2134-99-G International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 786, Applicant v. 1022349 Ontario Inc. operating as Steel Tech, High Tech Roofing and Contracting, and William M. H. Wanamaker in his personal capacity, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; April 30, 2001
This is an application for the referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (the "Act"). The grievance was filed on October 27, 1999. The matter was adjourned to permit the parties to engage in settlement discussions.
The parties did enter into Minutes of Settlement with respect to some of the issues between them. This document states as follows:
OLR13 File No. 2134-99-G
Between:
International Association of Bridge
Structural, Ornamental and Reinforcing
Iron Workers, local 786 (the Union)
and
1022349 Ontario Inc. operating as
Steel Tech (Steel Tech)
and
William M.H. Wanamaker
in his personal capacity
(Mr. Wanamaker)
Minutes of Settlement
Whereas the union filed a grievance against Steel-Tech/High Tech Roofing & Contracting dated August 26, 1999, and whereas the parties wish to resolve as many of their differences as possible;
Therefore the parties agree to the following terms.
Steel Tech and High Tech Roofing and Contracting agree that they are bound to the Collective Agreement between the Iron Workers District Council et al and the Ontario Erectors Association Inc. et al (the “Collective Agreement”).
Steel Tech and High Tech Roofing and Contracting agrees that they failed to remit the contributions on behalf of their Iron Workers employees as required by the Collective Agreement, articles 10, 12, 30 and 31.
The remittances are owing for various jobs worked during 1997 and 1998.
Mr. Wanamaker in his personal capacity acknowledges that the monies described in paragraphs two (2) and three (3) above are due and owing and that he is personally responsible to pay them on behalf of the Iron Workers employed by Steel Tech and High Tech Roofing and Contracting.
Mr. Wanamaker will provide the union with details of the monies owed to each of the Iron Workers affected. The information on how much is owed on behalf of each Iron Worker shall be given to the union within two weeks of the date these minutes are signed.
The union agrees to adjourn the grievance for this two week period.
Signed and dated at Sault Ste. Marie this 12th day of November, 1999
J. Lajeunesse for the Union
“Jim Lajeunesse”
William Wanamaker in his own capacity
and on behalf of Steel Tech and High Tech
“Bill Wanamaker”
Pursuant to these Minutes of Settlement, the Board adds High Tech Roofing and Contracting and William M. H. Wanamaker in his personal capacity as responding parties to this referral. Further, on the basis of these Minutes of Settlement, the Board finds that the responding parties were bound to the Ironworkers’ Provincial Collective Agreement, that they had violated it on several projects in 1997 and 1998, and that damages were owed to the applicant and its members as a result of this violation.
The parties did not agree on the quantum of damages owing. Mr. Jim Lajeunesse, business manager of the applicant local testified that he had reviewed the hours worked on the projects which gave rise to this grievance with the foreman, Mr. Peter Campagna whose responsibility it was to keep track of hours on the job, and with each of the individual members of the union who had worked on it. The results of his discussions were assembled in a chart and served personally on Mr. Wanamaker on January 31, 2001.
Notwithstanding the clear notice from the applicant, none of the responding parties disputed the amounts calculated in any communication the Board. Indeed, the responding parties had never filed a Notice of Intent to Defend in this proceeding or attempted to file any sort of response beyond a letter dated November 9, 1999 disputing an alleged connection with another party, Ratlas Roofing and General Contracting. On the day set for hearing, no one appeared on behalf of the responding parties.
While the evidence offered by Mr. Lajeunesse is hearsay, the responding parties have had adequate notice of the specifics of the applicant’s claim. They have not seen fit to dispute that claim, notwithstanding that rules 158 and 159 require the responding parties to file the appropriate responses. Rule 160 provides :
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.
The Board was not prepared to deal with this matter in the absence of a hearing as requested by the applicant. The responding parties were advised of this fact in a decision dated April 24, 2001 and delivered to them in Sault Ste. Marie on that day by “same-day” courier. They were warned of the consequences of failing to respond to the application or to appear at the hearing. In the absence of any appearance by the responding parties at the hearing, the Board was prepared to rely on the evidence provided by Mr. Lajeunesse.
In fact, Mr. Lajeunesse advised the Board that he had miscalculated the amounts, and that the responding parties actually owed the applicant slightly less money that was claimed. The total amount owing to all members of the applicant who performed work on the project was $14,030.10.
Pursuant to section 133(13) the Board also awards costs to the applicant in the amount of $749.00, being the filing fees (plus G.S.T.) paid to the Board in this matter, to be paid by the responding parties forthwith.
Accordingly, the Board orders the responding parties to pay to the applicant forthwith, the sum of $14,779.10.
“David A. McKee”
for the Board