United Steelworkers of America v. Associated Tube Industries Ltd.
[1981] OLRB Rep. December 1705
1380-81-R United Steelworkers of America, Applicant, V. Associated Tube Industries Ltd., Respondent.
BEFORE: R. D. Howe, Vice-Chairman and Board Members J. D. Bell and O. Hodges.
APPEARANCES: Brian Shell and Ken Signoretti for the applicant; D. W. Brady, Ian O'Connor and George McCrea for the respondent.
DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER J. D. BELL;
December 17, 1981
- This is an application for certification in which the Board, by decision dated October 7, 1981, directed that a pre-hearing representation vote be taken of the employees of the respondent in the following voting constituency:
"All employees of the Respondent, at its stainless steel tubes and tubular related parts facility, Woodbine Avenue, in the Regional Municipality of York, save and except foremen and supervisors, persons above the rank of foreman, supervisor, office and sales staff, Engineering and Technical staff including Production Control Staff, students employed during the school vacation period and students employed on a co-operative basis with a University or Community College."
The pre-hearing representation vote was conducted on October 22, 1981. The report of the Returning Officer indicates that ballots were cast by 237 of the 251 employees on the voters' list; 135 ballots were marked against the applicant and 102 ballots were marked in favour of the applicant. The applicant requests that the Board set aside the results of that vote and direct that a further vote be taken.
On November 13, 1981, the Board heard the evidence of several witnesses and scheduled this matter for continuation of hearing on December 4, 1981. At approximately 9:30 a.m. (the time set for commencement of the continuation of hearing) on December 4th, Mr. Shell, counsel for the applicant, approached Mr. Brady, counsel for the respondent, and requested time to seek instructions from an official of the respondent (Mr. Fitzpatrick). Counsel for the respondent was "prepared to grant a short adjournment". Mr. Shell then attempted to contact Mr. Fitzpatrick by telephone but was unable to do so. Unbeknownst to Mr. Brady or to this panel of the Board, Mr. Shell then proceeded to meet with a Board Officer with respect to another case scheduled for hearing that day, for which he was also counsel. Mr. Shell ultimately contacted Mr. Fitzpatrick about an hour later and was instructed to proceed with this case. When the continuation of hearing commenced at approximately 10:45 that morning, Mr. Shell apologized to the Board and to the representatives of the respondent for the delay that had been caused by the "breakdown in communication". He also noted that four separate cases involving the applicant had been scheduled for hearing that day and that he was required to serve as counsel on two of them due to a shortage of personnel. Mr. Brady submitted that an apology would not suffice and asked the Board to either dismiss the case or award costs against the applicant. After considering the submissions of the parties, the Board ruled that it was not prepared to dismiss the case and reserved its decision on the matter of costs in an effort to proceed with the matter as expeditiously as possible. It is questionable whether the Board has jurisdiction to award costs in circumstances such as these. However, assuming without deciding that we do have such jurisdiction, we are of the view that