Labourers' International Union of North America, Local 1059 v. Strathroy Concrete Forming (1988) Inc., 1991 CanLII 6183

Labourers' International Union of North America, Local 1059 v. Strathroy Concrete Forming (1988) Inc.

[1991] OLRB Rep. June 778

0630-91-FC Labourers' International Union of North America, Local 1059, Appli­cant v. Strathroy Concrete Forming (1988) Inc., Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Ronson and P. V. Grasso.

APPEARANCES: L. A. Richmond, M. Lewis and J. MacKinnon for the applicant; no one appear­ing on behalf of the respondent.

DECISION OF THE BOARD; June 13, 1991

1This is an application, under section 40a of the Labour Relations Act, for a direction that a first collective agreement between the parties be settled by arbitration. The application was filed with the Board on May 28, 1991 and was scheduled to be heard on June 13, 14 and 20, 1991.

2The respondent filed nothing in response to the application, either in accordance with Board Practice Note No. 18 or otherwise. The only communication from the respondent with respect to this matter were two telephone calls. Apparently, on June 11, 1991, Ed Baker, a princi­pal of the respondent, telephoned the Registrar's office. The message he left does not indicate the purpose of his call and when the Registrar's office returned it, Mr. Baker was not available. Mr. Baker did not return the Registrar's office's call until June 12, 1991 at approximately 10:00 a.m. (30 minutes after the time the hearing was scheduled to begin). At that time, Mr. Baker asked the Registrar to "reschedule" the hearing to some later date. The Registrar advised the panel of this request just as it was about to begin the hearing. The panel saw no reason to not proceed in accor­dance with the Board's usual practice in such circumstances and, having waited more than the usual 30 minutes beyond the scheduled starting time, commenced the hearing. We understand that the Registrar so advised Mr. Baker.

3The Board began the hearing by advising the applicant of the telephone calls from the respondent to the Registrar's office as aforesaid. The applicant advised the Board that it had received no communication from the respondent with respect to any adjournment request and sub­mitted that the Board should proceed with the application.

4Sections 40a (1) and (2) of the Labour Relations Act provide that:

40a.-(1) Before or after the commencement of a strike or lock-out, the employer of the employ­ees in the affected bargaining unit may request that a vote of such employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the con­struction industry the Minister may, on such terms as he considers necessary direct that a vote of such employees to accept or reject the offer be held and thereafter no further such request shall be made.

(2) A request for the taking of vote, or the holding of a vote, under subsection (1) does not abridge or extend any time limits or periods provided for in this Act.

It is evident that the Legislation contemplates that applications for a direction that a first collective agreement be settled by arbitration will be dealt with by the Board expeditiously. Indeed section 40a(2) specifically directs the Board to consider and make its decision on such an application within 30 days of receiving it. Although the time limits in section 40a are directory rather than mandatory (see Del Equipment Limited, [1989] OLRB Rep. Jan. 19; Nepean Roof Truss Limited, [1986] OLRB Rep. Sept. 1287), there is no doubt that the maximum "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, Ontario Court of Appeal, unreported) is particularly applicable to first collective agreements situations. In recognition of that reality, the Board in section 40a proceedings will normally not grant an adjournment except on consent of the parties or where there are exceptional extenuating circumstances (for examples of circumstances in which the Board has denied requests or adjournments in section 40a proceedings see Teledyne Industries Canada Limited, [1986] OLRB. Rep. Oct. 1441 and Atway Transport Inc., [1991] OLRB Rep. Apr. 425). Further, it is the Board, not the parties or any of them, which is the master of pro­ceedings before the Board, and a party which has had adequate notice of the hearing does not have a right to have it adjourned for the convenience of itself