Ontario Labour Relations Board
[1987] OLRB Rep. November 1353
4710-87-JD United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and its Local 46, Complainants v. Catalytic Maintenance Inc., Petro-Canada Products, A Division of Petro-Canada Inc., and Energy and Chemical Workers Union, Local 593, Respondents
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members R. M. Sloan and H. Kobryn.
APPEARANCES: L. C. Arnold and W. Weatherup for the complainant; Robert A. Macpherson, Elizabeth Koester and Al Conquergood for Petro-Canada Products, A Division of Petro-Canada Inc.; Paul Young and Dan Nowlan for Catalytic Maintenance Inc.; Daniel Ublansky for Energy and Chemical Workers Union, Local 593.
DECISION OF THE BOARD; November 19, 1987
Reasons for Decision
The names: "Stearns Catalytic Ltd., Petro-Canada Products Limited, and Energy and Chemical Workers Union" appearing in the style of cause of this complaint as the names of the respondents are amended to read respectively: "Catalytic Maintenance Inc., Petro-Canada Products, X Division of Petro-Canada Inc., and Energy and Chemical Workers Union, Local 593". For ease of reference, the Board will refer to these three respondents respectively as Catalytic, Petro-Canada and Local 593.
This complaint has been made under section 91 of the Labour Relations Act and it alleges that certain work assigned by Catalytic or Petro-Canada to persons represented by Local i93 should have been assigned to persons represented by the complainants.
The respondents object to the Board entertaining the complaint on the ground that it raises the identical issue raised in an earlier complaint in File No. 0849-87-JD. It had been filed on June 23, 1987 and the Board had set July 13, 1987, as the date for a pre-hearing conference into the complaint. A pre-hearing conference is conducted by a Vice-Chair of the Board who will not be a member of the panel hearing the complaint if it proceeds to hearing on its merits. The purpose of the pre-hearing conference is to identify and attempt to simplify the issues of the case, to exchange documents on which parties will be relying, to attempt agreement on the facts and other matters and generally to expedite the hearing of the complaint. When the respondents and other interested parties are served notice of the complaint, they are advised in a letter from the Registrar of the Board's intention to convene a pre-hearing conference before a Vice-Chair of the Board. They also are forewarned that, should anyone object to the Board proceeding under section 91 of the Act, the objecting party has the obligation of notifying the Board and all other interested parties of its objection and the material facts upon which it intends to rely. The parties are also notified that the Board will entertain such objection at the outset of the pre-hearing conference. In such circumstances, however, a Vice-Chair of the Board is not a quorum of the Board for purposes of considering the objection. Therefore, a panel of the Board is struck to deal with that issue and the pre-hearing conference will only be convened if the Board panel finds that the Board has jurisdiction to entertain the complaint and should exercise its discretion under subsection 1 of section 91 to do so.
The replies to the first complaint filed by the respondents either challenged the Board's jurisdiction to proceed under section 91 or requested the Board to exercise its discretion under subsection 1 of section 91 to not entertain the complaint. For that reason, a panel of the Board was struck to deal with those challenges. On July 13, 1987, the complainants failed to appear at the hearing and the Board dismissed the complaint by a decision given orally at the hearing.
The complainants subsequently requested the Board to reconsider its decision on the ground that they had not received the Board's notice of the hearing. The Board brought the complaint back on for hearing on September 21, 1987, to deal with the complainants' request for reconsideration. Counsel for Local 593 took no position on the issues at the hearing. Counsel for the two corporate respondents were satisfied on the representations of complainants' counsel that notice of the pre-hearing conference had not been received by the complainants' solicitors on record at that time. The Board heard evidence with respect to whether the two complainants had received notice and a