[1989] OLRB Rep. June 642
0612-89-FC National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Lau Division - Philips Air Distribution Ltd., Respondent
BEFORE: Patricia Hughes, Vice-Chair, and Board Members R. W. Pirrie and A. Hershkovitz.
APPEARANCES: John Moszynski and Bruce Davidson for the applicant; Harvey Beresford, T. F.Stone and Rex Clark for the respondent.
DECISION OF THE BOARD; June 27, 1989
National Automobile Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) and its Local 1352 ("the C.A.W.") filed an application for direction that a first collective agreement be settled by arbitration under section 40a of the Labour Relations Act ("the Act"). The C.A.W. had been certified to represent employees of the respondent, Philips Air Distribution Ltd. at its Lau Division and Canada Fans Division ("Philips") on August 18, 1988.
The C.A.W. filed its application on June 1, 1989. The respondent served its reply in conformity with Practice Note 18. The C.A.W. subsequently filed what it called "Supplementary Statement to Schedule "A" Dated - June 1, 1989" ("Supplementary Statement"); it was dated June 14, 1989 and received by the Board June 15, 1989. The first day of hearing was scheduled for June 20, 1989.
At the outset of the hearing, counsel for Philips objected to the Board's accepting the June 14th Supplementary Statement on the basis that it was filed too late; alternatively, he indicated that the respondent required particulars of certain allegations in the Supplementary Statement and might require an adjournment. Counsel for the C.A.W. advised that it would be "forced" to withdraw its application if we did not grant leave to call evidence on the matters raised in the Supplementary Statement; he contended that the Board would have used a procedural rule to prevent redress of a situation falling squarely within the mischief addressed by section 40a of the Act (here he appeared to suggest that refusing to accept the Supplementary Statement would somehow make the Board responsible for the continuation of the strike). Counsel for the C.A.W. urged us to give the direction sought on the basis that the respondent had conceded that bargaining had broken down and that there had been a strike in progress since February 13, 1989; in effect, his position was that we should give a direction on the basis of the pleadings alone. Counsel for the respondent argued that this was not a preliminary matter.
After hearing counsel's submissions on both issues we recessed and reconvened to deliver two oral rulings with reasons. We declined to grant leave to the C.A.W. to lead evidence on the issues raised in its "Supplementary Statement" and declined to give the direction as requested by counsel for the C.A.W. in his preliminary motion.
With respect to the latter issue, counsel for the applicant points to such statements in the respondent's reply such as that which appears in paragraph 1 of Schedule "E" to that rely: "Indeed, the Company takes the position that had it so chosen, a case could be made by it for a declaration that a first Collective Agreement be imposed on the basis that the Union has bargained in bad faith". It is common ground that the employees went on strike on February 13, 1989 and it does not appear to be in dispute that they remain on strike. We gave the following oral ruling on this matter:
The applicant seeks a declaration on the basis that the respondent has conceded that bargaining has broken down and that there has been a lengthy strike with no hope of settlement. Counsel says this is "any other reason the Board considers relevant" under paragraph 40a(2)(d) of the Labour Relations Act. Counsel for the respondent says that the respondent has not made that concession. Even assuming certain statements in the respondent's material could be interpreted that way (and we are not saying here that they can or should be), we are not prepared to find as a preliminary matter that the mere existence of a strike - lengthy or otherwise - constitutes any other relevant reason for imposing a first contract. Section 40a requires that the bargaining process has been unsuccessful "because of' some conduct or event. The determination of whether bargaining has been unsuccessful because of a particular reason(s) -- that is, the determination of whether there is a link between the conduct or event and the break down of bargaining -- is a matter for evidence. Counsel's motion for a direction at this stage of the proceedings is refused.
- On the objection to our accepting the Supplementary Statement, we note that the time requirement set out in subsection 40a(2) of the Act ("The Board shall consider and make its decision on an application under subsection (1) within thirty days of receiving the application....") has been treated by the Board as a direction to deal with first contract applications in an expeditious manner, indeed, even more so than with most other matters coming before the Board, with some sense of urgency. In order to maximize the chances of completing first contract applications within thirty days, the Board has prepared Practice Note 18 which imposes strict requirements on the parties with respect to the nature and timing of filings. On this issue, we gave the following oral ruling:
Practice Note 18 is clear: "Except with leave of the Board, parties will not be permitted to adduce evidence at the hearing of any material fact not disclosed in the material filed with the Board" -- the reference is to the detailed statement which must be filed with the application. The reason for that requirement and for its strict observance is the statutory time limits imposed on first contract determinations. In this case, certain of the allegations in the supplementary material [in particular, and as agreed by the parties, allegations of contacts by the respondent with individual employees, of failure to recognize the local economy and of the respondent's actions during the strike] raise entirely new "material facts" to which the respondent would have to have an opportunity respond -- this could only lead to delay. There is no reason for delay - this application can proceed as originally filed to be considered and determined in the usual course.
The only reason given by counsel for our granting leave to file the supplementary statement is that the original was filed by a non-lawyer. That quite simply cannot be a reason for deviating from the Board's necessarily strict interpretation of the Practice Note. Parties must decide for themselves whether they want to use legal advice or representation or not, a decision not to do so cannot give a party an advantage. The applicant has given no other reason for our granting leave and therefore one must assume that had the original material been filed by counsel there would be no reason to grant leave. We are not persuaded that we should grant leave to the applicant to adduce evidence relating to the new allegations in its Supplementary Statement.
The respondent has raised no objection to the original application's proceeding and has pointed to no perceived deficiency at this stage. We are prepared to proceed with the application as originally filed after the lunch break.
After the lunch break, counsel for the C.A.W. advised that the C.A.W. was seeking leave to withdraw its application because, he said, the application was "procedurally deficient" (in this regard, there was no allegation by the respondent nor any indication by the Board, that the application as originally filed was "procedurally deficient"). Although counsel for the respondent requested that we dismiss the application in order to make "the record clear" that the respondent had complied with the requirements, we declined to do so, since there is no legally relevant distinction in such cases between withdrawal and dismissal. In light of C.A.W.'s counsel's comments, however, especially during the early part of the hearing with respect to the Board's refusing leave to adduce evidence on the issues raised by the Supplementary Statement, we made it clear that it was the C.A.W.'s own choice to delay resolution of this matter and that if it was not satisfied with the application as originally filed, it must bear the burden of delay consequent upon its withdrawal.
This matter is therefore terminated.