3235-99-G Labourers’ International Union of North America, Local 1059, Applicant v. Traugott Construction (Kitchener) Limited, Responding Party.

BEFORE: David A. McKee, Vice-Chair, and Board Members G. Pickell and A. Haward.

DECISION OF THE BOARD; March 29, 2000

1This is an application for reconsideration pursuant to section 114 of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (the “Act”) of a decision of the Board dated February 14, 2000. In that decision the Board found that the responding party, Traugott Construction (Kitchener) Limited (“Traugott”) had failed to deliver a Request for Hearing and Notice of Intent to Defend (“Form A-87”) in the manner required by the Rules. Accordingly, the Board deemed the facts in the application to be true and made a finding of liability, but pursuant to Rule 161, found that it could not determine the question of damages and left that issue to be determined at a hearing. The hearing was set for February 16, 2000. Traugott filed a request for reconsideration on February 15, 2000 and the applicant in fact responded to it on that day. The Board was unable to respond to that request on February 15, as two members of the panel were engaged in a hearing that day. Further, the Board also wished to have the parties’ submissions on the issues raised in a similar request for reconsideration in Weinmann Electric Limited (decision dated February 16, 2000, Board File 2519-99-G). Both parties filed their submissions on February 23, 2000. The Board has been unable to deal with this request before this date due to a lengthy planned vacation of one member of the panel.

2The parties addressed the four considerations set out at paragraph 15 of Weinmann, which are as follows:

(1) whether the circumstances giving rise to the default are adequately explained, that is, some explanation is given as to why the A-87 Notice was not filed in the first place;

(2) whether the request for reconsideration was brought as soon as possible after discovering that a decision had been issued;

(3) whether the responding party can demonstrate that there is a real and substantial defence to the grievance and that the matter is of sufficient importance to the ongoing relationship of the parties that the original decision should be set aside and the matter relitigated;

(4) whether there is any prejudice to the applicant or, if so, the extent of such prejudice.

3Neither party suggested that these considerations were not appropriate, nor did either one suggest any other considerations which might be appropriate. The Board finds that these considerations are still the proper framework in which to analyze a request for reconsideration.

Circumstances Giving Rise to the Default

4Traugott asserts that it did not receive a copy of the referral, although it candidly acknowledges that:

“A review of [Traugott’s] facsimile machine’s memory files subsequent to the Board’s February 14, 2000 decision revealed that the machine did receive a facsimile from the [union] on February 1, 2000. No printed copy was ever produced”.

The Board can only conclude that Traugott’s fax machine received the transmission, but due to some technical problem in the machine, did not print out the transmission. On these facts, the Board concludes that the application was delivered by the union, which utilized one of the methods of delivery provided for in Rule 21. If, because of some difficulty in the manner that the responding party structures its business, or because of the innocent failure of the responding party’s equipment, the document is not transmitted, that fact does not nullify what is otherwise adequate delivery. The risk that, in this case, a fax machine does not properly print out a transmission it receives, falls on the party who maintains the fax machine and telephone number as part of the manner in which it carries on business. (See Professional Masonry Services (unreported, February 27, 2000, Board File 2226-99-R, at para. 23; Norben Interior Design Ltd., [1984] OLRB Rep. June 851 at para. 7, and Forano Construction Ltd., [1985] OLRB Rep. Jan. 73.)

5Traugott submits that, because it did not receive the application, it could not determine the date on which it was required to file the Form A-87. This is incorrect. The obligation to file the Form A-87 is found in Rule 158, which states as follows:

158. A responding party that wishes to participate in the case must file with the Board a "Request for Hearing and Notice of Intent to Defend/Participate" (Form A‑87) not later than five (5) days after the date of the Confirmation of Filing sent by the Board.

There is no issue that Traugott received the Confirmation of Filing sent by the Board. Rule 158 is abundantly clear: the Form A-87 was due five days later.

6We conclude therefore that Traugott has failed to provide any reasonable explanation for its failure to file the Form A-87 in a timely fashion.

Timeliness of the Reconsideration Application

7This application for reconsideration was filed in a timely fashion.

Whether there is a Real and Substantial Defence to the Grievance

8Traugott alleges that it has a valid defence. It submits that the work which is the subject matter of the grievance (i.e. the construction of a fence) is not covered by the Labourers’ Provincial Collective Agreement (the “Collective Agreement”) which both parties agree is binding on them. It points to the fact that the phrase “construction of fencing” does not appear in Schedule “E” to the Collective Agreement or any of the Local appendices. Article 2 and Schedule “E” of the Collective Agreement are the relevant provisions of the collective agreement. These provide as follows:

2.05 The employer agrees to engage only contractors and their subcontractors who are in contractual relations with the union and/or its affiliated bargaining agents for all work covered by this agreement, or work forming part of an ICI general contract, except as provided as Schedule D hereof.

2.06

(a) Schedule E to this collective agreement constitutes a list of work that is claimed by the union.

(b) Where work within Schedule E is claimed by the union and is within the ICI sector and there is no work claim dispute within the meaning of Article 8.01, the work will be assigned to employees represented by the union.

Schedule D deals with cement finishing and waterproofing work. Schedule E is headed with the following:

“SUBJECT TO ARTICLE 2.O6 – WORK CLAIMED BUT NOT LIMITED TO:”

9This work jurisdiction clause is typical of a work jurisdiction clause in a construction industry collective agreement. The union claims numerous types of work functions, which fall within its trade. The work is described as work “claimed”. The use of this language enables the union to set out its claim for work without requiring the employer to agree that all such work must necessarily be assigned to that union every time the employer performs the work. In the end, not every specific work function performed by members of a particular trade will be listed in its work jurisdiction claim. Hence the words “but not limited to”. Thus, the inclusion or exclusion of specific enumerated work in the work jurisdiction clause of a collective agreement in the construction industry is not necessarily determinative of the work jurisdiction of the union.

10Read literally, Article 2.05 of the agreement creates an obligation on the employer to contract or subcontract to employers bound to the Labourers’ agreement all “work forming part of an ICI general contract”. This is a claim that might appear surprising to a number of other trades in the ICI sector. Practice under the collective agreement is a particularly relevant factor, although no facts with respect to practice are alleged by Traugott. The Board is aware that fencing is often claimed and performed by Labourers, Carpenters, and Ironworkers. This is a kind of overlapping claim that creates jurisdictional disputes: Delsan Demolition Limited [1993] OLRB Rep. Oct. 963. However, the allegation here is that the work was performed by persons not members of any union. In this case, Traugott’s defence appears weak at best.

Prejudice to the Applicant

11There is some prejudice to the union in having to litigate an issue, and to undergo the expense and risk of doing so. There is, however, no prejudice in the sense of steps taken unnecessarily or costs thrown away. To the extent that there is any quantifiable prejudice, it is monetary only. However, absent the jurisdiction to order costs, it remains a factor which slightly favours the union’s position.

12Traugott also alleges that:

“It is important, and in the interests of both parties, that this issue be decided on its merits rather than by default. The parties have an ongoing relationship in the general contracting field, and numerous projects will be engaged in the future involving the very issues before the Board. It is therefore in the interests of certainty and finality … that this issue be decided now on the merits, rather than at some point in the future”.

If the matter is one which requires litigating, it is surely simple enough for Traugott to create a situation where the issue can be the subject of a grievance and determination by the Board. As stated in Weinmann, aside from determining the outcome of the specific grievance which is the subject matter of the referral, a default decision by the Board on a section 133 application in the circumstances has no precedential value whatsoever in any future grievance or jurisdictional dispute. Accordingly, this is not a consideration favouring Traugott.

Conclusion

13On this basis, the Board is not prepared to exercise its discretion to reconsider its decision. The Registrar is directed to set one day of hearing to quantify the damages arising from the violation of the agreement as found by the Board in its decision of February 14, 2000.

“David A. McKee”

for the Board