3952-99‑G Sheetmetal Workers’ International Association, Local 30, Applicant v. Earlscourt Metal Industries Ltd., Responding Party.
BEFORE: John M. Lewis, Vice‑Chair, and Board Members J. G. Knight and
G. McMenemy.
DECISION OF THE BOARD; April 11, 2000
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 31, 2000. The accompanying Certificate of Delivery (Form A‑86) states that the responding party was served on March 30, 2000 by delivering a copy of the necessary documents required by Rule 155 of the Board's Rules of Procedure. 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, 905-564-9004 on April 5, 2000 at 3:19 p.m.
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.
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."
- 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."
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.)
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:
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).
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).
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.
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."
- 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.
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."
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:
Earlscourt Metal Industries Ltd. (“Earlscourt”) is bound by the Collective Agreement between the Ontario Sheet Metal and Air Handling Group and Sheet Metal Workers’ International Association and Ontario Sheet Metal Workers’ Conference, effective from the 1st day of May, 1998, until the 30th day of April, 2001 (“the Collective Agreement”).
Earlscourt is obligated under the terms of the Collective Agreement, and in particular Clause 18 of Appendix “K”, to provide completed remittance forms and remit contributions to the Sheet Metal Workers’ Local Union 30 Benefit Trust Fund on behalf of its employees, by the 20th day of the month next following the month in which such contributions are earned by employees.
Earlscourt failed or refused to provide remittance forms and remit contributions in accordance with the time-limit outlined in paragraph two (2) above in respect of contributions earned by employees during the months of June 1999, August 1999, October 1999, November 1999 and January 2000. The remittance forms and contributions for these months were received as follows:
Contributing Amount Date Forms and No. of Weeks Late
Month Contributions Rec.
June 1999 $10,671.10 August 10, 1999 3 weeks
August 1999 $15,321.87 October 4, 1999 2 weeks
October 1999 $22,970.41 December 1, 1999 1 week
November 1999 $18,081.40 January 4, 2000 2 weeks
January 2000 $11,120.49 March 9, 2000 2 weeks
- As a result of its failure or refusal to provide remittance forms and remit contributions in a timely manner, Earlscourt is obligated to pay penalties in accordance with Article 33.4 of the Collective Agreement. Such penalties have not been paid by Earlscourt. These penalties are based on the number of weeks that forms and contributions remained outstanding. In accordance with Article 33.4, the amount of penalties owing is as follows:
In respect of June 1999 $10,671.10 X 15% = $1,600.67
In respect of August 1999 $15,321.87 X 10% = $1,532.19
In respect of October 1999 $22,970.41 X 5% = $1,148.52
In respect of November 1999 $18,081.40 X 10% = $1,808.14
In respect of January 2000 $11,120.49 X 10% = $1,112.05
Total Penalties Owing $7,201.57
- In addition to the penalties owing, Earlscourt has also not paid late payment damages as a result of its failure or refusal to provide remittance forms and remit contributions in a timely manner. Late payment damages are assessed in accordance with Clause 18.3 of Appendix “K” of the Collective Agreement, which requires an employer to pay an amount equal to 10% of the contributions remitted if these contributions are not received by the last day of the month next following the month in which the contributions were earned by employees. The amount of late payment damages owing as per Clause 18.3 of Appendix “K” of the Collective Agreement is as follows:
In respect of June 1999 $10,671.10 X 10% = $1,607.11
In respect of August 1999 $15,321.87 X 10% = $1,532.19
In respect of October 1999 $22,970.41 X 10% = $2,297.04
In respect of November 1999 $18,081.40 X 10% = $1,808.14
In respect of January 2000 $11,120.49 X 10% = $1,112.05
Total Penalties Owing $7,816.53
- Based on the Board's findings in paragraph 10 above, the Board therefore:
declares that Earlscourt is bound to the Collective Agreement;
declares that Earlscourt violated the Collective Agreement;
orders Earlscourt to pay forthwith to the applicant, as damages, the sum of $15,018.10.
- The hearing scheduled for April 14, 2000 is hereby cancelled.
“John Morgan Lewis”
for the Board