1112-00-G Carpenters & Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Joe DaSilva o/a J.D. Installations, Responding Party.
BEFORE: M. A. Nairn, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
DECISION OF THE BOARD; July 21, 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 July 11, 2000. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on July 11, 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 giving them to Priority Courier on July 10, 2000 who advised the applicant that they would be delivered on Tuesday, July 11, 2000 no later than 4:30 p.m.. 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, 416-744-8077 on July 12, 2000 at 10:20 a.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, 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).
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:
(a) By decision dated February 28, 2000 the Board found that the responding party was bound to a collective agreement between the Carpenters’ Employer and Employee Bargaining Agencies effective until April 30, 2001.
(b) From on or about February 1, 2000 and continuing, the responding party failed to pay Mr. Shannon Robinson the correct wage rate and failed to pay him all wages and benefits due for carpenters’ work performed by Mr. Robinson on its various ICI construction projects in Ontario Labour Relations Board Area #8, including Loblaw Stores. More specifically, Mr. Robinson was paid either $18.00 or $19.00 per hour, with 4% vacation pay. He was not paid overtime despite working as many as 60.5 hours per week, and no remittances were made on his behalf for vacation pay, union dues, health and welfare trust contributions or other trust fund contributions.
(c) Mr. Robinson is a journeyman carpenter and member of the applicant. He is entitled to be paid these amounts pursuant to the terms and conditions of the aforesaid collective agreement. The responding party actually paid Mr. Robinson wages, including vacation pay, of $8,269.84 (copies of pay stubs were attached to the referral). However, the responding party should have paid him wages of $13,507.13, representing payment of 497.5 hours earned. Said amount is calculated on the basis that of the 437.5 hours actually worked by Mr. Robinson, 336 should be paid at straight time; 83 should be paid at time and one-half; and 18.5 should be paid at double time. Therefore, the responding party owes $5,237.29 for unpaid wages.
(d) The responding party also owes 497.5 hours earned to the applicant and its trust funds for remittances required pursuant to Articles 8, 9 and 10 of the collective agreement. The total amount owing for remittances, calculated at the standard rates set out therein is $5,422.40.
(e) The applicant also claims reimbursement for its reasonable legal costs in preparing and filing this application in the amount of $400.00 pursuant to Article 9.18 of the collective agreement, and for the Board filing fee of $214.00
- In view of the Board’s findings in paragraph 10 above, the Board therefore:
(a) declares that Joe DaSilva o/a J.D. Installations is bound to the provincial collective agreement between the Carpenters Employer and Employee Bargaining Agencies effective until April 30, 2001 (the “collective agreement”);
(b) declares that Joe DaSilva o/a J.D. Installations violated that collective agreement by failing to pay the proper wage rates and benefits in accordance with Articles 6,7,8,9,10 and the Local 27 Board Area #8 Schedule to the collective agreement;
(c) orders Joe DaSilva o/a J.D. Installations to forthwith pay to the applicant as damages for the said violations the sum of $11,273.69
- The hearing scheduled for July 25, 2000 is hereby cancelled.
“M. A. Nairn”
for the Board