0820-01-G International Brotherhood of Electrical Workers, Local 894, Applicant v. Stensca/Procon Ltd., Responding Party.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; June 29, 2001
- The Board, by decision in this matter dated June 25, 2001 noted that the applicant had filed its application with the Board before delivering the application material to the responding party. The Board also noted at paragraph 15:
The applicant has filed sufficient material to permit the Board to grant it the relief it seeks without a hearing should the responding party continue to do nothing to respond to this proceeding. The Board is inclined to do so unless the responding party files a Form A-87 and can provide some reason for the Board not relieving against the applicant’s failure to comply with Rule 44. Thus, the Board will extend the time for the responding party to file Request for Hearing and Notice of Intent to Defend/Participate (Form A-87) to Thursday, June 28, 2001. Should the responding party continue to ignore this proceeding, the Board will deal with the matter based on the material the applicant has filed and should be in a position to issue a decision in this matter on Friday June 29, 2001.
- As of the date of this decision, the responding party failed to file a Form A-87. Therefore, based on the material filed by the applicant, the Board finds that:
a) the responding party is bound by the provincial collective agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario, expiring April 30, 2004 (the “Collective Agreement”);
b) the responding party remitted the calculations for the amounts of the contributions, remittances and deductions owed for the work month of April 2001 but did not remit payment of those amounts contrary to section 21, clause 1008 of the Local 894 appendix to the Collective Agreement;
c) the hours worked by employees of the responding party in May 2001 were the same as the hours they had worked in April 2001;
d) the applicant is entitled to liquidated damages equal to 10% of the amount the responding party had failed to remit;
e) the remittances owed to the applicant for the work done in the months of April and May, 2001 are $11,085.97 for each month ($22,171.94) together with liquidated damages of $2,217.19 for a total of $24,389.13;
f) the applicant pursuant to section 133(13) of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “Act”) is entitled to recover the fees it paid the Board in this matter; and
g) the applicant is entitled to enforce the liquidated damages provisions of section 21, clause 1008 of the Local 894 appendix to the Collective Agreement.
The applicant seeks, in addition to its liquidated damages, an order requiring the responding party to reimburse it “for all costs incurred to enforce the Principal Agreement, including its legal costs of $500.00….” Section 133(13) of the Act provides that a party can recover “an amount not exceeding the fees paid by the party in whose favour the order is made” when an award is made against a party who was given notice but did not participate in the proceeding under section 133. The applicant did not refer to any provision of the Collective Agreement that authorizes the applicant to recover from an employer the legal costs it incurs in enforcing the Collective Agreement. Section 10 of the principal portion of the Collective Agreement says nothing about the recovery of legal fees nor does section 21 of the Local 894 appendix to the Collective Agreement. There is therefore no basis, in our view, to award legal costs to the applicant.
Having regard to the Board’s findings in paragraph 2 above, the Board hereby:
a) declares that the responding party is bound by the provincial collective agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario, expiring April 30, 2004 (the “Collective Agreement”);
b) declares that the responding party violated the Collective Agreement by failing to make the remittances required by section 21, clause 1008 of the Local 894 appendix to the Collective Agreement;
c) directs the responding party to pay forthwith to the applicant the sum of $24,603.13 in respect of remittances, liquidated damages and fees paid by the applicant to the Board; and
d) directs the responding party, pursuant section 21, clause 1008 of the Local 894 appendix to the Collective Agreement, to pay to the applicant forthwith an additional 2% per month (24% per year) of the remittances and damages owing to the applicant ($24,389.13) until such amounts are paid in full.
“Harry Freedman”
for the Board