Ontario Labour Relations Board
1872-00-G Universal Workers Union, L.I.U.N.A., Local 183, Applicant v. Osler Paving & Construction Ltd., Responding Party.
BEFORE: Laura Trachuk, Vice-Chair, and Board Members G. Pickell and A. Haward.
APPEARANCES: Michael O’Brien for the applicant; Thomas D. Kerr for the responding party.
DECISION OF THE BOARD; October 19, 2000
Decision
1This is an application for the referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”).
2The applicant (referred to as the “union”) claims that as of the date of the hearing (October 16, 2000) the responding party (referred to as the “company”) is in violation of the collective agreement between the parties and owes $67,747.64 for failing to make remittances in July, August and September, 2000. That amount includes remittances for August and September and liquidated damages for late remittances in all three months pursuant to section 22.01 of the collective agreement. The amount also includes the union’s filing and hearing fees.
3The company agrees that it has failed to make remittances for the months of August and September in the amounts claimed and that it did not make its remittances for the month of July until September 29, 2000. Furthermore, it does not dispute that the collective agreement provides for liquidated damages on such late payments. However, the company argues that it should not have to pay the liquidated damages and the union’s filing and hearing fees in this case as the certificate of delivery filed with the Board contained false information. The certificate of delivery indicates that the grievance referral and materials were delivered to Canada Post on September 22, 2000 and were to be delivered no later than 4:00 p.m. on September 25, 2000. The company claims Canada Post never delivered the materials. Canada Post’s priority courier trace history indicates that the materials were “accept./processed” at 22:57 on September 25, 2000 and were delivered on September 26, 2000 at 09.08. The application was filed with the Board on September 22, 2000. A hearing was scheduled for October 6, 2000.
4The company filed its “Notice of Intent to Defend/Participate” prior to attending the pre-hearing meeting on October 2, 2000. The company raised the issue of the certificate of delivery in its “Notice of Intent to Defend”. The company says it did not receive a copy of the union’s materials until that meeting. At that meeting the parties agreed to adjourn the hearing scheduled for October 6, 2000 to October 16, 2000.
5The company does not claim that it is prejudiced by the late receipt of the union’s materials but asserts that it should be relieved of the requirement to pay the liquidated damages and the fees. The union responds that the parties agreed to an adjournment to deal with the issue and that there is no reason that it should not receive the full amount which is owing.
6Rule 155 of the Board’s Rules of Procedure requires that a union serve an employer with an application to refer a grievance to arbitration before or at the same time as it is filed with the Board. Rule 44 provides that the “Board may relieve against the strict application of these Rules where it considers it advisable”. In the circumstances of this case the Board considers it advisable to relieve against the strict application of Rule 155. The parties agreed to an adjournment of the original hearing date and thus any prejudice the company might have experienced by the shortness of notice has been alleviated. The company does not, in fact, assert any prejudice at all. The Board therefore directs that the company pay liquidated damages for the late remittances pursuant to Article 22.01 of the collective agreement.
7However, the union did not refer the Board to any article in the collective agreement which provides for the reimbursement of filing and hearing fees, or arbitration costs generally, by an employer. The Labour Relations Act, 1995 only provides that the Board may order the payment of fees where a party does not participate in an arbitration proceeding (see section 133(13)). The Board therefore declines to direct the company to pay the costs of the union’s filing and hearing fees.
8The Board makes the following declarations and orders:
a) that Osler Paving & Construction Ltd. is bound to the collective agreement between “A Council of Trade Unions acting as the representative and agent of Teamsters’ Local Union 230 and Labourers’ International Union of North America, Local Union 183 and the Metropolitan Road Builders Association effective May 1, 1998 to April 30, 2001;
b) that Osler Paving & Construction Ltd. has violated the collective agreement by not remitting to the applicant the contributions required thereunder for the months of August and September, 2000 and by not remitting the contributions for the month of July, 2000 by the date required in the collective agreement;
c) that Osler Paving & Construction Ltd. pay to the applicant forthwith as damages for violation of the collective agreement the amount of $66,998.64.
“Laura Trachuk”
for the Board