Ontario Labour Relations Board
Between: Larochelle Drywall Corp., Applicant v. United Brotherhood of Carpenters and Joiners of America, Local 2041, Responding Party v. International Union of Operating Engineers, Local 793, Intervenor.
Before: David A. McKee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
Decision of the Board; October 26, 2000
Decision
1Immediately prior to the date set for the hearing in this matter, the Board received two communications from counsel for the applicant, on behalf of all of the parties. The first advised, essentially that the parties had:
…agree[d] to a “bifurcation” of the proceedings as discussed among the parties when we met on September 7, 2000.
Should the Board be unable to reach a determination after “phase 1” of the hearing, the parties would then present evidence and argument on area/industry practice.
The second letter, which arrived in the Board’s offices at 5:15 the day before the hearing was scheduled to commence, advised the Board that the parties had agreed to adjourn the next two days set for hearing. No reason was given for the agreement to adjourn.
2The Board is not entirely clear as to what it should take from the first letter. This matter was originally set for September 6 and 7. The hearings did not take place those days as the parties used the time to discuss certain issues on an informal basis with the Board on September 6, 2000, and to agree upon certain stated facts and documents as among themselves. The Board assumes from the letter that these discussions continued on September 7, 2000. It appeared that the parties had been able to accomplish a great deal in terms of evidentiary agreements in that time.
3One of the matters discussed informally with the panel on September 6, 2000 was the nature and scope of “practice evidence”. The parties indicated that some, or perhaps ultimately all of them, were agreed that the relevant evidence on this issue was confined to Board Area 15. The panel indicated that it was not certain at first blush, that it accepted that proposition at all. The parties were advised that if they confined any evidence they chose to call to that geographic area, the Board might at the end of the day find that no weight could be put on the evidence because of its geographic limit. The parties then indicated that this might be an issue that they would raise in the abstract, either as an objection to evidence tendered or by way of a motion to clarify what evidence would be called. The parties expressed the view that if they did proceed that way, they would argue the matter at some time on October 19 or 20. They submitted that this would be a convenient time to do so as the next date set for hearing was in January 2001 and, depending on the Board’s ruling, some time might be necessary to assemble the evidence required.
4The first letter received from counsel appears to be a variation on this theme. The letter’s brevity makes the Board somewhat uncertain as to what it is the parties have actually agreed. It appears that the parties have agreed to present some of their case and then ask the Board for its view of that evidence before deciding whether to call more evidence. Once again, this does not appear to be appropriate to the Board on its face. While the Board may deal with issues in a case seriatim, and in so doing issue several decisions, it does not generally render a decision based on part of the evidence relevant to a single issue. A practice of issuing a decision which is a kind of “part score” does not appear to this panel to assist in the orderly conduct of the hearing, the quality of the decision making, the ability to finalize an issue among parties, or the drafting of a decision of assistance to others in an area of general interest such as a sector dispute.
5The Board is reluctant, however, to make any final decision on this matter without the benefit of submissions from counsel. Since the parties have agreed to an adjournment of the October dates, it is not possible to hear those submissions orally before the next day of hearing, January 22, 2001. It appears to the Board, as it did to the parties in September, that it would be useful to have this issue clarified well in advance of the calling of evidence, so that no further time is wasted in adjournments of fixed dates.
6Accordingly, the Board directs all of the parties to make written submissions on certain issues on or before November 20, 2000. The Board expects those submissions to include a statement of the issues between or agreements of the parties with respect to the scope of evidence. It is important that the Board has a clear idea of what the agreement of the parties actually is. As well, the Board expects to hear the rationale of the parties with respect to such agreements. To be clear, the Board is not going to tell the parties what evidence they should call (obviously if an objection is made to the calling of specific evidence the Board will rule on whether that evidence may or may not be called). However, if the parties have agreed to ask the Board to do something other than hear all of whatever evidence the parties choose to call and render a single final decision on that basis, then the Board’s concurrence is required.
7This panel is seized of this application.
“David A. McKee”
for the Board