Ontario Labour Relations Board
File No.: 3719-99-G Date: March 29, 2000
United Brotherhood of Carpenters and Joiners of America, Local 2041, Applicant v. Cambareri Construction Inc., Responding Party.
Before: D. L. Gee, Vice-Chair.
DECISION OF THE BOARD
1This 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 16, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on March 15, 2000 by the applicant having delivered a copy of the necessary documents required by Rule 155 of the Board’s Rules of Procedure to the responding party by facsimile transmission. 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) 256-0317 on March 16, 2000 at 2:06 p.m.
2On March 24, 2000, the applicant wrote to the Board to advise that, since the filing of the grievance, the responding party has become delinquent on its February remittances. The applicant requests that the Board order the responding party to pay damages to the applicant, arising out of the failure to make remittances for the month of February 2000, in the amount of $5,101.1l. The applicant did not send a copy of such letter to the responding party.
3The Board’s Rules stipulate that, where a responding party fails to file a Request for Hearing and Notice of Intent to Defend as required by the Rules he or she may automatically be deemed to have accepted all of the facts stated in the application. The fact that the responding party herein failed to make remittances for the month of February 2000 in the amount of $5,101.11 is not stated in the application. Given that the applicant’s March 24, 2000 letter was not copied to the responding party the Board has no knowledge of whether the responding party is even aware that such an allegation has been made by the applicant. In the circumstances, the Board is not prepared to make an order in connection with the February 2000 remittances. There are, however, portions of the referral that the Board is prepared to issue a final determination with respect to.
4As 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.
5Section 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.”
6In 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.”
7Furthermore, 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.)
8The 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, 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 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).
9The 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.
10The 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.”
11The 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.”
12Accordingly, 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:
(i) The responding party is bound to the Provincial Collective Agreement entered into between the Carpenters Employer Bargaining Agency and the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America (the “collective agreement”).
(ii) The responding party has violated the terms of the collective agreement, namely articles 4, 5, 6, 7, 8, 9 and 10 of the Master Portion of the collective agreement and articles 4, 5, 6, 7 and 10 of the Acoustic and Drywall Appendix of the collective agreement as described below.
(iii) The responding party performed work at the Tubman Funeral Home and Canadian Waste Service job sites covered by the terms of the collective agreement using non-union members. The applicant had unemployed members ready, willing and able to perform work in question.
(iv) As at the date of the filing of the grievance, damages arising out of the use of non-union labour at the Tubman Funeral Home and the Canadian Waste Service job amounted to $5,113.74 and $18,883.86 respectively.
(v) The responding party failed to pay proper wages, vacation pay, benefit contributions and union check off in respect of work performed by a number of employees on a job at Canadian Forces Base Petawawa for the months of July and August, 1999 in the amount of $2,848.37.
(vi) The responding party failed to pay proper vacation pay, benefit contributions and union check off in respect of work performed by Dillion Lacroix on a job at CFB Petawawa in the amount of $729.41.
(vii) The applicant has incurred $214.00 in costs in connection with the filing of this grievance.
13In view of the Board’s findings above, the Board therefore:
(i) declares that the responding party is bound to the Provincial Collective Agreement entered into between the Carpenters’ Employer Bargaining Agency and the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America (the “collective agreement”);
(ii) declares that the responding party has violated the terms of the collective agreement, namely articles 4, 5, 6, 7, 8, 9 and 10 of the Master Portion of the collective agreement and articles 4, 5, 6, 7 and 10 of the Acoustic and Drywall Appendix of the collective agreement as described below;
(iii) orders the responding party to pay to the applicant, on its own behalf and on behalf of its members, damages in the amount of $27,575.38 forthwith;
(iv) orders the responding party to pay to the applicant its costs of filing the instant application in the amount of $214.00.
14In the particulars accompanying the grievance, the applicant calculated its damages relating to the Canadian Waste Service job to March 7, 2000 and then provided the Board with calculation of its damages on a daily basis thereafter. The applicant asserts that the job will be completed after the filing of the grievance and seeks damages on the basis that four non-union members will work on the job until completion. The applicant states that there “is three weeks of work remaining”. As indicated above, this application was filed on March 16, 2000. The manner in which the applicant pleaded its damages with respect to the Canadian Waste Services job suffers from a number of problems. First, it is not clear whether the applicant asserts that there will be three weeks of work after March 7, 2000 or after the date of filing the grievance – a difference of 7 business days. Further, the applicant could have but did not perform the arithmetic as to what was owing on the Canadian Waste Services job up to the date of filing the grievance. While the applicant provided the Board with the numbers of make a further calculation up to the date the grievance was filed, such is not the Board’s function. Parties that wish a default judgment must fully calculate the amount of damages that they are requesting the Board to order. Finally, the applicant is seeking damages that it anticipates will arise after the filing of the grievance. Such damages are entirely speculative.
15The Board has awarded the applicant damages relating to the Canadian Waste Service job for the period February 24 through to and including March 16, 2000, the date on which the application was filed. The Board declines to award the applicant damages for any period of time post dating the grievance referral.
16Having regard to the foregoing, the hearing date of March 30, 2000 is hereby adjourned sine die. The applicant may, at its request have this matter set down for a future date of hearing should the applicant wish to seek damages relating to the responding party’s failure to make remittances for February, 2000 relating to the Canadian Waste Services job and use of non-union labour after March 16, 2000. Should the applicant wish to pursue such damages it must advise the responding party of its intention to do so no less than five (5) calendar days in advance of any hearing date. The applicant is reminded that the Board’s Rules require all correspondence set to the Board to be copied to all other parties and for the correspondence to indicate on its face that such has been done.
17If the applicant does not request that this matter be set down for hearing within one year from the date hereof, it will automatically be deemed to be terminated.
18This panel is not seized.
“D. L. Gee”
for the Board