3968-99‑G Universal Workers Union, L.I.U.N.A. Local 183, Applicant v. Dirpam/Edilcan, Responding Party.
BEFORE: John M. Lewis, Vice‑Chair, and Board Members J. G. Knight and
G. McMenemy.
DECISION OF THE BOARD; April 11, 2000
- This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, (the "Act"). The referral was made on March 31, 2000. The accompanying Certificate of Delivery (Form A‑86) states that the responding party was served on March 31, 2000 by delivering a copy of the necessary documents required by Rule 155 of the Board's Rules of Procedure. 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,
905-738-9803 on April 6, 2000 at 10:01 a.m.
As of the date of this decision, the responding party has not filed a Request for Hearing and Notice of Intent to Defend/Participate (Form A‑87). The Board's Rules of Procedure explicitly stipulate the consequences of failing to comply with the filing requirements contained in the Rules.
Section 133 of the Act provides, in part:
"(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, the Chair of the Board has the authority to make rules to give effect to the various statutory powers conferred upon the Board. Section 110(17) of the Act provides:
"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."
Furthermore, the Board has very wide powers to require a party to provide particulars, documents, and any other information the Board deems necessary. (See sections 111(2)(a) and (b) of the Act.)
The Board's Rules in respect of section 133 proceedings 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).
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 VIII 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).
The only thing a responding party must do to avoid default proceedings is to complete the Form A‑87 supplied by the applicant and deliver it to the Board and the applicant within five days of the date of the Board's Confirmation of Filing (Form B‑67). Form A‑87 requires little more than the responding party's name and address and an assertion 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 9:30 a.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, for example, a responding employer (who is often unfamiliar with proceedings under the Act) must respond within two days after the application was served on it. In a section 133 proceeding, the responding party has some relationship with the applicant and therefore should have some understanding of the contractual and statutory context in which a grievance referral arises. 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 Board's 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:
"160. If a responding party does not deliver and file 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 part 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 allegations of fact set out in the referral to the Board and in the grievance material have been accepted by the responding party and therefore can be relied on by the Board in making a determination of this matter. The Board therefore finds that:
the applicant, Universal Workers Union, L.I.U.N.A. Local 183 (the “Union”) is a trade union, which amongst others, represents the direct construction employees of high-rise builders in the residential sector of the construction industry in and around Toronto. The Board has recently found that the Union is one and the same organization as Labourers’ International Union of North America, Local 183. (See Coughlan Homes Inc. and Cougs Investments Ltd., April 7, 2000, Board File No. 30393-99-R) Accordingly, the Union is a party to the collective agreement;
the responding party, Dirpam/Edilcan (the “Employer”) is a company that carries on operations as a builder and/or developer of high-rise housing in the residential sector of the construction industry in and around Toronto;
the Metropolitan Toronto Apartment Builders’ Association (the “Association”) is an employer association which represents builders and/or developers of high-rise housing in the residential sector of the construction industry in and around Toronto, including representing employers in their collective bargaining relationships with the Union;
the Employer has been for a number of years a member of the Association. Accordingly by virtue of its membership in the Association the Employer has been, for a number of years, bound by and party to various Collective Agreements between the Union and the Association covering, amongst others, its direct construction employees engaged in the construction of high-rise housing in the residential sector of the construction industry. The most recent Collective Agreement in effect between the Union and the Association is effective on its face from May 1, 1998 until April 30, 2001 (the “Collective Agreement”);
in or about January 2000, certain of the direct construction employees of the Employer met with a business representative of the Union, Mr. Victor Ferreira. At this time these employees informed Mr. Ferreira that they had worked for the Employer at its various job sites, including but not limited to its job sites at Church Street and Bloor Street, Toronto and at King street and Niagara Street, Toronto. These employees further informed Mr. Ferreira that in their employment with this Employer they had on various occasions worked on Saturdays, Sundays and statutory holidays and had been paid for their overtime work on a straight time basis and had received no premium rate for such work as required by the terms and provisions of the Collective Agreement;
having been informed of the above-noted problems, Mr. Ferreira spoke to and/or attempted to speak to other employees of the Employer and was able to determine that none of the employees had received the premium rate for such overtime hours;
under the provisions of Article 7.01 of the Collective Agreement, the Employer is required to pay the rates of pay set out and established by Schedule “A” of the Collective Agreement;
under the provisions of Schedule “A”, Article A:1.1 the regular work week consists of 44 hours per week, Monday to Friday inclusive. Further, under the provisions of Schedule “A”, Article A:1.4 all work performed on Saturdays, Sunday s and the listed statutory holidays is to be paid at double the employee’s regular rate of pay;
based on this inquires, interviews and review of records, Mr. Ferreira was able to determine the following employees, who were all employed in the Group 1 labourers’ classification, worked the following hours on Saturdays, Sundays and statutory holidays but did not receive the overtime premiums required under Article A:1.04;
Abbas Alhantoshi 104 hours
Lyndon Bennett 4 hours
Basil Mateus 101.5 hours
Carvalho Domingos 189.5 hours
Ernesto Ferreira 279.5 hours
Aldo Lecoche 304.5 hours
Jacinto Raposo 363.5 hours
under the provisions of Article A:4.1 the regular rate of pay for construction labourers, in the Group 1 Classification, during the relevant time period was Twenty Dollars and Ninety-Two Cents ($20.92) per hour;
the total of the hours listed above for which double the regular rate of pay should have been paid (but for which the employer only in fact paid the regular rate of pay) is One Thousand Three Hundred and Fifty and One Half Hours (1,350.5). Accordingly it is the position of the Union that it is owed damages on behalf of its members in the amount of Twenty-Eight Thousand Two Hundred and Fifty-Two Dollars and Forty-Sic Cents ($28,252.46) which represents One Thousand Three Hundred and Fifty and One Half Hours (1,350.5) hours multiplied by the hourly wage rate of Twenty Dollars and Ninety-Two Cents ($20.92);
Based on the Board's findings in paragraph 10 above, the Board therefore:
declares that Dirpam/Edilcan is bound to the Collective Agreement;
declares that Dirpam/Edilcan violated the Collective Agreement;
orders Dirpam/Edilcan to pay forthwith to the Union, on behalf of its affected members, damages in the amount of $28,252.46.
The hearing scheduled for April 14, 2000 is hereby cancelled.
“John Morgan Lewis”
for the Board