3943-99-U Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Applicant v. Newmarch Inc. an Newmarch Mechanical Inc., Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; June 21, 2000
The Board hereby revokes its decision dated June 1, 2000 and replaces it with the following.
This is an Application under section 96 of the Labour Relations Act, 1995 (the “Act”) in which the applicant is seeking to enforce the terms of minutes of settlement. The minutes of settlement were executed on February 14, 2000 and are in relation to Board File No’s. 2251-99-R and 1479-99-G. The minutes of settlement are reproduced as follows:
Board Files
2251-99-R
1479-99-G
Minutes of Settlement
Between:
Ontario Pipes Trades Council and U.A. Local 46 et al
The Union
and
Newmarch Inc. and Newmarch Mechanical Inc.
Terms
The parties agree to the full and final settlement of these matters on the following basis:
The Respondents agree that they are to be treated as one employer for the purposes of the Labour Relations Act in relation to all work traditionally performed by Newmarch Inc. within the jurisdiction of the Union. The parties acknowledge that the non-construction maintenance and service work currently being performed by Newmarch Mechanical Inc. will not be affected by these Minutes of Settlement and may continue to be performed non-union.
The Respondents confirm that there are no other companies which may be related to them as defined by the Labour Relations Act which are doing work traditionally performed by Newmarch Inc.
The Respondents (or either of them) shall pay the sum of $17,000 on the following schedule:
March 1st 2000 $2,000
April 1st 2000 2,000
May 1st 2000 2,000
June 1st 2000 2,000
July 1st 2000 2,000
Aug 1st 2000 2,000
Sept 1st 2000 2,000
Oct 1st 2000 2,000
Nov 1st 2000 1,000
Cheques to be post dated and delivered to the firm of Arnold, Falzone & Fyshe, but made payable to U.A. Local 46, to be delivered on or before March 1st 2000.
The Respondents acknowledge that RAM Plumbing and Mechanical Inc. is not a union contractor with U.A. Local 46 or the United Association and any of its member Locals.
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.
This agreement is without prejudice or precedent of any other Union’s potential related employer application.
Dated this 14th day of February 2000
“Dan McBride” . “Stan Newmarch” .
U.A. Local 46 and Newmarch Inc.
Ontario Pipe Trades
Council etc. [the Union] “Stan Newmarch” .
Newmarch Mechanical Inc.
The application was filed with the Board on March 30, 2000. According to the Certificate of Delivery, the responding parties were served with a copy of the application on March 29, 2000. Paragraph 4 of Form C-21 (Notice to Responding Party and/or Affected Party of Application Regarding Failure to Comply with Terms of Settlement) advises that a response must be filed with the Board no later than 10 days after the application was delivered to the responding parties. As of the date of this decision, the responding parties have failed to file a response.
The applicant advises that Newmarch Inc. stopped payment on the March 1, 2000 cheque in the amount of $2,000. Newmarch Inc. admits as such in its correspondence to the Board dated April, 2000 in which it states that it is unable to comply with the terms of the minutes of settlement.
The Board is also in receipt of correspondence dated May 31, 2000 from counsel for the applicant in which the Board is asked to enforce the terms of the minutes of settlement based on the materials which have been filed with the Board.
Rule 41 of the Board’s Rules of Procedure permits the Board to decide an application based on the materials before it. Rule 41 reads as follows:
If a party receiving notice of an application does not file a response in the way required by these Rules, he or she may be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing or consultation, if one is scheduled, and decide the case upon the material before it without further notice.
The consequences of failing to file a timely response are also set out at paragraph 7 of Form C-21:
If you do not file your response and other required documentation in the way required by the Board’s Rules, the Board may not process your response and documents, and may decide the application without further notice to you. Furthermore you may be deemed to have accepted all the facts stated in the application.
Pursuant to Rule 41, the Board deems the responding parties to have accepted all of the facts stated in the application. The Board finds that the responding parties have failed to comply with the terms of a settlement of a Board proceeding.
Accordingly, the Board hereby orders Newmarch Inc. and Newmarch Mechanical Inc. pay to the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, the sum of $17,000 on the following basis:
March 1st 2000 $2,000
April 1st 2000 2,000
May 1st 2000 2,000
June 1st 2000 2,000
July 1st 2000 2,000
August 1st 2000 2,000
September 1st 2000 2,000
October 1st 2000 2,000
November 1st 2000 1,000
“John Morgan Lewis”
for the Board