IWA Canada v. Earnway Industries (Canada) Ltd., 1994 CanLII 9880

Ontario Labour Relations Board

[1994] OLRB Rep. November 1511

3006-94-M IWA Canada, Applicant v. Earnway Industries (Canada) Ltd., Responding Party

BEFORE: D. L. Gee, Vice-Chair, and Board Members R. W. Pirrie and D. A. Patterson.

APPEARANCES: Sean Fitzpatrick, Mike Hunter and Dana Lockwood for the applicant; Michael Carter for the responding party.

DECISION OF THE BOARD; November 28, 1994

1. This is an application pursuant to the provisions of section 92.1 of the Labour Relations Act. The union requests the reinstatement, pending determination of a related complaint of unfair labour practices, of 23 employees.

2. The union filed an Application for Certification on November 16, 1994. This application arises out of the layoffs of the 23 employees on November 18, 1994. The union alleges that these lay-offs were motivated by the employer's desire to undercut support for the union such that, if a vote was held, the employees would not vote in favour of the union, or, if the union was certified, it would be unable to recruit employees to serve on the negotiating committee. The union did not assert a violation of what is colloquially referred to as the freeze provisions of the Act. The employer disputes the union's allegation. The employer asserts that it was unaware of the filing of the Application for Certification on November 16, 1994 and that the lay-offs on November 18, 1994 were a genuine response to a seasonal shortage of work.

3. The Board convened a hearing at which it heard the representations of the parties based on the application, response and accompanying declarations filed by all parties. Based on our review and consideration of these representations and the materials before us, the Board makes the following determinations.

4. The Board is satisfied that the applicant has established an arguable case on the merits of the complaint. The facts as pleaded by the union and set out in the various declarations filed are sufficient to cause the Board to enquire into the complaint to determine if the layoffs were motivated by illegal considerations.

5. The Board finds, however, that the balance of harm, when considered from the perspective of reinstating all 23 employees as requested by the union, weighs in favour of the employer. The declarations and documentation filed on behalf of the employer in this matter indicate that the employer planned to reduce the work schedule from three shifts down to two commencing the week of November 21, 1994, due to a shortage of work. This plan is set out in minutes of a staff meeting held on November 16, 1994 which were posted in the workplace. The harm to the employer, if the Board was to order all 23 employees reinstated, would thus be the unrecoverable cost of carrying individuals on its payroll without having any work for them to perform. The employer in question is a small employer and asserts that the cost of paying employees without having any work for them to perform could force the company to close.

6. However, the employer offered no explanation, documentary or otherwise, to explain why, on November 18, 1994 it effectively reduced the workforce, by way of the lay-offs presently in issue, to what appears to be one shift instead of two as was the plan on November 16, 1994. Absent any explanation whatsoever as to why, on November 16, 1994 the employer was of the view it would have enough work the following week for two full shifts and on November 18, 1994 it determined there was only enough work for one shift, the Board is not persuaded that it would cause the employer harm to provide its employees with work equivalent to the number of hours of work that would be worked if the employer was operating two full shifts. Where an employer asserts that it has laid employees off for genuine business reasons and would incur harm if required to reinstate them because of the absence of work for them to perform, such an assertion is unlikely to be persuasive unless supported by documentary evidence establishing such lack of work. These assertions alone or supported only by charts created for the hearing, without any reference to where the data set out thereon was acquired, is of little assistance to the Board.

7. Accordingly, the Board orders:

(a) Earnway Industries (Canada) Inc. to immediately provide work to its employees equivalent to the number of hours of work which is provided when Earnway Industries (Canada) Inc. operates two full shifts.

(b) Earnway Industries (Canada) Inc. to post the attached notice at the workplace so that it is likely to come to the attention of its employees.

8. This panel of the Board will remain seized in the event the parties are unable to agree on how to implement the Board's orders. The applicant is to advise the Registrar by 12:00 noon on November 29, 1994 as to whether a protocol for implementing the Board's order has been agreed to. If no such agreement has been reached the Board will convene a hearing by conference call to hear submissions from the parties on an amended Board order setting out such a protocol.

9. The union requested the Board to award compensation to the 23 employees for wages lost to date. In the Board's view, given that no determination has been made as to whether the employer has violated the Act, it is not appropriate to make such an award at this stage. The issue of compensation is left to the panel dealing with the merits of the underlying section 91 application.

10. In addition, the Registrar is hereby directed to expedite the hearing of the underlying unfair labour practice complaint, Board File No. 3005-94-U such that the hearing will commence on December 6,1994, and continue day-to-day thereafter, excluding Fridays until completed.