[1993] OLRB REP. OCTOBER 960
2117-93-M National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) and its Local 1256, Applicant v. Crown Fab Division, The Allen Group Canada, Limited, Responding Party
BEFORE: Brain Herlich, Vice-Chair, and Board Members G. 0. Shamanski and P. V. Grasso.
APPEARANCES: Lisa Kelly, John Amato and Steve Walden for the applicant; Bernard Gmeterick for the responding party.
DECISION OF THE BOARD; October 15, 1993
This is an application for an interim order filed pursuant to section 92.1 of the Labour Relations Act. This application is brought in relation to an application (the "main application") brought under section 91 of the Act in which the applicant (also referred to as the "union") alleges that the responding party (also referred to as the "employer" or the "company") has violated sections 3,41.1,65,67, and 71 of the Act.
The applicant, as required by the Rules, filed an application including supporting declarations. The company, although it was represented by Mr. Gmeterick at the hearing in this matter, had filed no reply or supporting declarations as required under the Rules.
It became readily apparent, however, that there was no significant dispute between the parties regarding the salient facts giving rise to this application. As a result it was not necessary for the Board to deal with the consequences of the employer's failure to comply with the Rules.
The parties have had a collective bargaining relationship for some time. On September 20, 1992, the company posted a notice that it would be closing part of its Mississauga plant and acknowledging that the terms of the closure would be discussed with the union.
Steven Walden (the "grievor") has been the union's bargaining unit chairperson since 1986. On March 24, 1993 he was terminated. His discharge is the subject of a grievance which has proceeded to arbitration pursuant to the expedited arbitration provisions in the Act. Four days of hearing took place in May and June, 1993. Further hearing days in that matter are scheduled for October and November and, possibly, December of this year.
Preliminary discussions between the parties regarding the upcoming closure began in May of 1993. At that time the precise closure date was not entirely certain. From that time until the filing of the instant application the company has refused to discuss any readjustment plan with the union so long as the grievor was included on the union's bargaining committee.
On August 30, 1993 the employer sent registered letters to most of its employees advising them of an October 22, 1993 closure date. The employer continued to refuse to meet with any bargaining committee which included the grievor.
The present application as well as the main application were both filed on September 29, 1993.
The union, in support of its request for an interim order, relied upon the Board's decision in Loeb Highland, [19931 OLRB Rep. March 197. That case makes clear that the Board will consider whether the applicant has an arguable case in the main application and will weigh the relative harm of granting or not granting the interim relief sought in determining whether or not such relief is appropriate in a given case.
Having considered the largely undisputed facts of this case and the authorities relied upon by the applicant (House of Braemore Upsholstered Furniture, [1967] OLRB Rep. Jan. 815; No-Sag Spring Company Limited, [1967] OLRB Rep. Mar. 992; The Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. June 309; Arnold-Nasco Limited, (19781 OLRB Rep. July 587; High Times Publication Ltd., [19841 OLRB Rep. Oct. 1448; Plastics CMP Limited, [1982] OLRB Rep. May 726; and McDonnell Douglas Canada Limited, [1988] OLRB Rep. May 498) we are satisfied that the applicant has made out an arguable case for the relief sought in the main application. We make no further comment regarding the merits of that application which will be dealt with, if necessary, by the panel hearing that case.
In terms of the relative harm resulting from the order sought being or not being granted, the applicant asserted that with a scheduled October 22, 1993 closure date there are many issues to be dealt with by the parties regarding an adjustment plan (hopefully prior to the scheduled closure). Although the applicant has made efforts to resolve the arbitration hearing expeditiously, it now appears that proceeding will continue well beyond the closure date. If the union is prevented from selecting all its representatives to the bargaining committee it will be difficult to remedy that shortcoming retroactively. The union emphasized that it was not seeking the grievor's interim reinstatement nor even a broad direction that the employer continue to recognize him as the bargaining unit chairperson. All the union is seeking is an order which would prevent the employer from refusing to allow the grievor to participate as a member of the union committee negotiating the adjustment plan.
Apart from questioning the wisdom of the grievor's continuing participation on that committee, the company identified no significant harm which would result from the Board granting the order sought. In this context we note that we have not felt it appropriate to consider the employer's expressed reservations to the extent that they relate to its view of relations between union officials and bargaining unit employees. The fact remains that the employer has not identified any harm it will suffer if the order sought is granted. We do note, however, that the employer has acknowledged in these proceedings that it is obliged to deal with the union. It was for these reasons that the Board, after recessing to consider the parties' submissions delivered the following oral ruling at the hearing in this matter:
Having considered the materials filed and the submissions of the parties and for reasons which will issue in writing the Board is satisfied that it is appropriate to issue the following orders pending the disposition of the section 91 complaint (the "main application"):
The responding party employer is hereby directed to:
(i) cease and desist from refusing to recognize and deal with Steven Walden as a member of the applicant's bargaining committee; and
(ii) meet with the applicant's bargaining committee, including Steve Walden, in order that the parties may bargain in good faith and make every reasonable effort to make an adjustment plan
CONCURRING OPINION OF BOARD MEMBER G. O. SHAMANSKI; October 15, 1993
Albeit I concur with this decision. I respectfully offer my viewpoint with respect to the overall labour relations implication that may flow from our directive.
I seriously question the union's wisdom of seeking the grievor's continuing participation on the negotiation committee. It seems to me that this may have more of a adverse effect than beneficial effect on the objective of negotiating an adjustment plan to deal with the contemplated closure.