1983-00-G Universal Workers Union, L.I.U.N.A., Local 183, Applicant v. Ron Robinson Limited and/or Ron Robinson 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
[1]. 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 facsimile transmission on October 4, 2000. 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, 905-697-0581 on Thursday, October 5, 2000 at 11:23 p.m.
[2]. 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.
[3]. 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.
[4]. 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.
[5]. 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.).
[6]. 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).
[7]. 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.
[8]. 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.
[9]. 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.
[10]. 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 applicant, Universal Workers Union, L.I.U.N.A. Local 183 (the “Union”) is a trade union, which amongst others, represents construction employees performing work in the sewer and watermain sector and the roads sector of the construction industry in and around southern Ontario;
(b) The responding party, Ron Robinson Limited and/or Ron Robinson Ltd. (the “Company”), is a Company that performs work in the sewer and watermain sector and the roads sector of the construction work in and around Southern Ontario;
(c) The Greater Toronto Sewer & Watermain Contractors’ Association (the “Association”) is an accredited Employer organization and as such is the sole and exclusive bargaining agent for all companies with whom the Union has bargaining rights who are engaged in work in the Sewer and Watermain Sector of the construction industry. The Company is a member of the Association;
(d) For a number of years the Union and the Association have been party to various collective agreements. As a member of the Association, the Company is bound to these agreements. The most recent Collective Agreement binding upon the Company and the Union is the Collective Agreement between the Union and the Association, effective on its face from May 1, 1998 to April 30, 2001 (the “Collective Agreement”);
(e) Under the provisions of Article 10.04 (a) of the Sewer and Watermain Collective Agreement, all employers are required to sub-contract work which falls under the jurisdiction of the Union only to sub-contractors who are in contractual relations with the Union. The sub-contracting provisions apply to and cover work which falls under and is covered by the Collective Agreement binding upon the Union and the Metropolitan Toronto Road Builders Association as it then was, and the Toronto and Area Road Builders Association as it now is (the “Roads Collective Agreement”);
(f) On or about an unknown date, the Company commenced performing work on Brock Road South of Highway Number 2 in Pickering. The Company was the general contractor for work, which involved, amongst other things, installing sewers and/or watermains, road widening and associated road repairs. On or about August 10, 2000, Union Business Representative Gaetano Strazzanti (“Strazzanti”) attended at the site and observed eight persons employed by Bennett Paving and Materials Limited (“Bennett”) performing road paving work on the site. Strazzanti spoke with the City of Pickering inspector who happened to be on the site at the same time, as well as the company’s foreman, Sal, and the Company’s site superintendent Vince. All of these persons confirmed to Strazzanti that the Company was the general contractor for the work being performed at the site;
(g) Bennett is not in collective bargaining relations with the Union with respect to work carried out in Board Area Number 8. Accordingly, the Union filed a grievance with the Company on or about August 10, 2000;
(h) As stated above, Strazzanti observed eight persons employed by Bennett performing paving and related work at the site. Of these eight persons, three were performing the work of operating engineers and five were performing the work of construction labourers’;
(i) Strazzanti has three years of experience as a Business Representative for the Union. As a Business Representative has responsibility for enforcing, amongst others, the Union’s collective agreement pertaining to the roads industry. Prior to becoming a Union Business Representative, Strazzanti worked in the roads sector of the construction industry for approximately sixteen years. According, Strazzanti has intimate knowledge of the roads sector of the construction industry and the Union’s Roads Collective Agreement. Based on his experience, Strazzanti determined that the paving work being performed by Bennett at the site would require a crew of eight persons to work for two days;
(j) Pursuant to Schedule “A”, Article 1(b) of the Collective Agreement, the standard workday is 10 hours per day. Accordingly, had the Company not violated the Collective Agreement, five union members would have worked for 10 hours per day for two days for a total of 100 hours;
(k) Accordingly, the total hourly package, including wages, vacation pay, pension, benefits, welfare and other remittances $33.05 per hour. Accordingly, it is the position of the Union that the Company owes to the Union as general damages as a consequence of the above-noted violations of the Collective Agreement, a total of $3,317.40, being:
100 hrs x $33.05 per hour + (8% RST on $1.55 x 100 hrs = 12.40)
(l) On or about April 18, 2000, the Company and the Union entered into Minutes of Settlement, which settled an earlier grievance, (OLRB File No. 0050-00-G);
(m) Pursuant to the Minutes of Settlement, the Company agreed that if it violated various provisions of the Collective Agreement, including but not limited to the provisions relating to contracting and/or subcontracting work to entities not in collective bargaining relations with the Union, then the Company agreed that it would pay to the Union as general damages the sum of $10,000.00 in addition to any other damages that may arise out of such further breach of the Collective Agreement. Accordingly, pursuant to the terms of the Minutes of Settlement, the Union is entitled to payment from the Company of $10,000.00 in addition to the amounts set out above for the violations of the Collective Agreement set out herein.
[11]. In view of the Board’s findings in paragraph 10 above, the Board therefore:
(a) declares that Ron Robinson Limited and/or Ron Robinson Ltd. is bound by the collective agreement and has violated said agreement as set out in this application;
(b) directs that Ron Robinson Limited and/or Ron Robinson Ltd. pay damages to the Union in the amount of $3,317.40 which amount consists of all amounts including wages, remittances and Union dues which would have been paid to members of the Union, and/or the Union and/or others on behalf of the Union and/or its members, had the Company not violated the Collective Agreement;
(c) directs that Ron Robinson Limited and/or Ron Robinson Ltd. pay to the Union as general damages the sum of $10,000.00 pursuant to the Minutes of Settlement with respect to OLRB File No. 0050-00-G;
(d) directs that Ron Robinson Limited and/or Ron Robinson Ltd. pay forthwith to the applicant the amount $214.00 pursuant to section 133(13) of the Act.
[12]. The hearing scheduled for October 18, 2000 is hereby cancelled.
“John Morgan Lewis”
for the Board