[1980] OLRB Rep. July 977
0652-80-M International Union of Operating Engineers, Local 793, Applicant, v. H. Kerr Construction Limited, Respondent.
BEFORE: D. E. Franks, Vice-Chairman, and Board Members C. A. Ballentine and J. A. Ronson.
APPEARANCES: Jack Redshaw and Bernard McMillan for the applicant, R. A. Werry, G. Weir and W. Kerr for the respondent.
DECISION OF D. E. FRANKS, VICE-CHAIRMAN, AND BOARD MEMBER J. A. RONSON; July 21, 1980
1This is a grievance referred to the Board under section 112(a) of The Labour Relations Act.
2At the commencement of the hearing in this matter counsel for the respondent employer requested an adjournment pending the disposition of a request for reconsideration of a certification case involving the respondent employer. (Board File 1473-78-R.) The applicant does not consent to such an adjournment.
3Both the applicant and the respondent in this matter agree that any collective agreement which might exist between them arises by operation of The Labour Relations Act as a consequence or the certification in Board File 1473-78-R. That is, there is no specific signed document which is claimed as a collective agreement.
4Another panel of this Board issued the decision in Board File 1473-78-R in December 1978. No request for reconsideration was made until July 8, 1980, the day prior to the hearing in this case, notwithstanding that this case was filed on June 24, 1980. While we are concerned about the time when this matter arose, it is clear that the issue raised by the reconsideration request goes to the jurisdiction of this Board to hear the referral of the grievance in question.
5Noting the undertaking of counsel for the respondent to proceed with the reconsideration of Board File 1473-78-R as expeditiously as possible, this case is adjourned pending the resolution of the reconsideration proceedings in Board File 1473-78-R.
DECISION OF BOARD MEMBER C. A. BALLENTINE:
I have no hesitation in strongly disagreeing with the decision majority of the Board to grant the respondent an adjournment of these proceedings.
It has been long standing policy and practice of this Board not to grant an adjournment of a hearing unless all the parties to the proceeding consent to the adjournment or unless there are exceptional circumstances beyond the control of the party seeking the adjournment. This policy and practice is particularly important in Section 112a proceedings. One of the purposes of Section 112a is to provide a speedy resolution of grievances arising under construction industry collective agreements. In my view, the decision of the majority in this case is contrary to the Board's practices and is an invitation to employers who seek to delay Section 112a proceedings to use the majority's decision as a way of achieving that goal.
Counsel for the respondent in this case was the same counsel who acted on behalf of the respondent in the certification proceedings which are now subject to the reconsideration. At the time of certification there was no suggestion by the respondent that the application for certification was not properly in the construction industry nor did the respondent request a hearing before the Board of the application for certification.
In the case presently before the Board, the respondent chose to wait until the day before the hearing which had been scheduled fourteen days earlier, to file an application for reconsideration of the 1978 decision granting the trade union certification.
In my opinion the Board ought to have proceeded with the merits of the grievance rather than await a determination on the application for reconsideration. The certificate remains in effect, and there is a collective agreement presently in force between the parties as a result of the operation of The Labour Relations Act. Surely it would have been better for this panel to have proceeded with the arbitration. If the applicant was successful in its application for reconsideration of the Board's certificate, that determination could be raised before this panel on reconsideration. In my view, to adjourn the Section 112a proceedings pending an application for reconsideration of a decision made more than nineteen months earlier is not justified.
6I would have refused the request for an adjournment and proceeded to hear the matter on the merits.