0669-00-G United Brotherhood of Carpenters and Joiners of America 1946, Applicant v. Barwood Flooring Limited, Responding Party.
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; August 22, 2000
This is a request for reconsideration of the Board’s decision in this matter dated June 16, 2000.
The responding party asks the Board to schedule a new hearing to present its case. In support for this request for reconsideration the responding party states as follows:
July 12, 2000
I left my office on Friday June 2, 2000 for a family vacation and returned on Tuesday June 20, 2000. The facsimile transmission from Mr. Warren Cox advising of a Pre-hearing meeting was sent to my office on Monday June 5, 2000. I am the only officer of my Company (100% ownership) and as per usual any incoming faxes sent to my attention are placed directly on my desk. Unfortunately I was not aware of the pre-hearing meeting and regrettably did not attend. On my departure I knew that the hearing for this case was scheduled for July 4, 2000. When I returned from vacation on June 20th I was naturally shocked to read of the board's decision. In light of these circumstances I would kindly ask that the Board reconsider it's [sic] decision and allow for a new hearing.
Thank-you,
Barwood Flooring
“Vito DiFranco”
Vito DiFranco, President
The decision of June 16, 2000 was issued pursuant to section 133 of the Labour Relations Act, 1995 and the Board’s Rules. The Certificate of Delivery states that the responding party was served on May 30, 2000 with the required documents.
In paragraph 8 of the Referral of Grievance to Arbitration (Construction Industry) the applicant union asked the Board to determine this matter based only on the materials filed and without a hearing if the responding party fails to file a Request for Hearing and Notice of Intent to Defend/Participate.
The application, Form A-86, served on the responding party, Barwood Flooring Limited, sets out in detail what orders and declarations the union was seeking. In its application the union listed the facts it intended to rely on in support of those orders and declarations and specified the amount of damages.
On June 1, 2000 the Board send out its own confirmation of Filing of Referral of Grievance to Arbitration and Notice of Hearing (Form B-67) to the parties, including Barwood Flooring Limited. Mr. Vito DiFranco, President of Barwood, does not dispute that he received this notice prior to leaving on his vacation. Mr. DiFranco was aware of the hearing date set for this matter which is part of the information contained in the Board’s notice. Form B-67 sets out in some detail what a responding party must do to avoid the very situation that Mr. DiFranco now finds himself in. It should not have come as a surprise to Mr. DiFranco that the Board issued a “default decision” and cancelled the hearing in this matter, when the responding party failed to file a response. The last paragraph in section 3 of the Board’s notice states:
“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.”
The application clearly states that should the responding party fail to file a reply indicating it would defend/participate in this grievance the applicant union asked this referral be determined without a hearing. That request together with the information contained in the Board’s Notice made it clear what the consequences would be should the responding party fail to respond to the application.
Mr. DiFranco was aware of the requirements and the consequences should he fail to comply. All that was required of the responding party to avoid this default proceeding was to complete the Form A-87 supplied by the applicant and deliver it to the Board and the applicant, within five days 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 indication that it intends to defend against the grievance referral. Mr. DiFranco does not explain why the responding party chose not to file a Request for Hearing and Notice of Intent to Defend/Participate.
In the circumstances the Board is not persuaded to reconsider its decision dated June 16, 2000. This request for reconsideration is hereby dismissed.
“Inge M. Stamp”
for the Board