Brotherhood of Maintenance of Way Employees v. CLN Industries Inc.
3863-99-R Brotherhood of Maintenance of Way Employees, Applicant v. CLN Industries Inc., Responding Party.
BEFORE: Anthony Brown, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
APPEARANCES: Michael A. Church, David Brown and John Rioux for the applicant; Greg McGinnis and Jay Nusca for the responding party.
DECISION OF THE BOARD; April 27, 2000
This is an application for certification pursuant to the Labour Relations Act, 1995 (the "Act"). A representation vote was held and the applicant lost the vote. The applicant filed representations after the vote. The responding party has filed a response, and seeks to have the application dismissed.
The matter was scheduled to be heard on April 25 and 26, 2000. On April 25, 2000, after hearing submissions from the parties, the Board ruled that the hearing of this application should be adjourned so that it can be heard at the same time as an application filed by the applicant on April 25, 2000 pursuant to section 96 of the Act. The section 96 application alleges that the responding party contravened several sections of the Act when it terminated the employment of Tami McVey.
At the hearing, the applicant requested that the matters be heard together, either commencing on April 25, 2000 or on a later date. The responding party submitted that the applications should be heard separately, and stated that it wished to proceed with the certification application as originally scheduled. The responding party indicated that it would need time to prepare if the matters were to be heard together, particularly as a key witness in the section 96 matter was not available.
The Board ruled orally that it would adjourn the matter, for the reasons set out below.
Although the Board is normally reluctant to grant an adjournment in these circumstances, we are satisfied with the applicant’s explanation as to why the section 96 application was only filed on April 25, 2000. It should be noted that the vote was held on March 31, 2000. The applicant’s initial representations were filed on April 7, 2000. Tami McVey was terminated on April 13th, to take effect on April 20, 2000, information that was apparently not promptly conveyed to the applicant. The regional certification meeting was held on April 19, 2000. The section 96 application was filed on April 25, 2000, following the Easter Weekend.
It appears to the Board that, although the issues are different in the two applications, there is an overlap in the evidence that the parties are expected to put forth and in the witnesses that may be called. It may be difficult to separate cleanly what happened before the vote from what happened after the vote. It makes practical sense to have the applications heard at the same time.
Accordingly, the Board adjourns the certification application and directs the Registrar to schedule it to be heard at the same time as the section 96 application on a date to be set by the Registrar in consultation with the parties.
This panel of the Board is not seized.
“Anthony Brown”
for the Board