1234-00-U Industrial Wood & Allied Workers of Canada IWA-Canada, Applicant v. Commonwealth Plywood Co. Limited, Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD; October 25, 2000
This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended, (the “Act”) alleging violations of sections 70, 72, 76 and 86 of the Act based on the responding party’s refusal to acknowledge that the applicant has the right under the Act to file grievances on its own behalf and on behalf of the employees it represents. Counsel for the responding party requests an adjournment of the hearing presently scheduled in this matter for November 23 and 24, 2000.
It appears from the material filed by both the applicant and the responding party that the responding party was bound by a collective agreement with the United Brotherhood of Carpenters and Joiners of America, Local 2000 (“Local 2000”) that had a nominal expiry date of April 30, 2000. Three employees of the responding party filed an application for a declaration terminating the bargaining rights of Local 2000 that ultimately resulted in a representation vote on March 20, 2000. As a result of that representation vote, the Board, by decision dated April 7, 2000 granted the declaration sought, with the result that, pursuant to section 63(18) of the Act, the collective agreement between Local 2000 and the responding party ceased to operate.
The applicant filed an application for certification on March 21, 2000 and was ultimately certified by the Board by decision dated April 28, 2000. Subsequently, the applicant served notice to bargain.
The applicant asserts that section 86 of the Act, which creates a “statutory freeze”, preserves the grievance and arbitration provisions that had been contained in the Local 2000 collective agreement, thereby giving the applicant the right to file and process grievances. The responding party asserts that as the collective agreement with Local 2000 ceased to operate on the date the Board issued the declaration terminating the bargaining rights of Local 2000, the employment relationship between it and its employees who were formerly represented by Local 2000 was based on individual contracts of employment that did not contain a grievance or arbitration procedure.
It is clear that the parties have joined issue on the legal framework that applies to the workplace. This application seeks to have the Board resolve that issue and, should the applicant be successful, provide broad remedial relief.
The application was filed on July 25, 2000. The Board, by notice of hearing dated September 13, 2000 fixed November 23 and 24, 2000 as the hearing dates. Counsel for the responding party, by letter to the Board dated October 2, 2000 sought an adjournment of those two days on the basis that those two days come within the week counsel had previously arranged for his vacation. Counsel advises that he had already paid for his vacation arrangements and they are non-refundable. Counsel had promptly sought the consent of the applicant to his request for an adjournment upon receiving the Board’s notice of hearing. The applicant has refused to consent on the grounds that the Board would not be able to schedule two consecutive days for the hearing until later in December, and as the issues between the parties affects the applicant’s ability to represent the employees, the applicant cannot accept any further delay in the hearing of this matter.
While the Board does not ordinarily adjourn hearings in order to convenience counsel except on consent and while there are other competent lawyers within counsel’s firm available for the scheduled dates, counsel asserts that the responding party desires to have its current counsel continue to represent it as he has been familiar with these matters from the outset. Furthermore, the hearing dates set by the Board in September could have just as easily been set one week later. Counsel moved promptly to seek an adjournment because of the conflict between the scheduled hearing date and the vacation arrangements he had previously made initially seeking the applicant’s consent, and when such consent was refused, promptly requesting an adjournment from the Board more than six weeks prior to the scheduled hearing. Finally, it appears to the Board that two consecutive days are not necessary at this point, since the responding party wishes to argue that the application does not make out a prima facie case, and in any event, it appears to this panel of the Board that the legal issue described earlier could be determined without calling evidence since the relevant facts to that issue do not appear to be in dispute. The Board understands from the Registrar that a single day of hearing can be found much sooner than two consecutive hearing days.
The Board is of the view that it is appropriate under these circumstances to adjourn the hearing that is now scheduled for November 23 and 24, 2000. In addition, the Board understands that the Registrar can schedule one day of hearing shortly after December 1, 2000 (as counsel for the applicant is not available on November 29, 30 or December 1, dates when counsel for the responding party is available) to begin to hear (and possibly determine) this matter. While this panel of the Board does not purport to direct the panel assigned to hear this matter how it should proceed, a determination of the underlying legal issue in this proceeding would likely assist the parties in reaching a resolution of this entire matter.
This matter is referred to the Registrar to be listed for a single day of hearing as soon as possible after December 1, 2000 and for two additional consecutive days of hearing.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board