Operative Plasterer’s and Cement Masons’ International Association of the United States and Canada – Local Union 124 v. Cambareri Construction Inc.

2474-98-G Operative Plasterer’s and Cement Masons’ International Association of the United States and Canada – Local Union 124, Applicant v. Cambareri Construction Inc., Responding Party.

4309-98-U Operative Plasterer’s and Cement Masons’ International Association of the United States and Canada, Local 124, Applicant v. Cambareri Construction Inc., Rocco Cambareri and Grazia Cambareri, Responding Parties.

4311-98-G Operative Plasterer’s and Cement Masons’ International Association of the United States and Canada – Local 124, Applicant v. Cambareri Construction Inc., Responding Party.

3348-99-G Operative Plasterer’s and Cement Masons’ International Association of the United States and Canada, Local 124, Applicant v. Cambareri Construction Inc., Responding Party.

3352-99-U Operative Plasterer’s and Cement Masons’ International Association of the United States and Canada, Local 124, Applicant v. Cambareri Construction Inc. and Rocco Cambareri, Responding Parties.

3509-99-U Operative Plasterer’s and Cement Masons’ International Association of the United States and Canada Local Union 124, Applicant v. Cambareri Construction Inc. and Rocco Cambareri, Responding Parties.

BEFORE: John Morgan Lewis, Vice-Chair, and Board Members J. G. Knight and A. Haward.

APPEARANCES: J. Craig Morrison and Richard Corcoran for the applicant; no one appearing for the responding party.

DECISION OF THE BOARD; June 14, 2000

1. Over the last few years, the parties have been litigating a series of grievances and unfair labour practice complaints. By way of endorsement dated April 18, 2000, the Board scheduled all of these matters to be heard together. On the day scheduled for hearing these matters, no one appeared on behalf of the responding parties. The Board satisfied itself that the responding parties were provided with the Notice of Hearing and in keeping with its normal practice, commenced the hearing at 10:00 a.m. The Board’s Notice of Hearing sets out the consequences of failing to attend at the hearing. Paragraph 3 of the Notice of Hearing states:

IF YOU DO NOT ATTEND THE HEARING, THE BOARD MAY DECIDE THEAPPLICATION WITHOUT FURTHER NOTICE TO YOU AND WITHOUT CONSIDERING ANY DOCUMENT FILED BY YOU.

2. It would be useful at this point to provide a brief summary of the various matters before the Board. On September 1, 1999, the parties entered into Minutes of Settlement in resolution of Board File Nos. 2474-98-G, 4311-98-G and 4309-98-U, which as the parties requested, be incorporated as a decision of the Board. The Minutes of Settlement are set out as follows:

ONTARIO LABOUR RELATIONS BOARD

File Nos. 2474‑98‑G

4309‑98‑U

4311‑98‑G

BETWEEN:

Operative Plasterers & Cement Masons' International Association of the United States and Canada, Local 124

Applicant,

‑ and ‑

Cambareri Construction Inc. & Rocco Cambareri & Grazia Cambareri

Responding Parties.

MEMORANDUM OF AGREEMENT

Whereas the Applicant in this matter alleged that the Responding party is bound to the collective agreement(s) referred to in paragraph 1 below;

And whereas the Responding party acknowledges that it is bound to this/these agreement(s);

Therefore the parties agree to settle this matter on the terms set out below and request the Board incorporate the following in a decision as a consent order.

1. A Declaration that the Responding Party is bound to the collective agreement effective May 1, 1998 to April 30, 2001 as between Operative Plasterers Cement Masons' International Association of the United States and Canada, Local 124 and Cambareri Construction Inc..

2. A Declaration that the Responding Party has agreed to abide by the full terms and conditions of the above‑mentioned collective agreement.

3. A Declaration that the Responding Party has violated the collective agreement mentioned above and in particular articles 2, 3, 4, 5, 6, 7, 11, 12, 13, and 14.

4. An order that the Responding party, Cambareri Construction Inc. pay to the Applicant, in 16 (sixteen) monthly instalments of $3000.00 (Three thousand dollars) the sum of $48,000 (forty‑eight thousand) dollars.

5. An order that the payments be made on the 15th (fifteenth) of each month, commencing on September 15th, 1999.

6. An order that the payments be sent by the Respondent Rocco Cambareri to the Applicant's office on or before the 15th of each month, by Purolator Courier. If the Responding Party so chooses, it may make such payments via a series of post‑dated cheques.

7. An order that default in any of the above payments results in personal liability on the part of the Respondent Rocco Cambareri to the Applicant in the amount of $143,000 (one hundred forty‑three thousand dollars) payable immediately, less any amounts already paid by the Respondent, subject to Paragraph 10, below.

8. An order that the Responding Party Cambareri Construction Inc. is to inform the applicant of the commencement of each job by facsimile.

9. An order that should the Responding Party Cambareri Construction Inc. be found by the Board to have breached Article 3 or 12 of the Collective Agreement during the two year period following the date of these minutes of settlement, then the Respondent Rocco Cambareri shall be liable to the Applicant in the amount of $143,000 (one hundred forty‑three thousand dollars) in his personal capacity, subject to Paragraph 10 below.

10. With reference to paragraphs 7 and 9, the Parties agree that if the Responding Party, Rocco Cambareri, is able to demonstrate to the Board that there was reasonable cause for either the breach of the articles referred to in Paragraph 9, or reasonable cause for the failure to make payment(s) under Paragraph 7, there shall be no personal liability on the part of Rocco Cambareri. The parties agree that the onus to prove such reasonable cause shall be on the Responding Party. "Reasonable cause" shall be deemed to include (but not be limited to) death or other serious incapacity, or a downturn in the construction industry which results in Cambareri Construction being unable to obtain sufficient work.

11. The parties agree that N. Perez has been provided with a copy of his Record of Employment.

12. The panel shall remain sized to deal with the implementation of these Minutes.

Dated at Toronto this 1st day of September, 1999.

("R. Camberari") ("R. Corcoran") .

R. Camberari R. Corcoran

3. Pursuant to the parties’ request, the Board incorporated the Minutes of Settlement in a decision issued on September 13, 1999.

4. The applicant received the first two installments of the payment schedule in the amounts specified in paragraph 4 the Minutes of Settlement. However, Cambareri Construction Ltd. (“Cambareri”) failed to make the required payment on November 15, 1999. Cambareri did write to the Board on November 15, 1999 seeking an order relieving it of its obligations under the Minutes of Settlement pursuant to paragraph 10 thereof. Cambareri has subsequently failed to make any further payments to the applicant.

5. In addition to failing to comply with the Minutes of Settlement, Cambareri was also delinquent in remitting benefits to the applicant for the month of November 1999. The applicant filed a grievance with respect to the delinquent November benefits and referred it to the Board for arbitration on February 16, 2000 (Board File No. 3840-99-G). Cambareri did not file a Notice of Intent to Defend/Participate (Form A-87) in the time prescribed by the Board’s Rules of Procedure. Accordingly, on April 3, 2000 the Board (differently constituted) issued a default decision and found, inter alia, that Cambareri had violated articles 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14 and Appendix “E” of the Plasterers’ Collective Agreement.

6. On February 16, 2000, the applicant had also filed an application under section 96 of the Act seeking to enforce the Minutes of Settlement (Board File No. 3352-99-U). Cambareri filed a response to these matters on February 25, 2000. By way of correspondence dated February 28, 2000, the Registrar of the Board advised Cambareri that its response could not be processed, as it had not been filed in compliance with the Board’s Rules of Procedure. On April 18, 2000, counsel for Cambareri requested an extension to May 1, 2000 for the filing of a response. Although the Board granted the extension, Cambareri never did file a response.

7. Finally, on March 1, 2000, the applicant filed an application regarding the failure to comply with terms of settlement pursuant to section 96(7) of the Act. This matter was assigned Board File No. 3509-99-U. The applicant listed Cambareri and Rocco Cambareri as the responding parties. Neither filed a response with the Board. In this application, the applicant is seeking the enforcement of paragraphs 7 and 9 of the Minutes of Settlement; namely, that the Board order Rocco Cambareri to pay to the applicant the sum of $137,000 ($143,000 less $6,000 already received by the applicant) as both of the two conditions precedent for the imposition of personal liability have been met.

8. The Board is satisfied that it has the jurisdiction to order Rocco Cambareri, in his personal capacity, to make payment to the applicant in the manner contemplated in the Minutes of Settlement. Reference is made to the Board’s decision in Hyde Park Concrete Co. [1998], OLRB Rep. Nov./Dec. 974 and the following passage from Mount Royal Concrete Floor (Canada) Ltd. [1998] O.L.R.D. No. 2539 found at paragraph 11:

9. Upon hearing the representations of the applicant and Mr. Pitcher, the Board ruled, orally, in favour of the applicant. The Board was satisfied that the intent of the settlement agreement between the parties was that so long as Mount Royal continued to operate and make payments in accordance with the protocol the parties had agreed to, Mr. Pitcher’s personal guarantee could not be invoked, and would in fact be reduced by the amount of Mount Royal’s payments. However, the settlement contemplated that Mount Royal would continue to operate, and that the first $75,000.00 of the total settlement amount was guaranteed by Mr. Pitcher, a directing mind of Mount Royal, in the event that Mount Royal stopped making payments for any reason. To interpret the settlement otherwise would enable Mr. Pitcher to in effect unilaterally deprive the applicant of the benefit of the settlement it had achieved, and would make his guarantee virtually meaningless. The Board was therefore satisfied that the applicant union was entitled to invoke Mr. Pitcher’s personal guarantee under the settlement agreement.

10. As noted previously, Cambareri and Rocco Cambareri failed to file a proper response in any of these matters and also failed to attend at the hearing. In accordance with Rules 41 and 46 of the Board’s Rules of Procedure, they are deemed to accept all of the facts asserted by the applicant in these files. Accordingly, the Board finds that Cambareri defaulted on the payment schedule set out in paragraph 4 of the Minutes of Settlement. This satisfies the condition precedent set out in paragraph 7 of the Minutes of Settlement. The Board notes that Cambareri attempted to avail itself of the protection afforded by paragraph 10 in the Minutes of Settlement when it wrote to the Board on November 15, 1999. By failing to file a reply and attend the hearing, however, there was no evidence put before the Board on this point and therefore it cannot be considered.

11. The Board also finds that the condition precedent in paragraph 9 has occurred. In its decision dated April 3, 2000 the Board found that Cambareri breached a number of provisions of the Plasterers’ Collective Agreement including Articles 3 and 12. Such a finding is precisely what the parties contemplated would trigger the personal liability on the part of Rocco Cambareri as set out in paragraph 9 of the Minutes of Settlement.

12. Having considered the evidence, both documentary and viva voce, and the submissions of counsel for the applicant, the Board orders Rocco Cambareri to pay to the applicant the sum of $137,000 forthwith.

“John Morgan Lewis”

for the Board