International Union of Operating Engineers, Local 793 v. Don Cordingley Gradall Rental Ltd., 2001 CanLII 7809

0403-01-G International Union of Operating Engineers, Local 793, Applicant v. Don Cordingley Gradall Rental Ltd., Responding Party.

BEFORE: David A. McKee , Vice-Chair

DECISION OF THE BOARD; May 10, 2001

1. These two files are referrals of grievances to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, (the “Act”). The referrals were made on May 1, 2001. The accompanying Certificates of Delivery (Form A-86) state that the responding party was served on May 1, 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 delivering a copy to Sunwheel Courier on April 30, 2001 which promised to deliver it to the responding party by no later than 12:00 noon on May 1, 2001. The Registrar faxed Confirmations of Filing of a Referral of Grievance to Arbitration (Form B-67) in respect of this referral to the responding party by giving copies of them to a courier on April 24, 2001 with a promised delivery date of the next business day.

2. 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.

3. 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.”

4. 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.”

5. 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.)

6. 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:

7. A copy of the application.

8. A copy of the Notice of grievance referral.

9. 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.

10. A blank response form for the responding party’s use.

11. 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).

12. 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.

13. 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.”

9. 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:

“160. 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.

161. 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.

162. 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.”

163. 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 applicant and the responding party are bound to the Provincial Collective Agreement between the Operating Engineers Employer Bargaining Agency and the operating Engineers Employee Bargaining Agency.

(b) The responding party has violated the collective agreement in that it has failed to forward to the applicant or its nominee remittances, deductions, allowances and contributions in respect of the work performed by employees covered by the collective agreements in the months of August, September and October, 1999.

(c) The applicant and its members have suffered damages thereby.

11. In view of the Board’s findings in paragraph 10 above, the Board therefore:

(a) The Board declares that the responding party and the applicant are bound by the terms and conditions of the Provincial Collective Agreement between the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency effective from May 1, 1998 and expiring April 30, 2001 and any renewals thereof.

(b) The Board directs Don Cordingley Gradall Rental Ltd. to pay to the applicant the sum of $12,867.98 representing partially unpaid remittances, deductions, allowances and contributions for the work months of August September and October, 1999 and liquidated damages thereon for hours worked and earned by members of the applicant in the employ of the responding party pursuant to the above-noted collective agreement.

(c) The Board directs the responding party to forthwith file with the applicant the required employer contribution reports from November 1999 and continuing in accordance with the above-noted collective agreement.

(d) The Board directs the responding party to file all required contribution reports and to pay to the applicant any and all remittances, deductions, allowances and contributions for any and all hours worked and earned by members of the applicant in the employ of the responding party from on and after November 1, 1999 and continuing covered by the collective agreement. Any issue of interest or liquidated damages can be addressed at that time.

(e) The Board directs the responding party to pay to the applicant $428.00 being its fees under section 133(13) of the Act.

(f) Pursuant to Article 24.5(iv) of the collective agreement the responding party is ordered to pay the reasonable costs incurred by the applicant in prosecuting this grievance.

12. The applicant also sought an order requiring the responding party to post a bond “not to exceed $20,000 as set out in Article 24 paragraph (3), subparagraph (v)” of the collective agreement. The Board presumes the applicant is referring to Article 24.5(v). The Board declines to do so. The amount “up to $20,000” without further elaboration does not indicate what the applicant actually seeks. Further, the Article to which the Board has referred requires a calculation of what the employer would be expected to contribute for a 4 month period. There is nothing in the application which would give the Board any idea what that sum is. The applicant has also asked for interest. Since there is no reference to the authority for awarding interest or the rate on interest the applicant seeks, none will be awarded.

13. The hearing in these matters scheduled for May 22, 2001 is cancelled.

“David A. McKee ”

for the Board```