The Ontario Council of the International Union of Painters and Allied Trades v. Basic Structure Engineering

2462-00-G The Ontario Council of the International Union of Painters and Allied Trades, (formerly known as the International Union of Painters and Allied Trades), District Council 46 (Local Unions 1795, 1824, 1819, Applicant v. Basic Structure Engineering, Responding Party.

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

DECISION OF THE BOARD; December 1, 2000

1. This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995 (the “Act”). The applicant requests certain declaratory relief if the responding party fails to file a Request for Hearing and Notice of Intent to Defend/Participate. The applicant does request a hearing with respect to the issue of damages.

2. The responding party failed to file a Request for Hearing and Notice of Intent to Defend/Participate as required by the Board’s Rules of Procedure and this matter came before the Board for determination.

3. The applicant provided a copy of an earlier Board decision dated May 30, 1995 setting out a Memorandum of Agreement signed by the parties, in which the responding party agrees it is bound to the ICI agreement between the Architectural Glass and Metal Contractors Association and the applicant (the “collective agreement”). The Board therefore declares the responding party is bound to the collective agreement.

4. In paragraph 7 of the application the applicant states:

“The Responding Party is bound to the Collective Agreement with the Applicant (see copy of recent Board’s Decision dated June 5, 1995 attached) and has failed to comply with the terms of the Agreement. Specifically, the Responding Party has failed or refused to remit the proper benefit contributions and pay vacation pay as required by the Collective Agreement commencing June 1, 2000 and continuing to date.”

5. The applicant requests the Relief sought in its grievance letter dated September 18, 2000. A copy of the grievance letter is attached to the referral. The grievance letter of September 18, 2000 states:

Commencing on or about June 1^st, 2000 and continuing to date, the Employer has at its construction projects in Ontario (the “Projects”) violated the Collective Agreement in that the Employer has failed or refused to apply the terms or provisions of the Collective Agreement to its employment of persons engaged in work covered by the Collective Agreement at the Projects and, without limiting the generality of the foregoing, has failed or refused to:

(1) contribute and make the proper required payments to the welfare, pension, vacation pay funds and the other various funds and plans and make deductions for union dues and administrative dues check-off and remit same as and when required by the Collective Agreement, and without limiting the generality of the foregoing, Articles 4, 12, 13, 15.02, 17, 18, 26, 27, 29, 30, 33, 34 and 35 of the Master Portion thereto and the Locals 1795, 1824 & 1819 appendix thereto.

6. There is nothing in the application or in the grievance letter that indicates on which projects the responding party failed to comply with the collective agreement. It appears the grievance deals with remittances for contributions and deductions however it does not refer to any employees who may be affected by this grievance. At a minimum the applicant has to identify jobsites where it alleges the responding party failed to comply with the collective agreement.

7. The Board (differently constituted) in East Park Interiors and this applicant (Board File No. 2380-00-G dated November 24, 2000) in paragraph 4 stated in part:

“Although the responding party did not file a Notice of Intent to Defend, we are of the view that the responding party is entitled to some indication of what work or construction projects at which the applicant asserts its members were employed and were not paid in accordance with the Collective Agreement or in respect of which the appropriate remittances and deductions were not made. See for example Ottawa G.S.B. Construction Co. Ltd., [1985] OLRB Rep. Dec. 1783 where the Board wrote at page 1788:

In our view no hard and fast rule can be drawn as to when it would be appropriate to consider an employer’s conduct on job sites not referred to in a grievance. However, we believe that care should be taken not to allow the proceedings to…result in a situation where a respondent goes through a hearing without a fair indication of the case it has to meet.

If a responding party should not have to go “through a hearing without a fair indication of the case it has to meet” then, in our opinion, a responding party should not have to face a default order without a “fair indication” of the projects or work that have given rise to the applicant’s claims.”

8. In the circumstances the Board directs the applicant to provide to the responding party and to the Board, on or before the date of hearing, particulars of the projects or work that gave rise to the claims made in this grievance.

9. This matter will proceed to hearing as scheduled in the Notice of Hearing dated November 22, 2000.

10. This panel of the Board is not seized with this matter.

“Inge M. Stamp”

for the Board