3872-00-G International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 736, Applicant v. Christopher M. Sandy c.o.b. as Sunrise Construction and Custom Welding, Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; April 11, 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 March 29, 2001. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on March 29, 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 March 28, 2001 who assured the applicant that they would be delivered on Thursday, March 29, 2001 by no later than 12:00 p.m. The Registrar sent by courier a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the address provided for the responding party in the application, on March 30, 2001.
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) Sunrise Construction and Custom Welding (the “employer”) is bound to the Collective Agreement between the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers et al. and the Ontario Erectors Association (the “Collective Agreement”) by virtue of a Voluntary Recognition Agreement dated November 13, 1998;
(b) the employer violated Articles 7.1(a) and 12 of the Collective Agreement by failing to pay wages to four members of the applicant on the date required by the Collective Agreement. Wages are set out in Article 12 of the Collective Agreemen. Although wages are due on the Thursday of the week in which they are earned Al Peterson, Edward Logan, Jebediah Peterson and Sid Bomberry have not yet been paid for the week ending March 9, 2001. The four members are owed the following amounts in outstanding wages: Al Peterson $328.76; Edward Logan $214.69; Jebediah Peterson $214.69; and Sid Bomberry $90.80;
(c) in addition, pursuant to Article 7.1(a), an employee forced to wait for payment of wages owing is entitled to waiting time of a maximum of eight hours straight time pay for each regular working day the employee waits to be paid. As of the date of this grievance referral Al Peterson, Edward Logan, Jebediah Peterson and Sid Bomberry have each waited 27 working days for the pay referred to in paragraph 10(b) above. The applicant therefore claims waiting time pay of $32,201.28 (37.27 x 8 x 27 x 4) on behalf of these four members;
(d) the employer is also in violation of Article 7.1(b) of the Collective Agreement for failing to reimburse 10 members of the applicant $25 each for bank fees incurred when their pay cheques were returned N.S.F. The pay cheques issued to Don Anderson, Edward Logan, Jebediah Peterson, Al Peterson, Carl Beaulieu, Sid Bomberry, Franklin Meracle, Josh Sandy, Rick Roy and Dan Cole for the week of March 9, 2001 all bounced. Although the employees have since been paid with certified cheques, the employer has not reimbursed them for the bank charges associated with the processing of the bounced cheques as it is required to do under Article 7.1(b) of the Collective Agreement. The total damages claimed for this violation are $250.00.
(e) the employer has also failed to provide Records of Employment to four Iron Workers laid off at various times during the month of March. Pursuant to Article 6.3 and 6.5 of the Collective Agreement the employer is to send the Record of Employment to employees by Priority Post within twenty-four hours of their lay off. Failure to send the Record of Employment as required triggers an obligation to pay waiting time pay for every day the employee is required to wait. The names and dates of the Iron Workers laid off who have not received their Record of Employment are: Angus McLean, March 1, 2001; Ian Batchelor and Dan Piche, March 14, 2001; Rick Roy, March 23, 2001. The applicant claims waiting pay on behalf of these members as follows: Angus McLean, three days - $894.48; Ian Batchelor, three days - $894.48; Dan Piche, three days - $894.48; Rick Roy, ten days $596.32. Total damages to date equal $5,665.04.
- In view of the Board’s findings in paragraph 10 above, the Board therefore:
(a) declares that the employer has violated the Collective Agreement, in particular Articles 6.3, 6.5, 7.1(a), 7.1(b) and 12;
(b) directs the employer to pay to the applicant forthwith the amount of $39,179.26. The amount is broken down as follows:
the amount of $848.94 is with respect to wages owing Al Peterson, Edward Logan, Jebediah Peterson and Sid Bomberry;
the amount of $32,201.28 is with respect of waiting time owing Al Peterson, Edward Logan, Jebediah Peterson and Sid Bomberry;
the amount of $250 is with respect of bank service fees incurred by employees whose pay cheques for the week ending March 9, 2001 were returned N.S.F.;
the amount of $5,665.04 is with respect of waiting time owing Angus McLean, Ian Batchelor, Dan Piche and Rick Roy;
the amount of $214.00 is with respect to the fees payable pursuant to section 133(13) of the Act.
- The hearing scheduled for April 12, 2001 is hereby cancelled.
“John Morgan Lewis”
for the Board