0825-01-G Labourers’ International Union of North America, Local 837, Applicant v. Warren Paving, Responding Party.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; June 26, 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 Chair of the Board authorized me to sit alone to hear and determine this matter pursuant to section 110(14)(a) of the Act. The referral was made on June 14, 2001. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on June 12, 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 Express Post on June 11, 2001 who assured the applicant that they would be delivered on Tuesday, June 12, 2001 by no later than 12:00 noon. The Registrar faxed a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the fax number provided for the responding party in the application, 416-633-4959 on June 15, 2001 at 11:50 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, by letter dated June 21, 2001 sought leave to amend the name of the responding party from Warren Paving (the name the applicant had used in the grievance and referral) to Warren Asphalt Paving Limited, the name of the entity that is a party to the collective agreement that the applicant alleges the responding party violated. As this matter is proceeding to a hearing to deal with the issue of the quantum of damages, the applicant can makes its request for the amendment of the name of the responding party to the panel assigned to that hearing and provide that panel with its submissions in support of its request.
11Accordingly, 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 party is bound to the collective agreement between Warren Asphalt Paving Limited and Labourers’ International Union of North America Local 837 effective January 1, 1999 to December 31, 2001 that was executed by those parties and entered into on February 1, 2000 (the “Collective Agreement”);
(b) since on or about April 1, 2001 and continuing to date, the responding party has performed work within the territorial jurisdiction of the applicant;
(c) in performing the work covered by the Collective Agreement, the responding party is required to employ only members of the applicant and is required to hire those employees in accordance with the Collective Agreement;
(d) the responding party has failed or refused to employ only members of the applicant to perform work covered by the Collective Agreement in violation of the Collective Agreement and in particular Article 2 of the Collective Agreement;
(e) the documents relating to the hours worked by non-union employees and non-union subcontractors are within the exclusive possession, control and power of the responding party.
12The applicant asserts that the documents relating to the hours worked by the non-union employees and non-union subcontractors are within the possession of the responding party and therefore the applicant is not in a position to prove the quantum of its damages unless those documents are produced by the responding party for inspection by the applicant.
13In view of the Board’s findings in paragraph 11 and the applicant’s request as described in paragraph 12 above, the Board therefore:
(a) declares that the responding party is bound to the collective agreement between Warren Asphalt Paving Limited and Labourers’ International Union of North America, Local 837 effective January 1, 1999 to December 31, 2001 that was entered into on February 1, 2001 (the “Collective Agreement”);
(b) declares that the responding party violated the Collective Agreement by failing or refusing to employ only members of the applicant to perform work covered by the Collective Agreement;
(c) directs the responding party to abide by the full terms and conditions of the Collective Agreement and hire only members of the Union to perform work within the jurisdiction of the applicant; and
(d) directs the responding party to produce forthwith for inspection by the applicant all payroll records, time sheets, foreman’s daily journals, contracts, subcontracts and any other document or record relating to any work it performed since April 1, 2001 within Ontario Labour Relations Board Areas 26 and 5 (the Regional Municipality of Hamilton-Wentworth, the City of Burlington, that portion of the geographic township of Beverly annexed by North Dumfries township, that portion of the Town of Milton within the geographic townships of Nassagaweya and Nelson, the Regional Municipality of Niagara and that portion of the Regional Municipality of Haldimand-Norfolk coming within the former County of Haldimand) and that portion of Halton County west of Highway 25.
14The applicant has not provided any information for the Board to assess the quantum of damages caused by the violations of the collective agreement. Therefore, pursuant to Rule 161, the hearing scheduled in this matter for June 28, 2001 will deal with the assessment of damages arising from the violations of the collective agreement.
15After I had written this decision, but before it was issued, counsel for Warren Asphalt Paving Ltd. had filed a Form A-87. Counsel submitted that the Request for Hearing was timely since the applicant only sought to name Warren Asphalt Paving Ltd. on June 21, 2001, and also submitted that the referral was void because it named a non-existent entity. Whether Warren Asphalt Paving Ltd. will be permitted to participate in the hearing or challenge the findings made herein and the consequences, if any, of the applicant not having named Warren Asphalt Paving Ltd. as the responding party are matters for the panel of the Board assigned to hear this matter.
“Harry Freedman”
for the Board