0997-00-G United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of The United States and Canada, Local 787, Applicant v. Honeywell Limited, Responding Party.
BEFORE: Gail Misra, Vice-Chair, and Board Members J. G. Knight and G McMenemy.
DECISION OF THE BOARD; July 11, 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 June 29, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on June 27, 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 June 27, 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, (613) 228-3699 on June 29, 2000 at 16:53 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:
“160. 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 applicant and responding party are bound to both the ICI construction collective agreement between Ontario Refrigeration and Air Conditioning Contractors Association and the applicant, effective from May 1, 1998 until April 30, 2001 and the Non-ICI Construction, Service and Maintenance Collective Agreement between Ontario Refrigeration and Air Conditioning Contractors Association and the applicant, effective from May 1, 1998 until April 30, 2001 (the “Collective Agreements”);
(b) John Agnew (the “Grievor”) started work for the responding party on June 27, 1994. By early January 2000 the Grievor was classified as a third year apprentice;
(c) as is customary, the Grievor was required to attend classes at Algonquin College in Ottawa, Ontario to continue his apprenticeship training. The Grievor was to commence school on January 3, 2000 however as a result of Y2K concerns classes did not actually begin until January 10, 2000;
(d) in accordance with the normal practice, the Grievor was laid off on January 7, 2000 which was his last day of work prior to attending school. At that time, he was issued a record of employment for purposes of employment insurance. That document indicated that the Grievor was laid off;
(e) at the time that the Grievor returned to school, the amount of available work was not plentiful. As a result, the Grievor checked every week while at school to ascertain the work situation. In particular, the Grievor was advised by Christianne, office manager for the responding party, that if the responding party did not obtain the Nexacor agreement, he would not be returned to work;
(f) each time that the Grievor checked with Christianne respecting the work situation he was told that nothing had changed. On or about the beginning of March Christianne advised him that the responding party was not sure what was happening but that there was no work at that time;
(g) in or about the middle of March approximately 10 days after he finished school, the Grievor received a telephone call from Christianne who advised him that the responding party did not obtain the Nexacor contract. She advised the Grievor that his employment was therefore terminated;
(h) the Grievor then began searching for work and obtained other employment on or about May 1, 2000;
(i) the Grievor also attempted on several occasions to contact Christianne to determine when his termination pay, which he was entitled to pursuant to Article 25.05 of the Collective Agreements, would be paid. Notwithstanding several messages left for Christianne, she did not return any of the Grievor’s telephone calls. The Grievor also left messages for the head of the Ottawa office of the responding party, Grant Sheahan, with respect to his termination pay but he also did not return any return calls;
(j) finally, on or about April 28, 2000 Christianne called the Grievor to advise him that there was a possibility that certain work would become available. The Grievor, had already obtained alternate employment and so advised Christianne;
(k) pursuant to Article 25 of the Collective Agreements, employees such as the Grievor, who are employed between five and six years, are entitled to five weeks pay if they are laid off and not recalled to work within thirteen weeks of the date of the lay off as they are deemed to have been terminated. The responding party refused to pay to the Grievor his proper entitlement pursuant to the provisions of the Collective Agreements;
(l) at the Grievor’s rate of pay, his gross entitlement, inclusive of wages, vacation pay/statutory holiday pay and benefits amount to $4,730.20.
- In view of the Board’s findings in paragraph 10 above, the Board therefore:
(a) finds that the responding party is bound to the Collective Agreements;
(b) declares that the responding party has violated the Collective Agreements by failing to pay to the Grievor five week termination pay;
(c) orders the responding party to pay to the applicant, on behalf of the Grievor, the Grievor’s rate of pay, his gross entitlement, inclusive of wages, vacation pay/statutory holiday and benefits amount to $4,730.20;
(d) orders the responding party to, pursuant to section 133(13) pay to the applicant forthwith the filing fees in the amount of $214.00 incurred in bringing this application.
- The hearing scheduled for July 12, 2000 is hereby cancelled.
“Gail Misra”
for the Board