National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada) & its Local 303 v. Del Equipment Limited, 1989 CanLII 3047

[1989] OLRB Rep. January 19

2045-88-FC National Automobile, Aerospace and Agricultural Implement Work­ers Union of Canada, (CAW-Canada) & its Local 303, Applicant v. Del Equipment Limited, Del Hydraulics Limited and Edinburgh Electric Limited, Respon­dents

BEFORE: G. T Surdykowski, Vice-Chair, and Board Members D. G. Wozniak and K. V. Rogers.

APPEARANCES: Mary Hart, Ted Murphy, Rocco Gismondi and Tom McDonnell for the appli­cant; Stephen J. Shamie, Robert W. Little and David Martin for the respondents.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER D. G. WOZN­IAK; January 13, 1989

1. This application, under section 40a of Labour Relations Act, for a direction that a first collective agreement be settled by arbitration was filed on November 24, 1988.

2. Section 40a(2) requires that the Board consider and make its decision on an application under section 40a within thirty days of receiving it.

3. By letter from counsel, also dated November 24, 1988, the applicant requested that the application be heard together with or "consecutively with a sister application filed in respect of . -. Unicell Canada". The two applications were, in fact, scheduled to be heard consecutively as requested by the applicant, with the dates on which this matter was scheduled to be heard being December 15, 16, 19 and 20, 1988. Subsequently, December 21, 1988 was also scheduled for hear­ing by the panel.

4. The parties spent the entire first day scheduled for hearing meeting with one of the Board's Labour Relations Officers in an attempt to resolve the disputes between them. Such settle­ment discussions often occur during the first and sometimes subsequent days scheduled for hearing of such applications. Because it is always preferable in labour relations matters, particularly in first contract situations, for parties to resolve their differences themselves rather than litigating them, the Board encourages such discussions. The Board's officers have been very successful in assisting parties in such applications in reaching a resolution of the matters in dispute between them and the vast majority of such applications have been settled without it being necessary for the Board to adjudicate the dispute.

5. The parties were unable to settle the matter on December 15, 1988 and the hearing began on December 16, 1988. In the course of the examination-in-chief of Ted Murphy, the national representative of the applicant and the person who headed the negotiations with the respondent on its behalf, the Board was required to rule on two evidentiary matters. Because of the bearing these (unanimous) rulings may have on subsequent proceedings, the Board finds it appropriate to briefly set them out.

6. First, Mr. Murphy was asked a question with respect to the mediation process the par­ties went through. When he began to recount what a mediator said to him, the Board stopped him. Not only does evidence of one party's conversations with a conciliation officer or mediator tend to undermine the settlement process in labour relations matters, but section 111 of the Act provides that no information or material furnished to or received by a conciliation officer or mediator shall be disclosed to anyone other than the Minister, the Deputy Minister of Labour or the chief Concil­iation Officer of the Ministry of Labour. The Act gives the Board no discretion in this respect. (See Co-Fo Concrete Forming and Construction Limited, [1987] OLRB Rep. Oct. 1213; Aristokrafl Vinyl Inc., [1985] OLRB Rep. June 799; and Shaw Almex Industries Limited, [1984] OLRB Rep. Jan. 109.) Accordingly, the Board ruled that evidence of discussions between a mediator or concili­ation officer and one of the parties was not admissible.

7. Second, the applicant also sought to adduce evidence of discussions between the parties on December 15, 1988; that is, the discussions involving the Board Officer in an attempt to settle the matter. Upon objection by the respondent, the Board ruled such evidence to be inadmissible but that evidence about the fact that such discussions took place was admissible. It is evident that evidence of the content of such discussions would be arguably relevant to the Board's consider­ations in an application such as this. However, it was clear that the applicant had specifically agreed or acquiesced to the respondent's stipulation that the discussions on December 15, 1988 be without prejudice and off the record. Accordingly, even though we are satisfied that the Board has the discretion to admit such evidence, it was, in the circumstances, inappropriate to do so both because it would tend to undermine the settlement process, and because of the agreement of the parties.

8. The hearing on December 16, 1988 was adjourned when counsel for the applicant con­cluded her examination-in-chief of Mr. Murphy. Apparently as a result of further discussions over the intervening weekend, the parties felt that further discussions might be fruitful because they

agreed to spend the entire day of December 19, 1988 again meeting with a Board Officer in a fur­ther attempt to resolve the matter.

9. On December 20, 1988, the parties appeared before the Board at which time the appli­cant took the position that the parties had in fact reached a collective agreement binding upon them and, because the respondent did not agree that that was so, the applicant wished to prove the settlement before the Board. The respondent, in addition to disputing that there had been a settle­ment, submitted that:

(a) the Board did not have jurisdiction to entertain the applicant's "mo­tion";

(b) even if the Board did have jurisdiction to do so, the evidence the applicant sought to rely in support of its assertion was precisely the kind of evidence of without prejudice discussions which the Board had already ruled inadmissible and that the Board therefore could not, or, in the alternative, should not admit it;

(c) if the Board did have jurisdiction and did admit the evidence, the prejudicial nature of the evidence was such that the applicant should file a separate complaint under section 89 of the Act so that the mat­ter could, as the respondent asserted it should, be heard by another panel of the Board;

(d) because Mr. Shamie (counsel for the respondent) would be a witness if the motion proceeded, the respondent would have to obtain fur­ther counsel to deal with both the respondent's objections thereto and, if necessary, the merits thereof.

10. There was no indication that the applicant had given the respondent any prior notice of its motion. Mr. Shamie was placed in the untenable position of being witness and counsel in the same cause. Mr. Shamie did try, unsuccessfully, to obtain such counsel on December 20, 1988. It appeared to us that as a matter of natural justice, the respondent was entitled to an adjournment. Indeed, although unhappy with the prospect of an adjournment; counsel for the applicant quite rightly conceded that the applicant could not, and in fact it did not, oppose an adjournment on that basis.

11. The applicant did, however, assert that the Board was required to complete the hearing within thirty days of receiving the application as stipulated in section 40a(2).

12. We observe that it is likely to take two to three days to hear and dispose of the appli­cant's motion and, if that motion is unsuccessful, a further eight to nine days to complete the hear­ing of the application on its merits. Accordingly, it would take up to twelve additional days to dis­pose of the matter. Because the Board cannot create hearing time out of the air, it was physically impossible to schedule that many days of hearing within the thirty days stipulated by the applicant. (When asked the applicant could offer no suggestions as to how the Board might accomplish such a feat.) Further, for the reasons expressed in paragraphs 14 to 23 of the Nepean Roof and Truss Limited, [1986] OLRB Rep. Sept. 1287, the time limits specified in section 40a(2) are directory, not mandatory.

13. We also observe that the parties and the Board found themselves in this "time limits" dilemma partly as a consequence of the applicant's own strategy.

14. It is evident that the legislation directs the Board to deal with applications for a direc­tion that a first collective agreement be settled by arbitration expeditiously. There is no doubt that the maxim "labour relations delayed are labour relations defeated and denied" (see Journal Pub­lishing Co. of Ottawa Ltd. et al. v. Ottawa Newspaper Guild, Local 205, OLRB et al., March 31, 1977 (Ont. C.A.) unreported) is particularly applicable to first collective agreement situations. However, the Board cannot lose sight of all else in the pursuit of expedition. Surely, no one would suggest that the Board preclude settlement discussions between parties and require them to litigate such a matter. A resolution of labour relations dispute by agreement is always preferable to a liti­gated one, particularly in a first collective agreement situation which is an important step in the development of a workable relationship between the parties. Litigation is unlikely to do anything to foster stable labour relations. It is much more likely to have quite the opposite effect.

15. We note that even the applicant did not assert that the time limits imposed by section 40a(2) are mandatory, within the meaning of that term in law. It submitted only that the legislation requires or directs the Board to deal with applications like this expeditiously. The applicant went so far as to suggest that a decision rendered within 30 days of the lapse of the 30 day period speci­fied by section 40a(2) is acceptably expeditious.

16. We also observe that if the time limits in section 40a(2) were mandatory, the Board would be placed in a position of having to adjourn other previously scheduled proceedings to accommodate the scheduling of at least some applications like this. Notwithstanding the need for expedition in first collective agreement situations, we are not persuaded that the labour relations of other parties should necessarily take a back seat to a stranger's application under section 40a.

17. The legislation is silent with respect to what results if the Board is unable to meet the time limits specified in section 40a(2). We cannot accept the suggestion of Board Member Rog­ers that an applicant is entitled to a direction that a first collective agreement be settled by arbitra­tion if the Board is unable to complete a hearing and issue a decision with respect to its application within the 30 day period specified by section 40a(2), regardless of the stage of the proceeding and notwithstanding that the respondent may have had an incomplete or, as in this case, no opportu­nity to make its case. To have the legislation operate in such a draconian manner would make a mockery of natural justice and fairness, and would be inimical to the development of good labour relations between the parties. The legislation does not specifically abridge the rules of natural jus­tice or fairness, and where the legislation has not specified any result, much less such a startling one, we cannot accept this was its intent.

18. Further, if the time limits are mandatory, the Board would, in our view, be without jurisdiction to continue to deal with an application with respect to which it did not make a decision within 30 days of receiving it. Such a result would do nothing to resolve the labour relations prob­lems of the parties involved and would not likely be welcomed by an applicant. Indeed, such a result would be the antithesis of sound labour relations policy and could not have been intended by the legislature.

19. This situation also points out the problems with a legislated time limit which stipulates that a tribunal make a decision within a specified time from the date it receives an application. Surely, it would be more sensible to require the Board to appoint a date for and hold a hearing within a specified time of receiving an application (similar to the provisions in section 124(2) of the Act) and further require the Board to make its decision within a specified time of the conclusion of the hearing. Whatever the wisdom of the present legislation, however, it does exist and must be interpreted and applied by the Board as it stands.

20. We also find ourselves constrained to comment on two other aspects of our colleague's

dissent. First, it is, in our view, extremely premature and inappropriate to make any comment on the merits and ultimate disposition of this application. Second, it is somewhat incongruous, curious, and also contrary to Board Member Rogers' assertion, for the applicant to assert that the par­ties have reached a collective agreement, but also continue to press this application. Section 40a(1) permits an application for a direction that a first collective agreement be settled by arbitration to be made only in circumstances where the parties have been unable to effect one through their own negotiations. In our view, asserting that arbitration should be directed and that an agreement already exists is not unlike an applicant for certification asserting that the Board has no jurisdiction to entertain its own application.

21. In the result, at the hearing on December 21, 1988, the Board adjourned the applica­tion to January 26, 1989, its first available date in that regard. The Board also scheduled February 6, 7, 22 and 25, 1989 for hearing and indicated that it would set further dates after consulting with the Registrar. As it turned out February 25, 1989 is a Saturday. Accordingly, no hearing will be held on that date. The Board directs the Registrar to schedule this matter for hearing on the fol­lowing dates: January 26, 27, 31; February 3, 6, 7, 9, 10, 22, 23 and 24 all of 1989, and day-to-day thereafter as may be directed by the Board, or on such additional or other dates which can be scheduled to accommodate the expeditious hearing of the application. The hearings are all to begin at 9:00 a.m. The purpose of the hearing is to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to the application.

22. We note that at the hearing on December 21, 1988 the applicant advised the Board that it intended to file a complaint under section 89 of the Act alleging a breach of section 15, and that, while it reserved a right to change its mind in this respect, to ask that such a complaint be consoli­dated with this application. The respondent advised that its position was, notwithstanding that it had indicated an intention to object to this panel hearing the applicant's motion with respect to the same matter (see paragraph 9, above), that consolidation was appropriate. In our view, any such issue can only be dealt with when it arises.

DECISION OF BOARD MEMBER K. V. ROGERS: January 13, 1989

1. In assessing the situations involved in the proceedings, I am unable to disagree with the decision to adjourn the application in order to provide Stephen J. Shamie, Company Counsel, the opportunity to seek his own legal counsel. The necessity for Mr. Shamie to obtain counsel arises from position of the applicant as noted in the majority decision at page 3-#9.

2. However, I am of the opinion the majority decision, which finds the time limits of Sec­tion 40(2) are directory only, is flawed.

3. It is my belief that a total assessment of the Ontario Labour Relations Act, and its development, leads to the conclusion that Section 40.a.(2) was intended to give the Board author­ity to act quickly to bring an end to unresolved issues arising during first-round bargaining. The urgency of each situation needs to be assessed but the legislation clearly allows the Board to bring hearings to a rapid conclusion once the applicant has submitted sufficient evidence to meet any of the criteria and which envisioned by Section 40.a.(2) and such evidence will result in a decision by the Board to order arbitration of a first agreement.

4. To reach any other conclusion would lead to a result that the applicant must show unreasonable intransigence by the respondent in each case, with such positions being somewhere between bargaining in good faith and being in violation of Section 89, that is, bargaining in bad faith.

5. Clearly, the reason for the latitude allowed the Board in Section 40.a.(2).d is to bring to a conclusion conflict where a prolonged work stoppage continues despite the efforts of both parties, the full utilization of conciliation and mediation, the best efforts of a Labour Relations Offi­cer, and a Section 40.a.(2) application.

6. It may be relevant in some circumstances that the actions of the parties are considered by the Board. However, the actions of either the applicant and/or the respondent need not be con­sidered by the Board in every Section 40.a.(2) application.

7. As noted on page 4-#14, litigation may not foster stable labour relations but to allow a prolonged work stoppage to continue is not a logical alternative.

8. It is only with the mandatory time limits of Section 40.a(2) and the latitude of authority given the Board to direct arbitration that the employees are ordered back to work with protected rights of the act and the path of stable labour relations is set out by the Board for the parties to fol­low.

9. The strategy of the applicant in negotiations as noted in the majority decision may have added to the difficulty in issuing a decision within the time limits of the Act but surely the position taken by the applicant that the respondent had resiled in an agreement reached December 19, 1988, leads to both the need for adjournment of the applicant and the additional time required to conduct hearings.

10. Such assertions, if subsequently proven, are precisely the reasons why time limits must be mandatory to avoid prolonged hearing procedure during a period when a work stoppage is occurring and the applicant has asserted failure to reach the first agreement, regardless of reasons.

11. Therefore, if the applicant had not asserted an agreement had been reached on Decem­ber 19, 1988, it would be my opinion the Board had both the obligation and authority to render a decision within the time limits specified in 40.a.(2).

12. It may well be argued that Section 40.a.(2).d:

that the process of collective bargaining has been unsuccessful because of . . . (d) any other reason the Board considers relevant."

gives the Board latitude to issue a decision within thirty (30) days, despite the intent of either the applicant or respondent to introduce, or rebut, evidence which the Board considers extraneous to its ability to make a decision.

13. In conclusion, I would have determined that Section 40.a.(2) applications must be decided within thirty (30) days in circumstances where the application continues to maintain a posi­tion that negotiations have failed and will continue to fail despite the efforts of the parties to achieve an agreement.