International Union of Bricklayers and Allied Craftsmen, Local 5 v. Classic Masonry Inc., 1993 CanLII 7845

International Union of Bricklayers and Allied Craftsmen, Local 5 v. Classic Masonry Inc.

[1993] OLRB Rep. August 721

3703-91-U International Union of Bricklayers and Allied Craftsmen, Local 5, Applicant v. Classic Masonry Inc. and Louis Trindade, Responding Party

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members R. M. Sloan and H. Peacock.

APPEARANCES: M. Lewis and John Haggis for the applicant; Luis Trindade, Francisco Ferreira and Joaquim A. Pereira for the responding party.

DECISION OF THE BOARD; August 4, 1993

1This unfair labour practice complaint was filed with the Board pursuant to section 91 of the Labour Relations Act ("the Act") on February 20, 1992. In this complaint the applicant (hereinafter referred to as "Bricklayers" or "the Union") asserts that the respondents (hereinafter referred to as "Classic" and "Mr. Trindade") violated sections 3, 65, 67 and 71 of the Act.

2This matter was heard by this panel of the Board on April 10, 1992, October 26, 1992 and May 17, 1993. Before proceeding with our determination of the merits of this complaint we find it appropriate to briefly outline the history of these proceedings.

3This matter first came on for hearing before this panel on April 10, 1992. At that time (and having regard to the appearance information sheet filed by the respondents) the persons in attendance on behalf of the respondents were Luis F. Trindade, Francisco Ferreira and Joaquim Pereira. Throughout the hearing on that day only Mr. Trindade acted as spokesperson for the respondents.

4On April 10, 1992, because none of these three individuals were lawyers, the Board explained the procedure typically followed in a hearing before the Board in alleged unfair labour practice complaints. The Board noted that there was no requirement that a person appearing before the Board be represented by a lawyer. The Board explained, however, that the Board was responsible for adjudicating upon the complaint and that it would be inconsistent with our role as adjudicators to give advice to any party appearing before the Board or to otherwise act as an advocate for a party merely because that party had chosen not to retain counsel. The Board noted that any consequences flowing from the respondents' decision not to retain counsel would have to be borne by the respondents. The respondents were responsible for the presentation of their case and would have to decide such things as which witnesses to call, the questions to be asked of those witnesses, the cross-examination of the trade union's witnesses, etc.

5During the course of the hearing on April 10, 1992 Mr. Trindade adopted the position that he did not speak on behalf of Classic. During his cross-examination by counsel for the trade union Mr. Trindade testified that he had nothing to do with Classic, that he held no position with that company, and that the company was owned by his wife Mary Trindade. He further testified that his only involvement with Classic was through a company owned by Mr. Trindade which rents materials (fork-lifts, scaffolding, etc.) to Classic. Mr. Trindade testified his company also rented similar material to Armour Masonry and other companies.

6As a result of Mr. Trindade's position that he did not speak on behalf of Classic, and in view of the fact that neither Mr. Ferreira nor Mr. Pereira spoke during the course of the hearing, Classic was not represented during the hearing. We note that during the hearing Mr. Ferreira was identified as the general foreman or supervisor in charge of the site during the time the unfair labour practices were alleged to have occurred. Mr. Pereira was also identified as a "foreman-blockcounter" on that site. As no one appeared on behalf of Classic on that day (nor on any subsequent days of hearing) there was no evidence from Classic (save Mr. Trindade's personal evidence) to defend or refute the allegations of the union.

7Mr. Trindade had been served with a summons duces tecum by the union. As a result on April 10 Mr. Trindade brought with him certain payroll records of Classic. Mr. Trindade however professed to have no knowledge of these records and stated he could not explain any of them. As a result the union's cross-examination of Mr. Trindade on that day was adjourned to enable the parties the opportunity to examine the documents. The hearing continued on October 26, 1992.

8On October 26, 1992 only Mr. Trindade was in attendance on behalf of any of the respondents. The trade union finished its cross-examination of Mr. Trindade on that day. Thereafter, Mr. Trindade stated that he had "nothing further to say" and he was prepared to "let the Board decide" upon the merits of the complaint. No other evidence on behalf of the respondents was tendered. Counsel for the union proceeded with the presentation of the union's case.

9The matter was to continue on October 30, 1992 and November 9, 1992. On October 28, 1992 Mr. Trindade was in a car accident. On October 29, 1992 he faxed to the Board a note stating:

"To: Ontario Labour Board

Attention: T. A. Inniss

Please note due to a car accident I am unable to attend tomorrow Oct. 30/92. Please inform me as to when the next hearing will take place. Following is a note from my family physician."

The accompanying note from his family physician is dated October 29, 1992 and states:

"To Whom It May Concern:

Mr. Trindade is not fit to attend meetings before Nov. 6/92."

10By fax dated November 5, 1992 (received by the Board on November 6, 1992) Mr. Trindade advised:

This is inform you that I am not well enough to attend the hearing on Monday, Nov. 9/92. Please inform me as to when the next hearing will take place. Following is a note from my family physician."

The physician's note is dated November 5, 1992 and states:

“May not attend meeting until after November 23, 1992."

11As a result the parties were advised by notice from the Registrar dated November 6, 1992 that the hearing scheduled for November 9, 1992 was adjourned. By further notice from the Registrar dated November 18, 1992 the parties were advised that the hearing in this matter had been rescheduled to take place on Monday, May 17, 1993 and Tuesday, May 18, 1993.

12On Friday, May 14, at 4:23 p.m. Mr. Trindade faxed to the Registrar a letter as follows:

"Re: File No. 3703-91-U,

Attached is a letter from my doctor explaining my health condition."

13The accompanying letter from the doctor is dated March 23, 1993, is addressed to Mr. Ken Petryshen (another Vice-Chair at the Board) and states:

I am writing to inform you that Mr. Trindade suffers from a significant back injury related to a motor vehicle accident that occurred October 28, 1992. His most serious injury was to his lower back. He suffers from a herniated disc in the lower spine causing irritation of a nerve that feeds his left leg. As a result he has severe pain and significant weakness in that leg and his lower back. He has been receiving treatment since the accident and continues to do so. His progress, as in so many of these cases, has been slow.

This gentleman has been advised to greatly restrict his activities and must rest a good portion of every day. He is clearly and unequivocally unable to participate in any hearings and/or proceedings at this time due to his injuries.

Hopefully in the next six months he will make some significant progress to enable him to attend but we will have to evaluate his progress with time.

Sincerely

Dr. H.A. Rafla M.D., C.C.F.P.

14At the commencement of the hearing on Monday, May 17, 1993 this correspondence was brought to the attention of the union. Counsel for the union had not been contacted by Mr. Trindade and had not been advised that Mr. Trindade would not be attending the hearing. The Board briefly adjourned the hearing and waited its customary one-half hour to see if either Mr. Trindade or a representative on his behalf would attend before the Board that day. When the hearing was reconvened at 10 o'clock the Board advised counsel for the union that it would treat Mr. Trindade's correspondence as a request for an adjournment. Counsel indicated that the union opposed the adjournment request.

15In opposing the adjournment request counsel for the trade union argued that the note from the doctor was the same note placed before another panel of the Board (the Petryshen panel) in another proceeding involving Mr. Trindade and/or Classic. In that proceeding Mr. Trindade and Classic were represented by counsel. Before the Petryshen panel Mrs. Mary Trindade stated that her husband was not confined to bed and was able to move around. Counsel asserted that before the Petryshen panel the trade union advised both Mrs. Trindade and counsel acting on behalf of the Trindade's and Classic that the union was quite prepared to agree to all reasonable accommodations including frequent or extended breaks, special chairs, etc. to assist in making Mr. Trindade comfortable while the hearing progressed. Counsel also advised that during the course of the hearing before the Petryshen panel the union informed counsel opposite that if further adjournments of Board proceedings were to be requested on the basis of Mr. Trindade's medical condition the union would insist on further and better medical evidence.

16In these circumstances counsel for the union argued before us that it was simply inadequate for Mr. Trindade to fax to the Board a two-month old medical certificate. Mr. Trindade should not assume that he would automatically be granted an adjournment. His decision not to attend either personally or through counsel to speak to the matter of an adjournment should not prevent the Board from dealing with it. He submitted that in the circumstances the adjournment should be denied.

17After recessing for some time to consider the matter the Board returned and rendered its unanimous oral ruling that it would not adjourn the hearing.

18In the circumstances of his case we agree with counsel's submissions that it is simply not good enough for a party litigant to fax to the Board on the eve of the scheduled hearing date a medical certificate nearly two months old and then assume an adjournment will be forthcoming. The medical certificate does not indicate Mr. Trindade's current condition or restrictions. The letter itself indicates that Mr. Trindade's condition may improve after March 23 when it states "Hopefully in the next six months he will make some significant progress to enable him to attend". The medical certificate explains that his progress will have to be evaluated "with time". A more recent, accurate and detailed statement of Mr. Trindade's medical condition and assessment is warranted in the circumstances.

19The concept of labour relations delayed is labour relations defeated and denied is well-established. In this case the unfair labour practice complaint has been outstanding in excess of one year. The hearing had been adjourned for some six months since Mr. Trindade first advised the Board that he was unable to attend for medical reasons. Mr. Trindade had finished his evidence and had indicated he had "nothing further to say". The responding parties had closed their case. There was nothing before the Board to indicate Mr. Trindade could not have retained or instructed counsel or an agent to appear on his behalf to speak to the matter of an adjournment or to continue with the case if an adjournment was not granted. In all of the circumstances the Board determined that there was insufficient material before it to grant the adjournment -- an adjournment opposed by the complainant trade union and one which would prejudice the individual grievors.

The evidence with respect to the merits of the complaint.

20We heard the viva voce evidence of five witnesses, Mr. Luis Trindade, Mr. Carlos Braga, Mr. Mario Salgado, Mr. Jose Braga, and Mr. John Haggis. In addition various documents including the payroll records of Classic were tendered as evidence. As is typical in unfair labour practice complaints, credibility is a critical issue and in the circumstances of this case merits further and detailed consideration.

21We did not find Mr. Trindade to be a truthful witness. Mr. Trindade had what can only be described as a “convenient" memory and a "selective" knowledge of events or the affairs and operations of Classic. As a result Mr. Trindade's evidence lacked candour and reliability. Mr. Trindade's evidence was in and of itself inconsistent and contradictory. It was also contradicted by the other witnesses and the documentary evidence.

22A single example of Mr. Trindade's evidence will serve to highlight the difficulty facing the Board when weighing his evidence. This example is also critical to determining the merits of the union's complaint against Classic and Mr. Trindade and therefore requires some elaboration.

23Both in his opening submissions to the Board and in his examination-in-chief Mr. Trindade provided detailed, and on their face plausible reasons for the lay off of the grievors. These reasons related to the seniority of the grievors, a lack of work at the project, and the comparative skill of the employees as bricklayers working with either "block" or "brick". Mr. Trindade stated the layoffs were unrelated to any union activities. The cross-examination of Mr. Trindade and the evidence of the other witnesses however seriously impaired the truthfulness of these statements.

24Mr. Trindade was the first and only witness called by the respondents. He commenced his testimony on April 10, 1992. After being sworn Mr. Trindade was simply advised to tell "his side of the story", to address the issues raised by the union in its complaint, and to tell the Board the matters which he considered were relevant to the Board's determination of this complaint. In his examination-in-chief Mr. Trindade testified essentially to the following facts.

25At the time of the union's organizing campaign Classic was engaged inter alia at a job site at the Stoney Brook Heights Public School in London, Ontario ("Stoney Brook site"). On February 17, 1992 (in or about the time Classic received notice of the union's application for certification) a number of employees were laid off from that job. Mr. Trindade testified that the reason for the lay off was that the "floor wasn't poured" and there '~was not enough room for everyone to work". It was his evidence-in-chief that he went to the job and told Joaquim Pereira that "if there were too many people on site he had to tell the foreman to lay off the youngest workers he hired". By "youngest workers" Mr. Trindade meant those employees with the least amount of seniority with Classic.

26Mr. Trindade continued to add "so Joaquim Pereira asked the foreman to ask the youngest workers [to go home] for a few days or weeks until [we were] ready to call back". Mr. Trindade added that he personally told two of the workers (Arlinda Pimentele and John Ferreira) that the layoff was "only temporary until we got more work and go have a job for [themj to come back".

27In addressing those aspects of the complaint in which the union asserted other employees were brought to the Stoney Brook site after these employees had been laid off from that site, Mr. Trindade testified that "the reason we took the other crew for the brick was because I promised the foreman on site he would have another crew for the brick but they were working on another site at the time". Mr. Trindade stated "I promised the super on the site a few times we were going to bring another crew and I said when we finished the other job I'll bring the other crew". As a result when Classic's job at its residential sites in Kitchener (Monarch Homes) and Ayr (Starkwest Homes) were finished the "brick" crews from those locations were brought to work at the Stoney Brook site.

28Mr. Trindade testified that Classic had separate “brick" and "block" crews i.e., persons who worked primarily with exterior brick or persons who worked primarily with concrete blocks. The persons who were laid off by Classic in February 1992 were all members of the "block" crew. The persons transferred from Classic's residential sites on the other hand were all members of the “brick" crew. Mr. Trindade testified that after the layoff there were no new employees hired to do block work at the Stoney Brook site. Only brick work was done by employees new to that site and even these employees were subsequently laid off or transferred when the weather became too cold to do the brick work.

29Mr. Trindade testified that Classic had been in business since 1986. Since that time Classic had generally operated with such separate crews. He indicated that if one or the other crews was "behind and needed more people we do [transfer] them but if we have another job to go to then we move the brick crew out".

30Mr. Trindade testified that because the brick crew was transferred to the Stoney Brook site it "gave the opportunity for the block crew to stay a few more days with the job". He concluded his evidence on April 10, 1992 by noting that the brick crew would leave the Stoney Brook job site the following week (i.e. the week commencing April 13, 1992) but added that the brick work at the site had not yet finished. We note parenthetically that by the time of the first scheduled hearing day all of the laid off grievors had been recalled to work.

31Mr. Trindade also testified about the importance of seniority at Classic. He stated "we always look at older workers in the company and we try to keep those people first". He tendered two typewritten lists (Exhibits I and 2) which purport to set out the seniority of the employees.

32In concluding his evidence-in-chief on April 10, 1992 therefore, it was Mr. Trindade's testimony that it was these various factors which led to the layoff of the employees of the block crew in February 1992. The job was "not ready for them" and as a result some employees had to be laid off. There was brick work that could be done and was in fact done by employees who had been transferred to the site from Classic's residential job sites. Block work was not however done by these employees. In any event the employees transferred generally had greater seniority.

33In the face of that testimony-in-chief (which was consistent with Mr. Trindade's opening statements to the Board) Mr. Trindade's testimony during cross-examination was therefore particularly troublesome.

34Thus, for example, during his cross-examination on April 10, Mr. Trindade stated that he had nothing to do with Classic other than the fact that his company rented material such as fork-lifts and scaffolding to Classic. In view of the fact that he had nothing to do with Classic, Mr. Trindade indicated that he was unable to answer any questions concerning the payroll records he had produced pursuant to the summons duces tecum. Looking at those records, for example, he could not indicate which employees were at work at various times, or at which job sites they were working, when employees were transferred, etc. The parties including Mr. Trindade therefore spent the remainder of the hearing day examining Classic's records.

35Mr. Trindade's cross-examination continued on October 26 1992. At that time Mr. Trindade continued in his inability or unwillingness to answer questions concerning Classic's payroll records. He reiterated his position that he had nothing to do with Classic and had resigned his position with the company October 19, 1991. As a result he didn't hire, fire, lay off employees, nor did he "run" or "organize" any jobs or crews for Classic. Mr. Trindade was quite vehement that he was "not involved" with Classic. As a result he did not even know when the job at the Stoney Brook site commenced.

36Notwithstanding his earlier evidence-in-chief with respect to Classic's separate block and brick crews and the transfer of the brick crew from Classic's residential sites to the Stoney Brook site, in cross-examination Mr. Trindade testified that he had no personal knowledge how Classic was organizing the job, which crews were going to work on the job, who worked at the site (with the exception of the foreman) or even whether the persons he saw when he occasionally delivered material to the site were working for Classic. Of the people on-site whom he knew "from before", Mr. Trindade stated "I don't know exactly why they were there." In this regard, during his cross-examination Mr. Trindade testified he only went to the job site three, four, or five times to deliver material, that he occasionally spoke to the people working there whom he knew, and that he generally only stayed at the site for 30 minutes or so (although that was subsequently altered to perhaps as much as one or two hours).

37Mr. Trindade also testified that he was unaware of any union activity or the union affiliation of any Classic employees. As a result, although Mr. Trindade acknowledged that he and his wife Mary, the President of Classic, had more than a business relationship and naturally talked to each other, he could not explain why his wife might think that he knew certain Classic employees were union members. It was Mr. Trindade's evidence during cross-examination that he was unaware of any union activity until after he had posted the notices of the application for certification. He posted these notices only because "Mary gave them to me to post and that's the first I knew about it" [the union's organizing attempts]. Mr. Trindade was adamant that before that event he was not aware which Classic employees were members of the union. As a result he could not explain why in response to the application for certification and the unfair labour practice complaint the reply signed and filed by his wife in early March 1992 states:

“Luis was and is aware that some of the employees were or are Union members since he worked with them on other jobs. He doesn't care whether they are or aren't as long as they do their job."

38We note that the reply also asserts that "... Luis Trindade knows that the schedule called for work to be completed by the end of March giving it a duration of approximately sixteen weeks and he knows that Classic has no other job in London". This pleading is completely contrary to Mr. Trindade's position that he was not involved with Classic and that since his resignation he has had essentially nothing to do with Classic and had little knowledge about its jobs and day to day operations.

39Having regard to the entirety of Mr. Trindade's evidence, his demeanour throughout, his evasiveness during cross-examination and the contradictions within his own evidence we have concluded that Mr. Trindade's evidence was at best self-serving and on the whole simply cannot be believed. In view of the lack of credibility of Mr. Trindade's evidence, wherever his evidence was in conflict with that of the other witnesses, the evidence of the other witnesses is to be preferred.

40Thus we accept and find that at all relevant times (and notwithstanding the fact that he may not technically have been an Officer, Director or employee of Classic) Mr. Trindade was in fact acting on behalf of Classic. We accept for example Mr. Jose Braga's evidence that at the time of his layoff he was advised that the lay-offs were in accordance with the list which Mr. Trindade had given the supervisory personnel at the Stoney Brook site. We also accept Mr. Mario Salgado's evidence that at the end of November or early December 1991 (a time when Mr. Trindade states he had already resigned from Classic and was according to his own testimony no longer "involved" with Classic) it was Mr. Trindade who told him he was going to be transferred to the job in London at the Stoney Brook site. Similarly we accept Mr. Carlos Braga's evidence that he obtained work at the Stoney Brook site after he called Mr. Trindade in December 1991 and was told by Mr. Trindade that he could start at the site as soon as Classic's crew came to London to start the job (a time which the company's payroll records indicates was early January 1992). We find that these various actions by Mr. Trindade were done on behalf of Classic and belie Mr. Trindade's assertions that he had nothing to do with Classic and did not hire, fire, or lay off employees.

41As credibility is a critical aspect of this case we turn to briefly examine the remainder of the evidence of the witnesses called by the unton.

42Jose Braga testified that he was hired by Classic to work on the Stoney Brook site just before Christmas 1991. Mr. Braga said he actually commenced work at the site the first week in January 1992. Mr. Braga was hired by his brother-in-law Francisco Ferreira who was the general foreman at the site. Prior to being hired Mr. Ferreira advised Mr. Braga that he (Mr. Ferreira) would first have to speak to Mr. Trindade. Mr. Braga thinks of Mr. Trindade as the owner of Classic. While on the job Mr. Braga laid both brick and block. Mr. Braga's experience with Classic was that employees performed both brick and block work. He testified there were no separate brick or block crews on the Stoney Book job.

43While working at the Stoney Brook site Mr. Braga saw Mr. Trindade on several occasions. On one occasion prior to his layoff Mr. Trindade spoke to him about the union. At that time Mr. Trindade asked Mr. Braga about his hourly rate. Mr. Trindade told Mr. Braga "he's been getting pressure from the union and the Board of Education to pay union wages". Although Mr. Trindade initially indicated to Mr. Braga his rate would not be increased, Mr. Trindade subsequently returned, wrote a new hourly rate on a piece of paper and told Mr. Braga that that would be his new rate. He also told Mr. Braga to keep the matter quiet and not tell other employees.

44Mr. Jose Braga was laid off at the end of the work day on Monday February 17, 1992. He was advised of his layoff by Mr. Joaquim Pereira who indicated that the layoff was due to a lack of work. However, when Mr. Braga spoke to his brother-in-law Mr. Ferreira (the person in charge of the site) Mr. Ferreira indicated that he did not know why people were being laid off.

45Contrary Mr. Trindade's evidence Mr. Braga specifically recalled seeing Mr. Trindade at the job site on the day that he was laid off. It was Mr. Braga's evidence that on that day he was working on an exterior block wall, and that the wall was not yet completed at the time of his layoff.

46The vast majority of Mr. Braga's evidence was not seriously challenged by Mr. Trindade during his cross-examination of Mr. Braga.

47Mr. Mario Salgado also worked at the Stoney Brook site for Classic. Prior to working at Stoney Brook Mr. Salgado had worked at another school project in Cambridge. It was his evidence that while working in Cambridge Mr. Trindade advised the employees "You guys are lucky. You go back to London. Maybe we get problems with the union but if the union guy shows up there just tell him to go away and don't sign anything."

48Mr. Salgado also testified that while working for Classic he laid both blocks and brick. Like Mr. Jose Braga he was unaware of any separate crews and testified that in his experience Classic employees did both types of work.

49Mr. Salgado was laid off on February 17 by Joaquim Pereira. Mr. Salgado was not given any reason for the layoff by Mr. Pereira other than that he was "on the list to go" and "Mr. Luis [Trindade] said you have to go". At the time of his layoff Mr. Salgado also had not finished the wall on which he was working.

50Mr. Carlos Braga's evidence about the operations of Classic was not materially different than those of his brother Jose Braga or Mr. Mario Salgado and need not be repeated. Mr. Carlos Braga had worked for Classic before starting work at the Stoney Brook site in early January 1992. Indeed he had been laid off from Classic in early December 1991 and upon finding out about the Stoney Brook site called Mr. Trindade to inquire about work. Mr. Trindade told him that as soon as the crew was back in London he "can start anytime".

51In direct contradiction to Mr. Trindade's evidence that he did not know if any employees of Classic were union members, Mr. Braga testified about a conversation he had with Mr. Trindade while working at another Classic site in the summer of 1991. During the course of that conversation Mr. Trindade asked Mr. Braga if he was a member of the union to which Mr. Braga replied that he had been a union member for six years. In addition Mr. Braga testified that while at the Stoney Brook site and prior to his layoff on February 17, 1992, Mr. Trindade spoke to him and asked whether John Haggis (Business Manager for the union) had been at the site. Carlos Braga testified that on that occasion Mr. Trindade "said the union was after him".

52Similarly, Mr. Carlos Braga testified that while working at the Stoney Brook site he also received a raise from Mr. Trindade "because they're after me". On the the occasion of his raise Mr. Trindade wrote Mr. Braga's new pay rate on a piece of paper and gave it to him. Mr. Braga assumed the reference to "they" in Mr. Trindade's statement was the union and the government because Mr. Trindade spoke of a letter he had received concerning the wages paid to employees.

53Mr. Braga was also recalled to work. He did not, however, receive his pay cheque for the last week he worked for Classic prior to his lay off. In this unfair labour practice complaint he seeks damages not only for the wages he lost while laid off but also for the 37 1/2 hours of pay still owing to him by the company.

54We also heard the evidence of John Haggis, the Business Manager for Bricklayers Local 5. His evidence dealt primarily with the efforts of the union in enforcing what Mr. Haggis referred to as the "Provincial Fair Wages Policy" because the school was a government funded facility. (Mr. Haggis was obviously referring to the Government Contracts Hours and Wages Act, R.S.O. 1990 Chap. G.8). Mr. Haggis testified about the letters sent by the union to Classic, the School Board and the general contractor on site to ensure that the standard "fair wage" for the London area was paid to the Bricklayers employed on site.

Decision

55Within this factual framework we now turn briefly to examine the law. The sections which the union asserts the respondents have violated state as follows:

65. No employer or employers' organization and no person acting on behalf of an employer or employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

66. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

71. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

As a result, the union seeks damages on its own behalf and on behalf of the individual grievors named in the complaint.

56In a complaint of this nature the provisions of section 91(5) apply. That section provides:

91.-(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers organization did not act contrary to this Act lies upon the employer or employers' organization.

57The burden of proof is therefore on the responding parties to show, on the balance of probabilities, that the layoff of the grievors was not related to union activity or motivated by antiunion animus.

58In Fielding Lumber Company Limited, [1975] OLRB Rep. Sept. 665 at page 673 the Board explained the burden of proof in the following terms:

"Having regard to section 79(4a) [now section 91(5)] a respondent employer must satisfy the Board that in taking the actions it took it was in no way motivated by a grievor's union activity. Thus the Board may not find that an employer's sole reason for acting stems from the union activity of his employees to find a violation of legislation but rather an employer must satisfy the Board that the union activity played neither a major or minor role in regard to its impugned actions."

59In assessing whether the respondent's actions were a violation of the Act we must look to all the circumstances surrounding the layoffs. An examination of all the circumstances is not to determine whether there is just cause for the layoffs, whether the layoffs were "fair" or "unfair" in some objective sense, or whether there was a legitimate business justification for the layoff. Rather our task is to determine whether the layoffs were motivated in whole or in part by the employees' union activity or by their exercise of rights conferred upon them by the Act. The Board, with judicial approval, has held that if an employer's actions are motivated, even in part, by anti-union considerations, the employer is in violation of the Act, notwithstanding existing legitimate business reasons (Westinghouse Canada Limited, [1980] OLRB Rep. Apr. 577, affirmed by the Divisional Court 80 CLLC 14, 602.)

60In appropriate cases conduct which is arbitrary, precipitate, unreasonable or extraordinary given the employer's previous practice may lead to an inference of anti-union animus. The Board has long accepted that in a contested unfair labour practice complaint one would not normally expect a respondent to openly or candidly admit that its conduct or actions were in contravention of the Act. For this reason, in cases where layoffs take place in the shadow of the union's organizing campaign the Board carefully scrutinizes the conduct and actions and surrounding circumstances to determine if the "true" or "real" motive, or one of the motives for the layoffs was tainted by anti-union animus. The Board is required to draw its conclusions about the motivation underlying the respondent's actions and in so doing must necessarily draw inferences from the evidence and must inevitably assess the credibility of the witnesses called by the respondents.

61The analysis the Board uses in making the determinations it must make has been set out in numerous cases and was succinctly summarized in Alpha Laboratories Inc., [1981] OLRB Rep. July 823 at 824:

“In the Barrie Examiner case, [1975] OLRB Rep. Oct. 745, the Board stated:

“…..the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts. First, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred'.

It is not the function of the Board in the present case to decide whether or not the respondent had just cause to discharge the grievors. Our jurisdiction is limited to determining whether the respondent discharged the grievors because they were supporters of the complainant trade union or were exercising any other rights under the Act (see Toronto Star Limited, [1971] OLRB Rep. Sept. 582, paragraph 11). This does not, however, preclude the Board from considering the context surrounding the respondent's actions, as indicated by the Board in Fielding Lumber Company [1975] OLRB Rep. 5ept. 665, at paragraph 19:

'The Ontario Labour Relations Board has no general mandate to impose its views of fairness on employers and employees. Its sole responsibility is to administer and enforce The Labour Relations Act - a piece of legislation that does not stipulate that an employee can be terminated from his employment only for just and reasonable cause. But having said this it must be observed that in assessing an employer's declared motivation due regard may be had to the peculiarities of the context surrounding an employer's actions. To the extent that peculiarities exist and cannot be reasonably explained an employer may fail, by a process of inferential reasoning, to satisfy the burden placed upon it.'

The nature of the determination to be made in cases such as the instant case and the factors to be considered by the Board in making such determinations are described as follows in Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, at paragraph 5:

'In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti union conduct and any other 'peculiarities'. (See National Automatic Vending Co. Ltd. 63 CLLC 16278)

62In the Pop Shoppe case, supra the Board went on to state that in assessing the circumstances in order to determine whether the conduct was unlawful the Board "... must not be unduly swayed by either the co-existence of unfair treatment or by the co-existence of legitimate reasons for the employer's conduct." (Pop Shoppe, supra at page 301). Similarly, in the Barrie Examiner case, supra at paragraph 17 the Board wrote

“…..the appearance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct. This approach effectively prevents an anti-union motive for masquerading as just cause.”

63We are satisfied that Classic has violated the Act. Classic has not discharged the burden of proof cast upon it. It is not disputed that the layoffs immediately followed the time when Classic received actual notice of the union's application for certification and in such circumstances it is incumbent upon the employer to satisfactorily explain the timing of the layoffs. Classic has not provided any reasonable or credible explanation for the layoff of these employees.

64If we are to believe that Mr. Trindade had no involvement with Classic at the times relevant to this complaint and does not speak on behalf of Classic (a matter which will be addressed in further detail below) we simply have no explanation from Classic why the employees were laid off at a time when there was concurrent union activity. If Mr. Trindade's evidence to the effect that he has no knowledge of the operations or affairs of Classic (especially in relation to the Stoney Brook site) is to be accepted and believed, we cannot also accept and believe that portion of his evidence in which he proffered certain reasonable or rational explanations for the layoffs. That would be wholly inconsistent. Mr. Trindade can't say on the one hand he knows nothing about Classic's jobs and operations, and on the other hand say the reasons for the layoffs were a lack of work, seniority, etc. On that basis alone we must find that Classic has violated the Act for then we have no explanation at all from the corporate entity which employed the grievors as to why these employees were laid off.

65The fact of the matter however is that we do not believe or accept Mr. Trindade's evidence. First, it simply stretches credulity for Mr. Trindade to say on the one hand that the employees laid off were a separate block crew which was laid off because of a lack of work and in any event the employees were the least senior employees, but then to also maintain that he has no knowledge of the affairs or operations of Classic, and has not been involved with Classic since his resignation from the company in October 1991.

66Secondly, Mr. Trindade's evidence of separate brick and block crews, his professed lack of knowledge as to whether persons were/were not union members, his evidence that he was unaware of any union activity, his evidence that he didn't hire or lay off employees and his position that there was a lack of work was contradicted by the evidence of the union's witnesses. We have already found that the evidence of each of the union's witnesses was more credible and reliable than that of Mr. Trindade.

67Thirdly, Mr. Trindade's evidence was in and of itself contradicted by the documentary evidence which came from the company pursuant to the summons duces tecum served on Mr. Trindade. (We will not attempt to address counsel's submissions which questioned how Mr. Trindade managed to obtain the payroll records of a company with which he asserts he has an arms-length relationship). Thus, for example, Mr. Trindade's evidence that a separate brick crew was brought to the Stoney Brook site when that crew finished its work at Classic's residential sites is contradicted by Classic's payroll records. These records show that in the pay period following the pay period in which the grievors were laid off (pay period ending February 29, 1992) there were ten new employees listed on the payroll. Of these ten only one person (Claude Freitas) had received any pay from Classic for the pay period ending February 22 (the pay period during which the lay offs occurred). Only two of the other nine employees appear on the payroll record in the five week period preceding the layoff (Alberto Ameron's name appears on the payroll records for the period ending January 31, 1992 and Antonio Sousa's name appears on the payroll record for that pay period and the pay period ending January 25, 1992).

68Moreover, at least three of these ten new persons working for Classic (Cesar Roias, Joe Pacheco and Joao Martins Franco) during the pay period ending February 29, 1992 do not appear on either the 1992 payroll records of the company prior to the layoff of the grievors or the typewritten seniority lists which Mr. Trindade tendered during his examination-in-chief. In the face of such documentary evidence coming from the employer's own records it is patently obvious that Mr. Trindade was mistaken when he testified that bricklayers were simply transferred to the Stoney Brook site from Classic's residential sites when those jobs were completed. It is equally obvious that his evidence that the layoffs were based on seniority is also in error.

69Thus, if we look to Mr. Trindade's evidence to support Classic's assertions (at least in its pleadings) that the layoffs were not in contravention of the Act, we again find that Classic has not discharged its burden of proof. There is no credible or reliable evidence before us to support the layoffs on any reasonable or rationale basis. Put simply we do not accept that the reasons Classic laid off employees were those stated by Mr. Trindade in his opening submissions and his evidence-in-chief.

70Having rejected Mr. Trindade's evidence concerning the reasons for and the timing of the layoffs the inference which the Board draws from the totality of the evidence is that Classic's layoff of these employees was motivated by anti-union animus and was therefore in contravention of the Act. It was a violation of section 65, 67 and 71 of the Act. Classic's conduct in refusing to continue to employ these grievors was specifically designed to discriminate against the grievors because of their union membership and because they chose to exercise rights under the Act. It's behaviour constitutes the imposition of a pecuniary penalty to compel employees from becoming or continuing to be members of the trade union. Classic's conduct was designed to interfere with the representation of employees by the trade union and also constituted intimidation and coercion within the meaning of section 71.

71Having heard and carefully considered the evidence of the respondents we are not satisfied that the real and only reasons for the layoff of the grievors were related to business justifications. We are satisfied that the layoffs were motivated, at least in part, by the desire of the respondents to show those laid off (and other employees) that the continuation of their employment was dictated by the respondents and that in this regard support for the union could and would be an adverse factor. The laid off employees were in part being penalized because of a perceived support for or involvement with the trade union.

72It makes no difference to this determination that some of the employees were advised at the time of their lay-off that they would be returned to work in the future. Neither does it make a difference that the employees were eventually recalled after this complaint had been filed so that their loss of income was only temporary. The uncertainty of their date of recall at the time of layoff, and their subsequent temporary loss of income did send and was designed to send a powerful message to the employees at Classic that support for the union or the exercise of rights under the Act was not viewed with favour by the employer and would have a serious, direct and unfavourable impact on their continuing job security.

73Having found that Classic breached the Act we must next ask whether Mr. Trindade did as well. Mr. Trindade is personally named as a respondent in this complaint.

74The Board has the jurisdiction to find personal liability under the sections of the Act referred to in this complaint. Sections 65 and 67 both refer to "no employer ... [or] person acting on behalf of employer ..." and clearly provide the Board with statutory authority to find personal liability. Section 71 specifically refers to "no person ... shall seek by intimidation or coercion ...".

75The issue of personal liability of named respondents has been dealt with in a number of Board decisions. In the Nepean Roof Truss Limited, [1988] OLRB Rep. Jan. 61 the Board addressed the arguments of the respondents that an individual owner or officer of a corporate employer could not be personally liable. There the Board stated:

25. Having found that Nepean breached the Act, we must next ask whether Ouellette and Steenbakkers did as well. Counsel for the respondents argued that personal liability could not in these circumstances, as a matter of law, be found pursuant to sections 64 and 66 of the Act. Counsel submitted that where those sections refer to "no person acting on behalf of an employer", they do not constitute authority for the Board to find an individual officer or owner of a corporate employer to be personally liable. Rather, counsel submitted that those sections, and this particular phrase therein, enable the Board to find liability with respect to third parties who act on behalf of an employer. Such potential liability is necessary in order to preclude employers from doing indirectly, through the actions of a third party, what they cannot do directly. Counsel further submitted that the statute is clear where personal liability is meant to be found under a particular section, and looking to those other sections buttresses the submission that personal liability of an owner or officer of an employer was not contemplated by the wording of sections 64 and 66. Counsel referred to section 70, which indicates that "no person shall" as an example of a clear indication that individuals can be personally liable for a breach of that section. Counsel also referred to section 98 of the Act, dealing with prosecutions for violations of the Act, as illustrating that the statute is clear where a court (or tribunal) is able to find personal liability. Finally, counsel submitted that it would be unfair to attach personal liability pursuant to sections 64 and 66, for to do so would mean that personal liability would be found in every breach of the sections by a corporate employer. As corporations can only act through the conduct of individuals, finding liability on behalf of the corporate employer would necessarily, in counsel's submission, lead the Board to find liability against the individual officer who engaged in the offensive conduct. Were the Board to find such authority in the wording of section 64 and 66, there would be two findings of a breach of the Act with respect to the same set of circumstances. In addition to routinely and inappropriately piercing the corporate veil, counsel submitted that such double liability would be unfair.

26. As counsel recognized in his submissions, prior decisions of the Board have either found or recognized that personal liability can be found under these sections: for example, Sunnylea Foods Limited [1981] OLRB Rep. Nov. 1640, Heritage Manor Rest Home [19831 OLRB Rep. March 385, Daynes Health Care Limited [1985] OLRB Rep. March 387, Termarg Food Services Limited [1985] OLRB Rep. March 516, Doyles Tavern [1985] OLRB Rep. May 662, Forintek Canada Inc. [19861 OLRB Rep. April 453 and Peralta Foods [1987] OLRB Rep. Sept. 1162. We agree with those decisions where they find statutory authority in sections 64 and 66 for the jurisdiction to find personal liability. The clear wording of those sections, particularly where they state "no employer ... or person acting on behalf of an employer ..." gives the Board jurisdiction to find that an individual has breached the section, including an individual other than one working for a party unrelated to the corporate employer. We see nothing in that phrase which suggests that a person "acting on behalf of an employer" cannot be an owner or officer of the corporate employer. We are not prepared to read into that phrase a limitation on finding liability that depends on the identity of the employer of the "person acting on behalf of', as suggested by counsel for the respondents. To read such a restriction into that section is neither consistent with the language used therein, nor consistent with sound labour relations policy. These sections are designed to protect the ability of unions and individuals to exercise the rights afforded them under the Labour Relations Act. To read in the limitation suggested by counsel for the respondents would be to allow individual officers or owners of a corporate respondent to escape personal liability for any wrongdoing committed by them. In circumstances where, for example, the corporate entity is a shell corporation or a corporation without significant assets, individuals could in practice breach these sections with impunity. Given the clear language, it remains open to the Board to find that an individual has breached the Act, where it is so pleaded and is borne out by the facts (having regard to the section claimed to have been breached).

27. As the then chairman of the Board stated in Sunnylea Foods Limited, supra, at ¶38:

“….I can conceive of a number of situations where it would be appropriate to name the person responsible for the unfair labour practice where that person is primarily in control of the employing entity or other organization... No matter how mild the remedy, it is one that the complainant should be able to pursue against the ongoing activities of Mr. Zonneveld. Indeed, had the complainant's core allegations been established, a remedy confined to Sunnylea may have been quite ineffective. If the potential for personal liability is not understood in the labour relations community, I would hope this decision sheds some light on the matter."

28. And in Termarg Food Services Limited, supra, at ¶6, the Board noted:

“…..in an appropriate kind of case, and at least where the corporate entity itself has disappeared or has explicitly threatened to do so if a full measure of damages is claimed, the Board is not unprepared to fix liability to an individual or 'person" acting on behalf of the corporate employer. But again, every corporation must ultimately act through individuals, and the applicant has been unable to plead (nor, as in Sunnylea and Daynes, has prior litigation shown) a course of conduct anywhere close to the exceptional circumstances causing the Board to consider the steps it did in those latter two cases.

It may not be necessary in a given case for the Board to decide whether an individual has breached the Act. But where the Board does find it necessary to determine that issue, whether or not the Board will find individuals to have breached the Act does not depend on special or exceptional circumstances. It depends only on whether the persons are alleged to have breached a particular section of the Act, and on whether the evidence establishes their breach of that section. The Board of course retains a discretion, notwithstanding the breach, over the appropriate remedy, if any, to be directed against an individual, or against a corporate employer for that matter, and the exercise of this discretion depends on whether the Board considers it appropriate in the circumstances, in the interests of promoting harmonious labour relations within the Province.

76In the Nepean Roof Truss Limited the Board ultimately found both the President/General Manager and Vice-President to be personally liable for certain breaches of the Act. These individuals directed, managed and controlled the operations of the corporate entity named as a respondent and were the individuals who were the "controlling and directing minds" behind the conduct which contravened the Act. (See also Bourque Consumer Electronics Service Inc., [1990] OLRB Rep. Oct. 999).

77Judicial approval for personal liability can also be found in the comments of Mr. Justice Adams whose decision on behalf of the Divisional Court in Plaza Fibreglass Manufacturing Limited, [1993] OLRB Rep. January 83 states:

Mrs. Citron's liability was confined to her breaches of section 64 and did not embrace losses flowing from violations of sections 15 and 75. These latter provisions may only be violated by a corporate or employing entity. The OLRB was very careful to limit Mrs. Citron's liability to that aspect of her conduct which violated section 64. While these same actions were the basis for finding that the corporate applicants also breached 64, we are satisfied there were circumstances before the Board to justify it holding Mrs. Citron personally accountable. She was instrumental in the movement of the work outside the ambit of the trade union's bargaining rights. She dealt directly with the employees to facilitate the staffing of the Concord location. She has exhibited a long-standing opposition to her employees exercising their rights under the Act. Having regard to the exceptional circumstances reflected in the substantial history of this matter, we can find no jurisdictional error in the Board's determination that Mrs. Citron was jointly and severally liable for the specified breaches of section 64.

78In Securicor Investigation and Security Ltd., [1982] OLRB Rep. May 759 the Board addressed the issue of the liability of a third party which acted on behalf of the employer and ultimately attached personal liability for the actions which contravened the Act committed by that third party (see the subsequent decision of the Board in the same case reported at 1983 OLRB Rep. May 720). Although the facts and circumstances of that case are distinct from those before us, the case demonstrates that third parties, who are neither officers, directors nor employees of the employer may be independently liable for conduct which violates the Act. In that case the Board first dealt with the concept of the joint tortfeasor and then stated at page 764:

19. Securicor is not an employer or employer's organization and, therefore, in order to be within the ambit of either section, Securicor must be a "person acting on behalf of an employer or an employers' organization." If a private security company contracts with an employer party to a labour dispute to provide security services in connection with that dispute for a fee, it is difficult to resist the conclusion that the security company is a person acting on behalf of the employer, subject to the prohibitions contained in sections 64 and 66 of the Act. In these circumstances, it does not lie in the mouth of the security company, in defence of allegations that its conduct in connection with the labour dispute has breached 64 or 66 of the Act, to claim that it exceeded the authority of the employer and, therefore, was not acting on behalf of the employer and cannot be brought within either of these sections. These sections are designed to protect important union and employee rights from employer interference and where a person is acting in a labour dispute under the general authority of the employer that person is brought within the ambit of these sections in respect of all of its action, including those which may be outside of its specific terms of reference. We are not about to interpret the words "acting on behalf of” in such a way as to allow third parties in contractual relations with the employer to provide services in connection with a labour dispute to violate employee and union rights and then rely on carefully worded contracts to take themselves outside the ambit of the Act.

20. Does the withdrawal of the complaint against Automotive constitute a withdrawal against Securicor, and, if it does not, should the Board refuse to grant the request to withdraw against Automotive? Failing a natural justice impediment, the answer to the question posed at the Outset of this paragraph is no. As we have stated, Securicor, as a separate entity in contractual relations with the employer and charging a fee for its service, is subject to the prohibitions contained in section 64 and 66 of the Act. The statute clearly identifies "a person acting on behalf of an employer" as an independent actor capable of breaching the law, and therefore capable of being a separate respondent in its own right. In so far as the merits are concerned, therefore, Securicor must stand or fall on its own conduct....

21. The prohibition against intimidation and coercion contained in section 70 of the Act extends to persons acting on their own behalf. There is no requirement under the section for a person to be acting on behalf of the employer. Section 70 provides:

No person, trade union or employer's organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

If it is proved that the agent's actions, once disclosed, have an ongoing coercive impact in the exercise of employee rights under the Act, including the right to strike, then, arguably at least, the agent has breached the section and is subject to the remedial authority of the Board. In so far as a breach of section 70 is alleged, therefore, the withdrawal of the complaint against Automotive cannot affect the complaint against Securicor.

79We find the rationale underlying each of these various decisions to be equally applicable to the situation before us. A corporate employer such as Classic should not be able to do indirectly and through the actions of a third party that which it cannot do directly. Conversely third parties, regardless of whether or not they are officers, directors or employees of the corporate employer, should not be able to breach the Act but escape liability for their actions merely because they are not the employer of the employees directly affected by their improper conduct. Similarly, we concur with the statements of the Board in Nepean Roof Truss Limited, supra, to the effect that there must be a practical, meaningful remedy available to complainants where the Act has been breached. In cases where a corporate entity is only a shell corporation or is without significant assets, the only meaningful and practical remedy may be those found against a named personal respondent who has breached the Act. Any other interpretation of the statutory language could thus result in either corporations or persons violating the Act with impunity while the trade union and employees directly affected by the improper conduct are left with an ineffective and meaningless remedy.

80In the circumstances before us we find that at all relevant times Mr. Trindade was a "person acting on behalf of an employer" and as a consequence he is also personally liable for breaches of the Act. In addition, Mr. Trindade has personally violated section 71 of the Act in that his conduct was designed to intimidate, coerce or compel persons to refrain from union membership and the exercise of rights under the Act.

81We have determined Mr. Trindade was a "person acting on behalf of an employer" both on the basis of his own viva voce testimony and the evidence of the witnesses called by the union. Without detailing again the difficulties inherent with accepting Mr. Trindade's evidence we find that, notwithstanding his assertions to the contrary, Mr. Trindade continued to be directly and intimately involved with the operations at Classic and its day to day activities. He continued to direct its operations including its labour relations notwithstanding his apparent resignation from the company in October 1991. Thus, for example, he admitted in his evidence-in-chief that he told the foreman that if there were too many people on the job employees should be laid off and that the employees to be laid off should be the most junior employees. Similarly he admitted that he personally told employees that the layoff was only temporary and they would be called back as soon as Classic had more work. By his own admission he "promised" the Superintendent on site "a couple of times" that he would provide another crew to do the brick work as soon as that crew was finished at another residential job.

82The evidence of the Classic employees also indicates that even after his apparent resignation Mr. Trindade continued to be directly and intimately involved in the hiring of employees, in setting their wage rates, in directing which employees would get a raise, and in transferring employees from various sites, i.e, from the residential sites or the Cambridge school site to the Stoney Brook site. He was well aware of the union's efforts to enforce the Government Contracts Hours and Wages Act and the letters received by Classic with respect to that matter and was concerned about the union's activities in this regard. Mr. Trindade's suggestion that he simply posted papers given to him by his wife and was unaware of union activity prior to that time is not credible.

83Most importantly on the totality of the evidence we have concluded that Mr. Trindade was also the controlling and directing mind behind both the decision to layoff employees and the actual determination as to which employees were to be laid off. As indicated herein, we have found that decision to have been a contravention of the Act.

Remedy

84In addition to declaratory relief the trade union seeks compensation on behalf of those employees improperly laid off. The measure of damages it seeks is based on the calculation of the number of work days these employees were laid off multiplied by an hourly rate equal to that required by the Government Contracts Hours and Wages Act. According to the trade union the calculation is to be made on a standard 40 hour work week basis. In addition the union seeks an order declaring that Classic pay to Carlos Braga 37 1/2 hours of pay which it asserts is still owing to him as a result of Classic's failure to pay Mr. Braga the wages owing to him for his last week of work immediately preceding the layoff.

85With respect to the claim for compensatory damages we find that the union's claim is too broad and not necessarily an accurate reflection of the monetary damages actually suffered by grievors. First, the Board notes that it does not have the jurisdiction to enforce the Government Contracts Hours and Wages Act. Therefore any claim for damages must in our view be made on the basis of the actual hourly rate being paid to the employees at the time of their layoff and not on what they "should have" received (we note that the hourly rate of five of the seven laid off employees in fact exceeded the rate referred to by Mr. Haggis in his evidence with respect to the Government Contracts Hours and Wages Act). The Board is also not the adjudicative body with jurisdiction over the enforcement of the Employment Standards Act. Mr. Braga's claim for unpaid wages can and may be pursued under the provisions of that Act. There is simply no evidence that the non-payment of these wages was the result of conduct which violates the Act.

86At first, the use of a 40 hour work week to calculate the amount of damages appeared to be excessive. The evidence does not appear to support a finding that this was the standard work week. Indeed the payroll records indicate that employees of Classic and in particular the grievors both before their layoff and after their return to work often worked less than a 40 hour week. In addition these payroll records indicate that any "new" employees on the Classic payroll (i.e. employees who were not on the payroll prior to the grievors' layoff) did not in fact all work 40 hour work weeks while the grievors were on layoff. After the initial week or two following the grievors' layoff several of these new employees did not work at all notwithstanding the continued layoff of the grievors. The payroll records further indicate that the total number of Classic employees did decrease shortly after the layoff of the grievors, suggesting perhaps that at times during the layoff of the grievors there was not sufficient work to keep all persons at the site employed for 40 hours per week.

87On the other hand the payroll records also indicate that there was a significant turnover within the employee complement at Classic during the period of the grievors' layoff. In addition to the ten persons already referred to who suddenly appear on the Classic payroll in the week following the grievors' layoff (although the majority were not on the Classic payroll in the pay periods which preceded that layoff), the Board has identified at least another eleven bricklayers who worked for some period of time while all or some of the grievors were on layoff. The vast majority of these persons worked for the latter one or two weeks of the period of time during which the grievors were on layoff. Alternatively some of these persons were in fact working 40 hours during the pay periods when some of the grievors were first recalled and are shown to have worked significantly less hours. Thus, for example, an employee who first appears on the 1992 Classic payroll record for the week ending March 21st (when some of the grievors were first recalled) worked 40 hours while the recalled grievors worked only 13 1/2 hours. Similarly other employees who first appear on the 1992 Classic payroll record for the pay period ending March 28th (when more of the grievors were recalled) generally worked 40 hours while the newly recalled grievors worked only eleven or twelve hours, and those grievors who had been recalled in the prior pay period worked 27 1/2 to 32 1/2 hours.

88Undoubtedly some of the these fluctuations in hours and the number of employees is due to the usual factors which face persons engaged in the construction industry including the weather, the progress of the job, the availability of material, etc. Given the nature of the construction industry and the circumstances of this case the calculation of damages is perhaps even less of a precise science than is often the situation.

89We do not think much purpose can be served by remitting this matter to the parties to see if they can agree on the amount of compensatory damages. The Board has before it the payroll records of Classic for the relevant period of time. On the basis of those records we have concluded that during the period of the grievors' layoff there was, on average, approximately 181 hours of available work which each of the grievors could have performed if they had not been improperly laid off in contravention of the Act. While the grievors were on layoff this work was performed by other persons who had not previously appeared on the 1992 Classic payroll.

90We have calculated this figure by totalling for the pay periods ending February 29 to March 28 (the period of the layoff) the number of hours worked by persons who did not appear on the 1992 payroll records for Classic prior to the layoff of the grievors. Those hours totalled 1,434. We have subtracted from this total the number of hours worked by the grievors during the same period of time (166.5) to arrive at the figure of 1,267.5 hours of available work. This latter figure was then divided by 7 (the number of grievors) for the average 181 hour determination.

91Having regard to the hourly wages of the grievors at the time of their lay off (5 earned $21.00 per hour, one earned $18.00 per hour while the other earned $14.00 per hour) we therefore find the appropriate measure of damages for the lost opportunity of the grievors to work because of the breaches of the Act committed by the respondents to be $24,797.00 ((181 x 5 x $21.00) + (181 x $18.00) + (181 x $14.00)). We recognize this figures closely approximates the amount of damages which we would have found owing had we accepted the union's submissions that the grievors were variously entitled to four days plus 3, 4 or 5 weeks of pay depending of their week of recall. In our view, however, the formula used by the Board reflects more closely the actual damages suffered by the grievors. We also find that interest on that amount of damages should be awarded (see Radio Shack, [1979] OLRB Rep. Dec. 1220). That interest is to be calculated in accordance with the formula set out by the Board in Hallowell House Limited, [1980] OLRB Rep. Jan. 35.

92In the result we make the following orders and declarations:

1. We declare that the respondents Classic Masonry Inc. and Luis Trindade have violated section 65, 67 and 71 of the Labour Relations Act.

2. As a result of those violations of the Act the applicant trade union and the individuals grievors have suffered damages. We therefore order that Classic Masonry Inc. and Luis Trindade forthwith pay to the union on its own behalf and on behalf of its members who grieved the sum $24,797.00 together with interest thereon. We find Classic Masonry Inc. and Luis Trindade to be jointly and severally liable for these damages.