Page Title
I. 1.4 PROCEDURAL RULING
Procedural Ruling Can-Am (Ropak)
016-004-098
L.R.B. 4637, 4638, 4639
(PROCEDURAL RULING)
(Sec. 53)
PRIORITY POST COURIER
CANADA
PROVINCE OF NOVA SCOTIA
IN THE MATTER of
the Trade Union Act of Nova Scotia, and
of a Complaint of an Unfair Labour Practice made pursuant to Sections 53(1)(a); 53(3)(a)(i), (iii) and (vi); 53(3)(b); and 53(e) and 58 of the Trade Union Act, by
United Brotherhood of Carpenters and Joiners of America, Local 2004
6070 Lady Hammond Road
Halifax, NS B3K 2R6
- Complainant
- and -
Can-Am Division, Ropak Canada Inc.
P.O. Box 340
Springhill, NS B0M 1X0
- Respondent
- AND -
IN THE MATTER of
a Complaint of an Unfair Labour Practice made pursuant to Sections 53(1)(a); 53(3)(a)(i), (iii) and (vi); 53(3)(b); and 53(e) and 58 of the Trade Union Act, by
United Brotherhood of Carpenters and Joiners of America, Local 2004
6070 Lady Hammond Road
Halifax, NS B3K 2R6
- Complainant
- and -
Can-Am Division, Ropak Canada Inc.
P.O. Box 340
Springhill, NS B0M 1X0
- Respondent
- AND -
IN THE MATTER of
a Complaint of an Unfair Labour Practice made pursuant to Section 54(d),(i), (i) and (iii) and Section 13 of the Trade Union Act, by
Ropak Canada Inc., Can-Am Division ("Ropak")
P.O. Box 340
Springhill, NS B0M 1X0
- Complainant
- and -
United Brotherhood of Carpenters and Joiners of America, Local 2004
6070 Lady Hammond Road
Halifax, NS B3K 2R6
- Respondent
Board Statement re: Scheduling in the Above-noted Matters.
This matter involves two Unfair Labour Practice Complaints where the Union is the Complainant with the Employer as the Respondent, and one Unfair Labour Practice Complaint where the Employer is the Complainant and the Union is the Respondent. It appears from the Complaints and Replies submitted by the parties that the Union is engaged in an organizing campaign with a view to obtaining certification as bargaining agent for some of the Employer's employees under the Trade Union Act. In its initial Complaint, dated July 6, 1998, the Union alleges that personnel of the Employer have violated the Trade Union Act by interference with the formation of a Union and representation of employees by the Union, by seeking to compel employees to refrain from becoming or to cease to be a member of the Union through intimidation, threats and penalties, and by using similar means to prevent persons from making an application under the Trade Union Act.
The second Complaint by the Union, dated July 13, 1998, repeats its initial complaints with additional factual allegations and adds a complaint of refusal to employ Michael Gabriel and discrimination against Mr. Gabriel because of union membership and activities in relation to his termination on July 8, 1998. The Employer replied by denying all allegations in the Union complaints and by adding in its second reply that Mr. Gabriel was not terminated from his employ because of his membership or activity in support of the Complainant Union but for "just cause." In the proceeding where the Employer is the Complainant, it alleges in a Complaint of July 23, 1998, with a series of stated particulars, that "the Union has conducted a campaign of undue influence and intimidation to coerce the employee aggrieved persons during an organizing campaign" in violation of several sections of the Act. The Union replies that the particulars disclose no breaches of the Act which would give the Board jurisdiction or, in the alternative, that the events alleged, if they occurred, are not being carried out by the Union or anyone acting on its behalf. In other words, the allegations from both sides would, if proved, constitute serious unfair labour practices calculated to defeat the purposes of the Trade Union Act.
There has arisen a rather common difficulty with scheduling the hearing. In accordance with its usual practice, staff of the Board, in late July canvassed counsel for the parties and Board members concerning their availability for hearings during August and September. It was apparent that the Union wished the case to be scheduled during the first week of August, approximately one month after the filing of its initial Complaint. The Employer wished the case to be set down over three days in September. A conference call was held on July 27, 1998 involving a Vice Chair from the Board, Board staff and counsel representing the parties. Arguments for and against various dates were canvassed, as well as arguments for and against the consolidation of the three complaints into one proceeding. It was indicated that at least four, and perhaps more, days would be required. During the conference call no consensus was achieved, and the Vice Chair indicated that a scheduling decision would be made only after a fuller review of the documentation submitted by the parties, and after consultation with a representative number of Board members. On July 29, 1998 a Notice of Hearing was issued in relation to all three Complaints stating that the Board had fixed August 10, 11, 25 and 28, 1998 as the dates upon which hearings would be held in this matter.
Counsel for the Employer has requested that the Board reconsider its decision to set the matters down for the four days of consolidated hearings mentioned above. In initial correspondence on July 29, 1998 and in a more lengthy letter of July 30, 1998, counsel for the Employer stated that one Employer representative and likely witness "is not available August 10 and 11 as he is conducting a training session in California which cannot be rescheduled", that another "is not available August 10 and 11 as he will be out of the Province", and that a third "will be out of the Province, only arriving by air on the morning of August 10". In addition to other pressures of work, counsel for the Employer indicated that he and his associate in the matter are "both attending Canadian Bar Association meetings in Newfoundland" on August 25 and that he was representing a client in another hearing on August 28. Counsel for the Employer, while objecting to all four dates, states that "there is no question that the August 25 and 28 dates should be changed".
Counsel for the Union who had initial carriage of the case indicated in the conference call, she would hand the matter over to another specified lawyer in her firm if certain dates were chosen by the Board, and stated in her reply to correspondence about the Notice of Hearing that it was a third lawyer from her firm who could be made available for the dates ultimately fixed by the Board.
Counsel for the Employer argues that in setting down the four dates over his objection the Board is acting contrary to its usual flexible practice, and is denying the Employer a fair hearing, which is said to include: the right to instruct counsel, both before and at the hearing; the right to have material witnesses attend and participate in the hearing; the right to counsel of its choice; and, the right to have counsel of its choice be given a reasonable opportunity to represent it at the hearing. The Union maintains its position that the case must be heard as soon as possible, and is prepared to accept the days as set down by the Board. The Employer's counsel counters that the fact that one party is agreeable to the Board's established dates should not be the basis for imposition of dates on parties who do not share the position.
This Board constantly struggles with the increasingly difficult task of setting down hearings in a timely manner. It does so in the knowledge that it must balance the "over-riding principle that labour relations delayed are labour relations denied" (to use the words of Estey, CJO as he then was in 1977 in Journal Publishing of Ottawa v. Ottawa Newspaper Guild as cited at p. 5 - 28 in George W. Adams Canadian Labour Law (2nd looseleaf Ed.), Canada Law Book, Inc.), with the principles of natural justice. While this Board makes every effort to accommodate the schedules of counsel where it is appropriate to do so, it cannot allow inappropriate delay where the schedules of counsel are the chief impediment to the timely adjudication of serious labour relations issues. As noted above, the allegations here, if proved, are serious ones going to the heart of the labour relations system established by the Trade Union Act. If unfair labour practice allegations, particularly those involving allegations of an unfair dismissal related to the exercise of rights under the Act, cannot be heard in a timely manner, the system of labour relations in the province will be brought into disrepute and public confidence in it will be undermined. The Board recognizes the importance of parties being able to be represented by counsel of their choice. However, there are times when the practical and balanced need for fairness in an adjudicative system means that "counsel of choice" may not always be "first choice" for every matter. Counsel for the Employer comes from a large, well-established firm with a skilled and experienced labour relations group. There has been no indication that other skilled counsel from that firm are unavailable on the dates fixed or are unacceptable to the Employer.
This Board has the power under Section 16(9) of the Trade Union Act to determine its own procedure, subject to the obvious caveat that it must "in every case give an opportunity to all interested parties to present evidence and make representation". This Board's flexible practice of ensuring fairness by accommodating schedules of counsel, where this is consistent with its statutory obligations and principles of natural justice, cannot become the basis for a practice which would prevent timely adjudication of important matters simply because of one lawyer's situation. Weighing the competing interests here, the Board is convinced that greater injustice would arise through delaying the hearing than by fixing dates which may cause inconvenience to counsel or require the Employer for some period to seek other counsel. Subject to any arguments or factual issues which may be raised on behalf of the parties on August 10, 1998, the Board will maintain the present schedule of hearing dates in this matter.
DATED AT HALIFAX, NOVA SCOTIA, this FIFTH (5th) day of AUGUST, 1998
Mary-Lou Stewart
Acting Chief Executive Officer
Labour Relations Board (Nova Scotia)