Ontario Labour Relations Board

3578-99-G Labourers’ International Union of North America, Local 183, Applicant v. A.P. Concrete Forming (Div. of 1350648 Ontario Inc.), Responding Party.

BEFORE: David A. McKee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.

DECISION OF THE BOARD; March 16, 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 9, 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 Priority Post Courier, Canada Post on March 8, 2000 who assured the applicant that they would be delivered on Thursday March 9, 2000, by no later than 4:00 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, 905-738-6890 on March 8, 2000 at 3:38 p.m.

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:

(a) The applicant and the responding party, A.P. Concrete Forming (a division of 1350648 Ontario Inc.) (“AP”) are bound to the Residential Low Rise Forming Association Collective Agreement (the “Collective Agreement”);

(b) AP has employed members of the applicant to perform work covered by the collective Agreement during the months of December 1999 and January 2000;

(c) AP has failed to pay to the administrator appointed under the collective Agreement the monies per hour required by Articles 2, 3, 7 and 9 for each hour of work performed by such persons;

(d) AP has paid improper rates for the months of May and June, 1999;

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

(a) Declares that AP and the applicant are bound to the Collective Agreement;

(b) Declares that AP has violated the Collective Agreement and that the applicant and its members have suffered damages as a result of such breach;

(c) Orders AP to pay to the applicant $19, 840.86 in respect of payments due for December 1999 and January 2000;

(d) And orders AP to pay to the applicant $553.23 for late payment of the said contributions, as required by Article 16;

(e) And orders AP to pay to the applicant the sum of $120.06 in respect of May and June 1999;

(f) And orders AP to pay to the applicant $214.00 in respect of filing fees associated with this referral, pursuant to section 133(13).

12. The hearing scheduled for March 22, 2000 is hereby cancelled. The parties are directed to meet with the Construction Co-ordinator on March 17, 2000 as advised in order to discuss implementing this decision.

“David A. McKee”

for the Board