1471-00-G The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, Applicant v. Atlantic HVAC Systems Ltd., Responding Party.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; September 1, 2000
This is an application for the referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (the "Act"). The Registrar served a Notice of Hearing on the responding party indicating this matter would be heard on September 1, 2000. In addition, the applicant caused a summons to witness to be served on Mr. Kevin Treharne, a principal of the responding party requiring him to attend on that date. No one from the responding party appeared on September 1, 2000.
Mr. Treharne delivered a letter to the Board and to counsel for the applicant indicating that he would not attend. He stated that, had he been served with a copy of the summons prior to August 29th he would have been able to change his plans for the holiday weekend and appear. The Notice of Hearing was delivered to the responding party by facsimile copier on August 21, 2000. The Notice states clearly:
IF YOU DO NOT ATTEND THE HEARING, THE BOARD MAY DECIDE THE REFERRAL WITHOUT FURTHER NOTICE TO YOU AND WITHOUT CONSIDERING ANY DOCUMENT YOU HAVE FILED.
In any event, prior holiday weekend plans are not a valid reason for failing to respond to a summons to witness.
Accordingly, the Board commenced its hearing at 10:30 a.m., one hour after the hearing was scheduled to commence. There is no question that the responding party is bound to the collective agreement between the Mechanical Contractors Association of Ontario and the Ontario Pipe Trades Council. A certificate dated October 29, 1999 was filed and the responding party in its letter confirms that the responding party is bound. Further, there is no dispute that the responding party employed members of the applicant during the relevant period of time.
The applicant’s evidence was that the responding party had paid all the fringe benefit contributions for the months of June and July but had not paid them for the months of February 1 to May 30, 2000. On the basis of the Union’s evidence the amount owing for those fringe benefits is $9,787.92. In addition, the responding party has failed to pay a wage increase required by the collective agreement effective May 1, 2000. The damages arising from this violation are $1,100.00. Pursuant to Article L of Appendix 11, the liquidated damages arising from these two violations of the collective agreement is $1,088.80. The total damages arising from these violations are therefore $11,976.72.
Pursuant to Article L-4 of Appendix 11, this amount is subject to interest at the rate of 2% per month or 24% per year until it is paid.
In addition, the applicant requested that the responding party be ordered to pay costs in the amount of its filing fees pursuant to section 133(13), being $763.00. It is appropriate to do so and the Board so orders. The applicant also requested that the Board order the responding party to reimburse it for the cost of service of the summons and the amount of conduct money included with it. The Board has no jurisdiction to do so and denies this request.
Although the submissions of the responding party are not properly before the Board, some comment may be useful. First, the applicant is not, as the responding party submits, required to produce copies of the Certificates of Qualification of its members employed by the responding party. The applicant indicated at the hearing that all members carry their Certificates with them and the responding party is entitled to request production of them. Further, if the responding party genuinely believes that a member referred to his company is incapable of performing the available work, his proper recourse is to call the applicant and request that the member be replaced. If the matter is not solved to the satisfaction of the responding party, it may exercise any other of its management’s rights, including, if appropriate, discharge. Such an act may well be subject to a grievance from the employee and the Union. However, a refusal to pay some of the wages or fringe benefits for work performed is not an acceptable response. It is a violation of the collective agreement to do so. Even if the facts alleged in the responding party’s letter were true, they would not be a valid defence to the grievance.
The Board orders the responding party to pay to the applicant forthwith the sum of $11,976.72 plus interest at the rate of 24 % per year until the amount is paid. The Board further orders the responding party to pay to the applicant the sum of $763.00 for costs.
“David A. McKee”
for the Board