3449-99-R Employees of Metro Railing Ltd., Angus Hartery (Representative), , Applicants v. Carpenters and Allied Workers Union Local 27, Responding Party v. Metro Railing Ltd., Intervenor.
BEFORE: M. A. Nairn, Vice‑Chair,
DECISION OF THE BOARD; March 28, 2000
APPEARANCES: Angus Hartery on behalf of the applicants; Mike McCreary and Lister Tennant on behalf of the responding party; Karen Cosgrove and David Conn on behalf of the intervenor.
1This is an application to terminate bargaining rights brought pursuant to section 63(2) of the Labour Relations Act, 1995 (the "Act"). In the normal course a vote was ordered and held. The ballot box was sealed. There are two issues remaining; the status of the representative of the applicants and allegations brought by the responding party pursuant to section 63(16) of the Act. The parties convened before me on March 27, 2000. At the outset the responding party sought an adjournment as a result of confusion regarding the scheduled hearing date and a resulting inability to proceed. The facts forming the basis for the request were not in real dispute.
2In the Form B-6 sent to the parties and posted in the workplace, the Board set a hearing date commencing March 27, 2000. That notice provided that if disputes about whether certain individuals should or should not be eligible to vote "the hearing will likely be postponed one week." The notice further provides that if that is the case, the Board would provide notice of a new hearing date and would order the employer to post that notice.
3Following the vote and in the normal course the parties met with a Labour Relations Officer to attempt to settle the application or, failing that, to determine the issues remaining in dispute. That meeting was held on March 22, 2000. There is no dispute that the issue of Mr. Hartery's status to participate in the vote (and to bring the application) is at the heart of this dispute. In the normal course, the Board would have adjourned the hearing set and rescheduled it to commence one week later, on April 3, 2000. There was no dispute that the Officer indicated as much at the meeting with the parties, although also confirmed that the Board would send notice to the parties. No new hearing notice was sent. However the Officer did forward a copy of the Board's Information Bulletin #5 to the parties along with a copy of the worksheet completed at the meeting. The covering memo to the parties advised them to review the attached bulletin and to comply with the relevant portions as they may apply to each of them.
4The worksheet made it clear that there was a status issue in dispute. Information Bulletin #5 states that if status disputes form any part of the outstanding issues, "the hearing is postponed one week". Pursuant to other requirements in that bulletin, the responding party filed representations late in the day on Friday, March 24, 2000, making reference to the hearing scheduled for April 3 and 4, 2000. It was after receipt of those representations by the Board that the responding party realized that the hearing remained scheduled for Monday, March 27, 2000. Thus the request for the adjournment was made on the basis that the responding party and counsel were not available to proceed as they had understood the hearing had been postponed for a week and had other commitments.
5I was not entirely sympathetic to the responding party's request in the absence of a new hearing notice from the Board postponing the date set. The responding party, a regular client of the Board's services, ought to have known that no new notice had been forwarded by the Registrar yet appeared to have fallen prey to relying on the Board's normal practice, albeit confirmed by the Officer at the meeting. I acknowledged however that had the applicant, for example, drawn the same misunderstanding from the material received from the Board and its Officer, I had little doubt that an adjournment would have been appropriate.
6The real concern of the parties was the fact that the responding party's counsel had advised the Board that he would be requesting an adjournment of the April 3 and 4, 2000 hearing dates as he was not available for those dates. There had been an indication at the Officer's meeting that counsel would not be available until June or later. I made it clear to the responding party that the Board does not grant adjournments for the convenience of counsel. Furthermore this was a representation issue, a matter where the Board is perhaps the most diligent in ensuring timely hearings and dispositions. In light of the confusion about the scheduled hearing dates, in some part generated by the Board, I ruled that the responding party would have an option. As the other parties were available on either date, the responding party could choose to proceed immediately or to adjourn to April 3 and 4, 2000. The latter dates would, however, be peremptory to the responding party. I made it clear that the matter would proceed barring some extremely exceptional circumstance prohibiting the responding party's ability to participate. After a short break the responding party advised me that it preferred to proceed on April 3 and 4, 2000, accepting the conditions set out.
7The hearing dates of March 27 and 28, 2000 are adjourned. The hearing of this application is rescheduled to Monday, April 3 and Tuesday, April 4, 2000. The matter will convene at 9:30a.m. each day at the Ontario Labour Relations Board in the "Board Room", 2nd floor, 505 University Avenue, Toronto, Ontario. It was made clear to the parties that these dates were confirmed whether or not written notice was received from the Board confirming this oral ruling. This panel is not seized.
"M. A. Nairn"
for the Board