1980-00-G International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 700, Applicant v. Earlscourt Metal Industries Ltd., Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; October 16, 2000
This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, (the “Act”). The referral was made on October 4, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on October 4, 2000 by the applicant having delivered a copy of the necessary documents required by Rule 155 of the Board’s Rules of Procedure to the responding party by giving them to Canada Post Corporation (Priority Courier) on October 3, 2000 who assured the applicant that they would be delivered on Wednesday, October 4, 2000 by no later than 12:00 p.m. The Registrar faxed a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the fax number provided for the responding party in the application, 905-564-9004 on Thursday, October 5, 2000 at 13:32 p.m.
As of the date of this decision, the responding party has not filed a Request for Hearing and Notice of Intent to Defend/Participate (Form A-87). The Board’s Rules of Procedure explicitly stipulate the consequences of failing to comply with the filing requirements contained in the Rules.
Section 133 of the Act provides, in part:
(7) The Board is not required to hold a hearing if the responding party does not file any material.
(8) If the Board does not hold a hearing in the circumstances described in subsection (7), the Board may determine the matter with reference only to the material filed by the party referring the grievance.
(9) If the Board accepts the referral, the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and subsections 48(10) and (12) to (20) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.
- In addition, the Chair of the Board has the authority to make rules to give effect to the various statutory powers conferred upon the Board. Section 110(17) of the Act provides:
The chair may make rules governing the Board’s practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.
Furthermore, the Board has very wide powers to require a party to provide particulars, documents, and any other information the Board deems necessary. (See sections 111(2)(a) and (b) of the Act.)
The Board’s Rules in respect of section 133 proceedings place a substantial burden on the applicant. As well as filing certain material with the Board, the applicant must provide to the responding party:
A copy of the application
A copy of the Notice of grievance referral.
A blank copy of the Request for Hearing and Notice of Intent to Defend (Form A-87, i.e. the form the responding party requires to file its response.
A blank response form for the responding party’s use.
A copy of the Board’s Rules with respect to section 133 referrals (i.e. Part VIII of the Rules, being Rules 143-163) and Information Bulletin No. 20 which provides the responding party with further information about the process involved in a section 133 application (including the consequences of default).
The only thing a responding party must do to avoid default proceedings is to complete the Form A-87 supplied by the applicant and deliver it to the Board and the applicant within five days of the date of the Board’s Confirmation of Filing (Form B-67). Form A-87 requires little more than the responding party’s name and address and an assertion that the responding party wishes to defend against the grievance referral. The substance of that defence is contained in the response which is not due until 9:30 a.m. on the day set for hearing.
The Board’s Rules require quick responses from responding parties in many sorts of applications. In an application for certification, for example, a responding employer (who is often unfamiliar with proceedings under the Act) must respond within two days after the application was served on it. In a section 133 proceeding, the responding party has some relationship with the applicant and therefore should have some understanding of the contractual and statutory context in which a grievance referral arises. In any event, the Form B-67 faxed to the responding party contains the following warning in bold print:
The failure to file a timely Request in the way required by the Board’s Rules of Procedure may result in the referral being decided without a hearing and without further notice to the defaulting party.
The Board’s Rules deal specifically with the consequences of failing to file the Form A-87. Rules 160 to 162, which are part of the Rules package delivered to the responding party by the applicant, provide as follows:
If a responding party does not deliver and file a “Request for Hearing and Notice of Intent to Defend” (Form A-87) in the way required by these rules, he or she may automatically be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing (if one is scheduled), and decide the case (or part of the case) upon the material before it without further notice.
Where the facts stated in the application are deemed to be true and the Board considers that it can make a finding of liability, but cannot determine the question of damages, the Board may decide the liability issue under Rule 160 and leave the damages issue to be determined at an oral hearing.
Where the Board decides or has decided a case (or part of a case) under Rule 160, the responding party may not file a Request or a response, or take any other step in connection with the application, other than a reconsideration application, except with the permission of the Board.
Accordingly, we shall proceed on the basis that all of the allegations of fact set out in the referral to the Board and in the grievance material have been accepted by the responding party and therefore can be relied on by the Board in making a determination of this matter. The Board therefore finds that:
(a) the responding party, Earlscourt Sheet Metal Mechanical Ltd., is bound to the Collective Agreement between the Ontario Erectors Association et al. And the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers et al. (the “collective agreement” inter alia, by virtue of a voluntary recognition agreement dated February 16, 1987.
(b) the violation of the collective agreement concerning the failure or refusal to convene a mark-up meeting began on or about August 18, 2000 and continued for several weeks. The Employer field assigned the installation of multi-purpose support steel for a grind booth to members of the Sheet Metal Workers International Association. This despite repeated requests by the Iron Workers for a mark-up meeting.
(c) when a meeting was finally convened by the project’s general contractor Allied Uniking Corporation Inc., Earlscourt refused to make any assignments, suggesting that it was the responsibility of the general contractor. No one attended this September 14th meeting on behalf of the Sheet Metal workers. As the work which would have been claimed by the Iron Workers was completed, Allied Uniking and BFC (another subcontractor to Allied which attended the meeting) proposed that assignments be made stating which trade ought to have been assigned to the various aspects of the work at the project. The work which would have been claimed by the Iron Workers was in fact “awarded” to them.
(d) the next day Earlscourt’s site superintendent and member of the Sheet Metal Workers International Association faxed the applicant notifying its representative Mr. Howard that the previous day’s meeting was “nullified”. Later on the 15th, Earlscourt’s site superintendent faxed to Mr. Howard a list of its “Jurisdictional Assignments”. In fact the list was a description of Earlscourt’s scope of work. If this list was an assignment of work, it was made without the benefit of input from the Iron Workers or the exercise of the Iron Workers’ right to a mark-up meeting.
(e) the job site is located within the geographic jurisdiction of the applicant (ref. Article 3.1). The work at the job sites falls within the scope of work covered by Article 1.5 of the collective agreement.
(f) journeymen members of the applicant earn $37.27 per hour for each hour worked or earned (ref. Article 10, 12, 30, 31). This amount does not include retail sales tax on benefit contributions as well as a nine-cent industry fund which are both required under the terms of the collective agreement and the Retail Sales Tax Act.
(g) at all material times there were members of the applicant or employers in contractual relations with the applicant ready, willing and able to perform work at the project.
- In view of the Board’s findings in paragraph 10 above, the Board therefore:
declares that Earlscourt Metal Industries Ltd. has violated article 19.2 of the Collective Agreement.
The applicant seeks damages in an amount to be proven based on all work opportunities lost or denied to the applicant as a result of the responding party’s failure to convene a work assignment meeting in accordance with article 19.2 of the collective agreement. A hearing is scheduled to take place on October 27, 2000 which will deal with the issue of damages. The Board notes that in order to make a claim for damages, the applicant will need to establish that there was work performed by members of the Sheet Metal Workers International Union (“Sheet Metal”) which should have been performed by members of the applicant and which would have been assigned in such a manner if a work assignment meeting had taken place. To make such a finding, the Board may need to hear from Sheet Metal with respect to the entitlement to the work in dispute. Accordingly, the Board directs the applicant to provide Sheet Metal by no later than Friday, October 19, 2000 with a copy of this decision and notice of the hearing scheduled for October 27, 2000.
Nothing in the decision should be interpreted as indicating that the Board is granting Sheet Metal standing to participate in this proceeding. Should the status of Sheet Metal be in dispute, the parties can raise the issue with the panel of the Board hearing this case.
This panel of the Board is not seized with this matter.
“John Morgan Lewis”
for the Board