[1994] OLRB Rep. December 1703
2871-94-U Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 880, Applicant v. Trican Materials Ltd. and Dunhill Contracting Ltd., Responding Parties
BEFORE: D. L. Gee, Vice-Chair, and Board Members R. W. Pirrie and D. A. Patterson.
APPEARANCES: J. James Nyman and Gary Kitchen for the applicant; Dave Mummery and Jacob Michael for the responding parties.
DECISION OF THE BOARD; December 13, 1994
1This is an application pursuant to section 91 of the Labour Relations Act. The applicant has alleged that the responding parties terminated the employment of Peter MacDonald, Fred Andary and Ike Andary for reasons related to their trade union activity. It is alleged that, in doing so, the responding parties violated sections 65, 67, 71, 82 and 91(7) of the Act.
2In conjunction with the present application, the applicant applied under section 91.1 of the Act for an interim order reinstating the three employees in question. The interim application was heard by a differently constituted panel of the Board (the "interim panel") on November 16, 1994. At the conclusion of the hearing the interim panel ordered the responding parties to reinstate Mr. MacDonald on an interim basis. The interim panel issued written reasons for its order on November 17, 1994.
3The interim panel's decision of November 17, 1994 indicates that, as of the morning of the hearing of the interim application, the responding parties had not filed a response nor did they have any reasonable excuse for having failed to do so. Accordingly, after determining that the responding parties had no intention of complying with the Board's Rules of Procedure, even if provided with additional time to do so, the interim panel applied Rules 19 and 20 and determined the matter based solely on the applicant's materials.
4As a result of comments made by Mr. Michael, the responding parties' representative, following the interim panel's reading of its order, the interim panel sought confirmation from Mr. Michael that he understood the Board's order and reviewed the legal regime surrounding the enforcement of Board orders. It is not disputed that, as of November 22, 1994, the date on which the instant application was heard, the responding parties had failed to reinstate Mr. MacDonald as required by the order of the interim panel.
5As of the morning of the hearing of the instant matter, the Board had not received a response or any documentation from the responding parties. Although Mr. Michael asserted that the responding parties' response and documents were faxed to counsel for the applicant and the Board at approximately 7:35 p.m. the previous evening, no such fax had been received by the Board. Mr. Michael did not have sufficient copies of the response and documents (which measured approximately one inch thick) with him on the morning of the hearing to provide to the panel. Counsel for the applicant acknowledged that the response and documents had been faxed to his office at 7:30 p.m. the previous evening but requested, in light of the fact that the responding parties had failed to file their response and documentation with the Board as required by the Board's Rules of Procedure, that the Board refuse to accept the responding parties' materials on the morning of the hearing and proceed to determine the matter based on the applicant's materials.
6In support of his request, counsel submitted that, as a result of the Board proceedings in connection with the interim application, the responding parties were well aware of the possible ramifications of their failing to file a response as required by the Board's Rules. It was argued that the Board should consider the fact that the responding parties were in contempt of a Board order and had repeatedly failed to comply with the Board's Rules in determining whether to relieve against the application of the Rules. Finally, counsel argued that, the fact that the hearing was an expedited one and Mr. MacDonald remained out of work pending a final determination by the Board, weighed in favour of expeditiously completing the hearing which could not be done if the Board accepted the responding parties' late filings. The applicant relied on G. B. Metals Limited, [1993] OLRB Rep. June 503; Lakeridge Acoustics, [1993] OLRB Rep. Feb. 137; and Central Forming & Concrete Inc., [1994] OLRB Rep. July 805 as well as the Board's Rules of Procedure, in support of its request.
7Mr. Michael advised the Board that he had been told by the interim panel that the responding parties had until November 21, 1994 in order to file their materials relating to the instant application. Mr. Michael asserted that the Board should not determine this matter in the absence of all of the facts and that the Board would not have all the facts unless it considered the responding parties' materials.
8In reply, counsel for the applicant asserted that the interim panel did not advise Mr. Michael that the responding parties had until November 21, 1994 to file their materials and, in any event, the Board's Rules do not provide for service by fax. Counsel reiterated that it was imperative that the Board rule on this matter as expeditiously as possible. The applicant specifically requested that the hearing be expedited to ensure that end. To allow the responding parties to file materials this late would likely result in an adjournment and defeat the effect of having expedited the hearing. The matter was especially urgent due to the fact that the responding parties had refused to comply with the Board's interim order that Mr. MacDonald be reinstated pending determination of the instant application.
9The Request to Expedite Hearing (Form A-61) served by the applicant on the responding parties on November 10, 1994 clearly sets out, under the hearing "IMPORTANT NOTICE TO RESPONDING PARTY", in bold faced type, that a response must be filed with the Board not later than five days after the request to expedite was received and warns as follows:
THE BOARD'S RULES OF PROCEDURE DESCRIBE HOW A RESPONSE MUST BE FILED WITH THE BOARD, WHAT INFORMATION MUST BE PROVIDED AND THE TIME LIMITS THAT APPLY. THE RULES OF PROCEDURE ALSO CONTAIN SPECIAL RULES CONCERNING REQUESTS TO EXPEDITE CERTAIN CASES AND THE BOARD'S POWER TO EXPEDITE THOSE CASES.
IF YOU DO NOT FILE A RESPONSE TO THE APPLICATION OR OTHER DOCUMENT IN THE WAY REQUIRED BY THE RULES, THE BOARD MAY NOT PROCESS THE RESPONSE, YOU MAY BE DEEMED TO HAVE ACCEPTED ALL THE FACTS STATED IN THE APPLICATION, AND THE BOARD MAY DECIDE THE CASE ON THE MATERIAL BEFORE IT WITHOUT FURTHER NOTICE.
COPIES OF THE BOARD'S RULES OF PROCEDURE MAY BE OBTAINED FROM THE BOARD'S OFFICE LOCATED ON THE 4TH FLOOR AT 400 UNIVERSITY AVENUE, TORONTO, ONTARIO, M7A 1V4 (Tel. (416)326-7500).
10The applicable Rules of Procedure provide as follows:
- Applications, responses, membership evidence, evidence of objection and re-affirmation and evidence of employee wishes concerning representation may not be filed by facsimile transmission. Only other documents which are short and urgent may be sent to the Board by facsimile transmission.
Requests to Expedite Hearings under Section 92.2
A responding party must file its response to the application under section 92.2 of the Act not later than five (5) days after the request for expedition was delivered. A responding party must file its response to the application under sections 94, 95 or 137 of the Act not later than two(2) days after the request for expedition was delivered.
Before filing the response with the Board, the responding party must deliver a properly completed copy of the response to the applicant.
At the time of filing, the parties must verify in writing to the Board that they have delivered the request, complaint and response as required by these Rules.
In order to expedite proceedings, the Board may, on such terms as it considers advisable, shorten or lengthen any time period, change any filing or delivery requirement, schedule a hearing on short notice, or make or cause to be made such examination of records and such other inquiries as it considers necessary in the circumstances.
Where Rules Not Complied With
An application or response may not be processed if it does not comply with these Rules.
The Board may decide an application without further notice to anyone who has not filed a document in the way required by these Rules.
If a party receiving notice of an application does not file a response in the way required by these Rules, he or she may be deemed to have accepted all of the facts stated in the application, and the Board may decide the case upon the material before it without further notice.
No person will be allowed to present evidence or make any representations at any hearing about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable.
The Board may also require a person to provide any further information, document or thing that the Board considers may be relevant to a case.
The Board may relieve against the strict application of these Rules where it considers it advisable.
11The Board's Rules and the "Important Notice to Responding Party" set out in the Request to Expedite Hearing clearly indicate the date by which a responding party is required to have filed its response as well as the possible ramifications for failing to do so. In addition, in the instant case, we are satisfied that the responding parties were well aware of the Board's Rules and the importance of filing their response in accordance therewith. In light of the responding parties' heretofore disregard for the Board's orders and its Rules as well as the compelling need to resolve the instant dispute as expeditiously as possible, the Board ruled orally that it would not exercise its discretion so as to permit the responding parties additional time for the filing of their response. The Board ruled that it would determine the matter based solely on the materials filed by the applicant and provided both parties with an opportunity to make submissions on whether the facts set out therein were sufficient to support a finding that the responding parties' termination of Peter MacDonald, Ike Andary and Fred Andary violated the Act.
The Merits
12The facts set out, in the application establish that Mr. MacDonald commenced employment with the responding parties in July 1994. On or about mid September 1994 the applicant commenced its organizing campaign concerning a group to the responding parties' employees. Mr. MacDonald was an active union supporter. The applicant filed an application for certification pertaining to each of the responding parties on September 20, 1994. The applicant also filed a related employer application and an unfair labour practice complaint. These matters were scheduled to be heard together on October 31, 1994. On October 31, 1994 Mr. MacDonald, Ike Andary and Fred Andary attended at the Board, under subpoena, in order to testify in support of the applicant. Although the matters were settled such that a hearing was not held, the fact that the three employees in question supported the applicant became known to the responding parties during the course of the settlement discussions which took place on October 31,1994.
13The applicant's materials establish that, on November 3, 1994, Mr. MacDonald's first day of work following the October 31, 1994 Board meeting, Mr. MacDonald was given two unjustified written reprimands. On November 4, he was given a record of employment on which it was indicated that he had quit. On November 7, in response to enquiries he made as to why he had been provided with a record of employment, he was told that he no longer had a job with the responding parties.
14On November 7 and 10 respectively, and continuing thereafter, Ike and Fred Andary were told that the responding parties did not have any work for them to perform. As of November 7, 1994 one new employee was working for the responding parties performing work which Ike Andary normally performed. As of November 10,1994 there were two new employees working for the responding parties performing work which Ike and Fred Andary normally performed. On November 11, 1994 the responding parties received copies of written statements prepared by Ike and Fred Andary in support of the interim application. On November 14, 1994 Fred Andary attended at the responding parties' premises to inquire about the availability of work. He was told by Mr. Desjardins, an individual who the applicant understands to be a management employee, that, because of their statements, Ike and Fred Andary would not be working with the responding parties again.
15Having regard to such facts and section 91(5) of the Act the Board is satisfied that the applicant has established that Peter MacDonald, Ike Andary and Fred Andary were terminated from their employment with the applicant contrary to sections 65, 67 and 82 of the Act. The Board hereby confirms the following oral ruling which was rendered at the conclusion of the hearing on November 22, 1994:
The Board hereby directs that Trican Materials Ltd. and Dunhill Contracting Ltd. immediately reinstate Peter MacDonald, Ike Andary and Fred Andary to their previous positions without loss of service or seniority.
The Board directs that Trican Materials Ltd. and Dunhill Contracting Ltd. fully compensate Peter MacDonald, Ike Andary and Fred Andary for all losses arising out of their improper discharge including compensation and benefits.
The Board will remain seized to deal with any issues arising out of the implementation of this order.
16The Board has received notice from the applicant that the parties have been unable to agree on the quantum of damages owing to Messrs. MacDonald, Andary and Andary. Accordingly, the Registrar is directed to relist this matter for hearing for the purpose of dealing with this issue. This panel is seized.