Sheet Metal Workers’ International Association, Local 30 v. Walter B. Enterprises Inc., 2001 CanLII 19008

1224-01-G Sheet Metal Workers’ International Association, Local 30, Applicant v. Walter B. Enterprises Inc., Responding Party.

BEFORE: Mary Ellen Cummings, Alternate Chair, and Board Members G. Pickell and A. Haward.

DECISION OF THE BOARD; August 2, 2001

1This 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 24, 2001. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on July 24, 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 facsimile transmission on July 24, 2001. 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) 951-7652 on July 25, 2001 at 11:48 a.m.

2As 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.

3Section 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.

4In 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.

5Furthermore, 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.)

6The 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:

1. A copy of the application
2. A copy of the Notice of grievance referral.
3. 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.
4. A blank response form for the responding party’s use.
5. 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).

7The 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.

8The 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.

9The 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.

161. 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.

162. 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.

10Accordingly, 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 applicant’s representative visited a job site at a Zellar’s store in Brampton on July 18, 2001and found 3 persons, not referred by the applicant, performing work covered by the collective agreement to which the responding party is bound. The employees indicated that they had been working since January 2001. The applicant’s representative further determined that the employees were not being paid in accordance with the collective agreement. Based on that information, the applicant has calculated the loss to the union as the wages and benefits contributions for 3 persons, for 4 months of work. That is the basis on which the Board has typically awarded damages for breaches of the collective agreement relating to the use of employees who are not members of the union or subcontractors not in contractual relations with the union. The Board concludes that such damages are appropriate in this case.

11The Board finds that:

(a) that the responding party is bound to the collective agreement between the Ontario Sheet Metal and Air Handling Group, and the Sheet Metal Workers’ International Association and the Ontario Sheet Metal Workers’ Conference, effective from May 1, 1998 until April 30, 2001, and effective from May 1, 2001 until April 30, 2004 (the collective agreement).

(b) that the responding party has breached the collective agreement, in particular Articles 8, 21 and Clause 7 of Appendix A in employing persons not referred by the applicant and in not paying them in accordance with the terms of the collective agreement.

(c) that the applicant has established that it is entitled to damages in the amount of $66,363.84

12In view of the Board’s findings in paragraph 11 above, the Board therefore declares:

a) that the responding party is bound to the collective agreement between the Ontario Sheet Metal and Air Handling Group, and the Sheet Metal Workers’ International Association and the Ontario Sheet Metal Workers’ Conference, effective from May 1, 1998 until April 30, 2001, and effective from May 1, 2001 until April 30, 2002 (the collective agreement);

b) that the responding party has breached the collective agreement, in particular Articles 8, 21 and Clause 7 of Appendix A in employing persons not referred by the applicant and in not paying them in accordance with the terms of the collective agreement;

c) that the responding party pay $66,363.84 to the applicant;

d) that the responding party reimburse the applicant’s filing fees in the amount of $214.00.

13The hearing scheduled for August 7, 2001 is hereby cancelled.

“Mary Ellen Cummings”

for the Board