[1997] OLRB REP. SEPTEMBER/OCTOBER 961
0876-97-JD Labourers' International Union of North America, Local 1036, Applicant V. Walter & SCI Construction (Canada) Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 446, Responding Parties
BEFORE: Robert Herman, Alternate Chair, and Board Members W N. Fraser and G. McMenemy.
DECISION OF THE BOARD; October 15, 1997
This is a jurisdictional dispute filed pursuant to the provisions of section 99 of the Labour Relations Act, 1995.
In response to a submission from Carpenters, Local 446, that the application ought not to be heard because of undue delay in bringing the application, the first issue dealt with by the Board at the consultation was the issue of delay.
Labourers, Local 1036 took the position that there had been no delay, or at least that the time taken had not been unreasonable in all the circumstances. In the alternative, if there had been an unreasonable delay, it submitted that the delay was not caused by any failure on behalf of Labourers, Local 1036, but was attributable solely to the inability of its counsel to devote the necessary time and resources to the matter. Accordingly, on this alternative submission, Labourers, Local 1036 argued that any delay occasioned by its counsel ought not to be held against it.
At the consultation, the Board provided the following decision orally:
(1) The question before the Board is whether to dismiss this application on the grounds of delay. Here, the delay was of approximately 7 months, from September, 1996 to April, 1997.
(2) Generally, the explanation for this delay was the desire of the applicant Labourers to compile or file its best case, in light of the importance of the issue to it, and the lack of counsel resources to assist it in that respect.
(3) Either of these reasons might explain some short delay in filing a jurisdictional dispute, but not the longer delay present here. There is no suggestion that the other parties were approached to be asked for extra time for the filing of the application. The reasons given to justify the delay are not sufficient in our view to justify such a long period of delay.
(4) If a party in a jurisdictional dispute context has insufficient legal resources to assist it, then that party must bear the risk itself.
(5) We cannot accept as sufficient reason for the delay either of the reasons proffered by the applicant, its desire to file the best case it could, or its lack of counsel resources.
(6) Counsel for the applicant argues that there has been no prejudice to Carpenters, Local 446 in this delay, and that in any event, it is for Local 446 to establish that there would be some prejudice if this case should proceed.
(7) Jurisdictional disputes are a process designed to move relatively quickly at the Board, at least with respect to the stage of the initial filing of the dispute. The system of dealing with such disputes at the Board is itself undermined if jurisdictional disputes could be filed after long delays, without reasonable explanation, and if they should be allowed to proceed. Unions would then file jurisdictional disputes with respect to disputes long over.
(8) It is not only the question of whether there has been actual prejudice to the Carpenters, although the passage of time itself does in our view carry with it prejudice, as other contractors in the area will continue to make work assignments in the intervening period, and the uncertainty over the appropriateness of those assignments will continue.
(9) But apart from the actual prejudice here, it is a question of promoting the right system for dealing with jurisdictional disputes at the Board. Countenancing a 7 month delay, without good explanation, in our view undercuts this system.
(10) Finally, if the Board had been satisfied that deciding this jurisdictional dispute on the merits would resolve the disputed type of work assignments in the Sault Ste. Marie area, notwithstanding the unexplained long delay, the Board might well have allowed the application to proceed. However, that is not so in our view. At best, should the Labourers be successful on the merits of the instant application, the parties would simply have another decision of the Board, one contrary to the previous decision of the Board in Nicholls-Radtke Limited [1993] OLRB Rep. Dec. 1343. This area of dispute would likely remain one of contest and conflict between these two unions, with no particular resolution of the uncertainty for employers or the unions.
(11) On the grounds of delay, the Board declines to inquire further, and this application is dismissed.