Ontario Labour Relations Board
2778-00-U Communications, Energy and Paperworkers Union of Canada, Local 774, Individual Grievors listed on Sechedule “A”, Applicants v. Communications, Energy and Paperworkers Union of Canada, Local 3264, Responding Parties v. Beachville Lime Limited, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; May 22, 2001
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 (“the Act”), which initially alleged a violation of section 74 of the Act. The applicants subsequently requested to amend the application to include allegations of violations of sections 70, 72 and 76. That request was, among other things, considered as a preliminary motion during the consultation on April 24, 2001. This decision deals with that and the other motions.
At the commencement of the consultation I observed that there appeared to be a number of material facts in dispute, and I asked the parties to make submissions concerning whether this matter might not be more appropriately dealt with in a hearing. The intervenor took no position, whereas the applicants and the responding party (“Local 3264”) agreed that the matter should proceed as a hearing. Accordingly, I directed that this matter would proceed as a hearing on June 22, 29, July 11, 12, 13, September 4 and 5, 2001. I then dealt with several preliminary motions, as indicated above.
The first motion was brought by the applicants, and as I have indicated, it concerned a request to amend the application to include allegations of violations of sections 70, 72 and 76 of the Act. Essentially, counsel for the applicants asserted that the material facts alleged in the originally filed application disclose a case which, if proved, could result in findings by the Board of violations of those additional sections. Thus, there would be no surprise on the part of, or prejudice to, the other parties in this matter.
The intervenor opposed the motion. Counsel for the intervenor submitted that insofar as the application purported to allege violations of sections 70, 72 and 76 of the Act, it was not properly brought. In counsel’s view, the applicants were merely attempting, improperly, to roll up aspects of the section 74 matter into a new application. Counsel noted that there are no remedies sought in the application specifically against the intervenor, nor does the intervenor know the case which it has to meet in connection with the additional sections of the Act. Counsel also alleged undue delay in bringing these allegations forward at this time.
Counsel for Local 3264 contended that if the amendment sought by the applicants was being brought for the purpose of turning this matter into an inquiry not only into Local 3264’s conduct within the context of section 74, but also to challenge the intervenor’s decision to impose layoffs in 1999, then the applicants’ request should be denied, because that would bifurcate the hearing into separate and distinctive areas of inquiry. However, counsel did not object to the amendment if it were understood to include allegations against the employer in respect to the decision to agree to an “endtail” seniority list, which is what is at the bottom of this complaint.
In the circumstances, I am not persuaded to permit the applicants to amend the application as proposed. I agree that, to the extent the applicants wish to rely upon allegations of fact in support of their contention that sections 70, 72 and 76 of the Act have been violated, it must specifically identify those allegations, rather than leaving it to the other parties’ and the Board’s deductive reasoning. (In this regard I note that section 70 and 72 would have no application to Local 3264, as it is not an entity identified in those provisions, but that the section 76 allegation could apply to either the intervenor or Local 3264, or both.) Those allegations of fact may take the form of a separate application, which, if it is appropriate to do so, may be heard together with this matter. The parties opposite are entitled to know with specificity what it is the applicants contend they have done, if anything, that constitutes breaches of section 70, 72 and 76 of the Act, and what the applicants are claiming in terms of a remedy or remedies.
The applicants’ request to amend the application is denied.
Counsel for Local 3264 brought a motion to strike paragraphs 19 through 29, as well as paragraph 33 of the applicants’ document entitled “Supplementary Facts and Documents Relied Upon”, on the basis that these allegations deal with internal union matters for which there exists an internal forum for resolution. Furthermore, counsel argued, the events complained of in those paragraphs, particularly those surrounding the election of a new union executive, occurred after the layoff grievances (which are at the heart of the section 74 allegations) were rejected by the former executive of Local 3264. Counsel for the applicants, on the other hand, contended that these allegations form a nexus to the section 74 complaint, and are not merely internal union matters. Counsel argued that Local 3264 prevented the individual applicants from gaining union office or otherwise participating in union elections, thus depriving the applicants of any opportunity to influence whether their layoff grievances concerning the end-tail seniority list would proceed further. Furthermore, counsel pointed out that many of the internal union events complained of preceded the date of the filing of the layoff grievances. Moreover, counsel argued that the allegations demonstrate an attitude of bad faith on the part of Local 3264 towards the individual applicants.
I am not prepared to strike these portions of the application as urged by Local 3264. They may arguably be relevant to the determination as to whether or not Local 3264 has violated section 74, and thus, even though the allegations relate to internal union matters with which the Board might not otherwise concern itself, I am not inclined to foreclose the applicants from relying upon them. The weight to be given any evidence concerning those allegations remains an open question.
Local 3264’s motion to strike is denied.
Counsel for the intervenor made a motion concerning the status of the parties in this matter. Given that the issues as they pertain to sections 70, 72 and 76 may be re-framed by the applicants within the context of this application, I will not make any ruling with respect to that motion at this time. That issue can be dealt with on June 22, 2001, if necessary.
I am seized.
Patrick Kelly”
for the Board