[1981] OLRB Rep. December 1770
1203-81-R Energy and Chemical Workers Union, Local 300, Applicant, v. Ethyl Canada, Inc. and F.I.R.M., Respondents, V. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 663, Intervener.
BEFORE: R.O. MacDowell, Vice-Chairman, and Board Members W. H. Wightman and D. B. Archer.
APPEARANCES: Daniel Ublansky, C. S. Sullivan and T Richardson for the applicant;Edward T MacDermott and W. Hoad for Ethyl Canada, Inc.; Joseph Carrier and Norman Fairbairn for F.I.R.M.; L. C. Arnold and W. Robb for the intervener.
DECISION OF THE BOARD; December 23, 1981
This is an application under section 1(4) of the Labour Relations Act. The respondents seek a preliminary ruling of the Board dismissing the application without hearing any further evidence.
Ethyl is a manufacturer of industrial and pharmaceutical chemicals in Sarnia, Ontario. F.I.R.M. is a mechanical subcontractor which performs certain work for Ethyl which the applicant union contends is work which should properly be done by Ethyl's own maintenance employees. It is unnecessary to detail the evidence which has already been adduced before the Board. The respondents argue that on the basis of that evidence — and in particular the evidence respecting F.I.R.M.'s pre-existing bargaining rights and the applicant's delay in launching this proceeding — the application cannot possibly succeed because the Board would not exercise its discretion to make a section 1(4) declaration even if the conditions precedent therefore were met. The union acknowledges that a section 1(4) order is discretionary but contends that a dismissal at this stage of the proceedings would be premature. The union argues that it should be given the opportunity to lead evidence and make argument concerning all outstanding issues, including the exercise of the Board's discretion. These issues are not "preliminary" in the sense suggested by the respondents, and it would be unfair to truncate the proceeding at this point, before the union has had an opportunity to put in its case.
We have carefully considered the submissions of the parties. There is considerable force to the respondents' argument. A union which is aware of an erosion of its bargaining rights must move promptly to file a section 1(4) application. If it does not do so within a reasonable period of time, and does not have a good explanation as to why it waited, the Board will seldom grant relief under section 1(4). Similarly, the Board has been disinclined to make a section 1(4) declaration which would have the effect of disturbing the pre-existing bargaining rights of the related employer. However, we accept the union's submission that neither of these issues are "preliminary" but rather, they go to the heart of the section 1(4) application. Accordingly, we are not prepared to dismiss the application at this stage without hearing the rest of the case, including any evidence or argument which the union wishes to make.