Ontario Labour Relations Board
File No.: 1334-00-G Date: August 15, 2000
Between: Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. James Elliott Underground Construction Inc., Responding Party.
Before: Mary Ellen Cummings, Alternate Chair, and Board Members G. Pickell and A. Haward.
Decision of the Board
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 August 3, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on August 3, 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 August 3, 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, (519) 941-6794.
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) that the responding party is bound to the collective agreement between the applicant and the Metropolitan Toronto Sewer and Watermain Contractors’ Association, dated May 1, 1998 to April 30, 2001;
(b) that the responding party has employed persons who are not members of the applicant to perform bargaining unit work at the responding party’s job site at Simcoe Shores;
(c) that the responding party has violated the collective agreement in employing persons who are not members of the applicant.
11The applicant seeks production of documents from the responding party with respect to any bargaining work performed within the geographic scope of its bargaining rights. The Board is unwilling to make such a broad order; the applicant has alleged a breach of the collective agreement with respect to a single job site, Simcoe Shores. It is inappropriate to use the Board’s production powers to establish other breaches.
12In view of the Board’s findings in paragraph 10 above, the Board therefore:
(a) produce to the applicant, within five working days of the date of this decision, all payroll records and all other relevant documents and records concerning all employees whether members of the applicant or not, performing work covered by the collective agreement at the responding party’s job site at Simcoe Shores in Barrie and that such documents shall include, but shall not be limited to, all time cards, foremen’s and superintendents’ reports, computerized and any other payroll records, pay cheques, pay stubs and any documents concerning remittances or payments made by the responding party on behalf of all of its employees, whether members of the applicant or not, in order that the applicant is able to accurately assess the correct amount of damages payable.
- This matter is adjourned sine die for a period not exceeding one year. Unless within that time either party requests that the Board proceed with the matter, it will be deemed terminated without any further notice to the parties. Either party may seek to bring the matter on for hearing to deal with any outstanding issues around the calculation of damages, and any reimbursement of expenses to which the applicant may be entitled.
“Mary Ellen Cummings”
for the Board