0896-01-G Operative Plasterers’, Cement Masons’, Restoration Steeplejacks International Association of the United States and Canada, Union Local 598, Applicant v. Metro Concrete Floors (1990) Inc., Responding Party.
BEFORE: Marilyn Silverman, Vice-Chair, and Board Members G. Pickell and A. Haward.
APPEARANCES: Michael A. Church, Pierre-Etienne Daignault, Steve Zarich and Robert Stante for the applicant; no one appearing for the responding party.
DECISION OF THE BOARD; August 30, 2001
This is a referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”).
At the date and time scheduled for hearing in this matter no one appeared on behalf of the responding party (“the employer”). The Board waited the usual ½ hour following which the hearing commenced in the absence of the employer.
The dispute concerns the applicant’s (“the union’s) contention that the employer has violated the collective agreement to which the employer is bound by employing individuals who are not members of the union. The employer filed a Request for Hearing and Notice of Intent to Defend/Participate. The parties attended at the Board for hearing on July 5, 2001 at which time they agreed to adjourn the matter sine die. In addition to the agreement to adjourn they also agreed to post a notice advising the individuals who were not members of the union that they were required to join the union in order to continue to be employed as cement masons by the employer. These employees were given a deadline to do so of July 13, 2001. The union contends that the employer is not requiring its employees to join nor is it ceasing to employ them if they refuse to join.
By letter dated July 18, 2001 the union requested that the referral be re-listed for hearing and the notice of hearing was sent. A representative of the employer had also been summoned to appear by the union. As stated the employer did not attend the hearing.
The Board heard sworn evidence from Mr. Roberto Stante, an organizer for the union and a former employee of the employer. Mr Stante visited the employer’s job sites on a regular basis and spoke to the individuals in question about the requirement to join the union. He stated that there was a substantial amount of work which was based on both his experience when he worked for the employer (until May 2001) and what he later observed at job sites. He testified as to the specific job sites that he visited between the date of the notice to employees and the date of the hearing. During that period he estimated that there were 5 individuals working who were not members of the union. He conservatively estimated that each would have worked 50 hours per week. The current collective agreement wage rate is $35.13 per hour. Based on those calculations the damages owed to the union for the breach for the 5 week period from July 13 to August 17, 2001 is $43, 912.50 (50 hours per week x 5 weeks x 5 individuals x $35.13 per hour).
The employer is bound to the current Cement Mason’s Provincial Collective Agreement and provided earlier Minutes of Settlement signed by the parties confirming same.
Having regard to the facts of this case and the submissions and evidence presented by the applicant the Board finds that:
a) the applicant and the responding party are bound to the Cement Masons’ Provincial Collective Agreement (“the collective agreement”);
b) the responding party has violated the collective agreement and in particular Article 3 of the collective agreement by employing and continuing to employ employees who were not members of the applicant;
c) the applicant has suffered damages as a result of the breach of the collective agreement in the amount of $43,912.50.
- The Board therefore makes the following determinations, declarations and orders:
a) declares that the responding party is bound to the Cement Masons’ Provincial Collective Agreement (the “collective agreement”);
b) declares that the responding party has violated the collective agreement by employing and continuing to employ individuals who are not members of the applicant in violation of the collective agreement;
c) orders that the responding party comply immediately with the terms of the collective agreement;
d) orders that the responding party compensate the applicant forthwith in the amount of $44,661.50 for damages incurred by the breach (inclusive of $749.00 as reimbursement for filing fee pursuant to section 133(13) of the Act).
- The Board received correspondence from Labourers’ International Union of North America, Local 506 (“L.I.U.N.A. Local 506”) following preparation of but prior to the issuance of this decision. L.I.U.N.A. Local 506 asserts that it intends to intervene on the basis that the claim that the work that formed the basis for the claim in the instant decision is work performed by its members and it was not provided with notice. L.I.U.N.A. Local 506 requests that the decision not issue until an intervention by it has been dealt with. The Board does not see any reason not to issue the decision following the hearing on the merits held on August 17, 2001. Pursuant to its request, a copy of this decision is being forwarded to counsel for L.I.U.N.A. Local 506 which should not be taken as an acknowledgement or determination that L.I.U.N.A. Local 506 has status in this proceeding.
“Marilyn Silverman”
for the Board