International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 v. McBrien Insulation Limited
1626-01-G International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Applicant v. McBrien Insulation Limited, Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair, and Board Members J. Knight and G. McMenemy.
APPEARANCES: Elizabeth Mitchell and Earl Walsh for the applicant; no one appearing for the responding party.
DECISION OF THE BOARD; October 4, 2001
1This is a referral of grievance to arbitration in the construction industry under the Labour Relations Act, 1995 (the "Act").
2The application was referred to the Board on September 10, 2001.
3On the date scheduled for hearing in this matter, no one appeared for the responding party. The Board proceeded with the hearing at 10:00 a.m. The Board's Notice of Hearing sets out the consequences of failing to attend at the hearing. Paragraph 5 of the Notice of Hearing states:
IF YOU DO NOT ATTEND THE HEARING, THE BOARD MAY DECIDE THE REFERRAL WITHOUT FURTHER NOTICE TO YOU AND WITHOUT CONSIDERING ANY DOCUMENT YOU MAY HAVE FILED.
4The Board heard the testimony of Earl Walsh, a Business Representative for the applicant. Mr. Walsh testified to the following materials facts:
a) McBrien Insulation Limited ("McBrien") is bound to the collective agreement between the Master Insulators' Association Ontario Inc. and the International Association of Heat and Frost Insulators and Asbestos Workers and the International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 effective from June 8, 1998 to April 30, 2001, and renewed until April 30, 2004 (the "collective agreement");
b) McBrien knowingly violated articles 2.01(a) and 2.01(b)(i) of the collective agreement by employing two individuals who are not members of the applicant to perform work falling within the trade jurisdiction of the collective agreement. The violation took place at the Rideau Public Heights School in Kingston;
c) the applicant had unemployed members who were ready, willing and able to perform the work at the School during the relevant time period; and
d) damages resulting from the violation of the collective agreement amount to $4,800.00.
5The applicant also seeks to enforce the penalty provision of article 6.05 of the collective agreement which reads, in part, as follows:
Any contractor who knowingly violates this collective agreement (excluding asbestos removal) by employing non-union workers and/or subcontracts work to non-union workers will be assessed additional fines/penalties beyond those imposed by the Ontario Labour Relations Board (O.L.R.B.) or if early settlement is reached the following fines/penalties shall apply in addition to any settlement damages:
A $25,000.00 Minimum and Maximum fine per investigation.
6Counsel for the applicant referred to a series of cases in which the Board has found that penalty provisions in collective agreements are enforceable. In Sentinel Systems Inc., [1999] OLRB Rep. March/April 342 the Board examined article 6.05 of the collective agreement and found it to be enforceable. The uncontested testimony of Mr. Walsh was that McBrien knowingly violated the collective agreement when it employed non-union workers. Accordingly, we find that article 6.05 applies.
7After considering the evidence, both documentary and viva voce, the Board:
(a) declares that McBrien is bound to the collective agreement;
(b) declares that McBrien knowingly violated articles 2.01(a) and 2.01(b)(i) of the collective agreement;
(c) orders McBrien to pay forthwith to the applicant the sum of $30,549.00. This amount is calculated as follows:
$25,000.00 in accordance with article 6.05;
$ 4,800.00 in damages arising from the violation of the collective
agreement;
$ 749.00 in accordance with section 133(13) of the Act.
"John Morgan Lewis"
for the Board