United Brotherhood of Carpenters and Joiners of America, Local 2041 v. Provincial Property Maintenance
0057-99-R United Brotherhood of Carpenters and Joiners of America, Local 2041, Applicant v. Provincial Property Maintenance, The Provincial Group and Provincial Construction, Responding Parties.
0068-99-G United Brotherhood of Carpenters and Joiners of America, Local 2041, Applicant v. Provincial Property Maintenance, The Provincial Group and Provincial Construction, Responding Parties.
BEFORE: Marilyn Silverman, Vice-Chair.
APPEARANCES: Don Guilbeault, Kathleen Martin and Vic Quintal for the applicant; no one appearing for the responding party.
DECISION OF THE BOARD; April 14, 2000
This is an application under section 69 and subsection 4 of section 1 of the Labour Relations Act, 1995, S.O. 1995, c.1 ('the Act') (Board File No. 0057-99-R) for declaratory and other relief and a referral of a grievance to the Board for determination under section 133 of the Act (Board File No.0068-99-G).
The matter was scheduled to be heard at 9:30 a.m. on April 6, 2000. Notice of the hearing at that time was properly given to the responding parties well in advance of the hearing. There was no appearance by the responding parties at the appointed time for the hearing. The matter was delayed for a period of half an hour in case of a late arrival. Notwithstanding the delay, there was still no appearance by the responding parties when the matter was to be heard. I rely on Rule 45 of the Board’s Rules of Procedure in this regard. Rule 45 provides that:
- Where any person has been notified of a hearing or consultation in the way required by these Rules and fails to attend (in the case of an oral hearing or consultation) or to participate (in the case of an electronic hearing), the Board may decide the application without further notice to that person and without considering any document filed by that person.
- In addition, the notice of hearing contains the following statement in paragraph 3:
If you do not attend the hearing, the Board may decided the application without further notice to you and without considering any document filed by you.
The responding party, Provincial Construction filed a response dated May 6, 1999. Other than that there is no evidence of any other involvement that the responding parties had save for the applicant’s statement that Mr. Peter Sephton, the contact person named in the response did attend a Labour Relation Officer’s meeting. Mr. Sephton is also the person that the applicant alleges is the principle and key man for each of the responding parties.
I heard sworn evidence of Mr. Donald Guilbeault, the business manager for the applicant and Mr. Vic Quintal, an organizer for the applicant. I also heard submissions from counsel for the applicant concerning these matters and received documents and exhibits.
In respect of the related employer application, the Board was provided with the voluntary recognition agreement signed by Mr. Sephton and corporate registrations evidencing his involvement with the companies. The evidence was that the responding parties carried out activities as a construction contractor performing carpentry work.
Based upon the evidence and submissions of the applicant I am prepared to find that the responding parties operated under common control and direction and are one employer for the purposes of the Act. I find further that they are bound to the collective agreement between the Carpenters’ Employer Bargaining Agency and the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America (“ the collective agreement”).
Counsel for the applicant advised during the hearing that the applicant would seek leave to withdraw the application as it relates to section 69 of the Act (the sale of a business application) if relief were granted as contemplated in paragraph 7 above under section 1(4) of the Act. Having regard to that, the section 69 application is withdrawn with leave of the Board.
The grievance relates to a job-site performed at the Best Western – Baron’s Hotel at 3700 Richmond Road in Nepean. The applicant claims that the responding parties are in breach of the subcontracting provisions of the collective agreement. The applicant provided a ready to work list of members of the applicant who were ready and able to work at the material times. Mr. Quintal’s evidence was that he visited the job site on a number of occasions and based on his experience and observations (and on a conservative estimate) determined that there was work that could have been performed by members of the applicant for 2 employees over an 8-week period. Based on the relevant provisions of the collective agreement and the documentary and oral evidence provided, I find that damages are owed by the responding parties for wages, contributions, deductions and interest are in the amount of $25,935.31.
There was also evidence of work performed on a flower shop. Although that work was not included in the original section 133 application I am prepared to accept that evidence and consider it as a motion to amend the original grievance. I grant that motion and hear the evidence on those damages as well. Based on Mr. Quintal’s experience and observations, that job was conservatively estimated to be work for 2 employees for a period of 4 days. Based on the relevant provisions of the collective agreement I find that damages are owed by the responding parties for wages, contributions, deductions and interest are in the amount of $2,453.20.
Counsel for the applicant referred the Board to the appropriate interest calculation as provided for in the collective agreement.
Having regard to the findings above the Board makes the following declarations and orders:
(a) The Board declares that Provincial Property Maintenance, The Provincial Group and Provincial Construction are one employer for the purposes of the Act;
(b) The Board declares that Provincial Property Maintenance, The Provincial Group and Provincial Construction are bound to the Carpenters’ Employer Bargaining Agency and the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America;
(c) The Board declares that Provincial Property Maintenance, The Provincial Group and Provincial Construction have violated the collective agreement by using persons who were not members of the applicant to perform work covered by the collective agreement;
(d) The Board orders that Provincial Property Maintenance, The Provincial Group and Provincial Construction pay to the applicant forthwith the amount of $28,388.51 as damages for unpaid wages and contributions.
“Marilyn Silverman”
for the Board