0236-01-G International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721, Applicant v. Comstock Canada Ltd., Responding Party.
BEFORE: D. L. Gee, Vice-Chair and Board Members J. G. Knight and A. Haward.
DECISION OF THE BOARD; May 8, 2001
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 April 23, 2001. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on April 23, 2001 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 Canada Post Corporation (Priority Courier) on April 20, 2001 who assured the applicant that they would be delivered on April 23, 2001, by no later than 12:00 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, (905) 335-4265 on April 24, 2001 at 10:12 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:
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) the responding party is bound to the Collective Agreement between the Electrical Power Systems Construction Association and the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers et al. (the “Collective Agreement”);
(b) article 34.7 of the Collective Agreement provides that alleged unjustified termination and discharge may be grieved beginning at the first step of the grievance procedure;
(c) Bernie Melanson and Darren Newhall were employed by the responding party under the terms of the Collective Agreement at the Pickering “A” project;
(d) on February 2, 2001, Messrs. Melanson and Newhall reported to work for the responding party. At approximately 8:00 a.m. the foreman left the site. At approximately 9:00 a.m., owing to bad weather, Messrs. Melanson and Newhall decided to quit work for the day;
(e) an OPGI rule requires people working on a site to advise their foreman before leaving. Messrs. Melanson and Newhall understood that there was no foreman on site. Mr. Melanson phoned his steward and advised him that there was no foreman on site and that he and Mr. Newhall were going home. Mr. Melanson also advised the holder of records for Comstock and the electrical foreman that he and Mr. Newhall were leaving the site;
(f) the following day, Messrs. Melanson and Newhall were informed that their employment was terminated for having walked off the job without advising their foreman;
(g) a grievance was filed on behalf of Messrs. Melanson and Newhall on March 21, 2001 asserting that they had been wrongfully dismissed and seeking immediate reinstatement and payment of all lost wages and benefits;
(h) notwithstanding discussions between the applicant and the responding party, the matter has not been settled;
(i) Messrs. Melanson and Newhall were unemployed for a period of time following their discharge. There was work for them to perform at the Pickering “A” project;
(j) a journeyman member of the applicant earns wages and contributions totalling $37.52 for each hour worked or earned, exclusive of retail sales tax on benefit contributions and a nine-cent industry fund;
(k) the applicant has incurred costs in the amount of $214.00 in connection with the filing of the instant grievance referral.
- In view of the Board’s findings in paragraph 10 above, the Board therefore:
(a) declares that the responding party is bound to the Collective Agreement;
(b) declares that Messrs. Melanson and Newhall were unjustly terminated from their employment with the responding party on February 3, 2001 in violation of the Collective Agreement;
(c) orders the responding party to forthwith reinstate Messrs. Melanson and Newhall to the positions held immediately prior to their termination at Pickering “A” project;
(d) orders the responding party to forthwith compensate Messrs. Melanson and Newhall for all lost wages, benefits and union dues lost by Messrs. Melanson and Newhall as a result of the responding party’s violation of the Collective Agreement;
(e) orders the responding party to forthwith pay to the applicant its costs associated with the filing of the instant matter in the amount of $214.00.
The applicant is hereby directed to advise the Registrar of the Board no later than 4:00 p.m. on May 14, 2001 as to whether it wishes the hearing to proceed on May 16, 2001 in order for the Board to make determinations with respect to the amount of damages owing to Messrs. Melanson and Newhall.
I am not seized.
“D. L. Gee”
for the Board