[1999] OLRB REP. SEPTEMBER/OCTOBER 873
1749-99-G United Brotherhood of Carpenters and Joiners of America, Local 2486, Applicant v. P. A. Richens, Responding Party
BEFORE: Christopher J. Albertyn, Vice-Chair and Board Members J. G. Knight and G. McMenemy
APPEARANCES: Melissa Kronick and Bud Calligan for the applicant; no one appearing for the responding party.
DECISION OF THE BOARD; October 14, 1999
This is a construction grievance filed under section 133 of the Labour Relations Act, 1995 ("the Act").
The matter was set to be heard at 09:30 a.m. on September 30, 1999. There was no appearance by the responding party. The Board stood down the matter in case of a late arrival. When the matter was recalled at 10:00 a.m. there was still no appearance by the responding party. Proper notice of the hearing was given. In the circumstances the Board decided that the application would be heard, notwithstanding the absence of the responding party.
At the hearing there was only one outstanding issue to be dealt with. It concerns whether the applicant is entitled to be paid its reasonably incurred costs by the responding party in respect of this grievance. The responding party has notice of the applicant's cost claim. The costs amount to the sum of $2,014. The applicant relies upon Article 9.18 of the collective agreement (the Provincial Collective Agreement between The Carpenters Employer Bargaining Agency and The Carpenters' District Council of Ontario, United Brotherhood of Carpenters and Joiners of America (C.D.C.) effective from May 1, 1998 to April 30, 2001). That Article reads:
9.18 If the Ontario Labour Relations Board or a Board of Arbitration to which a grievance alleging failure to pay wages to employees or a failure to make appropriate payments to a trust fund or an administrator as required by this Agreement, determines that an employer has violated the Collective Agreement, then the OLRB or the Board of Arbitration shall also require the employer to pay all reasonable costs incurred by the Union in prosecuting the grievance including but not limited to, all legal costs on a solicitor-and-client basis, travel meal and accommodation cost of all witness and Business Representatives, conduct money, cost incurred in serving a summons, any expenses incurred by the Union pursuant to Section 126(4) or otherwise, for the Board of Arbitration.
By decision of the Board (differently constituted) on September 28, 1999 default judgement was granted in favour of the applicant in respect of a damages claim arising from the responding party's performing work covered by the collective agreement with persons who were not members of the applicant or were subcontractors not bound by the agreement. The Board found a violation of Articles 4, 5, 6, 8, 9 and 10 of the collective agreement. It found there were members of the applicant qualified and available to do the work. It ordered payment of damages to the applicant in the sum of $2,408.40. It held over the question of the applicant's cost claim for the hearing before us.
Mr. Calligan, of the applicant's District Council, sought to explain the bargaining history which led to the bargaining agents reaching agreement upon the terms of Article 9.18. He said that article was conceded to the applicant's District Council in exchange for a 2-year wage freeze. The Article was intended to cover any violations of Articles 4 to 10 of the collective agreement.
The amounts for which the responding party has been held liable in damages by the Board include remittances to the applicant's trust funds required under Article 9 of the collective agreement and dues to union administered funds under Article 10 of the collective agreement. The applicant's counsel argues that such amounts are expressly referred to in Article 9.18, in the words," a grievance alleging a failure to make appropriate payments to a trust fund or an administrator as required by this Agreement". The Articles under which those payments are made are Articles 9 and 10. Counsel refers to the fact that, in the Board's earlier decision in this matter, it found the responding party to have been in violation, inter alia, of Articles 9 and 10.
We understand counsel's argument to be that, even if we are reluctant to read Article 9.18 as covering any violations of the provisions of Articles 4 to 10 and if we are inclined to read Article 9.18 narrowly as applying only to claims which directly involve a failure to pay wages to employees or to make payments to a trust fund or an administrator, then the Board's finding that there has been a violation of Articles 9 and 10 and its ordering damages which include, in part, remittance amounts are sufficient to bring the grievance within the ambit contemplated by Article 9.18. In other words, even on a narrow reading of the provision, the applicant should be entitled to its reasonable costs in pursuing the grievance.
Counsel referred us to the decision Cooler Guys Inc. [1998] O.L.R.D. No. 1130 File No. 4154-97-G of April 8, 1998 in which the union in that case was relying upon a similar article of the provincial collective agreement which preceded the agreement upon which the applicant relies to obtain their costs in circumstances akin to those in this case. The union's damages in that case were occasioned by the hire of persons other than those available from the union's hiring hall to perform work. The article of the collective agreement relied upon in that case is not quoted, although the Board referred to the union being entitled to "claim reimbursement for all reasonable costs incurred in prosecuting this grievance".
Despite the Board's decision in Cooler Guys Inc., we are not persuaded that the subject matter of the grievance before us in this application is such as was contemplated by the bargaining agents when they concluded Article 9.18. In our view (as in United Brotherhood of Carpenters and Joiners of America, Local 18 and PA. Richens, Board decision of October 20, 1997 in Board File 2506-97-G) that article was designed for a specific and limited purpose, to require recalcitrant contractors who failed to pay the wages prescribed in the collective agreement to their employees or to make the requisite payments into the trust funds in respect of their employees as required by the collective agreement. Neither condition applies in this case. The grievance does not concern the wages of employees of the responding party. It concerns the responding party's failure to make use of the applicant's hiring hall. In our view, not all violations of Articles 4 to 10 are covered by the wording of Article 9.18. Even although the quantum of damages ordered by the Board in this application includes amounts which would be payable into the trust funds described in the collective agreement were the responding party to have employed workers supplied by the applicant, the subject matter of the grievance is not the non-payment of amounts due to the trust funds. The subject matter of the grievance is the responding party's failure to engage the services of employees supplied by the applicant.
In any event, were Article 9.18 to have been included in the grievance procedure of the collective agreement, the intention of the parties to make it applicable to all grievances would have been clear. But Article 9.18 is not located there, where one might expect an all-encompassing cost provision. It is found as an appendage to the provisions concerning the payment of wages, dues and contributions. That suggests it has the more limited purpose we have described.
In these circumstances we are not persuaded that the applicant is entitled to obtain an order for the payment of its reasonable costs under the provisions of Article 9.18 of the collective agreement.