0116-01-G International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Applicant v. 1067615 Ontario Inc. and/or 1335664 Ontario Limited c.o.b. as J.P.L. Contracting, Responding Party.
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; April 23, 2001
1This 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 April 10, 2001. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on April 20, 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 Priority Post Courier on April 10, 2001 who assured the applicant that they would be delivered on April 11, 2001, by no later than 5:00 p.m. The Registrar Couriered 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 April 11, 2001 at 10:53 a.m.
2As 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.
3Section 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.
4In 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.”
5Furthermore, 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.)
6The 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).
7The 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.
8The 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.
9The 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.
10The applicant’s grievance letter of February 26, 2001 to the responding party states in part:
1067615 Ontario Inc. and/or 1335664 Ontario Limited cob as J.P.L. Contracting (collectively “the Employer”) are bound to the Agreement between the Master Insulators’ Association of Ontario Inc. and the International Association of Heat and Frost Insulators and Asbestos Workers and the Union effective until April 30, 2001 (“the Agreement”).
The Union hereby grieves, on its own behalf, on behalf of its unemployed members, and on behalf of the former employees of the Employer that the Employer has violated the Agreement at all of its construction projects since on and after June 1, 2000, and continuing, including, but not limited to, its projects at the Renaissance School and the Kidd Creek Met Site, in Timmins. In particular, the Employer has failed or refused to:
(a) Hire and employ only members of the Union who are in good standing to perform bargaining unit work, and ensure that all employees have referral slips from the Local Union on hiring, in violation of Articles 1 and 2 of the Agreement;
(b) Sublet or contract out bargaining unit work only to firms in contractual relations with the Union, in violation of Article 8 of the Agreement;
(c) Honour all other terms of the Agreement with respect to any employees who are members of the Union, such as wage rates, board and living allowances, hours of work, and all other terms of the Agreement.
11The applicant refers to remedies it will be seeking including legal costs under article 15.03(b) of the collective agreement and an order to pay $25,000.00 under article 6.05 of the collective agreement. The agreement is the provincial collective agreement.
12Paragraph 7 of the referral of grievance states the applicant relies on the following additional material facts (to the grievance letter of February 26, 2001):
(a) the applicant has held bargaining rights to represent the employees of the responding party for some years;
(b) the responding party has been employing persons who are not member of the applicant at its construction projects, including, but not limited to, its projects at the Renaissance School and at the Kidd Creek Met site;
(c) the applicant grieved for all violations occurring on and after June 1, 2001, by letter dated February 26, 2001. The responding party has not responded to that grievance; and
(d) the applicant has also put the responding party on notice in the grievance that it is enforcing Article 6.05 of the collective agreement. That Article imposes a penalty of $25,000.00 on contractors who knowingly violate the collective agreement by employing persons who are not members of the applicant. The applicant has had previous grievances, and other dealings, this responding party and this responding party is fully aware of its obligation to employ only members of the union and has knowingly violated that term of the collective agreement.
13The applicant has requested the Board to determine the referral without a hearing and with reference only to the material filed by the applicant. In addition the applicant has requested in paragraph 8 of the application (Form A-86) that the Registrar schedule a hearing at which the only issue will be the extent of the damages owing to the applicant for the violations as identified.
14Based on the materials filed the Board is not prepared to determine the referral or parts of the referral only with regard to the materials filed. The applicant refers to legal costs pursuant to article 15.03 but does not set out what those costs are. It is not clear whether the violations involve the employment of non-union persons or subcontracting violations or improper payments or all three. There is no reference to what articles of the collective agreement have been violated with respect to these allegations. Without specific pleadings the Board cannot make a finding in a default decision that the responding party has “knowingly violated that term of the collective agreement”.
15All of these issues are best dealt with at the hearing scheduled in this matter on April 24, 2001.
“Inge M. Stamp”
for the Board