United Brotherhood of Carpenters and Joiners of America, Local 18 v 2342981 Ontario Inc (Swan Construction, Swan & Associates Inc), 2014 CanLII 18887 (ON LRB)
3540-13-G United Brotherhood of Carpenters and Joiners of America, Local 18, Applicant v. 2342981 Ontario Inc. c.o.b. as Swan Construction, Swan & Associates Inc. and Gregory Krueger, Responding Parties.
BEFORE: Brian McLean, Alternate Chair.
APPEARANCES: M. Church, Simone Ostrowski, Matt Creary, Sherry Awde and Tony Bucci for the applicant; no one appearing for the responding parties.
DECISION OF THE BOARD: April 11, 2014
1. This is a referral of a grievance to the Ontario Labour Relations Board (the “Board”) pursuant to section 133 of the Labour Relations Act, 1995 S.O. 1995, c. 1 as amended (the “Act”). The referral was made to the Board on March 21, 2014.
2. On the morning of the hearing, April 10, 2014, the responding parties were not in attendance nor had they filed a Form B-67 or a response as required by the Board’s Rules. The Board adjourned its proceedings until 10:00 a.m. to see if the responding parties would appear. When, at 10:00 a.m., the responding parties had not appeared nor sent word as to the reason for their absence, the Board commenced the hearing in the absence of the responding parties.
3. The Board’s Rules specify that, where a responding party fails to file a response, he or she may be deemed to have accepted all of the facts stated in the application and the Board may decide the matter based upon the material before it without further notice.
4. At the hearing in this matter, the Board was provided with documentary evidence in support of the applicant’s claims. In addition, the Board heard oral evidence from Sherry Awde, Administrator of the applicant’s Benefit Programs.
5. The oral and documentary evidence before the Board establishes that the corporate responding parties (hereinafter together referred to as Swan) are to be treated as one employer under the Act and are bound to the Provincial Collective Agreement between the Carpenters’ Employers Bargaining Agency and the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America (the “Collective Agreement”). Articles 6 and 8 of the Collective Agreement provide for wages and holiday and vacation pay respectively. The relevant wage rates are set out in Schedule D of the Local 18 Appendix to the Collective Agreement. Article 9 provides for contributions to be made to health plans, pension plans as well as a number of other funds. Pursuant to Article 9.14(b), where an employer fails to pay contributions in accordance with the terms of the Collective Agreement, liquidated damages are payable. According to Article 9.18, an employer who violates the terms of the Collective Agreement by failing to pay wages or made appropriate payments to a trust fund or administrator is required to pay all reasonable costs incurred by the applicant in prosecuting the grievance, including legal fees on a solicitor and client basis. Article 10 provides for the payment of union dues to the applicant and an employer’s liability for liquidated damages where such dues are not paid.
6. Based on the evidence presented, the Board finds that Swan Structures Inc. had a contract to perform work on an Amica Retirement Home project in Oakville. Commencing in November 2013, Swan failed to fully pay contributions and remittances to the applicant for members working on the Amica Project.
7. The Board further finds that, for the work weeks ending February 14, 2014 a number of the applicant’s members were advised by their bank or financial institution that the corporate responding parties had insufficient funds to cover their pay cheques. For the week ending February 22, 2014 none of the applicant’s members working on the Amica Project for Swan received their wages.
8. The Board further finds that the applicant sent a grievance letter to Swan on March 21, 2014. The letter states that the grievance would be referred to arbitration. The letter further states that, at arbitration, the applicant would be seeking compensation from the Director of the Company, Gregory Krueger, personally for wages, contributions and/or deductions owing pursuant to the Employment Standards Act, 2000 (the “ESA”).
9. The Board finds the amounts owing by the corporate responding parties to be as indicated by Ms. Awde during her evidence At the hearing, Ms. Awde provided the Board with a chart on which she set out the individual and total amount of: wages (net of union dues that would be deducted from the members’ wages by the employer and remitted to the applicant); vacation and holiday pay; and union dues, owing by Swan. The chart, indicates the following amounts to be owing:
$ 2,914.22 owed for net wages due to NSF cheques
$ 13,017.39 owed for gross wages unpaid
$ 32,265.52 owed for vacation pay
$ 20,489.87 owed for union dues deductions
The total amount of wages (including vacation and holiday pay) owing to members of the applicant by Swan is $$73,099.26. Having regard to the evidence of Ms. Awde that members of the applicant were advised by their banks or financial institutions that Swan had insufficient funds to cover the pay cheques for the work week ending January 10, 2009, the Board is satisfied that Swan is unable to pay the total amount of $73,099.26 in wages owing to members of the applicant.
10. I am also satisfied the amount of money owing to the applicant on its own behalf and on behalf of its members made up of: unpaid wages (including vacation and holiday pay and union dues); benefit contributions and remittances; and liquidated damages. This chart indicates the following amounts are owing to the applicant either on its own behalf or on behalf of its members:
$175.539.15 owed for unpaid wages and benefit contributions and remittances
$ 14,418.37 owed for liquidated damages on the outstanding wages
The total amount owing to the applicant and its members in the form of: unpaid wages (including vacation and holiday pay and union dues); outstanding contributions and remittances; and liquidated damages is $189,157.52.
11. Ms. Awde further testified that the applicant has incurred $210.00 in filing fees; $565.00 in hearing fees; $313.33 in disbursements and $10,000.00 in legal fees that it is entitled to have reimbursed pursuant to Article 9.18 of the Collective Agreement. As such the Board finds that the applicant is owed $11,088.33 in costs.
12. Further, the documents placed before the Board demonstrate that Gregory Krueger is a director of both corporate responding parties. He is listed as such in the corporation profile reports produced March 21, 2014 which, pursuant to section 8(2) of the Business Names Act, R.S.O. 1990 ch. B-17 is admissible as proof of the contents thereof. Mr. Krueger is liable for the payment of wages that Swan cannot pay by virtue of section 81 of the Employment Standards Act (see: Alcor Investment Group Inc. c.o.b. as Alcor Interiors, 2002 CanLII 40933 (ON L.R.B.)) and Article 9.21 of the Collective Agreement.
13. In view of the Board’s findings as set out above, the Board issues the following relief:
a. the Board declares that the corporate responding parties are bound to the Carpenters’ Provincial ICI Collective Agreement (the “Collective Agreement”);
b. the Board declares that the corporate responding parties are in violation of Articles 6, 8.02, 9 and 10 of the Carpenters’ Provincial Collective Agreement by failing to make remittances and contributions for the months of November and December, 2013, and January and February 2014;
c. the Board orders that the corporate responding parties cease and desist from violating the Carpenters’ Provincial Collective Agreement;
d. the Board orders that the corporate responding parties pay forthwith the total amount of $175,539.15 representing contributions and deductions, wages and vacation pay for the months of November 2013 to February 2014 inclusive pursuant to Articles 6, 8.02, 9 and 10 of the Carpenters’ Provincial Collective Agreement;
e. the Board orders that the corporate responding parties to pay to the applicant the sum of $14,418.37 forthwith as liquidated damages on account of the failure to make remittances and contributions for the months of November and December, 2013 and January and February 2014 pursuant to Article 9.07(b) and finds the corporate responding parties jointly and severally liable for this amount;
f. the Board orders the corporate responding parties to pay the applicant the sum of $10,000.00 forthwith on account of the legal fees incurred by the applicant pursuant to Article 9.18 of the Collective Agreement and finds the corporate responding parties joint and severally liable for this amount;
g. the Board orders the corporate responding parties to pay the applicant $1088.33 forthwith on account of the applicant’s disbursements pursuant to section 133(13) of the Act and Article 9.18 of the Collective Agreement finds the corporate responding parties joint and severally liable for this amount; and
h. the Board orders that Gregory Krueger forthwith pay $73,099.26 to the Applicant in his personal capacity as Director and Officer of the corporate Responding Parties pursuant to Section 81 of the Employment Standards Act, 2000 and article 9.21 of the Collective Agreement.
“Brian McLean”
for the Board