International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 736 v. The On-Site Group Inc., 2001 CanLII 3951

International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 736 v. The On-Site Group Inc.

1355-01-G International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 736, Applicant v. The On-Site Group Inc., Responding Party v. Ontario Erectors Association, Incorporated, Intervenor.

BEFORE: Marilyn Silverman, Vice-Chair.

DECISION OF THE BOARD; October 25, 2001

1This is a request for reconsideration of the Board’s decision dated September 6, 2001 (“the Decision”) that was filed with the Board on October 4, 2001. It is a timely request for reconsideration.

2As stated in Robert Dickson, Superintendent, Sarnia Jail, (Board File No. 1869-97-U, decision dated October 21, 1997, unreported), when exercising its discretion under the reconsideration section of the Act, the Board will take account of the following:

2. ... the Board has a broad discretion to reconsider any of its decisions. However, the same provision, and legal and labour relations considerations also require the Board to operate from the premise that a Board decision is final and conclusive for all purposes unless there is a good reason to change it. Accordingly, the Board will generally not reconsider a decision unless an obvious error has been made; or a request for reconsideration raises important policy issues which have not been given adequate attention or consideration; or the party requesting reconsideration proposes to adduce new evidence which it could not, with the exercise of reasonable diligence, have obtained and adduced previously, and which new evidence would, if accepted, have a material impact on the decision in question; or where a party seeks to make representations which it has had no previous opportunity to make. Section 114(1) of the Act is not intended to provide an opportunity for a party to re‑argue its case, either de novo or as some form of appeal.

3The Decision dealt with an application filed under section 133 of the Labour Relations Act, 1995 (the “Act”). The employer received notice of the hearing but did not attend. It did not file a Notice of Intent to Defend/Participate. The facts presented at the hearing were that the responding party (“the employer”) hired three individuals to a job in contravention of the collective agreement between the parties. The facts and evidence accepted by the Board were based on evidence taken under oath from the applicant’s (“the union’s”) witness. On that basis the Board granted the union the remedies it requested. One of the remedies requested was pay for all hours the union claimed were lost to its members; a total amount of $10,852.28.

4In its request for reconsideration, the employer provides the Board with its versions of the events giving rise to the grievance. It contends that the employer did not violate the collective agreement or if it did the employees were only entitled to an amount representing “reporting pay” under the collective agreement and not lost wages. The employer disputes both the head under which damages were awarded and the amount of time for which damages were awarded. In the employer’s estimation the damages for this breach would have been in the amount of $229.62.

5The employer also contends that it relied on an intervention filed by the Ontario Erectors Association, the employer bargaining agency, whom it assumed would attend. That entity did in fact file a Notice of Intent to Defend/Participate but withdrew its participation the day before the hearing.

6The employer contends that the evidence given at the hearing was fabricated, particularly as regard the amount of damages owed. As such the employer asserts that the applicant has committed an abuse of process and a fraud upon the Board.

7The employer advises that it elected not to call evidence nor to attend the hearing as the amount of the claim was, in its view, small. In addition, it relied upon the fact that the Ontario Erectors Association would attend.

8The employer requests that the Board amend its decision to reduce the amount of damages awarded to that which is based on the employer’s calculations as presented in the reconsideration request.

Decision

9The referral of the grievance was delivered by the union to the employer. The relief requested by the union in that grievance was for, among other things, “all hours worked which ought to have been worked by members of the applicant”. In addition in paragraph 7(x) of the referral the union sets out the damages it asserts are owing, namely:

x) As a result of the employer’s refusal to hire them, the applicant’s three members have lost wages and benefits. The applicant claims damages for all hours worked on the project by persons other than the three referred. Journeymen members of the applicant earn $38.27 per hour for each hour worked or earned (ref. Article 10, 12, 30, 31). This amount does not include retail sales tax on benefit contributions as well as a nine-cent industry fund which are both required under the terms of the collective agreement and the Retail Sales Tax Act.

10The employer asserts that only reporting pay was due. It is clear from the material that the employer received from the union that that was not the union’s understanding of the damages at issue. In the event that the employer had something different to assert it had the opportunity to do so at the hearing scheduled into the matter.

11After receiving the referral of the grievance, the employer received notice of the referral and notice of hearing from the Registrar. Paragraph 5 of the Confirmation of Filing of Referral of Grievance and Notice of Hearing provides:

5. A hearing in connection with the Referral will take place in the “Board Room”, 2nd Floor, 505 University Avenue, Toronto, Ontario on FRIDAY, AUGUST 24, 2001, at 9:30 A.M.

The purpose of the hearing is to hear the evidence and representations of the parties with respect to all matters relating to this referral.

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.

12The fact that some other party, in this case the Ontario Erector’s Association, initially participated and then withdrew does not provide a satisfactory reason for the employer not to have attended to present its defence.

13The Board heard evidence under oath and submissions from the union. In the absence of any other evidence or representations it decided the matter on the basis of what was presented at the hearing. The Board is not prepared to reconsider its decision in circumstances where a party to an application receives notice, fails to attend and then wishes to have the matter re-visited on the basis that it is unhappy with the result.

14Having regard to the reasons provided above, the request for reconsideration is denied.

“Marilyn Silverman”

for the Board