International Union of Operating Engineers, Local 793 v. 1130887 Ontario Inc. o/a Latta Crane Services

1516-99-G; 1794-99-G International Union of Operating Engineers, Local 793, Applicant v. 1130887 Ontario Inc. o/a Latta Crane Services, Responding Party.

1792-99-U International Union of Operating Engineers, Local 793, Applicant v. 1130887 Ontario Inc. o/a Latta Crane Services and Gary Latta and John Fitzpatrick, Responding Parties.

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

DECISION OF THE BOARD; March 30, 2000

1. These three applications consist of two referrals of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (the “Act”) and an application under section 96 alleging a violation of several sections of the Act. Prior to the commencement of these proceedings, the parties entered into a Memorandum of Settlement which they have requested the Board to issue as a consent order. The text of the Memorandum (less the attachments) is as follows:

WHEREAS the Applicant and the Responding Party 1130887 Ontario Inc. o/a Latta Crane Services (hereinafter “Latta Crane Services” or the “Employer”) are bound to the collective agreement between the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency, effective from May 1^st, 1998 until April 30^th, 2001 (the “Provincial Collective Agreement”), and any renewals thereof;

AND WHEREAS the Applicant referred a grievance to arbitration before the Ontario Labour Relations Board under section 133 of the Ontario Labour Relations Act concerning the Employer’s failure to man its equipment at its Warren Bitulithic job site on July 7, 1999 in accordance with the requirements of Article 26 of the Provincial Collective Agreement (being O.L.R.B. File No. 1516-99-G);

AND WHEREAS the Applicant referred a grievance to arbitration before the Ontario Labour Relations Board under section 133 of the Ontario Labour Relations Act concerning the Employer’s failure to man its equipment at its Henderson Machinery job site on August 24, 1999 in accordance with the requirements of Article 26 of the Provincial Collective Agreement (being O.L.R.B. File No. 1794-99-G);

AND WHEREAS the Applicant filed an unfair labour practice complaint concerning the Employer’s repeated and continuing refusal/failure to comply with the manning provisions of the Provincial Collective Agreement and concerning Mr. Gary Latta’s and Mr. John Fitzpatrick’s intimidation, coercion and threatening of witnesses in a Labour Board proceeding and by interfering with the exercise of rights under the Labour Relations Act (being O.L.R.B. File No. 1792-99-U);

AND WHEREAS the parties hereto wish to fully and finally resolve the two aforementioned grievance referrals and the unfair labour practice complaint without the need for a hearing;

NOW THEREFORE in full and final resolution of the above-captioned matters, the parties hereby agree with each other as follows and request that the Board incorporate the following into a Consent Order to be released as a decision of the Board:

1. The Applicant and the Responding Party Latta Crane Services agree that they are bound by the collective agreement between the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency, effective from May 1^st, 1998 until April 30^th, 2001 (the “Provincial Collective Agreement”), and any renewals thereof.

2. The Responding Party Latta Crane Services acknowledges and agrees that it violated the Provincial Collective Agreement by failing to man its equipment in accordance with Article 28 of the Provincial Collective Agreement as alleged in O.L.R.B. File No. 1794-99-G. Specifically, the Responding Party Latta Crane Services acknowledges and agrees that on or about August 24, 1999, it failed to man the 125 ton Krupp all terrain crane at its Henderson Machinery project located on Royal Windsor Drive with two men as required by Article 26(c)(iii) of the Provincial Collective Agreement.

3. The Responding Party Latta Crane Services acknowledges and agrees that it violated the Provincial Collective Agreement by failing to man its equipment in accordance with Article 26 of the Provincial Collective Agreement as alleged in O.L.R.B. File No. 1516-99-G. Specifically, the Responding Party Latta Crane Services acknowledges and agrees that on or about July 7, 1999, it failed to man the 100 ton Krupp mobile crane at its Warren Bitulithic job site located at 3355 Wolfedale Road with two men as required by Article 26(c)(iii) of the Provincial Collective Agreement.

4. The Responding Party Latta Crane Services further acknowledges that it has violated the Ontario Labour Relations Act by failing to comply with the manning provisions of the Provincial Collective Agreement as accurately set out in paragraphs 7 through 32 of the Applicant’s pleadings in O.L.R.B. File No. 1792-99-U. A copy of the aforementioned paragraphs of the pleadings are attached hereto as Schedule “A” to this settlement document.

5. The Responding Party Gary Latta expressly acknowledges that he violated the Ontario Labour Relations Act by intimidating, coercing and threatening a witness in a Labour Board proceeding and by interfering with the exercise of rights under the Labour Relations Act as accurately set out in paragraphs 46 through 65 of the Applicant’s pleadings in O.L.R.B. File No. 1792-99-U. A copy of the aforementioned paragraphs of the pleadings are attached hereto as Schedule “B”. It is specifically agreed that any statements contained in quotations in paragraphs 45 through 65 of Schedule “B” hereto are agreed to on a mutatis mutandis basis.

6. In addition, Mr. Gary Latta and Mr. John Fitzpatrick acknowledge that they violated the Ontario Labour Relations Act by intimidating, coercing and threatening a witness in a Labour Board proceeding and by interfering with the exercise of rights under the Labour Relations Act as accurately set out in paragraphs 66 through 81 of the Applicant’s pleadings in O.L.R.B. File No. 1792-99-U. A copy of the aforementioned paragraphs of the pleadings are attached hereto as Schedule “C”. It is specifically agreed

7. that any statements contained in quotations in paragraphs 66 through 81 of Schedule “C” hereto are agreed to on a mutatis mutandis basis.

8. The Responding Party Latta Crane Services agrees that it shall cease and desist from breaching the provisions of the Provincial Collective Agreement. In particular, and without limiting the generality of the foregoing, the Responding Party Latta Crane Services shall cease and desist from breaching Article 26 of the Provincial Collective Agreement.

9. The Responding Parties Gary Latta and John Fitzpatrick shall cease and desist from breaching the Ontario Labour Relations Act.

10. The Responding Party Latta Crane Services shall comply with the full terms and conditions of the Provincial Collective Agreement.

11. The Responding Parties agree to post, forthwith, the Board’s Consent Order in this matter at the conspicuous, glass-encased bulletin board at Latta Crane Services’ premises. It is agreed that the Board’s Consent Order shall remain so posted for a period of sixty consecutive working days and the Responding Parties shall take all reasonable steps to ensure that said notices remain posted and are not altered, defaced, or covered by any other material. Further, it is agreed that reasonable physical access to Latta Crane Services’ premises shall be given to a representative of the Applicant so the Applicant can verify that the posting requirement is being complied with.

12. It is agreed that for a period of six (6) consecutive months from the date of the Board’s decision in this matter, if requested by the Applicant, the Responding Party Latta Crane Services shall provide to the Applicant a list of any specific job or project on which it has used or assigned a crane which pursuant to Article 26 of the Provincial Collective Agreement must be manned with both an operator and an apprentice, oiler, or oiler driver, the duration of the job or project, the specific address or location of the job or project, and the name of both the operator and the apprentice, oiler or oiler driver assigned to the crane at issue on that project and, if requested by the Applicant, Latta Crane Services shall provide to the Applicant a copy of the relevant dispatch and billing records so the Applicant can verify the accuracy of the information provided by Latta Crane Services as set out herein. It is agreed that the Applicant shall pay the reasonable photocopy costs incurred by Latta Crane Services in connection with any such request.

13. To give effect to this Memorandum, the Board makes the declarations and orders as agreed to by the parties in the Memorandum.

“David A. McKee”

for the Board