a dispute cannot be resolved by this method, the accredited Union Representative for the trade concerned may file a formal grievance on the prescribed form with the Manager of Construction or the Field Construction Manager within fifteen (15) work­ing days of the alleged grievous act.

Within ten (10) working days of the filing of the grievance, the Manager of Construc­tion or Field Construction Manager shall investigate the grievance and convene a First Step meeting which he or the Accredited Union Representative considers necessary to resolve it.

The Management Committee shall be comprised of the Manager of Construction or the Field Construction Manager or their designate plus at least one representative of the Employer named in the grievance. The Union Committee shall include at least two persons, one of whom shall be the Accredited Union Representative for the grievor.

The Manager of Construction or Field Manager shall give his reply on the prescribed form to the Accredited Union Representative within five (5) working days from the date of the First Step meeting.

Copies of completed grievance forms signed by the appropriate parties shall be filed by the Manager of Construction or the Field Construction Manager with the General Manager of EPSCA. The Accredited Union Representative for the grievor will file a copy with the Council.

29.4 SECOND STEP

Within ten (10) working days after the disposition has been issued under the First Step of this procedure, the Accredited Union Representative may refer the grievance on the prescribed form to EPSCA's Grievance Officer. A copy of the grievance form shall be forwarded by the Accredited Union Representative to the International Rep­resentative of the Union.

The EPSCA Grievance Officer shall investigate the grievance and convene a meeting which he or the International Representative considers necessary to resolve it and give his reply on the prescribed form to the International Representative of the Union within five (5) working days from the receipt of the grievance form which was com­pleted at First Step.

The Management Committee shall comprise the EPSCA Grievance Officer plus two other Management Representatives, plus two other Management Representatives [sic], one of whom shall be a representative of the Employer named in the grievance. The Union Committee shall be comprised of at least the International Representative or his designate for the grievor. If the International Representative elects to appoint a designate, he shall inform EPSCA in writing of the name of the designate and the duration of appointment.

29.5 EPSCA OR COUNCIL GRIEVANCES

The processing of EPSCA or Council grievances will begin at the Second Step. EPSCA or the Council may submit either policy or specific grievances. Such policy or specific grievances shall be submitted within thirty (30) days of the alleged grievous act.

Article 30

ARBITRATION

30.1 If any dispute about the interpretation or application of particular clauses of this Agreement or about an alleged violation of this Agreement cannot be settled through the grievance procedure outlined in Article 29, the matter may be submitted within thirty (30) days of its failure of settlement by grievance procedure by either EPSCA or the Council to a Board of Arbitration for adjudication.

30.2 The arbitration board shall have no power to add to or subtract from or modify any of the terms of this Agreement. The arbitration board shall not substitute its discretion for that of the parties except where the board determines that an employee has been discharged or otherwise disciplined for cause when this Agreement does not contain a specific penalty for the infraction that is the subject matter of the arbitration. In such cases, the arbitration board may substitute such other penalty for the discharge or dis­cipline as to the arbitration board seems just and reasonable in all circumstances. The arbitration board shall not exercise any responsibility or function of the parties. The arbitration board shall not deal with any matter not contained in the original state­ment of grievance filed by the party referring the matter to arbitration.

(Counsel advised the Board that the copy of the Collective Agreement entered as an exhibit in these proceedings is not the actual document in force at the time of the grievance, but rather is an updated agreement which contains language that is identical in all material respects other than the monetary amounts, which have been revised but have no direct bearing on these proceedings since there is no dispute concerning the amount of room and board allowance received by Mr. Cord.)

8. Reference was also made during the course of argument to sections 45(10), 51, and 126(3) (formerly sections 44(10), 50, and 124(3)) of the Act, which provide as follows:

45(10). The decision of an arbitrator or of an arbitration board is binding,

(a) upon the parties;

(b) in the case of a collective agreement between a trade union and an employ­ers' organization, upon the employers covered by the agreement who are affected by the decision;

(c) . in the case of a collective agreement between a council of trade unions and an employer or an employers' organization, upon the members or affiliates of the council and the employer or the employers covered by the agree­ment, as the case may be, who are affected by the decision; and

(d) upon the employees covered by the agreement who are affected by the decision,

and the parties, employers, trade unions and employees shall do or abstain from doing anything required of them by the decision.

51. A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.

126(3). Upon a referral under subsection (1), the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any ques­tion as to whether the matter is arbitrable, and subsections 45 (6), (8), (9), (10), (11) and (12) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

(Although both counsel referred to section 51 as the statutory basis for bargaining unit employees such as Mr. Cord being bound by the collective agreement, it appears that the applicable statutory provision is actually section 52(1) which, among other things, makes a collective agreement between an employers' organization and a council of trade unions "binding ... upon the employees in the bargaining unit defined in the agreement".)

9. Counsel for the respondents submitted that the application should be dismissed on the following grounds:

(1) the grievance is inarbitrable;

(2) the respondents other than the Council are not proper parties to a grievance under the Collective Agreement or a referral under section 126; and

(3) the Board is without jurisdiction under section 126 or otherwise to grant the relief claimed in the grievance as against any of the respon­dents.

It was his position that the grievance was inarbitrable in relation to the International and Local 95 because neither of them was alleged to have breached the Collective Agreement, and because no relief was sought against either of them. He submitted that it was also inarbitrable against Mr. Cord because he is not a party to the Collective Agreement, and neither a grievance against an employee nor a referral to the Board of a grievance against an employee is permitted by the Col­lective Agreement, the Act, or the arbitral jurisprudence. After referring the Board to decisions in which arbitrators declined to award damages against persons who were not parties to a collective agreement, he asserted that in the forty or fifty years that grievance arbitration awards have been rendered, there has not been a single reported case in which damages have ever been awarded against an employee. He acknowledged that the Council could be a proper respondent to a referral of this type of grievance if the applicant had requested a declaration rather than an award of dam­ages. It was his position that damages could not be awarded against the Council as the grievance does not allege any contravention of the Collective agreement by the Council. However, he acknowledged that EPSCA could have brought a grievance against the Council seeking a declara­tion as to whether or not Mr. Cord properly or improperly claimed and received room and board allowance. He further contended that, having obtained such a declaration, EPSCA could then commence action against Mr. Cord in a court of law to seek recovery of damages from him directly. That process, which respondents' counsel referred to as the "theoretically valid model", was based upon various court decisions, including Hamilton Street Railway Co. v. Northcott (1966), 1966 CanLII 14 (SCC), 58 D.L.R. (2d) 708 (S.C.C.), and MacIsaac v. Great Lakes Forest Products Limited (1981), 21 C.P.C. 310 (O.H.C.). He also suggested that, subject to Mr. Cord's right to grieve any disciplinary action taken against him, the employer might have recovered the money in question by imposing discipline upon Mr. Cord in the form of a monetary penalty. In support of that contention, he referred the Board to Ontario Hydro, [1983] OLRB Rep. Sept. 1547, and Re H. Fine & Sons Ltd. and Teamsters Union, Local 91 (1984), 1984 CanLII 5166 (ON LA), 15 L.A.C. (3d) 236 (Roach). Reference was also made to Re United Electrical Workers, Local 512, and Standard Coil Products (Canada) Ltd. (1971), 1971 CanLII 1911 (ON LA), 22 L.A.C. 377 (Weiler). In support of the proposition that, if it had not elected to discharge Mr. Cord, the employer could have exercised a right of set-off to recover the room and board allow­ance paid to him.

10. In responding to those submissions, applicant's counsel confirmed that his client is not seeking an award of damages against the Council, the International, or Local 95. However, he asserted that the Council is a necessary and proper respondent in these proceedings because it is the other party to the Collective Agreement, and further asserted that the International and Local 95 are necessary and proper parties because they are Mr. Cord's bargaining agent. He also noted that the Board has held that the local union is the "party" adverse in interest to which delivery of the written grievance must be made to fulfill the delivery requirements of section 126(2): The Elec­trical Power Systems Construction Association, [1990] OLRB March 243. It was his contention that EPSCA can obtain (on behalf of Ontario Hydro) restitution from Mr. Cord in the form of damages equal to the monies which Mr. Cord obtained by breaching Article 19 of the Collective Agree­ment, plus interest, because Mr. Cord was at all material times bound by the Collective Agreement and the provisions contained in it. In support of that contention, he referred the Board to section 51 of the Act. He submitted that the language of that section makes the Collective Agreement "binding" on each bargaining unit employee in the sense of holding the employee to the contrac­tual or legal obligations contained in the Collective Agreement, and that it therefore permits the employer to pursue a remedy against an employee for breaching one or more of those obligations. It was his contention that section 45(10) of the Act further supports his client's position. Counsel also argued that to apply the "party to/bound by" distinction in order to deny arbitration as a means of recovering funds wrongly paid out would insulate employees from relief for breaches of the collective agreement to which they, by statute, must adhere. He referred to the common situations in which a union seeks redress from an employer on behalf of an individual grievor, and in which a union seeks relief from an employer through that employer's bargaining agency, as compa­rable analogies illustrating the irrelevancy of that distinction. He further suggested that if the Council's position were correct, it would not be able to name Ontario Hydro as a respondent in Mr. Cord's discharge grievance referral, nor to obtain any remedy against Ontario Hydro in those proceedings, as it is EPSCA and not Ontario Hydro which is a party to the Collective Agreement. Thus, he submitted that principles of fairness and reciprocity should govern the situation and result in Mr. Cord being found to be a proper respondent against whom relief can be awarded in the instant case. In disputing opposing counsel's suggestion that the employer could recoup such a loss by imposing a monetary penalty on the employee, he referred the Board to section 8 of the Employment Standards Act, which precludes an employer from claiming a set-off against wages, making a claim against wages for damages, etc. He also noted that even if an employer could in some instances obtain a payment of the funds by such means, that approach would not be available in situations where an employer was unaware of the loss until after the employee had left its employ. Applicant's counsel suggested that discipline is not an adequate remedy in a situation of this type, which he characterized as being rather unique in that, unlike many other situations such as those involving unlawful strikes, the union is not alleged to have been involved in the employ­ee's wrongdoing and thus cannot have damages awarded against it. In commenting on the remedial relief sought in these proceedings, he noted that in the initial paragraph of the grievance, his client grieved that James Cord has violated Article 19 by improperly claiming and receiving room and board allowance. He submitted that a request for a declaration is implicit in that portion of the grievance. Thus, it was his position that EPSCA is seeking not only damages but also a declara­tion, as the Board's finding of a breach of Article 19 would be declaratory in nature. In addition to commenting on the cases cited by respondents' counsel, applicant's counsel referred the Board to a number of other cases during the course of his submissions, including Re Samuel Cooper & Co. Ltd. and International Ladies' Garment Workers' Union et al. (1973), 35 D.L.R; (3d) 501 (Ont. Div. Ct.); Shell Canada Limited v. United Oil Workers, 1980 CanLII 200 (SCC), [1980] 2 S.C.R. 181; and Re United Associ­ation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, etc., Local 800, and Bennett and Wright Contractors Ltd. (1969), 1969 CanLII 1475 (ON LA), 20 L.A.C. 187 (Godin).

11. In his reply argument, respondents' counsel disputed the contention that a request for declaratory relief is implicit in the grievance. In commenting on Articles 29 and 30, he submitted that neither of them expressly or implicitly permits EPSCA to file a grievance against an individual employee. Although he acknowledged that Mr. Cord was bound by the Collective Agreement by virtue of section 51 of the Act, he submitted that neither section 51 nor section 45(10) gives an employer or employers' association the right to seek damages against an employee through griev­ance arbitration. In this regard he adopted by reference the argument he had presented to another panel of the Board in an earlier case involving EPSCA and the Council, as summarized in The Electrical Power Systems Construction Association, [1990] OLRB Rep. March 243, at paragraph 24:

The respondents concede that employees are bound by the collective agreement through the provisions of section 50 of the Act, and bound by an arbitration board's decision through the provisions of section 44(10) of the Act. However, they submit that the issue of whether employ­ees are so bound is a different matter from the issue before this Board: whether at the instiga­tion of an employer party to the collective agreement the arbitration mechanism is available for enforcing alleged obligations contained therein against individual employees. The respondents submit that the foundation of collective bargaining is the bilateral relationship between the employer (or its authorized representative, such as EPSCA) on one hand, and the union (or its authorized representative, such as the Council) on the other hand. To allow these disputes to be arbitrated on the merits would undercut the very rationale for and structure of collective bar­gaining. The respondents note that this is a case of first impression, and argue there is good rea­son for over forty years of jurisprudence without this question arising for arbitration. They sub­mit this lengthy dormant period reflects the abilities of the bilateral parties to govern their affairs, and demonstrates that there has not been a serious, or even detectable, problem of employers being left without remedies to enforce alleged obligations. If that were the case, argue the respondents, this issue would have been adjudicated long ago. Put colloquially, "if it ain't broke, don't fix it."

Counsel sought to distinguish an EPSCA grievance against an employee from a Council grievance against an employer, such as Ontario Hydro, on the grounds that the latter has been recognized as appropriate, even though it is EPSCA and not Ontario Hydro which is a party to the Collective Agreement, because grievance arbitration is traditionally between a union on one side and an employer on the other side, and because the employer is a necessary party if an effective remedy is to be granted in many instances, such as those involving discharge grievances. He further suggested that Ontario Hydro, as a member of EPSCA, is in a different position from Mr. Cord, who is not a member of the Council.

12. Very few of the decisions to which we were referred during the course of argument are of any real assistance, as most of them are readily distinguishable from the instant case. For exam­ple, the Board's statement in J.G. Rivard, [1976] OLRB Rep. Sept. 540, at paragraph 13, that "it is an inescapable conclusion that [the predecessor of section 1261 contemplates a dispute between the employer, etc. on the one hand, and the union, etc. on the other hand", was made in the con­text of a grievance referral in which an accredited employers' organization (the Mechanical Con­tractors Association of Ottawa) was seeking to obtain "Industry Fund" payments from the respon­dent employer which, although not a member of the Association, fell within its accreditation certificate and was bound by the Association's collective agreement (with a local of the UA), which called for payments to be made to that fund by each employer bound by the agreement. All that the Board decided in that case (which was decided in the context of a provision which read "either party" where section 126 now reads "a party") was that a dispute arising "between two entities of like interest and constituting an internal dispute between them" was not a "grievance" within the meaning of section 126's predecessor: see paragraph 17 of the decision. (An application for judicial review of that decision was dismissed by the Divisional Court in a decision released on November 23, 1976.) The same is true of the second Rivard case (J. G. Rivard Limited, [1980] OLRB Rep. July 1009) in which the Board reached an identical conclusion in the context of a legis­lative amendment by which the words "a party" were substituted for "either party" in section 126(1) (then section 112a(1) of the Act), and by which what is now section 147(3) was added to the Act. (That decision also went on to indicate that although Industry Fund payments could not be collected under section 126, what is now section 91 of the Act did provide a mechanism under which their payment could be enforced.)

13. The powers of an arbitration board to award damages and make affirmative directions in appropriate cases are well established. For example, in Re Samuel Cooper & Co. Ltd. and Inter­national Ladies Garment Workers' Union et al. (1973), 1973 CanLII 461 (ON HCJDC), 35 D.L.R. (3d) 501, the Divisional Court dismissed an application for judicial review of an arbitration award in which the company was not only ordered to pay damages for violating its collective agreement obligations, but was also ordered to require all of its employees to become members of the union, to deduct union dues from their wages, to make contributions to various funds, and to cease using contractors. How­ever, in that case, as in all of the other cases to which we have been referred, the orders were made against a party to the collective agreement, and not against an individual employee. It is also well established that such arbitral powers can be exercised not only against an employer at the instance of a union (on its own behalf or on behalf of one or more of the employees whom it represents), but also against a union at the instance of an employer. See, for example, Shell Canada v. United Oil Workers, 1980 CanLII 200 (SCC), [1980] 2 S.C.R. 181.

14. A number of previous decisions have noted that there is a distinction between being a party to a collective agreement and being bound by it: see, for example, The Electrical Power Sys­tems Construction Association, [1976] OLRB Rep. Dec. 825, and Ontario Hydro, [19861 OLRB Rep. Aug. 1137, in which the Board held that although unions which are members of the Council are bound by the collective agreement between the Council and EPSCA, they are not parties to the agreement and, therefore, do not have status to refer grievances to the Board under section 126 of the Act. However, those cases are not of assistance in deciding the present case as they did not determine the effect of being so bound.

15. This is not the first case in which EPSCA and the Council have joined issue before the Board concerning the recoverability, through arbitration, of room and board (subsistence) allow­ance improperly received by a former employee. That issue was argued as a preliminary objection before another panel of the Board in The Electrical Power Systems Construction Association, [1990] OLRB Rep. March 243. In that case, EPSCA sought to recover room and board (subsis­tence) allowance totalling $18,468.50 which had allegedly been improperly claimed and received by a former Ontario Hydro employee while working as a teamster at the Darlington Nuclear Power Generating Station Project. (In another grievance which was being heard together with that one, EPSCA sought an order requiring a labourer formerly employed by Ontario Hydro to either return certain tools and equipment (valued at slightly under $500) or make payment for those items.) However, after hearing the parties' submissions, that panel concluded (in paragraph 34) that it was "more appropriate in the circumstances, given the importance and uniqueness of this issue, to hear the entire case and to deal with this issue, if appropriate, after completion of the proceedings." The panel then proceeded to dismiss the room and board (subsistence) allowance recovery griev­ance on the grounds of undue delay. The other grievance was subsequently withdrawn by the applicant with leave of the Board. Thus, the issue remained undecided.

16. In an earlier referral, EPSCA sought to recover approximately $14,000 in respect of room and board allowance which had been paid to an individual named Brian Fleming (formerly employed by Ontario Hydro as an ironworker-welder) as a result of an allegedly inaccurate decla­ration regarding his regular residence. One of the two preliminary objections raised by the respon­dent in those proceedings (the International Association of Bridge, Structural and Ornamental Iron Workers) was that the applicant could not recover monies from an individual through the respondent trade union as a party to a grievance. However, the Board (differently constituted) dis­missed the grievance on the basis of the union's other preliminary objection (untimeliness) and, therefore, did not consider it appropriate to reach a determination on that issue: see The Electrical Power Systems Construction Association, [1987] OLRB Rep. Aug. 1079. Prior to that grievance being filed by EPSCA, Ontario Hydro had attempted to recover those funds through a civil action which it commenced against Mr. Fleming in February of 1985. The denial of a motion to dismiss that action was overturned on appeal in August of 1985, on the grounds that it was not possible to deal with Ontario Hydro's claim against Mr. Fleming without referring to the Collective Agree­ment and placing an interpretation on it, which the courts were precluded from doing by section 3(3) of the Rights of Labour Act, and section 45(1) (formerly section 44(1)) of the Labour Rela­tions Act. (A subsequent appeal by the employer to the Divisional Court was dismissed, as was the employer's motion for leave to appeal to the Ontario Court of Appeal.)

17. An attempt by an employer to obtain damages from individual employees who engaged in an unlawful strike was unsuccessful in Dover Corporation (Canada) Limited, [1976] OLRB Rep. Dec. 807. Having found that the employees' union, through its business agent, had called the unlawful strike, and having directed the union to compensate the company for all real losses suf­fered as a result of the strike, the majority wrote as follows in declining to order damages against the individual employees:

18. The applicant company seeks damages from the individual employees against whom sepa­rate grievances have been filed. The Board, having regard to its findings in respect of the union s involvement and having regard to the dependency of the individual employees upon the trade union for their employment and having regard to the Board's direction against the union which will make the company "whole", refuses, in the circumstances of this case, to order dam­ages against the individual employees.

It appears from that passage that the Board may have assumed that it would have jurisdiction to make such an award if it found it appropriate to do so. However, there is nothing in the decision which indicates that the Board heard submissions on that issue (or that any of the parties disputed the Board's jurisdiction to do so). Moreover, that decision is obviously not authority for the Board having jurisdiction to do so, as the Board declined to order damages against the individual employ­ees and, accordingly, did not have to decide whether or not it would have jurisdiction to do so in grievance referral proceedings.

18. The award in Re United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, etc., Local 800, and Bennett & Wright Contractors Ltd. (1969), 1969 CanLII 1475 (ON LA), 20 L.A.C. 187 (Godin), is also of no assistance in deciding the instant case. In declining to award damages against individual employees for engaging in an unlawful strike, the award in that case appears to suggest that such damages might have been available had the union not been found liable for the employer's losses. However, that case is distinguishable from the present case as the arbitration clause contained in the applicable collective agreement expressly gave the arbitration board "the full authority to order ... any employee or the employees ... [to] do anything or pay any sum by way of damages which the Board deem just." Thus, in that case, the collective agreement specifi­cally empowered the arbitration board to award damages against an employee. In the instant case, the Collective Agreement contains no such provision. Moreover, the award is certainly not author­ity for the general availability of damages, through arbitration, against individual employees, as no such damages were awarded in that case in spite of the presence of that empowering provision in the collective agreement.

19. In File No. 1446-88-G, Nicholls-Radke Limited referred the following grievance to the Board for determination:

Nicholls-Radtke Limited grieves that the U. A. Local 46, through its Business Representative, Bill Weatherup, and Bill Weatherup in his personal capacity has breached articles 10, 13.2 and 14.1 of the collective bargaining agreement by:

1. directing employees of Nicholls-Radtke on the Union Gas Greenbelt Compressor station job where employee [sic] have been working 7:00 am. to 5:00 p.m.' 6 days a week, to work only from 8:00 am. to 4:00p.m., Monday to Friday.

2. coercing employees of Nicholls-Radtke Limited at the Union Gas Greenbelt Compressor job to walk off the job two hours early on August 15 to attend a Union meeting.

3. encouraging employees of Nicholls-Radtke Limited, both at and following a meeting on or about July 27, 1988, to take job action in an attempt to force Nicholls-Radtke to pay the same premium paid to the fitters on the job site, as was by Isic] paid to the welders.

4. attending at a Nicholls-Radtke job site, without initially reporting to the Nicholls-Radtke Superintendent. In addition, the Business agent, Bill Weatherup, has breached article 17 of the collective agreement by attempting to resolve a difference in the application of the agreement through economic pressure rather than through proper procedures set out in the collective bar­gaining agreement.

Nicholls-Radtke seeks as a remedy to the above grievance:

1. a declaration that Bill Weatherup has breached the collective agreement as alleged;

2. damages from Bill Weatherup, incurred by Nicholls-Radtke as a result of the delay in work resulting from his breach of the collective agreement;

3. a direction to Bill Weatherup that he is to resolve differences under the collective agreement in accordance with the grievance arbitration procedure therein contained.

4. a direction to Bill Weatherup that he is to report directly to the grievor's superintendent upon arrival at the site.

In an unreported decision dated May 31, 1991 regarding that referral, another referral, and a sec­tion 91 (then section 89) complaint, the Board wrote, in part, as follows:

5. The Board heard extensive evidence with respect to each of the three matters. As was referred to earlier, the three matters were heard together notwithstanding certain preliminary objections which were raised by counsel for Local 46 and Bill Weatherup. In a letter to the Board dated September 28, 1988, counsel raised an objection that the grievance in 1446-88-G was inarbitrable under the collective agreement binding upon the parties. It was the position of counsel for Local 46 and Bill Weatherup that there was no legal basis for the assertion of Nic­holls' claim for relief against Bill Weatherup. Counsel also noted that no relief had been claimed in the grievance against Local 46. These points were apparently subsequently raised again by counsel for Local 46 and Bill Weatherup in a communication to counsel for Nicholls. The only recorded response to this before the Board consisted of a reference in argument by counsel for Nicholls after the evidence had been adduced that he was asking for relief in the complaint under section 89 and the referral under section 124 and vice versa.

6. With regard to the referral to arbitration in File 1446-88-G, the Board notes that the only relief sought is against Bill Weatherup and not against Local 46. The Board has referred to the objections of counsel for Local 46 and Bill Weatherup earlier in this decision. The Board agrees that the procedure under section 124 contemplates that the proper parties to a grievance referral are the employer and the trade union and that Bill Weatherup is not a proper party to a griev­ance and referral under section 124. See J. G. Rivard Limited, [1976] OLRB Rep. Sept. 540. Moreover, there is nothing in the Labour Relations Act or the provisions of the Ontario Provin­cial Collective Agreement 1988-1990 between the Mechanical Contractors Association Trades Council and the Ontario Pipe Trades Council referred to in the referral which confers any such status by or with respect to Bill Weatherup. Nicholls was put on notice and did not respond to the preliminary objection until the evidence was in before the Board. Local 46 and Bill Weath­erup are entitled to rely on the referral as framed and it is unfair and unreasonable for counsel for Nicholls to respond to the issue at the stage which he did. The referral under section 124 is dismissed.

As noted by applicant's counsel, that case is distinguishable from the instant case in that, unlike Mr. Cord, Mr. Weatherup was not an employee and was, therefore, not bound by the collective agreement.

20. In Re Ontario Produce Co. and Teamsters Union, Local 419 (1986), 1986 CanLII 6697 (ON LA), 26 L.A.C. (3d) 159 (O'Shea), the employer suffered a loss of approximately $4,200 as a result of an unlawful strike. No damages were claimed against the union because the union steward had not participated in the strike and the union business agent had done everything he could to resolve it. However, the com­pany filed a grievance against forty-one employees who had engaged in the strike, claiming dam­ages and requesting the issuance of a warning (to be entered on each employee's individual employment record) that any further conduct of that nature would result in discharge. After find­ing that he had no right under the provisions of the collective agreement to impose a disciplinary penalty where no disciplinary action had been taken by the company, the arbitrator reached the following conclusion (at page 167) in respect of the company's claim for damages:

While the company might have claimed damages against the union as a party to the collective agreement, the company (for a very valid reason) elected not to do so. Since the individual employees are not parties to the collective agreement even though they are bound by the provi­sions contained in the collective agreement, the company is not entitled under the collective agreement to claim damages against the employees in a grievance.

21. Thus, the arbitral jurisprudence not only provides no precedent for the relief which EPSCA seeks to have the Board award against Mr. Cord in the instant case, but also tends to sug­gest that such relief will not generally, if ever, be available through grievance arbitration proceed­ings. However, in the circumstances of the instant case we find it unnecessary (and inappropriate) to comment upon the validity of that jurisprudence, for even if we assume (without deciding) that the Board could, in proceedings under section 126 of the act, grant such relief if so empowered by the provisions of the applicable collective agreement, we are not in a position to do so in respect of this grievance because nothing in the Collective Agreement between EPSCA and the Council gives the Board the power to award damages against an employee for improperly claiming or receiving room and board allowance. Accordingly, EPSCA's request for an award of damages against Mr. Cord is hereby dismissed.

22. The only remaining issue is whether declaratory relief is available to the applicant in this case. Arbitrators have generally declined to conclude that their power to grant a remedy is precluded by the absence of a specific remedial request in a grievance or a referral to arbitration (see Brown and Beatty, Canadian Labour Arbitration (3rd Ed.) at paragraph 2:1400). Moreover, we are persuaded that a request for a declaration is implicit in the first paragraph of the grievance, as a finding that EPSCA is correct in its assertion that "James Cord has violated Article 19 of the Master Portion of the EPSCA/OATC Collective Agreement by improperly claiming and receiving Room and Board Allowance" would, in effect, amount to a declaration thereof for all practical purposes.

23. On the basis of the above-quoted statement of facts and the exhibits referred to therein (which, as noted above, are undisputed for purposes of these proceedings), it is abundantly clear that James Cord improperly claimed and received Room and Board Allowance totalling $11,650 to which he was not entitled under Article 19 of the Master Portion of the Collective Agreement, by misrepresenting to Ontario Hydro that his "regular residence" (within the meaning of Article 19) was in St. Catharines, when it was actually in Sarnia at all material times. Accordingly, the Board hereby so declares.