3704-99-G Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Applicant v. Lopes Drywall & Acoustics Inc., Responding Party.
BEFORE: M. A. Nairn, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
APPEARANCES: James Robbins and Wayne Gibson for the applicant; Ricardo Lopes appeared on behalf of the responding party.
DECISION OF THE BOARD; June 22, 2000
1This is a referral of a grievance in the construction industry brought pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”).
2At the outset of the hearing on June 21, 2000 the responding party, through its principal, Ricardo Lopes, sought an adjournment in order to retain counsel. That request was opposed. Mr. Lopes acknowledged receiving notice of the hearing dated April 28, 2000 and sent to the responding party’s correct address. He also acknowledged receiving a letter faxed to him from the applicant (the “union”) dated April 26, 2000 which confirms the parties’ agreement to reschedule the hearing date to June 21, 2000. Mr. Lopes’ request was based on his assertion that he did not realize which grievance was to be dealt with at this hearing. He made no inquiries of the Board and did not retain counsel to make any inquiries.
3We ruled that there was no basis for an adjournment. This referral was filed on March 15, 2000. Confirmation of Filing was sent by the Board to the responding party to the attention of Mr. Lopes by facsimile transmission at 416-654-7336 on March 16, 2000. There had already been an adjournment of the hearing. The responding party had ample time and opportunity in which to retain and properly instruct counsel in anticipation of the scheduled hearing date. By statute section 133 referrals are listed for hearing within 14 days of the referral. The amount of time available to prepare and respond must be measured against that standard. We ruled the hearing would proceed.
4The union then took the position that the responding party was not entitled to participate in these proceedings. There was no dispute that the responding party failed to file either a Form A-87, Notice of Intent to Defend, or a response, either in a timely way or at all. The Rules provide that the Form A-87 must be filed no later than five days after the date of the Confirmation of Filing sent by the Board. As noted, that Confirmation was sent on March 16, 2000, to a facsimile number confirmed as correct by Mr. Lopes.
5Rules 160 to 162 set out the consequences for a failure to comply. The requirement to file a Notice of Intent to Defend is not onerous. It essentially requires a responding party to sign the Form A-87 and forward it to the Board and to any other party. A response is required to be filed by the morning of the hearing. As noted, the responding party did neither in this case. The consequences set out in Rule 160 are clear. In addition Rules 41 and 42 set out the consequences for a failure to file a response. The only basis asserted by Mr. Lopes for relieving against the application of these Rules was that the parties were attempting to negotiate a settlement. This explanation cannot relieve against the requirement to respond to the formal proceedings against the responding party. The responding party has some familiarity with the Board’s procedures in this regard. (see decisions in Board File No. 1740-98-G). Even absent such familiarity, a party that does not respond does so at its peril. Thus we ruled that the responding party was not entitled to participate in the hearing.
6On inquiry by the panel, Mr. Lopes acknowledged that the responding party was bound to the collective agreements in issue, that it had performed the work in issue, and that it owed certain monies under those agreements. Mr. Lopes sought to dispute the amount of damages. We adjourned for a period in order to provide the parties with a further opportunity to resolve the matter between them. Absent a settlement we advised the union that we would reconvene and expect it to prove its damage claim. Upon reconvening we learned that the responding party did not participate in any further discussions. The matter was therefore not resolved, and the hearing proceeded in the absence of the responding party.
7We heard evidence from Wayne Gibson, Business Agent for the applicant, and we received documentation in respect of each claim set out at Schedule “A” of the referral. The claims arose from bargaining unit work performed on three sites. Two of the sites fell within the jurisdiction of the “residential” collective agreement; the third site was an ICI project. We received and reviewed Business Agent regular reports, remittance reports from the responding party and copies of cheques and pay stubs in respect of various employees. The applicant had prepared summary data and made reference to the applicable provisions of the collective agreements.
8Having regard to all of the material before us, we find and hereby declare that:
a) Lopes Drywall & Acoustics Inc. is bound to the Provincial Collective Agreement between the Carpenters’ Employer Bargaining Agency and the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America, (the “ICI agreement”) and to the Residential Agreement between the Interior Systems Contractors Association of Ontario and Drywall and Acoustic Lathing and Insulation, Local 675 (the “residential” agreement);
b) Lopes Drywall & Acoustics Inc. violated those collective agreements by failing to pay proper wage rates and by failing to make the proper benefit and other contributions as required by Articles 2.02, 6, and 9 of the ICI agreement and Articles 6, 8 and 9 of the residential agreement, in respect of the Providence Villa Centre, City Scapes, and Camden Lofts projects;
c) the applicant is entitled to damages in respect of these violations in the amount of $151,126.51; and
d) the applicant is entitled to liquidated damages in the amount of $1500.00 pursuant to Articles 9.07 and 9.18 of the ICI agreement and Article 9.04 of the residential agreement.
9Having further regard to these findings, we hereby order Lopes Drywall & Acoustics Inc. to pay forthwith to the applicant the sum of $152,626.51 as damages for its violations of the collective agreements.
“M. A. Nairn”
for the Board