0976-00-G The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, Applicant v. Newmarch Inc. and Newmarch Mechanical Inc., Responding Parties.
BEFORE: Brian McLean, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; October 17, 2000
This is a grievance which has been referred to the Board pursuant to section 133 of the Labour Relations Act, 1995 (“the Act”).
This matter was originally scheduled for hearing on July 25, 2000. At that time, and confirmed by decision dated July 26, 2000, the Board issued several orders and directions, including:
the responding party may file a statement of defence by August 8, 2000;
the statement of defence shall include particulars of any sub-contractors used at the Wrigleys Canada Inc. plant, the Thermos plant or on the Defence Canada job (“the jobs”) as referred to in the applicant’s statement of material facts;
any payroll documents concerning the jobs and as regards the use of mechanical trades and labourers doing underground work on the jobs shall be produced for the applicant by August 8, 2000;
Mr. Harry Krohm, Mr. Keith Taylor and Mr. Dave Schaub shall remain available to testify at the hearing on August 15, 2000, if required;
all documents produced for the applicant shall be used only for these proceedings;
the application is adjourned to Tuesday, August 15, 2000 commencing at 9:30 a.m. in the “Board Room”, 2nd Floor, 505 University Avenue, Toronto, Ontario.
Counsel for the responding parties, by letter to the Registrar dated August 8, 2000 requested an extension of the time to file a statement of defence to September and an adjournment of the hearing to October. By decision dated August 8, 2000 the Board denied that request.
Following the Board’s decision, counsel for the responding parties wrote to the Board by letter dated August 8, 2000 as follows:
“In light of the decision of the Board forwarded late this afternoon, please be advised that it is respectfully submitted that the allegations as generally made against Newmarch Inc. and Newmarch Mechanical Inc., are false or not as stated in the Application”.
At the commencement of the hearing into these matters, the trade union requested that the Board declare, without a hearing into the merits of the grievance, that the responding parties were in violation of the collective agreement because they had not filed a statement of defence which complied with the Board’s Rules and the Board’s decision dated July 26, 2000 in that there were no particulars of “any subcontractors used at the Wrigleys Canada Inc. plant, the Thermos plant, or on the Defence Canada Inc. job … as referred to in the applicant’s statement of material facts”. Moreover, the responding parties had not delivered any payroll documents as required by the Board’s decision. The responding parties strenuously resisted the trade union’s request. Counsel for the employer urged the Board to allow a full hearing so that the true facts could emerge. Counsel also argued that the company did not have time to comply with the Board’s order, but was prepared to proceed.
At the hearing the Board made the following oral ruling:
For reasons which will be explained more fully in the written decision, we deem that the allegations advanced by the union in its grievance are true. The responding party has not filed a reply or statement of defence as required by the Board’s Rules and the Board’s decision dated July 26, 2000. Accordingly, we have decided the case on only the material with the application, that there is a violation of the collective agreement and proceed to the issue of damages.
- In our view, the letter from counsel for the employers did not in any sense comply with the Order of the Board dated July 26, 2000 since counsel’s letter provided none of the information required by the Board’s Rules and in any event did not give the particularity required by the Board’s Rules of Procedure. In such circumstances, Rules 160 and 161 apply, which state:
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.
In our view, sub-paragraph 1) of the Board’s decision dated July 26, 2000 did not in any sense give the employer the option of filing a statement of defence, unless it did not want to contest the grievance. If the employer wished to contest the grievance, a statement of defence was required and it must have contained the information set out in paragraph 2 of the Board’s decision, that is, particulars of sub-contractors used at the Wrigleys plant, the Thermos plant and in the Defence Canada job.
Under the circumstances, the Board determined that it must allow the grievance because the responding party did not file a defence as it was required to.
The trade union next led evidence regarding the damages portion of their case. The trade union reviewed the invoices and other documents which had been provided under subpoena. From these documents, it determined the number of hours which ought to have been worked by its members and the rate of pay which ought to have been paid. The most conservative calculation results in a total of $38,062.23 owing to the trade union. In addition, the responding parties had previously settled grievances with the trade union. Those Minutes of Settlement contained the following clause:
- The Respondents agree that, if the Union is successful in any grievance relating to work performed after the date of the signing of this agreement within one year of that date, they will pay 20% extra in damages on top of any damages awarded by the Board.
Mr. Newmarch testified on behalf of the responding parties. He testified that he disagreed with the fact that the work in question was the applicant’s work but the companies’ financial problems prevented him from mounting a defence.
Based on the evidence presented to us, we are satisfied that the amounts claimed by the trade union are appropriate and are the union’s losses arising out of the breach of the collective agreement by the employer.
Accordingly, the Board orders that Newmarch Inc. and Newmark Mechanical Inc. pay to The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, forthwith the sum of $45,674.68, which is $38,062.23 in wages which ought to have been paid to the trade union members, plus the 20% extra damages referred to in paragraph 5 of the Minutes of Settlement.
“Brian McLean”
for the Board