Ontario Labour Relations Board
[1991] OLRB Rep. August 1013
1427-91-R; 1770-91-U United Steelworkers of America, Applicant v. Conix Canada Inc., c.o.b. as Tycos Tool & Die, Respondent v. Group of Employees, Objectors; United Steelworkers of America, Complainant v. Conix Canada Inc. c.o.b. as Tycos Tool & Die, Respondent
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.
APPEARANCES: Paula Turtle and Brando Paris for the applicant/complainant; E. L. Stringer Q. C. for the respondent; C. J. Abbass and Paul Robertson for the objecting employees.
DECISION OF THE BOARD; August 27, 1991
1The name of the respondent is amended to read: "Conix Canada Inc., c.o.b. as Tycos Tool & Die".
2This is an application for certification and a related section 89 complaint. This decision deals with the matter of consolidation of the two proceedings and scheduling matters only.
3This matter came on for hearing before this panel on August 23, 1991. On August 22, 1991, the applicant filed the section 89 complaint alleging breaches of sections 64, 66 and 70 with a letter indicating its intention to rely on the particulars of the complaint in challenging the voluntariness of a petition opposing the certification of the union filed in this matter.
4The union sought consolidation of the two proceedings. This was not originally opposed by employer counsel but was opposed by petitioner's counsel because of the potential cost to his clients. The reason for the union's request for consolidation was that there would be overlap in the evidence between the section 89 and the matter of the voluntariness of the petition and that the atmosphere created by the alleged breaches of the Act would affect the Board's finding on the issue of voluntariness of the petition.
5Petitioners' counsel submitted that the Board should not hear the particulars of the section 89 complaint in regards to the voluntariness of the petition as they were untimely since they could have been raised at the Labour Relations Officer meeting a week earlier, or at sometime between then and the eve of hearing. The union took the position that the section 89 complaint and its particulars were timely. The employer, while reserving its right to ask for an adjournment if necessary, expressed its desire to proceed on the matter, notwithstanding the short notice of the section 89 complaint. Petitioners' counsel indicated he would need an adjournment if he were asked to deal with the particulars of the section 89 complaint that day.
6The matter of order of proceeding also arose. Employer counsel took the position that the section 89 complaint was not one triggering the reverse onus and therefore the union should go before the employer. The union took the position that the allegations did trigger the reverse onus provisions and therefore the employer should proceed first. Petitioners' counsel supported the position of the employer in this matter.
7As support for its position that the union should proceed before the employer, employer counsel pointed to allegations in the section 89 complaint in which reference is made to "a bargaining unit employee". Counsel submitted the employer has no knowledge of the identity of that bargaining unit employee. He argued that the union is not required to tell the employer who it is but that the union should then go first. Employer counsel underlined that this was not a discharge and that he strongly disagreed with the suggestion that the employer should go first. In the alternative, he withdrew his concurrence with consolidation of the two matters.
8Before this panel began to hear evidence, counsel for the applicant requested that the Board consider whether this panel or another panel would be able to hear the matter more expeditiously as she estimated ten days could be required to complete the two matters if consolidated, as the union requested. The Registrar provided dates and we canvassed the parties' availability on twenty-nine dates that were available for this panel or another panel between September 6 and the end of January 1992. Of the eighteen dates in 1991 canvassed, the parties' counsel were all available on only one, November 1.
9On learning that there was only one date in 1991 on which the parties could agree, union counsel asked that seven dates be set peremptorily and said that the union was prepared to make adjustments to accommodate that. Both employer and petitioners' counsel opposed this request. Employer counsel submitted that peremptory dates only made it difficult for everyone and would likely not save more than a month or two at best. Counsel for the employer also submitted that a party should be able to be represented by the counsel of choice, within reason, and said that the matter was a balancing of interests. He asked that if we set peremptory dates that they be set on the dates that he was available. The union responded that although it realized that peremptory dates were inconvenient, the union would be the only party prejudiced by starting the case months from now and not having any prospect of finishing it before well into the new year. She argued that this factor must outweigh counsel's convenience. The union asked that they be set without consideration of convenience of counsel for any party.
10Petitioners' counsel submitted that it was too costly for any counsel to tie up that many dates. He submitted that the Board should have an eye to the practicality of the matter and not set the number of dates requested by union counsel. He referred to the fact that his client was not in a position to charge union dues and had to take time off work to attend these proceedings. He submitted that these days petitioners need legal advice and they would not be able to afford it if the Board set that many dates for hearing. He questioned the union's practicality in bringing the allegations in the section 89 complaint.
11Having considered all parties' submissions, the Board ordered the matters consolidated as it seemed that the evidence would be overlapping between the certification application and the section 89 complaint to the extent that it would be impractical to hear them separately.
12After considering the submissions of the parties, the Board set ten dates without regard to achieving consensus among the parties. We set ten in the hope that the outside estimate would ensure that the matter was finished within the year as this is a certification matter which ought to be dealt with as expeditiously as possible. Setting a smaller number might only mean an unfinished case and the setting of even later continuation dates. Another panel of the Board was available on sixteen dates before the end of the year. This panel was only available on four before the end of the year, and none before November 4. Given this situation, and in light of the unpreparedness of at least one party to deal with the particulars in the section 89 complaint, as well as the fact that the morning had been consumed with the above-noted matters, it seemed advisable to adjourn the matter to be heard by another panel. In choosing the ten dates to be set, we did not avoid the eight of the new panel's dates that employer counsel was available as we would have been unable to do so and set the necessary ten dates to allow the matter to be finished by the end of this calendar year. There was also no reason to do so given the union's acknowledgement that it would have to make other arrangements to accommodate its own request. Employer counsel was also available for more of the dates canvassed than the other two parties. To reach ten, we set two additional dates, those employer counsel thought would be the least difficult to accommodate.
13Mr. Abbass asked whether he could make submissions to the new panel on two of the dates set that are very inconvenient for him. We advised that the purpose in setting the dates without regard to the parties' consensus was that the hearing would proceed but that we did not purport to bind the new panel.
14We left the matter of the order of proceedings and any other preliminary matters to the new panel to hear. On request of counsel we also set another date for the new panel to deal with preliminary matters. Representations on any preliminary matters may be made to that panel on September 6 at 9:30 a.m. so that guidance may be given before the start of the evidence on October 18. The matter is scheduled to proceed on the following dates: September 6 (for preliminary matters only), October 18, 24, 25, November 1, 12, 28, 29, December 9, 19 and 20.