Ontario Labour Relations Board

2053-01-G The International Union of Painters and Allied Trades, Local Union 1891, Applicant v. N.K.P. Painting Inc., Responding Party.

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.

DECISION OF THE BOARD; November 2, 2001

1. 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 October 24, 2001. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on October 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 giving them to Purolator Courier on October 23, 2001 who assured the applicant that they would be delivered on Wednesday, October 24, 2001, by no later than 4:00 p.m. The Registrar couriered a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the responding party in the application on October 25, 2001 at the address provided by the applicant.

2. 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.

3. 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.

4. 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.

5. 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.)

6. 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:

7. A copy of the application

8. A copy of the Notice of grievance referral.

9. 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.

10. A blank response form for the responding party's use.

11. 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).

12. 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.

13. 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.

9. 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:

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.

10. 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) N.K.P. Painting Inc. is bound to the collective agreement between The International Brotherhood of Painters and Allied Trades and The Ontario Council of the International Brotherhood of Painters and Allied Trades and The Ontario Painting Contractors Association, Acoustical Association of Ontario, Interior Systems Contractors Association of Ontario and the collective agreement between the Residential Painting Contractors of Ontario and Local 1891 of the Ontario Council of the International Brotherhood of Painters and Allied Trades, (both collectively referred to as "the collective agreement").

(b) N.K.P. Painting Inc. has violated the collective agreement by failing to employ members of the applicant to perform bargaining unit work, by failing to pay the proper wages and benefits, and failing to make the required remittances.

(c) At all material times the applicant had members who were available, willing and able to perform the bargaining unit work.

(d) Based on the applicant's submissions the Board is satisfied that the total earnings lost to members of the applicant is $59,283.40.

11. In view of the Board's findings in paragraph 10 above, the Board therefore:

(a) declares N.K.P. Painting Inc. is bound to the collective agreement between The International Brotherhood of Painters and Allied Trades and The Ontario Council of the International Brotherhood of Painters and Allied Trades and The Ontario Painting Contractors Association, Acoustical Association of Ontario, Interior Systems Contractors Association of Ontario and the collective agreement between the Residential Painting Contractors of Ontario and Local 1891 of the Ontario Council of the International Brotherhood of Painters and Allied Trades, (both collectively referred to as "the collective agreement");

(b) declares N.K.P. Painting Inc. has violated the collective agreement by employing non-union workers to perform bargaining unit work;

(c) orders N.K.P. Painting Inc. to pay damages in the amount of $59,283.40 forthwith to the applicant as a result of the above violations;

(d) orders N.K.P. Painting Inc. to pay the amount of $214.00 to the applicant pursuant to section 133(13) of the Act.

12. The hearing scheduled for November 7, 2001 is hereby cancelled.

"Inge M. Stamp"

for the Board