Ontario Labour Relations Board
File No.: 2642-99-G Date: February 11, 2000
Between: Brick and Allied Craft Union of Canada (the Brick Employee Bargaining Agency, formerly Ontario Provincial Conference of International Union of Brick and Allied Craftsmen), Applicant v. Durie Tile and Marble, Responding Party.
Before: M. A. Nairn, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
Appearances: Andrea Bowker and Tom Oldham for the applicant; no one appeared on behalf of the responding party.
DECISION OF THE BOARD
1The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination.
2At the time scheduled for the hearing no one had appeared on behalf of the responding party. The panel waited until 10:00 a.m. and then convened the hearing.
3We heard from the applicant and received a number of exhibits. That documentary material shows that Michael Durie acknowledges arrears in the payment of remittances pursuant to the provincial collective agreement between the Brick and Allied Craft Union of Canada/BAC-Canada and the Terrazzo, Tile and Marble Guild of Ontario Inc., effective until April 30, 2001.
4Michael Durie is the principal of the responding party. Mr. Durie was a signatory to the collective agreement on behalf of the Terrazzo, Tile and Marble Guild of Ontario Inc. Appendix A1 lists "Durie Tile and Terazzo Limited" as a member of the Guild. Appendix A2 to the collective agreement lists "Durie Mosaic and Marble Ltd." as bound to the collective agreement. On the basis of the material before us, there seems little doubt that a business entity or entities operated by Mr. Durie are bound by this collective agreement. However we note that the named responding party does not correspond to either entity listed in the collective agreement. The correspondence received by the union from Michael Durie wherein he acknowledges arrears of the remittances is however filed from Durie Tile and Marble. The applicant is hereby directed to outline its position and any supporting documentation to the Board no later than February 17, 2000, at which time this panel will review that material for the purpose of amending the name of the responding party or taking such other action as is necessary.
5Subject to a review of those representations, the panel is satisfied that Michael Durie forwarded forwarded two cheques (cheque Nos. 3064 and 3068) to the applicant in respect of arrears of remittences. The applicant successfully negotiated cheque No. 3064 but was asked by Mr. Durie not to present cheque No. 3068. The applicant is prepared to accept the amount indicated on that second cheque as representative of the remittances owing for the period August – October, 1999.
6However, Mr. Durie has failed to provide the applicant or the International Union of Bricklayers and Allied Craftworkers, Local 7 ("Local 7") with any completed Employer Report Form or remittance form as is required by Article 18 of the collective agreement. Thus, neither the local union nor the employee bargaining agency can properly attribute the contributions to members on whose behalf the remittances are made.
7We have reviewed the correspondence from Mr. Durie and have this to note. Any ongoing dispute between the BACU and Local 7 is irrelevant to a responding party's obligation to prepare and submit these forms. It cannot form any basis for an excuse by a responding party for its failure to provide this information. That is an employer obligation – not any obligation of the trade union.
8Having regard to the circumstances before us we hereby:
(1) order Michael Durie to prepare or have prepared and to submit full, complete and accurate Employer Report Forms and/or remittance forms for the work period January 1999 up to and including January 2000 no later than February 18, 2000;
(2) direct Michael Durie to meet with the applicant at a meeting with a Labour Relations Officer from the Board in order to review any outstanding monies owing pursuant to the reports submitted. Should Michael Durie fail to attend at that meeting and/or should Michael Durie fail to provide the required documentation this matter will proceed to hearing in Toronto on Monday, March 13, 2000 to hear the evidence and representations of the parties in respect of the matters remaining in dispute, as set out in sub-paragraph 3 below.
(3) this matter is listed for hearing for March 13, 2000. Michael Durie is hereby ordered to attend that proceeding and to bring with him any and all records including but not limited to, all payroll records, contracts, invoices, time cards, employer lists, or other material which bears any information in respect of who performed work covered by the terms of the collective agreement for the work period between January 1999 and January 2000, and how much work was performed by any such individual. That hearing will convene at 9:30 a.m. in the "Board Room", 2nd Floor, Ontario Labour Relations Board, 505 University Avenue, Toronto, Ontario. Should Michael Durie fail to attend that hearing pursuant to this order of the Board, a warrant for his arrest may well issue.
9Subject to our review of the applicant's representations directed by paragraph 4 of this decision, further orders and directions may isse prior to this matter continuing. We note that the applicant is asserting its right to claim costs and penalties in accordance with the terms of the collective agreement. That matter will also be dealt with should it be necessary for the Board to convene the hearing.
10In the particular circumstances and in order to have this matter dealt with expeditiously, this panel will not be seized of the referral should it proceed on March 13, 2000. Matters to be dealt with prior to that time should be referred to this panel.
11Board File No. 2642-99-G is hereby referred to the Manager of Field Services for purposes of holding the meeting directed in paragraph 8(2) of this decision.
"M. A. Nairn"
for the Board