1738-00-G Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. Donald Construction Limited, Responding Party v. Tri-Mar Building Supplies Limited, Intervenor.
BEFORE: Marilyn Silverman, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
DECISION OF THE BOARD; November 21, 2000
This is a request for reconsideration made pursuant to section 114 of the Labour Relations Act, 1995, S.O. 1995, c.1 ('the Act') of a decision of the Board dated September 25, 2000 (the “default decision”). In that decision the Board found that the responding party, Donald Construction Limited (“Donald”) had failed to deliver a Request for Hearing and Notice of Intent to Defend (“Form A-87”) in the manner required by the Rules. Accordingly, the Board deemed the facts in the application to be true and made a finding of liability but pursuant to Rule 161 found that it could not determine the question of damages and left that issue to be determined at a hearing. The hearing was scheduled for September 27, 2000. The Form A-87 was filed and the applicable fees paid by Donald on September 26, 2000.
On September 27, 2000 the date scheduled for hearing in the matter, the parties entered into an agreement to adjourn the hearing sine die and established a schedule for the filing of this reconsideration application and the applicant’s reply to this application. The parties have adhered to the agreed upon schedule.
Donald agrees that they are bound to the Concrete & Drain Contractor’s Association and Labourers’ International Union of North America, Local 183 and International Union of Operating Engineers Local 7933 collective agreement but objects to the declaration contained in the default decision that there has been a violation of that agreement by it. Donald submits that an estoppel exists which prevents the applicant from claiming the breach and further disputes that the applicant had members in good standing who were ready and able to perform the work in question. There is also a matter of a typographical error in the Board’s default decision which will be dealt with below.
Both parties refer to the decision in Weinmann Electric Ltd. [2000] OLRD No. 260 File No. 2519-99-G (unreported) and specifically the four factors established in that case as being appropriate for a reconsideration in a default decision. Those are:
(1) whether the circumstances giving rise to the default are adequately explained, that is, some explanation is given as to why the A-87 Notice was not filed in the first place;
(2) whether the request for reconsideration was brought as soon as possible after discovering that a decision had been issued;
(3) whether the responding party can demonstrate that there is a real and substantial defence to the grievance and that the matter is of sufficient importance to the ongoing relationship of the parties that the original decision should be set aside and the matter relitigated;
(4) whether there is any prejudice to the applicant or, if so, the extent of such predjudice.
Circumstances Giving Rise to the Default
- The responding party concedes that the default was caused by its own error and therefore asserts that it is in no better position with respect to this factor than the responding party in Weinmann, supra.
Timeliness of the Reconsideration Application
- Donald attended at the Board on the date scheduled for hearing having filed it’s A-87 and advised the applicant that it would be applying for reconsideration. Both parties thereupon agreed to a schedule for the filing of submissions which was adhered to. In these circumstances this factor in Weinmann, supra, has been satisfied by Donald.
The Merits of the Defence and Importance of the Issue to the Parties
Donald alleges that it has a reasonable defence to the grievance. The subject matter of the grievance concerns drivers of trucks of given weights (referred to as “stone slingers”). Donald asserts that as a matter of industry necessity this work has been subcontracted to non-union companies with the knowledge (either tacit or express) of the applicant. Donald asserts that its evidence would bear this out.
The applicant asserts that it does not agree with all of the material facts set out by Donald and further submits that much of what is set out in the reconsideration can be dealt with at a hearing into the issue of damages.
Prejudice to the Applicant
Donald submits that the applicant can be fully compensated in monetary damages and further that the applicant has been aware of Donald’s position on the issues raised for some time prior to the referral of the grievance.
The applicant claims prejudice and asserts further that there is no prejudice to Donald in proceeding as the issue of damages is undetermined at this point. The prejudice the applicant asserts is based on how it has dealt with other contractors on this issue as a result of this default decision as well as other Board decisions.
Disposition
Having considered the submissions of the parties, the applicable jurisprudence and the analysis of the Weinmann, supra, factors to the facts of this case, the Board denies Donald’s request for reconsideration.
The Board’s default procedure is a simple one for employers. As was stated in the default decision at paragraph 7:
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.
There was no reason for the lack of response by Donald and this factor favours the applicant.
Assuming without deciding that the merits of the defence are real and substantial they can be addressed for the most part by way of the damages hearing. This is clearly so on the issue of the availability and capability of members.
The Board relies on the decision in Traugott Construction (Kitchener) Limited, [2000] OLRB Rep. March/April 406 which was a case that reviewed the factors in Weinmann in a similar situation to the instant case where no response had been filed and the employer requested reconsideration. In dealing with the issue of the prejudice incurred by having a matter dealt with by default rather than on the merits the Board stated the following in paragraph 12:
Traugott, supra, also alleges that:
“It is important and in the interests of both parties, that this issue be decided on its merits rather than by default. The parties have an ongoing relationship in the general contracting field, and numerous projects will be engaged in the future involving the very issue before the Board. It is therefore in the interests of certainty and finality … that this issue be decided now on the merits, rather than at some point in the future”.
If the matter is one which requires litigating, it is surely simple enough for Traugott, to create a situation where the issue can be the subject of a grievance and determination by the Board. As stated in Weinmann, aside from determining the outcome of the specific grievance which is the subject matter of the referral, a default decision by the Board on a section 133 application in the circumstances has no precedential value whatsoever in any future grievance or jurisdictional dispute. Accordingly, this is not a consideration favouring Traugott.
Therefore the contention that the responding party has through the default process lost the ability to deal with this issue is not a factor favouring the responding party in these circumstances.
Having regard to the error contained in the default decision that decision is amended by replacing paragraph 10(b) and 11(b) as follows:
10(b) “the responding party violated the Collective Agreement by employing persons who are not members of Local 183, and/or by engaging sub-contractors who are not in contractual relations with Local 183, to perform work covered under the scope and recognition clauses of the Collective Agreement and/or by failing to pay the correct wage rates and any other monetary payments required by the Collective Agreement, on behalf of employees;”
11(b) - “declares that Donald Construction Limited violated the Collective Agreement by employing persons who are not members of Local 183, and/or by engaging sub-contractors who are not in contractual relations with Local 183, to perform work covered under the scope and recognition clauses of the Collective Agreement and/or by failing to pay the correct wage rates and any other monetary payments required by the Collective Agreement, on behalf of employees.”
- Having regard to the above, the application for reconsideration is dismissed.
“Marilyn Silverman”
for the Board