1462-01-G International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721, Applicant v. Gale Knott c.o.b. as MMK Enterprises Steel Placing and/or Peterborough Reinforcing and G.E.K. Contracting Limited, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD; August 30, 2001
This 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 August 20, 2001. The accompanying Certificate of Delivery (Form A-86) states that the responding parties were served 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 parties by regular mail. Therefore, pursuant to Rule 23 of the Board’s Rules of Procedure, the responding parties were served with the requisite documents on August 17, 2001, the fifth day (excluding any day on which the Board’s offices are closed) after the date the documents were mailed. The Registrar on August 22, 2001 sent by courier a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the address provided for the responding parties in the application, General Delivery, 13 Strawberry Lane, Curve Lake, Ontario K0L 1R0.
As 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.
Section 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.
- In 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.
Furthermore, 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.)
The 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).
The 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.
The 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.
The 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.
Accordingly, we shall proceed on the basis that all of the allegations of fact set out in the referral to the Board and in the grievance material have been accepted by the responding party and therefore can be relied on by the Board in making a determination of this matter. The Board therefore finds that:
(a) the responding parties are bound to the collective agreement between the Rodworker Employer Bargaining Agency and the International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers et al expiring April 30, 2004 (the “Collective Agreement”) by virtue of voluntary recognition agreements dated October 1, 1993 and September 14, 1989 and by virtue of the Board’s decision dated June 29, 2000 (Board File No. 0505-00-R) in which the Board declared that Marilyn and/or Gale Knott c.o.b. as MMK Enterprises Steel Placing and/or Peterborough Reinforcing and G.E.K. Contracting Limited are one employer for purposes of the Act and are bound by the collective agreement between the Rodworker Employer Bargaining Agency and the Rodworker Employee Bargaining Agency in all sectors of the construction industry in the Province of Ontario;
(b) the responding parties violated the Collective Agreement at the Parkhill Road Bridge rehabilitation project in Peterborough by employing persons who are not members of the applicant to perform work coming within the scope of the Collective Agreement or by subcontracting work coming within the scope of the Collective Agreement to a contractor that is not in contractual relations with the applicant. Such work began on a date unknown to the applicant and is continuing. The work involves the unloading, placing and tying of reinforcing rod and that as of the date of the grievance approximately 30 tons of reinforcing rods have been placed at the project. Based on his experience and expertise acquired as a journeymen rod worker for more than 30 years and business agent of the applicant for the past 15 years the applicant’s Tony Almeida estimates that the placing of the rods to date have taken approximately 267 person hours.
(c) Journeymen members of the applicant currently earn wages and contributions totaling $37.06 for each hour worked or earned. This amount does not include retail sales tax on benefit contributions which is required under the terms of the collective agreement and the Retail Sales Tax Act ($2.15 per hour x 8 per cent). The applicant estimates damages for the work performed to the date of the filing of the grievance to total $9,895.02 (267 hours x $37.06 = $9,895.02), plus retail sales tax of $45.92 (267 x 2.15 x 8%) and therefore the damages up to the date of the filing of the grievance amount to $9,940.94.
- In view of the Board’s findings in paragraph 10 above, the Board therefore:
(a) declares that Gale Knott c.o.b. as MMK Enterprises Steel Placing and/or Peterborough Reinforcing and G.E.K. Contracting Limited are bound by the collective agreement between the Rodworker Employer Bargaining Agency and the Rodworker Employee Bargaining Agency in all sectors of the construction industry in the Province of Ontario expiring April 30, 2004 (the “Collective Agreement”);
(b) declares that Gale Knott c.o.b. as MMK Enterprises Steel Placing and/or Peterborough Reinforcing and G.E.K. Contracting Limited are liable to pay to the applicant the sum of $9,940.94 in damages and an additional amount of $214.00 in filing fees pursuant to section 133(13) of the Act;
(c) directs Gale Knott c.o.b. as MMK Enterprises Steel Placing and/or Peterborough Reinforcing and G.E.K. Contracting Limited to pay forthwith to the applicant the sum of $10,154.94.
The applicant also sought payment of “interest and costs on the damages as specified in the collective agreement or as the Board may permit” but did not refer the Board to any provision of the Collective Agreement with respect to awarding interest or damages and did not indicate the amount of interest or costs it was seeking. In the circumstances, the Board declines to make any additional orders with respect to interest or costs.
The hearing scheduled for September 4, 2001 is hereby cancelled.
“Harry Freedman”
for the Board