[1994] OLRB Rep. April 340
4504-93-M IWA Canada, Local 2693, Applicant v. Avenor Inc., Responding Party
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members G. 0. Shamanski and P. V. Grasso.
APPEARANCES: Wilf Mcintyre for the applicant; Fred Bickford and Douglas Burn for the responding party.
DECISION OF THE BOARD; April 26, 1994
The name of the responding party in the title of proceedings is amended to read: "Ayenor Inc.".
This is an application for interim relief under section 92.1 of the Labour Relations Act.
The application was filed in conjunction with an application under section 91 of the Act, alleging a
breach of section 15.
The facts pleaded in both applications are essentially the same, as is the central request for relief: an order that the responding party "continue to operate Camp No. 134 and not phase it out as the Company has proposed". As the camp had already been closed by the time this case was heard, the applicant amended its request to an order that the camp be re-opened.
For the purposes of the present application, the respondent was prepared to concede that the facts pleaded made out an arguable case. The essence of that case is a failure on the part of the respondent to disclose during bargaining a de facto business decision that would have a significant impact on the bargaining unit i.e. the impending closure of a logging camp and the accompanying displacement of approximately 40 employees. It was the respondent's position, however, that the balance of harm clearly weighed in its favour and, therefore, that the application ought to be dismissed.
The Board agrees with the respondent. The harm alleged by the applicant is the potential lay-off of all of the employees working at the camp. To this, the applicant sought to add at the hearing the potential harm to its reputation in the eyes of its members if it were unable to prevent or remedy the respondent's breach.
One difficulty with the applicant's position, of course, is that the harm pleaded is primarily "financial" or personal in nature. As the Board has noted on prior occasions, this is the type of harm that can be adequately remedied if the union succeeds in the main application. Further, the harm raised in respect of the applicant's reputation was unsupported by any facts and may also be greatly alleviated by success in the main application.
Much more important, however, is the fact that the applicant failed to act promptly in filing its application with the Board. The camp closed on March 25, 1994. The applicant became aware of the impending closure no later than March 8, 1994. Nevertheless, it waited until March 22, 1994 to serve its application on the employer and until March 31,1994 to file it with the Board. As a result, the relief requested would now require the employer to return the heavy equipment that has already been moved out of the camp, reverse the notification, bumping and re-assignment process that has already taken place, and revive the costs that the closure was intended to reduce. In these circumstances, the Board is satisfied that the balance of harm has shifted strongly in the respondent's favour.
The application is dismissed.