[1991] OLRB Rep. September 1067
1400-91-U Amalgamated Clothing and Textile Workers Union, Complainant v. Georgian Industries Inc., Respondent
BEFORE: Robert Herman, Vice-Chair, and Board Members G. O. Shamanski and E. G. Theobald.
APPEARANCES: John H. Stevens and Marrisa Pollock for the applicant; Kees W. Kort, Ben Ball, Kathy Jamieson and Jim Lang for the respondent.
DECISION OF THE BOARD; September 6, 1991
This is a complaint that the respondent breached sections 64, 67, 70, and 80 of the Labour Relations Act.
At the first day of hearing, the respondent requested an adjournment. In that respect, the Board gave the following oral decision, which we hereby put in written form:
This is a request for an adjournment on behalf of the respondent, because of the unavailability of what the respondent asserts is its key witness. That key witness is a lawyer in the same firm as counsel before us today, which lawyer has carriage of an ongoing certification and section 89 proceeding involving the same parties. Because of his involvement in the ongoing dispute between the parties, his evidence, it was asserted, would be essential with respect to the issues in front of the instant panel in the instant complaint. Prior to notice of hearing in the instant complaint being sent, that counsel had committed to the last day of a seven day arbitration proceeding, for today's date, on which he was also acting as counsel.
This counsel however was not summonsed to attend today by the respondent. He did make some effort to obtain a consent adjournment of that arbitration proceeding, but in the result the other party did not agree to it.
This witness's evidence does appear to be relevant, for the reasons expressed by counsel for the respondent. This is so if for no other reason than the fact that sections 64 and 70 of the Act are pleaded by the complainant, which sections can carry motive aspects. The witness's evidence would touch upon the reasons why the company acted as it did.
The nature of the complaint before us is that witnesses summonsed to attend with respect to the ongoing certification and section 89 proceedings were disciplined by the respondent company because they were so summonsed. The next hearing date in the ongoing proceeding is September 18, 1991.
In these circumstances, but for the undertakings and consent by Mr. Kort, counsel for the respondent, on behalf of the respondent, we would not have granted the adjournment. The nature of the complaint before us and the ongoing proceedings for which the individuals were summonsed to attend demand a quick Board hearing and quick Board response. There was ample Notice of Hearing given to the respondent. The witness said to be the key witness was not summonsed to appear today by the respondent. That witness chose to attend the other proceeding. Further, there would be substantial prejudice to the complainant if this matter were to be adjourned, assuming of course that the complaint ultimately was upheld.
However, given Mr. Kort's position, there is no prejudice in granting the adjournment request, provided it be on the terms that follow. Any potential prejudice can in our view be cured by Mr. Kort's undertakings and consent and by our directions.
We note the acknowledgment by the company that witnesses summonsed by the union are not only entitled to attend the Board hearings they are summonsed to attend, they are legally obligated to so attend. We note also the company's undertaking that no reprisals or action of any sort whatsoever will be taken against employees summonsed by the union to attend Board proceedings. The company also agrees to remove and expunge all the disciplinary or other action taken against the grievors in this proceeding relating to the events that have been pleaded before us and that form part of the instant complaint.
The Board notes that section 80(1) of the Labour Relations Act reads as follows:
80.-(1) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,
(a) refuse to employ or continue to employ a person;
(b) threaten dismissal or otherwise threaten a person;
(c) discriminate against a person in regard to employment or a term or condition of employment; or
(d) intimidate or coerce or impose pecuniary or other penalty on a person,
because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.
The Board is vigilant to ensure that employees or individuals summonsed to attend at Board proceedings are freely able to do so as required by law. Indeed, their failure to attend can lead to action against them, including fines and/or imprisonment. Witnesses properly summonsed by the parties; including those summonsed by the union, must attend as required by the summons.
Based upon the undertakings and agreement of the company, we direct that the action taken against the grievors by the company with respect to the matters in question in this complaint be fully and completely removed, cancelled or nullified. The company is directed to take no action against employees of any kind because they have been summonsed by the union to attend Board proceedings.
The Board further directs that copies of this decision be posted by the employer in the work place, where they will come to the attention of employees, and those copies are to remain posted for a period of thirty days from receipt of this decision.
The Board notes that the company agreed that the decision will be posted on all the company notice boards.
On the above basis, this matter is adjourned, to dates to be set by the Registrar, without consultation with the parties. The Registrar is directed to set three further days of hearing.
This panel will remain seized with respect to any problems in implementation with respect to our above directions.```