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: Christopher J. Albertyn, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
APPEARANCES: E. M. Mitchell, Earl Walsh and Bob Bertrand for the applicant; no one appearing for the responding party.
DECISION OF THE BOARD; May 1, 2001
1This is a referral to the Board of a grievance to arbitration under section 133 of the Labour Relations Act, 1995, S.O. 1995, c.1 (“the Act”) concerning the interpretation, application, administration or alleged violation of a collective agreement for final and binding determination.
2A previous decision of the Board was issued in this matter on April 23, 2001. It recorded that the responding party had failed to file a Request for Hearing and Notice of Intent to Defend/Participate. The matter was scheduled for hearing on April 24, 2001. The matter was scheduled to be heard at 9:30 a.m. Notice of the date and time of the hearing was properly given to the responding party in advance of the hearing. There was no appearance by the responding party at the appointed time for the hearing. The matter was delayed for a period of half an hour in case of a late arrival. Notwithstanding the delay, there was still no appearance by the responding party when the matter was to be heard. The hearing then proceeded in the absence of the responding party.
3The applicant union (“the union”) claims that the responding party violated the collective agreement effective from June 8, 1998 until April 30, 2001 between the Master Insulators’ Association of Ontario Inc. and the International Association of Heat and Frost Insulators and Asbestos Workers and the International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 (“the collective agreement”) by refusing to comply with its hiring provisions. The union claims the responding party persistently and deliberately hired non-union employees, in the knowledge that doing so was in violation of Article 2 of the collective agreement. As a consequence, the union claims it is entitled to recover the legal disbursements it has incurred to pursue this grievance before the Board, and damages pursuant to the grievance procedure in the collective agreement.
4The evidence of Mr. Earl Walsh and Mr. Bob Bertrand was presented at the hearing. That evidence established the following facts. The union and the responding party concluded a voluntary recognition agreement on February 23, 1999. Pursuant to that agreement, the responding party became bound to the collective agreement (in fact, to both the Construction Agreement and the Maintenance Agreement concluded between the provincial bargaining agents).
5On several occasions between February 23, 1999 and the date of this application, the proprietor and principal officer of the responding party, Mr. Jean Paul Legault, hired non-union employees in violation of Article 2.01(a) and 2.01(b)(i) of the collective agreement. Those provisions read:
2.01 (a)
The employers shall employ as employees members of the Union in good standing in the performance of all work coming within the scope of this Agreement and shall continue in their employ only employees who are in good standing with the Union.
2.01 (b) (i)
All such employees shall be hired through the Union office, except as thereinafter provided, in Clause 2.04.
6On the occasion of each violation of the hiring provisions of the collective agreement, Mr. Walsh, a representative of the union, spoke to Mr. Legault and explained to him the requirement of the collective agreement that hiring be of union members, through the union’s hiring hall. Despite the repeated advice and admonition given to Mr. Legault by Mr. Walsh concerning the responding party’s hiring obligations, the responding party continued to flout its obligations under Article 2 of the collective agreement.
7In the circumstances we find that the responding party knowingly violated the collective agreement.
8Under Article 6.05 of the collective agreement damages of $25,000.00 are payable in these circumstances by the responding party to the union. The provision reads:
6.05
Any contractor who knowingly violates this collective agreement (excluding asbestos removal) by employing non union workers and/or sub contracts work to non union workers will be assessed additional fines/penalties beyond those imposed by the Ontario Labour Relations Board (O.L.R.B.) or if early settlement is reached the following fines/penalties shall apply in addition to any settlement damages:
A $25,000.00 Minimum and Maximum fine per investigation.
An investigation may be built of several infractions involving several persons and/or several worksites. The maximum fine regardless shall not exceed $25,000.00 in total levy. Once an action has been filed as a grievance and employer notification completed, another investigation may be undertaken for infractions occurring after the grievance filing and the employer notification and would carry an additional penalty as described above.
Disqualification from participating in the Stabilization Program for a period of 12 moths.
All money collected from fines will be placed in a trust fund and the operation of the fund will be under the control of joint trustees representing the Association and the Union.
This article shall become effective for any such infractions upon ratification of this agreement and shall remain in full force and effect until the 30th day of April 2001 at which time it will cease to exist.
The Association may veto the implementation of this article as it deems appropriate on a case per case basis.
9We find therefore that the responding party is liable to the union in the sum of $25,000.00: Sentinel Systems Inc., [1999] OLRB Rep. March/April 342; [1999] O.L.R.D. No. 2894.
10In addition the union is entitled to recover the disbursements it has incurred in pursuing this matter before the Board in respect of the Board’s filing and hearing fees, in the sum of $749.00.
11Accordingly, the Board makes the following declarations and orders, and issues the following directions:
The responding party has repeatedly violated the provisions of Article 2 of the collective agreement.
The responding party shall comply with its obligations under the collective agreement.
The responding party shall forthwith pay to the union the sum of $25,749.00.
“Christopher J. Albertyn”
for the Board