Ontario Labour Relations Board
File No.: 1122-00-G Date: July 21, 2000
Between: International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Applicant v. McBrien Insulation Ltd., Responding Party.
Before: M. A. Nairn, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
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 July 11, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on July 11, 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 Courier on July 10, 2000 who assured the applicant that they would be delivered on July 11, 2000 by no later than 5:00 p.m. The Registrar forwarded a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) by courier to the responding party on July 12, 2000.
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) McBrien Insulation Ltd. is bound to the collective agreement between the Master Insulators' Association of Ontario Inc. and the International Association of Heat and Frost Insulators and Asbestos Workers, and the International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 by virtue of having entered into a voluntary recognition agreement dated February 21, 1985.
(b) On or about May 15, 2000, Earl Walsh ("Walsh") business agent for the Applicant, encountered Dennis McBrien, principal of the Responding Party, and another individual identified by McBrien as his son-in-law Keith, insulating new duct work on the roof of Building #4 at the Canadian Forces Base in Kingston, Ontario. Building #4 was being renovated. Neither Dennis McBrien nor his son-in-law Keith were members in good standing of the Applicant or were hired through the Applicant's office, contrary to Sections 2.01(a) and (b) of the Collective Agreement. Moreover, Article 8.02 of the Collective Agreement further prohibits:
"No person who exercises managerial, estimating or sales function for an employer, or who has an ownership or other financial interest in an employer, shall work with the tools or perform any work of the application insulation within the scope of this Agreement."
Dennis McBrien is therefore prohibited from performing such insulation work pursuant to Article 8.02 of the Collective Agreement.
(c) Notwithstanding Walsh's protest to Dennis McBrien and his son-in-law that they were violating the Collective Agreement, they both continued to perform the insulation work as Walsh continued to observe them doing so.
(d) The Responding Party obtained this insulation work on a subcontract from Wayne Patry Plumbing & Heating Ltd. Attached is a copy of the invoice that the Responding Party submitted to the general contractor, Wayne Patry Plumbing & Heating Ltd. for the work in question. Of the $1,650.00 for labour and material, approximately sixty percent (60%), or $1,050.00 was for labour.
(e) By letter dated June 9, 2000, counsel for the Responding Party advised counsel for the Applicant that he had received a copy of the Applicant's grievance and would be contacting counsel very shortly. When counsel for the Applicant did not hear anything from purported counsel for the Responding Party, he wrote to the counsel requesting their position in reply. No response has ever been received from purported counsel for the Responding Party.
11In view of the Board's findings in paragraph 10 above, the Board therefore:
(a) declares that McBrien Insulation Ltd. is bound to the collective agreement between the Master Insulators' Association of Ontario Inc. and the International Association of Heat and Frost Insulators and Asbestos Workers, and the International Association of Heat and Frost Insulators and Asbestos Workers. Local 95 (the "collective agreement");
(b) declares that McBrien Insulation Ltd. violated that collective agreement by employing persons who were not members of the applicant to perform work covered by the terms of the collective agreement;
(c) orders McBrien Insulation Ltd. to pay forthwith to the applicant the sum of $1050.00 plus interest and in addition, the sum of $214.00 as costs.
12The hearing scheduled for July 25, 2000 is hereby cancelled.
"M. A. Nairn" for the Board