[1985] OLRB Rep. December 1698
2780-84-U; 2781-84-U Rudolph Williams, Complainant, v. Belkin Toronto Paperboard Mill, A Division of Belkin Packaging Ltd., Respondent, v. Canadian Union of Operating Engineers & General Workers, Intervener
BEFORE: Paula Knopf, Vice-Chairman, and Board Members W. H. Wightman and C. A. Ballentine.
APPEARANCES: 0. Mullerbeck for the applicant; Peter Thorup, Klein Wenske and Mickey Moyer for Belkin Toronto Paperboard Mill; Michael 0 'Malley for the Canadian Union of Operating Engineers and General Workers and its Local 101.
DECISION OF THE BOARD; December 2, 1985
The Board directs that these complaints be and the same are hereby consolidated.
These matters came before this panel for hearing on November 12, 1985. At the outset, counsel for Belkin Toronto Paper Board Mill, A Division of Belkin Packaging Ltd. (hereinafter referred to as Belkin) raised the fact that it was maintaining its position as set out in the reply, i.e., it intended to ask the Board to dismiss the complaint for failing to disclose a prima facie case or, in the alternative, it was asking the Board to exercise its discretion to dismiss the complaint by reason of the complainant's delay in filing the complaint. However, counsel for Belkin added that in the interest of expedience and practicality, his client was prepared to refrain from making the preliminary objections at the outset of the case. Instead, it was suggested that the complainant be allowed 10 present his evidence and be subject to cross-examination. At the end of the complainant's case, counsel for Belkin asked that it be then allowed to make preliminary motions to dismiss the case for reasons of delay and/or on the basis that no prima facie case had been made out. It was made clear that this procedure would be different than the normal procedure used in a motion for a non-suit. Counsel for the Canadian Union of Operating Engineers & General Workers (hereinafter referred to as the Union) joined in the suggestion and request made by counsel for Belkin. Counsel for the complainant opposed the request, arguing that Belkin and the Union ought to be put to the same election as would normally be required in a motion for a non-suit.
Given the seriousness of the concerns raised by the preliminary objections and the desire to expedite the process, the Board ruled that Belkin and the Union would be permitted to raise their preliminary motion and renew or present the motion to dismiss on the basis of delay at the end of the complainant's case. This would be allowed without putting Belkin or the Union to the normal election as to whether to call evidence. Should the motions fail, the Board would proceed to hear any evidence which l3elkin or the Union chose to present.
After resolving this preliminary matter, counsel for the complainant then made an opening statement. In the course of the opening statement, it was made clear that the basis of the complainant's case rests on the allegation that one individual, namely Al Tanner, held both the managerial function of Chief Operating Engineer and the Union position of Shop Steward and representative for the bargaining unit for Local 101 of the Union. This alleged "dual allegiance" was said to undermine the basic requirement of an arm's length relationship between management and labour. This resulted in two types of alleged violations of the Act. First, it was submitted that it resulted in the individual complainant being denied the duty of fair representation by the Union contrary to section 68. Second, the situation of Mr. Tanner was said to have created conflicting allegiances which resulted in the violation of section 64 of the Act.
The Board raised concern over what relief could be granted to the complainant in these circumstances. In particular, the Board pointed out to counsel for the complainant that Mr. Tanner had not been named as a party. It was clear from counsel for the complainant's opening statement that the relief requested from the Board would be a declaration that Mr. Tanner is not a member of the bargaining unit or not an employee within the meaning of the Act or, as set out in the application itself, that Mr. Tanner "be removed and barred from the bargaining unit."
In discussion of the preliminary matters with counsel for the parties, the Board had indicated to the parties its concern over the nature of the relief requested and the non-inclusion of Mr. Tanner as a party. The Board had given counsel for the complainant the option of proceeding forward with the hearing without adding Mr. Tanner as a party and indicated that this may well limit the nature of the relief available to the complainant. In the alternative, the complainant was offered the option of seeking an adjournment in order to have Mr. Tanner named as a party. Initially, counsel for the complainant indicated that the complainant was prepared to proceed without Mr. Tanner being added as a party. However, later on in the proceedings, when the opening statement had been concluded, and it became apparent that the complainant did want a resolution of Mr. Tanner's status vis-a-vis the bargaining unit, the Board raised the question of notice to Mr. Tanner yet again. At this point, counsel for the complainant changed his position and requested that an adjournment be granted to allow Mr. Tanner to be added as a party.
Counsel for the Union and for Belkin strenuously opposed the adjournment. They pointed out that this hearing day was the third appearance before the Board for the parties in this matter. The first day of proceedings had been occupied by procedural matters which resulted in an order requiring particulars to be delivered by the complainant. The second day of proceedings was thwarted because of the illness of counsel for the complainant resulting in an adjournment. Counsel for the Union and the company stressed that the matters which are the subject of the complaints stretch over a long period of time, dating back as far as 1982, and that any further delay ought not to be allowed, especially given the fact that it arose because of the incorrect framing of the action.
As stated earlier, there are two fundamental aspects to this case. One involves the complainant's individual allegations of unfair representation and violations of the Act that arose because of the way he was treated by the Company and the Union. The other aspect of the case involves the serious allegations of conflicting allegiances of Mr. Tanner as a result of him purportedly holding Union office or being a member of the Union and also being a member of management. The relief sought as a result of Mr. Tanner's alleged dual role would affect him directly. To hear the case and be prevented from inquiring into and exploring the possibility of relief against Mr. Tanner would ignore one fundamental aspect of the complaint. The Board does not feel that it would be in the interest of labour relations to resolve only one aspect of this case. Further, we do not see that it would be in the parties' interests to only have one aspect of the case resolved. Even if we were to set aside the question of purported conflicting of allegiances in Mr. Tanner, the fundamental problem which gave rise to the rest of the case would still remain and the parties would be left without assistance in their future dealings.
Without in any way deciding whether this Board has jurisdiction to grant any of the relief requested by the complainant with regard to Mr. Tanner or his position, it would be a denial of fundamental principles to proceed in the absence of Mr. Tanner as a party. It is clear from the relief that the complainant seeks that the Board will be asked to make a remedial order that will effectively bar Mr. Tanner from the bargaining unit. If his rights within the bargaining unit or his rights as an employee within the meaning of the Labour Relations Act are effected, he is, as a matter of fundamental justice, entitled to notice of these proceedings and to be considered as a party to these proceedings. Thus, the Board was not prepared to proceed with the matter without having Mr. Tanner added as a party.
Despite the Board's very grave concerns about the delay and expense that an adjournment would cause and the Board's sincere regret that Mr. Tanner had not been added earlier in the proceedings as a party, the Board did orally grant an adjournment of the proceedings to ensure that a full and proper hearing of the matter would ultimately be held.
In the result then, the matter was adjourned to enable the complainant to add Mr. Al Tanner as a party to these proceedings. The complainant is given one week after the release of this order to file an amended complaint, and amended particulars if necessary, with Mr. Tanner added as a party. The matter is referred to the Registrar for the rescheduling of the hearing at the earliest possible convenience to the parties. This panel is not seized with the matter.