International Union of Operating Engineers, Local 793 v. Spurr Bros. Ltd., 2001 CanLII 7639

International Union of Operating Engineers, Local 793 v. Spurr Bros. Ltd. Spurr (Contracting) Inc.

3599-00-G; 3600-00-G; 3601-00-R; 3620-00-G International Union of Operating Engineers, Local 793, Applicant v. Spurr Bros. Ltd. Spurr (Contracting) Inc., Responding Party.

BEFORE: Inge M. Stamp, Vice-Chair.

DECISION OF THE BOARD; November 7, 2001

Decision

1. Board File Nos. 3599-00-G, 3600-00-G and 3620-00-G are referrals of grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c.1 as amended ("the Act"). Board File No. 3601-00-R is an application under section 69/1(4) of the Act.

2. Prior to the hearing in this matter the parties entered into the following Memorandum of Agreement:

MEMORANDUM OF SETTLEMENT

OLRB File Nos. 3599-00-G; 3600-00-G; 3601-00-R; 3620-00-G

BETWEEN:

International Union of Operating Engineers, Local 793,

(the "Union"),

• and -

Spurr Bros. Ltd.

(the "Employer")

Spurr (Contracting) Inc.,

(the "Responding Party")

WHEREAS, the Employer and the Union are bound by the terms and conditions of a collective agreement between the Heavy Construction Association of Windsor and the International Union of Operating Engineers, Local 793 effective from May 1, 2000 until April 30, 2003 and any renewals thereof;

AND WHEREAS, the Employer and the Union were also bound by the terms and conditions of a collective agreement (the "Provincial Collective Agreement") between the Operating Engineers Employee Bargaining Agency and the Operating Engineers Employer Bargaining Agency effective from May 1, 1998 until April 30, 2001 and any renewal thereof;

AND WHEREAS, the Union filed an Application pursuant to sections 1(4) and 69 of the Labour Relations Act, 1995 on or about March 7, 2001 (OLRB File No. 3601-00-R) seeking to have the Board determine that the Responding Party is the successor employer to the Employer and/or that the Employer and the Responding Party constitute a single employer for the purposes of the Act;

AND WHEREAS, the Union filed two delinquency grievance referrals pursuant to section 133 of the Act on or about March 7, 2001 regarding the Employer and Responding Party's alleged violation of a Memorandum of Agreement (OLRB File No. 3599-00-G) and the Employer and Responding Party's alleged violation of the Windsor Heavy Construction Association collective agreement (OLRB File No. 3600-00-G);

AND WHEREAS, the Union filed a third delinquency grievance referral (OLRB File No. 3620-00-G) with the Board on or about March 8, 2001 regarding the Employer and Responding Party's alleged violations of the Provincial Collective Agreement;

AND WHEREAS, the parties wish to resolve all matters arising out of the aforementioned Board Files on an amicable basis and without the need for litigation;

NOW THEREFORE, in full and final resolution of each and all of the above-noted matters, the parties hereto agree with each other as follows and request that the Board incorporate the following into a consent order to be issued by the Board:

1. The Responding Party, Spurr (Contracting) Inc., is the successor employer to the Employer, Spurr Bros. Ltd., within the meaning of subs. 69(2) of the Labour Relations Act, 1995;

2. The Responding Party and the Union are bound by collective agreement between the Heavy Construction Association of Windsor and the International Union of Operating Engineers, Local 793 effective from May 1, 2001 until April 30, 2003;

3. The Responding Party and the Union are also bound by the Provincial Collective Agreement effective from May 1, 2001 until April 30, 2004 and any renewals thereof;

4. The Responding Party agrees to comply with the full terms and conditions of the above-noted collective agreements;

5. The Employer and the Responding Party agree that they have violated the above-noted collective agreements by failing to remit to the Union contributions required by the collective agreements for all hours earned by every member of Local 793 employed by the Employer and/or the Responding Party;

6. The Responding Party agrees to pay to the International Union of Operating Engineers, Local 793, in trust, the sum of $50,000.00. The parties agree that the payments shall be made on the following basis. The Responding Party shall on or before November 15, 2001 pay to the Applicant the sum of $3,125.00. The Responding Party shall then make fifteen further payments to the Applicant each consisting of $3,125.00 commencing with the first payment of $3,125.00 on or before December 15, 2001 and with subsequent payments due on or before the fifteenth (15th) day of every calendar month thereafter; and

7. The parties agree that if the Responding Party should default on any of the above-noted payments for any reason whatsoever, that the entire remaining balance of the sum referred to in paragraph six (6) shall become due and payable immediately by the Responding Party;

IN WITNESS WHEREOF each of the parties hereto has caused this Memorandum of Settlement to be signed by its duly authorized representatives in Windsor and Toronto this 6th day of November, 2001.

"Don Spurr" "Ken Lew"

For the Employer For the Union,

Spurr Bros. Ltd. International Union Of Operating Engineers, Local 793

"Don Spurr"

For the Responding Party

Spurr (Contracting) Inc.

3. Having regard to the Memorandum of Settlement, the Board hereby makes the consent orders, declarations and directions to which the parties have agreed.

"Inge M. Stamp"

for the Board