Operative Plasterers and Cement Masons International Association of the United States and Canada, Local 124 v. B.J. Normand Ltd.
1151-01-G Operative Plasterers and Cement Masons International Association of the United States and Canada, Local 124, Applicant v. B.J. Normand Ltd., Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; October 9, 2001
1This is an application for reconsideration of the Board’s decision in this matter dated July 27, 2001 in which the Board made a number of declarations and orders, including declarations that:
As a result of Minutes of Settlement entered into on February 16, 2001 between the applicant union and the responding party, a finding that the responding party breached any of Articles 3, 4, 5, 6, 11, 12, 13 and/or 14 of the Collective Agreement, in the year following the date of the February 16, 2001 minutes, was agreed to result in liability on the part of the responding party to the applicant union in the amount of $6,000.83, less payments received pursuant to the February 16, 2001 minutes of settlement. That liability represents the full amount of the applicant’s claimed damages in the grievance which resulted in those minutes of settlement.
As a result, upon a finding by the Board that the responding party has breached any of the above-cited sections of the Collective Agreement, the responding party is additionally liable to the applicant in the amount of $4,491.99 ($6,000.83 less the $1,508.84 received in satisfaction of the February 21, 2001 minutes of settlement).
The Board in that decision had also declared that the responding party had employed two persons to perform bargaining unit work contrary to the collective agreement by which the applicant and responding party were bound and that as a result of that violation of the collective agreement, the Board declared that the damages incurred by the applicant (for which the responding party was liable) were $530.88. Despite the Board’s declaration that “the responding party is additionally liable to the applicant in the amount of $4,491.99 ($6,000.83 less the $1,508.84 received in satisfaction of the February 21, 2001 minutes of settlement)”, the Board ordered the responding party to pay to the applicant the sum of $530.88 with interest, as that was the amount the Board had determined were the damages occasioned by the violation of the collective agreement to which the grievance related. The applicant seeks reconsideration of that decision.
2The responding party had not filed a Request for Hearing and Notice of Intent to Defend/Participate (Form A-87) after having been served with the grievance material and the Board proceeded to make its July 27, 2001 determination in this matter based on the material filed by the applicant. The responding party has, however, filed submissions after having been served with the request for reconsideration in which it opposes the request and seeks to have the application for reconsideration dismissed.
3The grievance that the applicant referred to the Board dated July 5, 2001 alleged that the responding party had violated the collective agreement at its project on 251 Laurier Ave. Although the grievance itself did not specifically refer to the previous memorandum of settlement that the parties had entered into resolving an earlier grievance, the grievance did explicitly state that the applicant also reserves “the right to any other monies found owing.” The referral to the Board filed on July 18, 2001 did explicitly seek in paragraph 8 of the referral payment of $4491.99 under the earlier memorandum of settlement.
4The applicant, in its request for reconsideration provides detailed submissions in support of its position that the Board should have, but did not, order the responding party to pay that additional amount pursuant to the prior memorandum of settlement. The Board did not, in its July 27, 2001 decision give any reasons for not awarding that additional amount despite having explicitly declared that the responding party is liable to the applicant for that amount.
5The responding party submits a number of grounds on which the Board can rely to dismiss the request for reconsideration. The responding party submits that the Board does not have jurisdiction to make an order in relation to minutes of settlement that were not filed with the Board. That submission has no merit. The applicant alleged in its referral and the Board declared that the responding party had violated those minutes of settlement. Whether they were filed with the Board or not does not affect their character as a written settlement that is enforceable under section 133(9) of the Act. Therefore, the Board does have the jurisdiction to grant relief in respect of that settlement.
6The responding party submits that section 133(9) has no application because that section refers to the immediate grievance and not to some earlier one. It also suggests that reliance on section 48(15) is unwarranted because it also must relate to the settlement of the immediate grievance and not an earlier grievance. While that argument might have been open to the responding party had it wished to respond to the grievance, the responding party, by choosing to do nothing, after having been served with the grievance material, was deemed to have accepted the facts as set out in the referral. The referral did make reference to the settlement and it was therefore part of the subject matter of the instant grievance before the Board for determination.
7The responding party also submitted that paragraphs 13 through 17 of the request for reconsideration introduced evidence that was not before the Board previously and introduced concepts of “progressive discipline” in order to deal with employers in the construction industry. As the Board places no reliance whatever on the submissions made by the applicant in paragraphs 13 through 17 of its request for reconsideration, whether those submissions are properly before us or whether the concepts of progressive discipline have any application to employers who violate collective agreements (a proposition with which we have considerable doubt) are not matters about which we need to comment.
8It is clear that the applicant sought relief in this grievance for the violation of the collective agreement for which damages in the amount of $530.88 were awarded and also sought to obtain payment under the earlier minutes of settlement for the amount the responding party agreed it would pay the applicant if the Board found that it had violated those provisions of the collective agreement within one year from the date of the settlement.
9We are satisfied that the Board’s decision of July 27, 2001 in this matter should not only have ordered the responding party to pay the applicant the sum of $530.88, it should also have directed the responding party to pay to the applicant the additional sum of $4,491.99 by reason of those minutes of settlement and the subsequent violation of the collective agreement within one year of the date of that settlement.
10The request for reconsideration is granted. The Board therefore amends the Board’s decision of July 27, 2001 by adding the following to paragraph 11 of that decision:
(e) orders that the responding party pay to the applicant forthwith the additional sum of $4,491.99.
11Having regard to the amendment made by the Board to paragraph 11 of the Board’s decision of July 27, 2001 in this matter that paragraph shall now read:
In view of the Board’s findings in paragraph 10 above, the Board therefore:
(a) declares that the responding party is bound to the Provincial Collective Agreement entered into between the Walls and Ceilings Contractors’ Associations and the Labour Relations Bureau of the Ontario General Contractors’ Association and the Ontario Provincial Conference of the Operative Plasterers’ and Cement Masons International Association of the United States and Canada;
(b) declares that the responding party has breached Articles 2, 3, 4, 5, 6, 7, 11, 12, 13 and 14 of the Provincial Collective Agreement;
(c) orders that the responding party pay to the applicant forthwith the sum of $530.88 with interest;
(d) orders that the responding party pay to the applicant $214.00 in respect of the filing fee;
(e) orders that the responding party pay to the applicant forthwith the additional sum of $4,491.99.
“Harry Freedman”
for the Board