[1989] OLRB Rep. June 608
0239-89-R; 0240-89-U Toronto Typographical Union, Number 91, Printing Publishing and Media Workers Sector of the Communications Workers of North America, Applicant v. Innopac Inc. Purity Packaging, Progressive Packaging Limited, Condor Laminations, Respondents; Toronto Typographical Union, Number 91, Printing Publishing and Media Workers Sector of the Communications Workers of North America, Complainant v. Innopac Inc. Purity Packaging, Progressive Packaging Limited, Condor Laminations, Respondents
BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. 0. Shamanski and E. G. Theobald.
APPEARANCES: Nelson Roland, Lori Newton and Douglas W. Grey for the applicant/ complainant; Robert Salisbury, Michael Cooke and Ted Hutcheson for the respondent.
DECISION OF THE BOARD; June 8, 1989
Board File 0239-89-R is an application under subsection 1(4) of the Labour Relations Act ("the Act") for a declaration that the respondents constitute a single employer for the purpose of the Labour Relations Act, and certain other relief. It appears to be common ground that there are only two separate legal entities: Innopac Inc. ("Innopac") and Progressive Packaging Limited ("Progressive"). "Purity Packaging" and "Condor Laminations" are names under which Innopac carries on certain aspects or divisions of its business. The respondents concede that they carry on associated or related activities or businesses under common and control in circumstances under which it would not be inappropriate for the Board to declare that they constituted a single employer for the purpose of the Labour Relations Act and that this would result in Progressive becoming bound by the terms of the applicant's most recent collective agreement with Innopac. That agreement, they say, only covers employees in the Condor Laminations division in the Municipality of Metropolitan Toronto. Accordingly, they say, the declarations which they concede may be given would not and should not result in the applicant's having bargaining rights for employees of Progressive in Aurora, Ontario, which lies outside the Municipality of Metropolitan Toronto.
It is common ground that certain work formerly performed by employees of Innopac in its Condor Laminations plant in Metropolitan Toronto are now being performed in Aurora, Ontario by employees of Progressive. This fact, and the circumstances of the transfer, are the subject of the trade union's section 89 complaint in Board File 0240-89-U, as is an allegation that the respondent Progressive has discriminated against its members by refusing to entertain their applications for employment in new positions created at the Progressive plant. The respondents deny that they have breached the Labour Relations Act in any way.
The application and complaint were scheduled for a single day of hearing on May 30,
The parties spent the morning in settlement discussions which did not bear fruit. When they attended before this panel in the afternoon, they advised us that the hearing of the application and complaint on their merits would occupy at least six days of hearing. As it appeared that proceedings of that duration would be completed more quickly if scheduled before a differently constituted panel, we determined not to take any step ourselves which would be inconsistent with another panels' taking charge of the hearing of the matter on the merits.
Counsel for the respondent asked us to rule on two matters which he described as preliminary. With respect to the application under subsection 1(4) of the Act, he wanted us to rule that the relief which the respondents had conceded could be granted was the only relief which the Board would grant in that application. The object of such a ruling would be to deny in advance a claim which he understood the applicant would be making in the subsection 1(4) application for a remedy which would extend the geographic scope of the applicant's bargaining rights so as to include Progressive's plant in Aurora. With respect to the section 89 complaint, counsel wished us to consider whether, as he would argue, the hearing of that complaint should be deferred pending the arbitration of certain grievances which the trade union has filed under its collective agreement with Innopac concerning the transfer of work from the Condor plant to the Progressive plant and the resulting of lay-offs of workers at the Condor plant. Counsel for the trade union confirmed that he would, indeed, be seeking extension of the geographic scope of the trade union's bargaining rights as a remedy in either or both of the application and complaint and would resist the suggestion that the matters to be dealt with by the Board in these proceedings should be limited in advance. Counsel agreed that their argument with respect to the matters raised by counsel for the respondent would occupy an hour or two of hearing time.
Applications and complaints to the Board can and often do raise a number of issues of both fact and law. In accordance with the conventional approach to adjudication, the Board ordinarily hears the parties' argument with respect to these issues of fact and law only after having heard all the evidence which any of them wishes to put before it with respect to disputed issues of fact. Sometimes it is suggested that it would be desirable to consider some issue in advance because a particular disposition of that issue would make lengthy hearings with respect to other issues unnecessary. This often involves the Boards' having to say what it might do if a set of alleged facts were true, even though it is generally preferable that legal questions be answered only with respect to facts found to be true. Apart from its involving the Board in answering abstract questions which might best be left unanswered, the division of any dispute into a series of so-called "preliminary" issues for consecutive determination can also make the hearing of the matter longer and more complicated than it would have been had the Board simply proceeded in the ordinary way. It is in the nature of many so-called "preliminary" issues that if they are not dispositive when a particular set of facts are assumed to be true they will be argued again, often at even greater length, after there has been an attempt to prove the assumed facts.
In the absence of a statutory requirement that it do so, the Board is not obliged to deal in a "preliminary" manner with any issue between parties before it, nor is it obliged to answer legal questions on assumptions about disputed facts before determining whether the facts are true. Whether the Board chooses to entertain any issue in a preliminary way is a matter which involves discretion and judgement, the exercise of which can substantially affect the course which the proceedings may take thereafter. So far as is possible, it is desirable that decisions about so-called "preliminary" issues, including decisions about whether to entertain the issues in a preliminary way, be made by the panel which would otherwise hear the application or complaint on its merits and which, accordingly, would have to hear the matter subject to the constraints and complications which might flow from the Board's having preliminarily entertained and (perhaps) pronounced upon an issue which did not prove dispositive.
As this panel will not be hearing this application and complaint on their merits, we concluded that we would not entertain the respondent's "preliminary" arguments, but would simply adjourn the matter to dates to be fixed by the Registrar for hearing of these matters on the merits. The proposition that these issues should be dealt with in a preliminary way may be raised before the panel by which this application and complaint will otherwise be heard on its merits. That panel will be free to entertain them or not and dispose of them as it sees fit.