Ontario Labour Relations Board
[1994] OLRB Rep. June 673
0339-94-U United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 819, Applicant v. 655270 Ontario Inc. c.o.b. as Eastern Welding, Responding Party
BEFORE: Brain Herlich, Vice-Chair.
APPEARANCES: Neil Meikle, Larry St. Germain and Brian Christie for the applicant; Peter Chau-yin, Jim Shoniker, Paul Belanger and Ron MacDonald for the responding party.
DECISION OF THE BOARD; June 15, 1994
Reasons for Decision
1This is an application filed pursuant to section 91 of the Labour Relations Act in which the applicant (also referred to as "Local 819" or the "union") alleges that the lay off of Doug Reed (also referred to as the "grievor") by the responding party (also referred to as the "company" or the "employer") was in contravention of sections 67 and 71 of the Act.
2In view of the ultimate disposition of this case, it is not necessary for me to set out the facts in great detail or to resolve various conflicts in the evidence offered by the parties. I will, however, set out some basic and largely uncontested facts and advert to some of the disputed evidence.
3In late July of 1993, the employer, in anticipation of a contract for work to be performed at the Nestle Foods plant in Chesterville during a planned shutdown, advertised for the services of 2 certified pipefitters. The ad came to the attention of Larry St. Germain, the business manager of the union, who, in an effort to further a possible certification application, had discussions with the grievor, a member of Local 819. Mr. Reed applied and was hired by the employer in a classification it describes as "fitter A". He worked at the Nestle site from August 3, 1993 until his lay off on the morning of August 16, 1993.
4It is the employer's motivation for the lay off of the grievor which is at the heart of the matter. The company's evidence, which included the testimony of James Shoniker, president of the employer, and of Ronald MacDonald, the project engineer for the Nestle plant, suggested that time and budget overruns led to the need for Nestle to crew down the services of the various contractors working on site during the shutdown. The union argued that on the basis of its evidence, much of which was disputed, the Board could and should conclude or infer that improper anti-union motives provided part of the explanation for the grievor's layoff.
5The employer argued three distinct grounds upon which it asserted the application ought to be dismissed. The Board ought to dismiss the application as a result of the undue delay on the part of the applicant in bringing the complaint. The application ought to be dismissed since its prosecution on the part of the union amounted to an abuse of the Board's process. Lastly, the application ought to be dismissed because, after considering the evidence in this matter, the Board ought to be persuaded that no improper motive was involved in the grievor's layoff.
6The grievor was laid off on August 16, 1993. All of the information which forms the basis of its application was in the union's possession within about a day of the layoff. The present application was not filed until May 2, 1994. On November 2, 1993 an application for certification was filed in respect of the employer. The applicant in that matter (which is Board File No. 2740-9