The International Union of Painters and Allied Trades, District Council 46 (Local Union 1891) v. East Park Interiors
2380-00-G The International Union of Painters and Allied Trades, (formerly known as the International Brotherhood of Painters & Allied Trades), District Council 46 (Local Union 1891), Applicant v. East Park Interiors, Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; November 24, 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 as amended (the “Act”) in which the applicant seeks declaratory and other relief and requests that the Board determine the referral without a hearing if the responding party should fail to file a Request for Hearing and Notice of Intent to Defend/Participate.
The responding party failed to file a Request for Hearing and Notice of Intent to Defend/Participate and this matter came before the Board for determination. The applicant requests a declaration that the responding party is bound by the Provincial Agreement between the Ontario Painting Contractors Association et al and the International Union of Painters and Allied Trades and the Ontario Council of the International Union of Painters and Allied Trades, expiring April 30, 2001 (the “Collective Agreement”). In support of that declaration the applicant states as a fact in paragraph 7 of the Application (Form A-86): “The responding party is bound to the Collective Agreement”. A copy of the Collective Agreement was filed with the application.
The applicant in its supporting facts states that the responding party is bound by the Collective Agreement and that it violated the Collective Agreement by failing to the proper rates, remit benefit contributions and file benefit remittance reports for the period between April and August, 2000 inclusive. Although the applicant seeks a declaration that the responding party is bound by the Collective Agreement, the applicant has not provided any factual allegations to support the legal conclusion that the responding party is bound by the Collective Agreement, nor is there a reference in the material filed to anything on which the Board could base that declaration, such as a voluntary recognition agreement, a Board certificate or even a prior Board decision containing such a declaration.
The applicant asserts that Greg Smith, a business representative of the applicant, has spoken with the responding party’s employees and collected information about their hours worked for the responding party. The applicant also alleged in the application that 11 different members of the applicant had performed work for the responding party coming within the scope of the Collective Agreement during the period in issue. In addition, the applicant also provided a detailed schedule setting out its calculation of the damages it claims based on the various violations of the Collective Agreement alleged to have occurred. However, the applicant did not in either its grievance letter dated November 2, 2000 or in its application indicate the projects at which the responding party allegedly failed to comply with the Collective Agreement. The third paragraph of the letter states, in part:
Commencing on or about April 1, 2000 and continuing to date, the Employer has at its construction projects in Ontario including (the “Projects”) [sic] 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,….
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.
Under the circumstances, the Board declines to issue the declarations and orders sought based only on the material filed by the applicant. In our view, before it would be appropriate for the Board to issue a decision declaring that the responding party is bound by the Collective Agreement, the applicant would have to allege facts upon which the Board could rely to come to that conclusion. Furthermore, the failure of the applicant to provide any particulars of the projects or work to which the claim for damages relates is another reason for the Board to decline to deal with this matter based only on the material filed by the applicant.
The Board therefore directs that this matter proceed to hearing as scheduled in the Notice of Hearing dated November 3, 2000 so that the applicant can, at the very least, adduce the necessary evidence to prove that the responding party is bound by a collective agreement and provide some particulars of the projects or work that gave rise to claims made in the grievance.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board