International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721 v. MacDonald Construction Services c.o.b. as Perma Structures

3579-99-G International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721, Applicant v. MacDonald Construction Services c.o.b. as Perma Structures, Responding Party.

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.

DECISION OF THE BOARD; March 20, 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 March 8, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on March 7, 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 (Priority Courier) on March 7, 2000 who assured the applicant that they would be delivered not later than March 8, 2000 by no later than 12:00 p.m. The Registrar attempted to 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) 951-0966 on March 8 and March 9, 2000. That fax number indicated “Status Busy” for both days. The Confirmation of Filing was sent to the responding party by priority post on March 9, 2000 at 195 Albert Street, Bolton, Ontario L7E 3H7.

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:

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. 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.

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. 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.

161. 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.

162. 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.”

163. 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:

1. the responding party is bound to the collective agreement between the Ontario Erectors Association and the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers et. al. Expiring April 30, 2001.

2. the responding party is bound to the Pre-engineered Building Agreement between the responding party and the applicant expiring May 1, 2001.

3. the responding party has violated articles 6.3, 6.4 and 7.1(a) of the OEA collective agreement by failing to make the required payments of wages, benefits, contributions and failure to pay waiting time for late payments of cheques and issuing Records of Employment on behalf of Jamie Keller and Juan Zelaya.

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

5. declares MacDonald Construction Services c.o.b. as Perma Structures is bound to the OEA collective agreement and the Pre-engineered Building Agreement.

6. declares the responding party violated the above collective agreements;

7. declares the violations of the collective agreements by the responding party have resulted in damages as follows:

in the amount of $982.08 for wages and benefits (including retail sales tax) and waiting time for Jamie Keller;

in the amount of $6,344.00 for wages and benefits and 19 days waiting time to March 7, 2000 for Juan Zelaya;

in the amount of $35.25 for retail sales tax on benefit contributions for Juan Zelaya;

4. declares the responding party has failed to issue timely Records of Employment.

5. directs the responding parties to pay the applicant forthwith the sum of $7,361.33 together with the sum of $214.00 pursuant to section 133(13) of the Act.

6. directs the responding party to forthwith provide Jamie Keller and Juan Zelaya with their Records of Employment.

7. The hearing in this matter scheduled for March 22, 2000 is hereby cancelled.

8. The applicant has asked for damages of $244.00 plus $1.21 per day on behalf of Juan Zelaya until such time as he has been provided with the payments owed to him. There is no evidence before the Board on which to award damages beyond March 7, 2000. The applicant may wish to file a new application to deal with any outstanding damages.

“Inge M. Stamp”

for the Board