1889-00-G Sheet Metal Workers’ International Association, Local 30, Applicant v. Cordeiro Roofing Ltd., Responding Party.

BEFORE: John Morgan Lewis, Vice-Chair, and Board Members J. Knight and G. McMenemy.

DECISION OF THE BOARD; October 6, 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 September 26, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on September 25, 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 September 25, 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, (416)234-9581 on September 25, 2000 at 2:30 p.m.

2. The responding party has not filed a Request for Hearing and Notice of Intent to Defend/Participate (Form A-87) on October 5, 2000, which was one day after the prescribed time period pursuant to Rule 158 of the Board’s Rules of Procedure. It has also come to the attention of the Board that the responding party has also failed to pay the filing fee as required by Rule 144. 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:

7. A copy of the application

8. A copy of the Notice of grievance referral.

9. 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.

10. A blank response form for the responding party’s use.

11. 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).

12. To avoid default proceedings, a responding party must 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 responding party must also pay the filing fee as stipulated by Rule 144.

13. 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 and the failure to pay the filing fee. Rules 149, 151 and 160 to 162, which are part of the Rules package delivered to the responding party by the applicant, provide as follows:

10. The Registrar will not accept and the Board will not process any application or request that is not accompanied by the filing fee set out in these Rules.

11. A responding party who has failed to pay the filing fee or hearing fee as required by these Rules, may not participate in the case, including the hearing (if one is held) in any way, except with the permission of the Board.

12. 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.

13. 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.

14. 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.

15. 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) Cordeiro Roofing Ltd. (“Cordeiro”) is bound by the Collective Agreement between the Ontario Industrial Roofing Contractors’ Association and the Built-Up Roofers’, Damp and Waterproofing Section of the Ontario Sheet Metal Workers’ & Roofers’ Conference, effective from the 1^st day of May 1998 until the 30^th day of April, 2001 (the “Collective Agreement”), by virtue of a voluntary recognition agreement signed on February 19, 1999;

(b) at all material times up to the point of their discharges, both Mr. Joe Raposo and Mr. Daniel Penacho were employed by Cordeiro and covered by the Collective Agreement;

(c) on or about July 27, 2000, Mr. Raposo was injured in an accident while working on a job site in Barrie, Ontario;

(d) at some point between the date of accident and August 28, 2000, the Workplace Safety & Insurance Board (the “WSIB”) received notice of the workplace accident;

(e) on August 28, 2000, the WSIB sent a letter to Mr. Raposo, informing him that the Worker’s Report of Injury or Disease (Form 6) and the Employer’s Report of Accident (Form 7) had not yet been received by the WSIB. A copy of this letter was sent to Cordeiro;

(f) on September 5, 2000, Mr. Raposo filed a completed Form 6 with the WSIB;

(g) on September 6, 2000, Mr. Penacho reported for work at Cordeiro’s shop and was informed by Manuel Cordeiro that his employment was terminated;

(h) the applicant states that both Mr. Raposo and Mr. Penacho were discharged without just cause contrary to the Collective Agreement, and in particular, Article 37 of the Collective Agreement. In Mr. Raposo’s case particularly, the applicant states that Mr. Raposo was discharged by Cordeiro as a reprisal for his having pursued a claim for services and benefits with the WSIB.

11. In view of the Board’s findings in paragraph 10 above, the Board therefore:

(a) declares that the Collective Agreement is binding upon Cordeiro;

(b) declares that Cordeiro has violated the Collective Agreement, and in particular, Article 37 of the Collective Agreement;

(c) orders Cordeiro to comply forthwith with the full terms and conditions of the Collective Agreement;

(d) orders Cordeiro to reinstate forthwith both Mr. Raposo and Mr. Penacho to the positions they held prior to their discharges.

12. The applicant has not provided information upon which the Board can rely to assess the quantum of damages caused by the violations of the collective agreement and asks that this issue be determined at a hearing. Therefore, pursuant to Rule 161, the hearing scheduled in this matter for October 10, 2000, in the “Board Room”, 2^nd Floor, 505 University Avenue, Toronto, commencing at 9:30 a.m., will deal with the assessment of damages arising from the violations of the collective agreement.

“John Morgan Lewis”

for the Board