[1999] OLRB REP. JULY/AUGUST 597
1429-99-G Labourers' International Union of North America, Local 527, Applicant v. Coretech Construction Services, Responding Party
BEFORE: David A. McKee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy
DECISION OF THE BOARD; August 24, 1999
This is an application for the referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995, S.O. 1995, ch.1. The application was made on August 12, 1999. The accompanying Certificate of Delivery indicates that the responding party was served on August 11, 1999 by delivering a copy of the necessary documents required by Rule 155 to the responding party by priority courier on August 10, 1999, with a promise of delivery of August 11, 1999. The Registrar faxed a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the fax number provided for the responding party in the application, 613-260-2767 on August 16, 1999 at 12:03 p.m.
On August 1, 1999 the Board's new Rules of procedure came into effect. These rules require the use of new forms, and provide for more precise consequences for failing to comply with the rules. As of the date of this decision, the responding party has not filed a Request for Hearing and Notice of Intent to Participate (Form A-87), or indeed anything at all.
This is one of the first applications under section 133 made since the new Rules of Procedure came into effect on August 1, 1999. In 1998, section 133 was amended to include the following provisions:
(7) The Board is not required to hold a hearing if the responding party does not file any material. (8) If the Board does not hold a hearing in the circumstances described in subsection (7), the Board may determine the matter with reference only to the material filed by the party referring the grievance.
(9) If the Board accepts the referral, 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.
In addition to this statutory authority, the Chair of the Board has the power to make rules to give effect to the various statutory powers. Section 110(17) provides:
(17) The chair may make rules governing the Board's practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.
In addition, the Board has very wide powers to require a party to provide particulars, documents, and any other information the Board deems necessary. (Section 11 1(2)(a) and (b)).
Effective August 1, 1999 the Chair amended the rules applicable to section 133 applications. These rule changes were part of an extensive revision of the board's rules. The Board made considerable effort to distribute these as widely as possible within the labour relations community and held various meetings throughout the province to acquaint members of the community with these new rules. The rules place a substantial burden on the applicant. As well as filing certain material with the Board, the applicant must provide to the responding party:
A copy of the application.
A copy of the Notice of grievance referral.
A blank copy of the Request for Hearing and Notice of Intent to Defend (Form A-87), i.e. the form the responding party requires to file its response.
A blank response form for the responding party's use.
A copy of the Board's rules with respect to section 133 referrals (i.e. Part VII of the Rules, being rules 143-163) and Information Bulletin No. 20 which provides the responding party with further information about the process involved in a section 133 application (including the consequences of default).
In contrast, all the responding party must do to comply with the rules is to fill in the Form A-87 supplied by the applicant indicating little more than the responding party's name and address and asserting that the responding party wishes to defend against the grievance referral. The substance of that defence is contained in the response which is not due until 9:30a.m. on the day set for hearing.
The Board's rules require quick responses from responding parties in many sorts of applications. In an application for certification, a responding employer (who is often totally unfamiliar with proceedings under the Act) must respond within two days after the application was served on it. In a section 133 application the responding party is bound to a collective agreement and should therefore have some understanding of a legal relationship with a trade union. In any event, the Form B-67 faxed to the responding party contains the following warning in bold print:
The failure to file a timely Request in the way required by the Board's Rules of Procedure may result in the referral being decided without a hearing and without further notice to the defaulting party.
The Rules deal specifically with the consequences of failing to file the Form A-87. Rules 160 to 162, which are part of the Rules package delivered to the responding party by the applicant, provide as follows:
If a responding party does not deliver a "Request for Hearing and Notice of Intent to Defend" (Form A-87) in the way required by these rules, he or she may automatically be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing (if one is scheduled), and decide the case (or part of the case) upon the material before it without further notice.
Where the facts stated in the application are deemed to be true and the Board considers that it can make a finding of liability, but cannot determine the question of damages, the Board may decide the liability issue under Rule 160 and leave the damages issue to be determined at an oral hearing.
Where the Board decides or has decided a case (or pars of a case) under Rule 160, the responding party may not file a Request or a response, or take any other step in connection with the application, other than a reconsideration application, except with the permission of the Board.
Accordingly, we shall proceed on the basis that all of the facts stated in the application are true and are accepted as true by the responding party. We find therefore as follows:
a) the applicant and responding party are bound to the Provincial Collective Agreement between the Labourers' Employer Bargaining Agency and the Labourers' Employee Bargaining Agency effective May 1, 1998 to April 30, 2001 (the "Collective Agreement").
b) the responding party has violated the collective agreement at a project at 87 George Street, Market Mall, Ottawa by
i) hiring employees who were not members of the applicant;
ii) failing to pay the wages, benefits and make the necessary deductions from wages of employees as required by the Collective Agreement;
iii) contracting or subcontracting work covered by the Collective Agreement to contractors who are not bound by the Collective Agreement.
c) the applicant was ready and able to supply members as employees to the responding party who were qualified to do the work covered by the collective agreement.
d) The applicant has suffered damages as a result of the breach of the Collective Agreement.
e) The work on the project is ongoing.
- The Board therefore orders as follows:
a) that the responding party comply immediately with the terms of the Collective Agreement on the Project;
b) that the responding party require all persons working on the Project to demonstrate that they are or require them to become members of the applicant;
c) that the responding party terminate any contract or subcontract to any third party who is not also bound to the Collective Agreement;
d) that the responding party compensate the applicant for all damages suffered as a result of the responding party's breach of the Collective Agreement with interest as required by the Collective Agreement.
The applicant has provided no information on which these damages could be calculated. Accordingly the Board is unable to calculate the number of hours worked by persons who were not members of the applicant, nor can it calculate any wages or benefits owing. It has not referred the Board to any provision of the Collective Agreement which would require the payment of interest.
Accordingly, this matter is set for hearing on August 26, 1999 for the purpose of assessing damages. This panel is not seized of this file.