1413-00-G Universal Workers Union, Labourers' International Union of North America Local 183, Applicant v. Sebco Construction Ltd., Responding Party.
BEFORE: Gail Misra, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; August 23, 2000
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 15, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on August 14, 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 14, 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,
905-471-7077 on August 15, 2000 at 14:24 p.m.
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:
The Applicant, Universal Workers Union, Labourers’ International Union of North America Local 183 (the “Union”) is a trade union, which amongst others, represents construction employees performing various construction work including, but not limited to, work in the sewer and watermain sector of the construction industry in and around southern Ontario.
The Responding Party, Sebco Construction Ltd. (the “Company”), is a Company that performs sewer and watermain construction work in and around Toronto.
The Greater Toronto Sewer & Watermain Contractors Association (the “Association”) is an accredited Employer organization and as such is the sole and exclusive bargaining agent for all companies with whom the Union has bargaining rights who are engaged in work in the Sewer and Watermain Sector of the construction industry.
For a number of years the Union and the Association have been party to various collective agreements, the most recent of which is effective on its face from May 1,1998 to April 30, 2001 (the “Collective Agreement”).
For a number of years the Company and the Union have been in collective bargaining relations and have been parties to various collective agreements. The Company is bound to the Collective Agreement by virtue of the accreditation certificate issued by the Board to the Metropolitan Toronto Sewer & Watermain Contractors’ Association dated November 3, 1989.
Pursuant to Article 3.01 of the Collective Agreement the Company is required to employ only persons who are members of the Union to perform bargaining unit work. Pursuant to Article 3.02 of the Collective Agreement when the Company hires a new employee, the Company is required to receive a clearance slip issued by the Union from each new employee before starting work.
Since on or about April 1, 2000 and continuing, the Company has performed sewer and watermain work at various locations in and around Toronto, including but not limited to a project located at Wanless Avenue at Lawrence Avenue west of Mount Pleasant Road in the City of Toronto. Due to the nature of the work, which involves replacing residential copper water service pipes, the Company’s crews move from site to site on an almost daily basis.
Union Business Representatives, Joel Filipe (“Filipe”), found one of the Company’s two crews working at the above-noted job site on or about April 18, 2000, Filipe observed a crew of six persons working for the Company
performing the work described above. Filipe inquired and learned from the individuals working that only one was a Union member employed in compliance with the Collective Agreement.
Accordingly, the Union filed a grievance on or about May 2, 2000.
Union Business Representative Severino Silva (“Silva”) went to the site on or about April 19, 2000 and found that the crew was no longer working at the site.
Filipe has over 20 years of experience working in the construction industry and in particular the sewer and watermain sector of the construction industry, and 5 years of experience working as a Business Representative for the Union.
Silva has 25 years of experience working in the construction industry and in particular the sewer and watermain sector of the construction industry, and 2 years of experience working as a Business Representative for the Union.
Based on their knowledge of the industry and their experience as Business Representatives, Filipe and Silva are aware that it is the industry’s practice, in performing work such as the work in question, that 50% of a crew perform the work of operating engineers, which is not bargaining unit work and accordingly, are not required to be members of the Union. The other 50% of the crew perform the work of construction labourers and, accordingly, are required to be members of the Union.
Accordingly, out of a crew of 6 persons, 3 of those persons perform the work of construction labourers, and pursuant to the Collective Agreement are required to be members of the Union. Based on Filipe’s inquiries and observations, Filipe determined that in view of the fact that only one of the persons on the crew was a member of the Union, at least two other persons were required to be members of the Union pursuant to the Collective Agreement.
Based on their experience working in the construction industry and as Business Representatives for the Union, Filipe and Silva have knowledge that it is the normal practice of employers in the sewer and watermain sector in the construction industry, and it is the practice of this Company, to employ the same persons as part of a crew whenever possible. Based on Filipe’s and Silva’s experience where an employer in the sewer and watermain sector of the construction industry, such as the Company, employs non-union members on one job, those same persons continue to be employed on other jobs wherever possible. Therefore the Company has employed at least two persons on one crew who, pursuant to the Collective Agreement, ought to have been members of the Union, and were not members of the Union, in violation of the Collective Agreement, commencing on or about April 1, and continuing.
As the Company normally maintains two crews, each of which is made up of approximately six persons the Company should be employing at least six union members.
Filipe and Silva have checked the Company’s remittances forms supplied to the Union. These forms, filled out by the Company, indicate that the Company remits welfare and other benefits to the Union and its various trust funds on behalf of its bargaining unit employees for only one person and has been doing so since prior to April 1, 2000.
By employing persons who are not Union members to perform bargaining unit work, the Company has violated various articles of the Collective Agreement including but not limited to Articles 2, 3, 4, 8, 10, 15, 18 and Schedule “A”.
At all material times the Union had, and continues to have unemployed members in good standing who were ready, willing and able to work, and at no relevant time did the Company request employees from the Union and the Union did not issue clearance slips to any member to work for the Company at any relevant time.
11In view of the Board’s findings in paragraph 10 above, the Board therefore:
(a) declares that the responding party is bound to the collective agreement between the Greater Toronto Sewer and Watermain Contractors Association and the Council of Trade Unions acting as representatives for the Teamsters Local Union 230 and Labourers International Union of North America, Local Union 183 (as it was then known), effective May 1, 1998 to April 30, 2001;
(b) declares that the responding party is in violation of the terms of the collective agreement;
(c) orders that the responding party pay to the applicant all amounts including wages, remittances, union dues, and all other payments required by the collective agreement which would have been paid had the responding party not failed to hire union members and comply with the terms of the collective agreement;
(d) orders that the responding party produce to the applicant, within ten (10) 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 union or not, who were performing work covered by the collective agreement at all job sites within the geographic jurisdiction of the collective agreement. This production is to be made in order that the applicant may accurately assess the amount of damages in this grievance; and,
(e) orders that the responding party, pursuant to section 133(13) of the Act, pay to the union reimbursement of its fees expended in pursuing this grievance.
12Since the applicant has provided insufficient information upon which the Board can rely to assess the quantum of damages caused by the violations of the collective agreement, the Board has not dealt with that matter. The Board remains seized with this application in the event that the parties are unable to resolve the quantum issues among themselves. This particular panel of the Board is not seized of this matter. The hearing scheduled in this matter for August 29, 2000 is hereby cancelled.
“Gail Misra”
for the Board