[1998] OLRB REP. MARCH/APRIL 345

3404-97-G International Union of Operating Engineers, 793, Applicant v. Williams Contracting Limited, Responding Party

BEFORE: Lee Shouldice, Vice-Chair.

DECISION OF THE BOARD; March 10, 1998

I. Introduction

1This is a construction industry grievance brought before the Board for arbitration pursuant to section 133 of the Labour Relations Act, 1995 (hereinafter "the Act"). By way of decision dated January 7, 1998, this application was granted and the Board awarded various forms of relief. Counsel for the responding party has now requested that the Board reconsider its decision. Counsel for the applicant has filed written submissions with the Board in response to that request.

2Some background information is necessary to put this request in context. The application, in fact, supports three separate grievances filed by the applicant (hereinafter "Local 793" or "the union") with the responding party (hereinafter "Williams Contracting" or "the employer") dated September 15, 23 and (apparently) 30, 1997. The three grievances are, in all material respects, identical, and allege that Williams Contracting has, at various sites, violated the entire Operators' Provincial Collective Agreement (hereinafter "the collective agreement") from 1995 by failing to pay the appropriate wages, overtime and travel time prescribed by the collective agreement. The grievances further claim that Williams Contracting failed to remit the union dues, training and labour relations fund remittances, pension and benefit remittances, and other contributions required by the collective agreement. The grievances are broadly worded and the specifics of the claims made by the union do not appear on their face.

3The grievance referral (Form A-69) filed with the Board by Local 793 does not elaborate on the substance of the grievances. It does, however, identify with some particularity the remedies requested by Local 793. In particular, the grievance referral claims for:

(a) declarations that Williams Contracting is bound by the terms of the collective agreement, and that it violated the terms of that agreement;

(b) damages "in an amount to be proven representing any and all unpaid wages, remittances, deductions, allowances and contributions for any and all hours worked by members of the Applicant in the employ of the Responding Party";

(c) liquidated damages on the above amount in accordance with Article 24.4 of the collective agreement;

(d) reasonable costs in accordance with Article 24.6 of the collective agreement;

(e) an order requiring Williams Contracting to post or secure an unconditional letter of credit or other form of security acceptable to Local 793 in the amount of $20,000 in accordance with Article 24.6(v) of the collective agreement; and

(f) interest on any and all damages awarded by the Board.

There is no dispute that the grievance referral filed with the Board by Local 793 was served upon Williams Contracting well in advance of the hearing of this proceeding.

4On December 11. 1997, Local 793 filed the grievance referral with the Board. The grievance referral was processed by the Board in due course. In accordance with section 133(2) of the Act, the Registrar of the Board set a hearing date of January 6, 1998. A Notice of Hearing which set out the hearing date was forwarded to the parties on December 16, 1997. That notice indicates that the Registrar had set January 5, 1998 as the terminal date - that is, the date by which Williams Contracting was required to file its response. Accordingly, shortly after December 16, 1997, the parties were aware of when pleadings were required to be filed, and when the proceeding would be heard by a panel of the Board on its merits.

5On December 17, 1997, the Labour Relations Officer assigned to meet with the parties to attempt resolution of the outstanding issues wrote to the parties and advised that he would convene a pre-hearing meeting in order to attempt settlement on December 30, 1997. The Officer's letter noted that the hearing of the proceeding on its merits was scheduled for January 6, 1998.

6By way of letter dated December 23, 1997, telefaxed to the Board, Ms. Alice Kutynec (who would appear to be related to the principal of Williams Contracting, Mr. William Kutynec) wrote to the Board and advised that Mr. Kutynec could not attend at the hearing as he was out of the country. She requested that the Board adjourn both the pre-hearing settlement meeting and the hearing to other dates. She also indicated in this letter that Williams Contracting would not be filing a response by the terminal date. On the same day, the Registrar of the Board wrote to Williams Contracting and advised it that, without the consent of Local 793, an adjournment could only be obtained from the Board by way of a telephone conference prior to the hearing, or by way of addressing the issue at the opening of the hearing. Counsel for Local 793 wrote to Ms. Kutynec on December 29, 1997, confirming that he would not be consenting to the adjournment of either the Officer's settlement meeting or of the hearing on behalf of his client. Nor would his client consent to an extension of time for the filing of a response by Williams Contracting.

7The Labour Relations Officer's meeting of December 30, 1997 passed without attendance on behalf of Williams Contracting. Counsel for Local 793, who did attend, wrote to Ms. Kutynec on that same day to confirm, once again, that it was the intention of his client to proceed to hearing on January 6, 1998, whether or not anyone attended on behalf of the employer. It would appear that this correspondence was facsimiled to Williams Contracting on December 30, 1997. A copy of the letter was forwarded by applicant's counsel to the Registrar of the Board.

8The responding party did not file a response to the applicant's grievance referral as required by the Board's Rules of Procedure. Nor did the responding party request of the Board that a telephone conference be convened to deal with an adjournment request, an option which was noted in the correspondence from the Registrar which was sent to the responding party on December 23, 1997.

9On the day set for the hearing, no one attended at the Board on behalf of Williams Contracting at 9:30 a.m., the time set for the commencement of the hearing. In order to ensure that Williams Contracting had not been delayed for reasons beyond its control, I waited until 10:00 a.m. before commencing the hearing. The Board received no communication from the responding party on the date of the hearing to the effect that it had been delayed from attending for reasons beyond its control.

10Once the arbitration hearing commenced, I heard the sworn evidence of Ms. Daveen Lidstone, the Delinquency Control Officer for Local 793. Having regard to her evidence, and the materials filed with the Board (which I will elaborate upon below), I made certain findings of fact and awarded damages and other relief to Local 793 in accordance with its request contained in the grievance referral to the Board. It is this relief that Williams Contracting desires to have reconsidered.

II. The Basis for Reconsideration

11The reconsideration request filed by the employer sets out the following grounds for reconsideration:

(a) Williams Contracting did not understand from the application, because it is not disclosed on its face, that the liability of the employer was significant. It is asserted that the employer understood that "relatively minor amounts" might be owed as a result of "mistakes or inadvertence" on the employer's part. It is further submitted that the employer acted reasonably in this regard because of the lack of particularity provided by the union in the application;

(b) the application did not comply with the Board's Rules of Procedure nor the requirement of section 8 of Form A-69 (the grievance referral) that the material facts relied upon be pleaded. It is specifically noted that the application does not identify the employees affected, the date that alleged violations of the collective agreement occurred, and the amounts claimed on behalf of individual employees. Accordingly, it is argued that the Board permitted the union to expand on the grievances without notice to the employer;

(c) the Board denied the employer natural justice because the matter heard by the Board was significantly different than was disclosed by the application; and

(d) the Board in its decision relied entirely upon hearsay evidence provided by Ms. Lidstone. rather than that of employees claimed to have been affected by the alleged violations of the collective agreement. Further, the Board's decision does not indicate which employees were considered in establishing the quantum of damages set out in the decision, and, due to the amount of damages ordered, must include sums relating to persons not employed in the bargaining unit, or reflect exaggerated amounts for those who were employed in the bargaining unit. It is submitted that those claims would have been rebutted by the employer had it been given notice of the details of the claims in accordance with the Board's Rules of Procedure.

I will deal with each of these grounds below. However, before doing so, it is appropriate to briefly review the Board's longstanding approach to the exercise of its power to reconsider its decisions.

III. The Exercise of the Board's Authority to Reconsider its Decisions

12Section 114(1) of the Act, which provides the Board with the authority to reconsider its decisions, states as follows:

114(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

13The Board's general approach to the reconsideration of its decisions has been clearly enunciated in cases such as John Maggio Excavating Limited, [1994] OLRB Rep. Jan. 31, where the Board made the following observations:

As a general proposition, the Board will not reconsider a decision unless a party intends to introduce new relevant evidence which could not have been previously obtained by the use of reasonable diligence, and where such evidence, if adduced, would be practically conclusive of the case. Alternatively, the Board may reconsider its previous decision if a party intends to raise objections or make representations which were not already considered by the Board and which the party had no prior opportunity to raise. The rationale for the narrow limits imposed on the exercise of the Board's power to reconsider its earlier decisions is obvious - only if Board decisions are considered to be final can they be relied upon as establishing the rights as between the parties.

14This general rule is not one which is "cast in stone". However, for the reasons identified immediately above, it will be observed by the Board in most cases. One concept which is central to the exercise of the Board's reconsideration power is that of "reasonable diligence". The evidence desired to be introduced by the party seeking reconsideration must be evidence which could not have been previously obtained by the use of reasonable diligence. Furthermore, objections or representations to be raised can only be raised if the Board has not previously considered the objection or representation and the party had no prior opportunity to raise it.

15With these principles in mind, I will consider the merits of the request for reconsideration made by the employer.

IV. Decision

16At the core of the employer's request for reconsideration is an assertion that the applicant failed to particularize the claims it was making so as to put the responding party on notice of the size and nature of the violations of the collective agreement alleged by the union. If it had known of the size and nature of these claims, the employer asserts that it would not have believed that the amounts in dispute were minor rather than substantial, and would have introduced evidence in response to the assertions to prove that the allegations were unsupported or substantially exaggerated.

17There can be no doubt that the grievances filed in this proceeding, and the grievance referral filed with the Board, are drafted in a very broad manner. Normally, such general pleadings would cause the Board some concern. However, when considering the appropriateness of such a broad pleading, one must keep at the forefront of one's mind the nature of the proceeding. It is a referral, to the Board, of three collection grievances in the construction industry. Quite often (though not always), the union will know very little about the actual details of the violations of the collective agreement that it alleges. As a practical matter, all that the union will be aware of in certain cases is that a particular employer is performing work which appears to be covered by the collective agreement, and that that same work is not being reflected by referrals from its hiring hall, or remittances which are (or are not) being forwarded to the union or its agents by the contractor on a monthly basis. Accordingly, the Board quite often receives from trade unions arbitration referrals of a broadly-worded nature. The trade unions typically assert that an employer bound to a collective agreement has not abided by the full terms of the agreement. However, the specific details of that violation are not always in the possession of the trade union at the time of filing.

18The Board's practice in construction grievance referrals is to appoint a Labour Relations Officer to meet with the parties prior to the hearing to discuss settlement of the claim. These pre-hearing meetings are important because they facilitate not only the settlement of all or part of the dispute, but also the exchange of information between the parties. The importance of these meetings is highlighted by the Registrar in the Notice of Hearing which is forwarded to the parties upon the filing of the grievance referral with the Board. On the face of the Notice of Hearing, it is stated, in bold face type, that "the parties are expected to meet with the Officer before the hearing". It is at this meeting that the union and the employer discuss the underlying factual dispute and obtain information about the other's case. A large number of these construction grievances are settled (or are, at the very least, primed for settlement) during the course of these meetings.

19The responding party did not attend at the pre-hearing meeting with the Officer in this case. It purposely chose to not appear at that time. Accordingly, Williams Contracting failed to take advantage of that opportunity to sit down with the union and discuss the specifics of the claims being made. I should note here that the testimony before me at the hearing of the merits of this proceeding disclosed that one or more of three representatives of the union (Messrs. Monti, Hillis and Ms. Lidstone) met with the employer on five separate occasions to discuss the particulars of the grievances before the union filed the grievance referral with the Board. Accordingly, it would appear that there were a number of opportunities for the responding party to obtain information from the union regarding the merits of the claim. However, even if I were to ignore those meetings, the fact is that the employer consciously chose to not attend at the Board's pre-hearing settlement meeting, and willingly passed upon its best opportunity to obtain the specific facts relied on by the applicant.

20In that context, the facts and arguments relied upon by the employer to ground its request for reconsideration are not particularly persuasive. If Williams Contracting was under the impression that the sums of money in question were "relatively minor amounts" which were the result of "mistakes or inadvertence" on its part, then surely that impression would have been altered had the employer attended at the meeting of the Labour Relations Officer on December 30, 1997, and confirmed the full extent of the potential liability it faced. But it chose to neither attend nor to seek an adjournment of that meeting. Accordingly, any continued misunderstanding relating to the scope of its liability is hardly "reasonable", keeping in mind that it had an early, effective opportunity to discover exactly what the union claimed was due to it.

21On a similar note, I agree with the observation made by counsel for the employer that the application did not comply with the Board's Rules of Procedure (reflected by section 8 of the Form A-69) which requires the applicant to plead all of the material facts relied upon in support of its claim. However, as noted above, in construction industry collection grievances the Board does not expect an applicant to be aware of all of the facts relied upon in support of its claim at the time that the grievance referral is filed with the Board. In fact, many collection grievances are accompanied by requests for pre-hearing production orders (typically ordered by the Board after the parties have met with the Labour Relations Officer assigned to the file) or are supported by the service of a subpoena duces tecum. In cases such as these, the Board will usually relieve against the strict application of its Rules (as is permitted by Rule 21 of the Board's Rules of Procedure) in order to ensure that the application is dealt with on its merits. In the circumstances of this case, I would have been quite prepared to do just that.

22I disagree with the employer's submission that to allow the union to rely upon details raised at the hearing has the effect of "expand[ing] on the grievance without notice" to the employer. As noted above, the union pleaded its claim in the broadest of terms. The responding party ought to have been aware that the claim made by the union raised questions relating to the application of the collective agreement to numerous sites and individuals. That is, without any limiting language, all of the employer's sites, since 1995, were "on the table". For the reasons outlined above, the employer ought to have attempted, prior to the hearing, to "narrow down" the scope of the grievance. If the union did not identify in greater particularity the facts relied upon, the employer could have quite legitimately requested particulars of the claim before or at the outset of the hearing, as responding parties to these proceedings often do. Collections grievances are not to be treated as "fishing expeditions"; if not properly pleaded at the outset, an applicant will be required to particularize its allegations prior to litigation on the merits (see, for example, Andrew Paving & Engineering Ltd., Board File 3729-97-G, unreported decision dated February 2. 1998). Here, though, the employer failed to attend at either the pre-hearing meeting with the Officer or at the hearing, and neglected to use either of these opportunities to obtain particulars.

23For these same reasons, I disagree that the employer was denied natural justice because the matter heard by the Board was "significantly different" from that pleaded. The matter that was heard by the Board was the same matter that was filed with the Board, and the full particulars relied upon could easily have been obtained by the employer at various points in the process. The employer simply chose to not attend the meeting with the Officer, and to not attend at the hearing itself. Nor did it request that an adjournment be provided by the Board. In this respect, there is no doubt that the union was unwilling to consent to an adjournment of the proceeding. However, the option of a telephone conference to deal with an adjournment, or raising the issue with the panel at the hearing of the merits, was brought to the employer's attention quite early on in the process. Once again, the employer chose not to make use of an option available to it. It did not ask for a telephone conference to deal with its adjournment request. It did not attend the hearing to deal with the need for an adjournment. There can be no doubt that the employer was not denied natural justice in any way in these circumstances.

24In further support of its reconsideration request, the employer relies upon the fact that the evidence heard by the Board was adduced through Ms. Lidstone, rather than through the individual employees affected by the employer's violations of the collective agreement. Once again, I am of the view that there is no legitimate ground for reconsideration disclosed in the circumstances.

25The section of the Act which grounds the authority of the Board to act as an arbitration board for grievances in the construction industry is section 133, which reads, in part, as follows:

133(3) Upon a referral under subsection (I), 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 48(10) and (12) to (20) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

Section 48(12)(f) of the Act - which applies to the adjudication of grievance referrals by the Board in accordance with the above provision of the Act - provides as follows:

48 (12) .. .[A)n arbitrator or an arbitration board, as the case may be. has power,

(f) to accept the oral or written evidence as the arbitrator or the arbitration board, as the case may be, in its discretion considers proper. whether admissible in a court of law or not.

See also section 111(2)(e) of the Act, which provides the Board with the same authority outside of the grievance referral context.

26In this particular case, I entertained the evidence of the applicant through Ms. Lidstone. There can be no doubt that a majority of her evidence was in the nature of "hearsay" evidence, because it is quite true that the individual union members on whose behalf Local 793 brought this application were not called to testify to their individual circumstances. However, the mere characterization of the evidence as "hearsay" is insufficient to cause me to reject it, in the circumstances of this case. If the employer had requested particulars from the union, and then had challenged the inclusion or exclusion of any particular person or claim on behalf of a person because the facts relied upon by the union were alleged to be inaccurate or untrue, I would have expected the union to produce direct evidence of the claim it was asserting.

27However, the employer did not make any attempt to defend itself in these proceedings, and it makes little sense to require an applicant to establish, by calling 18 witnesses (15 employees, two business representatives, and Ms. Lidstone), the full claim that it was making in this proceeding. The construction grievance referral provisions of the Act were intended to provide speedy, effective relief for trade unions which allege that contractors bound to collective agreements have violated their provisions. How that legislative purpose could be achieved by requiring the summoning and direct examination of 18 witnesses in a collection matter where the employer fails to attend to rebut the union's evidence is unclear, to say the least.

28The evidence adduced through Ms. Lidstone included documentary materials supportive of the applicant's claim, in particular pay stubs provided by the employer to the individuals in question. Although these stubs were not provided for each and every individual, for each and every work week claimed by the union, the basis of the amounts claimed is evident from individual summary sheets prepared by Ms. Lidstone. The testimony before the Board was that on the numerous occasions that the union representatives met with the employer, they had the opportunity to review the books and records of Williams Contracting. Ms. Lidstone testified that this review was in the nature of an "audit" by Local 793. The damage calculations prepared by Ms. Lidstone and presented to the Board were based upon the information obtained from Williams Contracting during this "audit" process. In the circumstances, where Williams Contracting determined not to defend itself, and the basis for the damages claimed had, as its genesis, the books and records of the employer, I was satisfied that the evidence presented by Ms. Lidstone was satisfactory to establish the violations of the collective agreement asserted by the applicant, and I awarded damages for unpaid wages, overtime, vacation pay, and pension and other benefits, in the amount claimed by the union.

29The employer noted, in its request for reconsideration, that the decision of January 7, 1998 did not identify the individuals for whom Local 793 claimed damages. As noted in the January 7, 1998 decision, Local 793 limited its claim for damages to the 1997 calendar year through to September, 1997. The individuals in question, and the amounts claimed on behalf of each representing wages, overtime, and vacation pay, appear directly below:

Barrie, Mike $1,470.83 Carrington, George $1,642.32 Cody, Malcolm $ 39.37 Draper, George $ 484.49 Fletcher, Vallis $1,731.37 Holmes, Gordon $ 527.75 Kutynec, Gary $ 957.98 Lewis, George $2,843.33 Lewis, Randall $ 908.65 McCracken, John $ 964.55 Nelson, Gerald $1,883.16 Novembre, Louis $1,436.98 Pendley, Clayton $2,754.60 Suleyman. Boran $ 446.19 Teed, Mike $ 39.37

The amounts claimed for pension and benefit contributions for the 1997 calendar year, through to September, 1997, are as follows:

January, February and March $ 793.04 April $ 0.00 May $ 530.60 June $1,314.29 July $2,160.26 August $5634.81 September $3,878.42

The total amounts claimed under these two heads of damages are $18,130.94 and $14,311.42, respectively, for a total of $32,442.36.

30For the reasons identified above, I am not persuaded by the employer's argument that, had it known of the individuals claimed for, it would have concluded that the amounts claimed were exaggerated, and that it would have called evidence to rebut the claim made by Local 793. Ignoring the fact that the union and the employer met, on five separate occasions, and discussed the amounts due and owing (and, by necessary implication, the identity of those who performed the work underlying the claim for damages), the employer ought to have filed a response, attended at the Officer's meeting, and appeared at the hearing and raised these defences. It rings somewhat hollow at this point for the employer to assert that the amounts claimed by Local 793 are exaggerated and would have been rebutted had it known the identities of those underlying the union's claim. If it was in the least bit concerned about the union's grievances, it ought to have done something about it at the appropriate time.

31I also awarded relief to Local 793 respecting the costs incurred for the preparation and presentation of these grievances, liquidated damages, and for interest accrued on the amounts awarded, all in accordance with specific provisions contained in the collective agreement. Furthermore, for the reasons outlined in the decision of January 7, 1998, I directed that the employer post a bond in the amount of $20,000 - again, as specifically provided for in the collective agreement. I am satisfied, on the evidence adduced by Ms. Lidstone, that the costs awarded were both reasonable and incurred, and that the interest was quite properly and accurately calculated.

32Before concluding this decision, it is important to recall once again that the grievance arbitration provisions contained in section 133 of the Act were enacted by the legislature over 20 years ago to ensure that the trade union community had a fast, effective means of enforcing its collective agreements as they related (particularly but not exclusively) to collection matters - that is, allegations that a party bound to a collective agreement has not paid the appropriate rates or abided by all of the monetary obligations in the collective agreement. The construction industry is a very competitive one, and if one contractor is permitted to "avoid" (or even postpone) its obligations under its collective agreement, the effect of that is to permit that contractor a competitive advantage vis-a-vis all other unionized contractors who bid for the same work. This is why contractors and trade unions bound to collective agreements are typically quite content when trade unions enforce their rights under the collective agreements in circumstances such as those before me (see, for a more expansive discussion of this point, the decision of Kennedy Masonry Company Limited. Board Files I 842-97-G and 1843-97-G, as yet unreported, dated February 10, 1998) [now reported at [1998] OLRB Rep. Jan./Feb. 50].

33From the evidence before me, it appears that the employer paid its workforce at the rate of $20.00 per hour, rather than at the rates contained in the collective agreement which are considerably higher. The applicant quite properly brought this proceeding to the Board in order to remedy that behaviour, and to "even the playing field" amongst those contractors bound to the collective agreement. The employer, until filing this request for reconsideration through its solicitors, did absolutely nothing to suggest that it had any intention whatsoever of defending itself against the allegations made by the union. Nothing raised by counsel for the employer in this request for reconsideration engages the test utilized by the Board for reconsideration, and there are no special circumstances identified which would otherwise lead me to conclude that I ought to reconsider my decision of January 7, 1998.

34For these reasons, I deny the request for reconsideration.