3651-99-G International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 736, Applicant v. Spencer Steel Ltd., Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and A. Haward.
DECISION OF THE BOARD; March 22, 2000
1This 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 March 13, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on March 13, 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 March 10, 2000 who assured the applicant that they would be delivered on Monday, March 13, 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, 519-666-1275 on March 14, 2000 at 10:23 a.m..
2As 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.
3Section 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.”
4In 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.”
5Furthermore, 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.)
6The 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).
7The 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.
8The 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.”
9The 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.”
10Accordingly, 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 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 expiring April 30, 2001 (the “Collective Agreement”) based on it being named in the certificate of accreditation issued to the Ontario Erectors Association dated May 29, 1974 and the Board’s decision in Spencer Steel Limited, decision dated October 3, 1994, unreported (Board File No. 2024-94-G).
(b) On February 29, 2000 Kim Nisbett, a member of the applicant and an employee of the responding party, was laid off from his employment with the responding party. At the time of his lay off he was owed wages and board allowance to the date of the lay off. Pursuant to article 6.3 of the Collective Agreement an employer with no pay office within 40 kilometers of a job site is required upon lay off of an employee to send wages in full together with the Record of Employment to the employee by Priority Post within 24 hours of the employee’s lay off. Failure to comply with this requirement triggers an entitlement to waiting time at the straight time rate of pay applicable to regular working hours.
(c) Mr. Nisbett’s final pay should have been sent to him by Priority Post no later than March 1, 2000. When Mr. Nisbett still had not received his final pay by March 7, 2000 a representative of the applicant contacted the responding party and was advised that Mr. Nisbett’s pay had been sent by regular mail. Upon the insistence of the applicant’s representative, Terry Armstrong, the responding party reissued the cheque and sent it by Priority Post to Mr. Nisbett. Mr. Nisbett received his final pay on March 8, 2000 five working days after it should have been received.
(d) Journeymen members of the applicant earn wages and contributions totaling $36.37 for each hour worked or earned (see Article 10, 12, 30, 31 of the Collective Agreement). This amount does not include retail sales tax on benefit contributions ($0.152 per hour) or $0.09 for the industry fund. Both sums are required under the terms of the Collective Agreement and pursuant to the Retail Sales Tax Act and are in addition to the total wage package of $36.37.
(e) Total damages for waiting time owing Mr. Nisbett equals $1464.48 ($36.37 wages and benefits + .152 retail sales tax + .09 industry fund contribution x 8 hours per day x 5 days).
11Article 6.3 of the Collective Agreement sets out an employer’s obligations to promptly pay employees their final pay and provide employees who have been laid off with the necessary termination documents within one working day of the employees’ termination. That section goes on to provide that should the employer fail to send the payment and documents in the manner prescribed, the employee is entitled to paid waiting time for an indefinite period, but in order to claim payment for beyond three days’ waiting time, the grievance must be “initiated within five working days”. While the grievance was delivered to the responding party on March 8, 2000 and therefore was initiated at least by that date, it was not clear from the collective agreement what day the five working day period commences. Thus, in the absence of any response from the responding party seeking to limit the damages claimed, the Board is satisfied that the responding party’s violation of article 6.3 of the Collective Agreement gives rise to damages based on payment for five days’ waiting time.
12The applicant claimed in its referral to the Board in this matter in addition to damages and a declaration of a violation, “interest and costs on the damages as specified in the collective agreement or as the Board may permit;”. The applicant has not referred the Board to the appropriate section or sections of the Collective Agreement that deal with the awarding of interest or costs nor has the applicant quantified the interest and costs it seeks. In these circumstances, the Board declines to award any additional amount for interest and costs. If the applicant wants to claim interest and costs on the damages it recovers, it must set out the basis for its claim by reference to the applicable provisions of the Collective Agreement and provide the Board with its calculation of the quantum of interest and costs it wishes to recover by referring a grievance to the Board for determination under section 133 of the Act.
13In view of the Board’s findings in paragraphs 10 and 11 above, the Board therefore:
a) declares that the responding party is bound by the collective agreement between the Ontario Erectors Association et al and the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers et al expiring on April 30, 2001 (the “Collective Agreement”);
b) declares that the responding party violated article 6.3 of the Collective Agreement;
c) declares that the aforesaid violation of the Collective Agreement has caused damages in the amount of $1464.48 which represents five days’ waiting time;
d) directs the responding party to pay forthwith to the applicant the sum of $1464.48; and
e) directs the responding party, pursuant to section 133 (13) of the Act, to pay forthwith to the applicant its filing fees of $214.00.
14The hearing scheduled for March 27, 2000 is hereby cancelled.
“Harry Freedman”
for the Board