Service Employees' International Union, Local 183 v. K-Mart Canada Limited (Peterborough), 1981 CanLII 931

[1981] OLRB Rep. February 185

1704-79-R; 0764-80-U Service Employees' International Union, Local 183, Applicant, v. K-Mart Canada Limited (Peterborough), Respondent, v. Group of Employees, Objectors.

BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.

DECISION OF M. G. PICHER, VICE-CHAIRMAN, AND BOARD MEMBER O. HODGES; February 16, 1981

1. By letters dated February 1, and February 2, 1981 respectively Mrs. Myrtle Swift and Mrs. Helen Hughes, two of the employees who appeared as objectors to this application have raised a number of objections to the Board's decision herein dated January 26, 1981. While the letters do not expressly request the Board to revoke its certificate or otherwise revise its decision, we are content that on a liberal reading they should be construed as a request for a reconsideration of the Board's decision.

2. Much of the content of the letters takes exception to the findings of fact made by the Board on the basis of the evidence adduced at the hearings. In part the letters also raise factual allegations that were not made at the hearing nor placed in evidence before the Board.

3. The Board's jurisdiction to reconsider its decisions is found in section 95(1) of The Labour Relations Act:

95.-(l) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order direction, declaration or ruling.

4. To avoid abuse of the reconsideration provision and bring some finality to its adjudicated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the case. Reconsideration is there­fore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of a party's conduct, and the resulting prejudice to another party if the case is reopened. (See, generally, International Nickel Company of Canada, 63 CLLC 16,284; The Detroit River Construction Limited, 63 CLLC ¶116,260; National Steel Car Corporation Limited, [1966] OLRB Rep. Apr. 55; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; York University, [1976] OLRB Rep. Apr. 187 affirmed, sub. nom. Jordan v. Ontario Labour Relations Board, York University Faculty Association, York University, 78 CLLC 1114,132. (Ont. Div. Ct.).

5. In the instant case the objectors called no evidence of their own at the hearing. They did, however, testify at length as witnesses called by the respondent employer. In that way the circumstances of the origination and circulation of their petition were placed before the Board in exhaustive detail. At the conclusion of the hearing, through Mrs. Swift, the objecting employees made lengthy and able submissions respecting the conclusions that the Board should draw from the evidence before it. It is clear, therefore, that the facts touched upon in their letters which formed part of the evidence before the Board are matters which were thoroughly heard, argued and ultimately considered and disposed of by the Board.

6. What of the allegations of fact which were apparently known to the objectors at the time of the hearings but which they did not put before the Board? Without making any comment on the potential impact of the allegations if proved, we must conclude that they cannot be the basis for reconsideration. It would clearly prejudice the applicant to permit the objectors to relitigate the issue of the union's certification because having received an adverse decision, they now feel that they could have presented a stronger case. Nor can the Board depart from established principle or give undue weight to their protestations merely because the objectors did not retain legal counsel in the presentation of their case. Any party before the Board has the opportunity to be represented by counsel; it would be patently unfair and contrary to well established procedure if a party, having lost its case, could in effect obtain a right to have a second hearing on no other ground than that it had no counsel in the presentation of its case. On both of the foregoing grounds, therefore, to the extent that the objectors' letters can be construed ad a request for reconsideration, their request must be denied.

7. In its decision granting certification to the applicant with a supporting remedial order the Board remained seized of the application in the event of any disagreement between the parties respecting the interpretation or implementation of its award. Correspondence from counsel for the union and the employer discloses two areas of disagreement that require clarification by the Board. In a letter dated February 2, 1981 counsel for the respondent indicates that it is unclear about the implementation of sub-paragraph 9 of paragraph 99 of the Board's decision. That portion of the remedial order requires the respondent to:

give union representatives reasonable notice of any visit to the Peter-borough store by Mrs. Fox or any other officer or agent of the respondent for the purpose of discussing employee relations with members of the bargaining unit and to allow such union representatives equal and simultaneous access to the employees as is permitted to Mrs. Fox or such other officer or agent of the respondent, such access to be provided for one year, or until such time as a collective agreement is concluded, whichever shall first occur;

8. The respondent takes the position that the above paragraph should not be interpreted so broadly as to prohibit all conversation with employees during visits by company officers in the normal course of business. In his letter the respondent states:

Specifically, Mr. Cumiskey, the Vice-President of Personnel and Employee Relations, and other officials of the Company, such as, its District Manager, visit the store for the purposes of reviewing the merchandise on hand. Part of that process involves a tour of the floor and discussions with the employees. In the course of those discussions, I am advised that they frequently will discuss with the employees personal matters, such as, their hobbies, the status of any ill family member, and other matters which do not relate specifically to the Union's representa­tion of the employees and do not relate to collective bargaining. .

9. Counsel for the union, in a response dated February 4, 1981 takes issue with the employer's position and maintains that the terms "for the purposes of discussing employee relations" should be given the broadest interpretation.

10. To the extent that the union's view would preclude management officers during the course of business such as stock taking from speaking with employees about their hobbies, family matters or any other topic that does not relate to the union or to collective bargaining generally, the Board must disagree. There is nothing express or implied in the Board's order to prohibit or restrict such conversations, so long as they do not involve discussion of the union, collective bargaining or terms and condition of employment, such matters being for discussion with the union exclusively through the bargaining process.

11. A second difference between the parties involves the content of the remedial order and the notice to be posted in light of the recent agreement of the parties and consent order of the Divisional Court to stay the payment of compensation to Kelly O'Connor and Beverly Clark pending judicial review of the Board's decision. In light of the stay of that part of the Board's remedial order an amended interim notice should issue. The respondent is therefore ordered to post forthwith an amended appendix, being in the form of the appendix to this decision, in the places and under the conditions described in sub-paragraph 11 of paragraph 99 of the Board's decision of January 26, 1981, for the period of sixty consecutive working days from the first day of posting.

12. Counsel for the union requests that the portion of the Board's order giving the union access to the employee bulletin boards and a list of the names and addresses of the employees be extended to be effective one year to the date that the Board's notice is first posted. The order giving the union reasonable access to the employee bulletin boards and requiring the respondent to provide the union with updated lists of the names and addresses of the employees are independent remedies that are not conditioned on the posting order. It is not therefore appropriate that they be extended or abridged in relation to the day that the posting is first made.

13. The Board has one further concern. While we heard extensive argument from counsel at the hearing, the parties did not specifically address the nature of remedy that would be appropriate to redress the unfair labour practices directed at Kelly O'Connor and Beverly Clark. Part of the Board's concern in ordering compensation of the two employees with notice to the employees in the bargaining unit was to provide some immediate redress to the individuals involved and to their union with a view to restoring the position of the union in the workplace and facilitate immediate representation and bargaining. The possibility of immediate remedial impact now appears to have been removed by the agreement of the union to the Court's stay of that part of the Board's order and the amendment of its posting.

14. The Board's jurisdiction to award compensation for non-monetary sanctions imposed on employees in violation of the Act in any case is a question of considerable importance, going to the ultimate scope of the Board's remedial authority. It would appear, that unless there is a formal reconsideration of this aspect of the Board's order, that this critical issue would first be argued before the Divisional Court, never having been fully argued before this Board. In our view that would be undesirable, both from the stand point of the Board and of the Court. Being the body primarily charged with the administration of the Act in any case the Board is the forum which should first hear full submissions on the limits of its jurisdiction. By the same token upon judicial review the Court can benefit from a Board decision rendered after full litigation of the issue. Given the interim disposition of the matter on consent in the Divisional Court there would appear to be no prejudice to either party to now permit full argument of an issue which in fact arose only after the Board's decision was rendered.

15. For the foregoing reasons the Board deems it appropriate, in addition to amending the posting order, to revoke that part of its order requiring the payment of compensation to Kelly O'Connor and Beverly Clark pending such further submissions as the parties may wish to address to the Board on that issue.

16. The Registrar is therefore instructed to list this matter for a continuation of hearing, the purpose of which will be to hear the submissions of the parties on the Board's jurisdiction to order the payment of compensation to the two employees concerned and the appropriateness of any other remedial order in respect of the two employees in the circumstances. The Registrar is further instructed to issue forthwith an amended notice in the form of the appendix attached hereto.

DECISION OF BOARD MEMBER J. D. BELL;

1. I agree that the letters of objection from Mrs. Swift and Mrs. Hughes should be construed as a request for reconsideration of the Board's decision dated January 26, 1981.

2. Other letters of objection from individuals who claim to be employees of K-Mart and to be affected by the above decision have also been received and brought to the attention of the Board.

3. These letters, in my opinion, confirm my findings in my dissent of January 26, 1981, that "this apparent solid front against the union makes the section 7a certification unreasonable in light of the 1980 amendment to The Labour Relations Act". I would revoke the certificate issued.

4. I concur with the decision of the majority to revoke that part of its order requiring the payment of compensation to Kelly O'Connor and Beverly Clark. I see no need to hear further submissions on this matter. The Court has already ruled that damages that are punitive are not within the jurisdiction of the Board: Tandy Electronics Limited supra.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABROUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH BOTH THE COMPANY AND THE UNION HAD THE OPPORTUNITY TO PRESENT EVIDENCE. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE ONTARIO LABOUR RELATIONS ACT AND HAS ORDERED US TO INFORM OUT EMPLOYEES OF THEIR RIGHTS,

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES;

TO FORM, JOIN OR HELP UNIONS TO BARGAIN AS A GROUP, THROUGH A REPRESENTATIVE OF THEIR OWN CHOOSING;

TO ACT TOGETHER FOR COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY AND ALL OF THESE THINGS,

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS,

WE WILL NOT ENGAGE IN SURVEILLANCE OR HARASSMENT OF EMPLOYEES FOR THE PURPOSE OFINTERFERING WITH THEIR RIGHTS UNDER THE LABOUR RELATIONS ACT.

WE WILL NOT INTIMIDATE OR EXERT UNDUE INFLUENCE UPON EMPLOYEES, WHETHERTHROUGH MEETINGS, INDIVIDUAL CONVERSATIONS OR OTHERWISE, TO PREVENT EMPLOYEES FROM EXERCISING THEIR RIGHT TO ASSOCIATE AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A UNION.

WE WILL NOT INTIMIDATE EMPLOYEES FROM FREELY GIVING EVIDENCE IN ANY PROCEEDING UNDER THE LABOUR RELATIONS ACT.

WE WILL NOT DISCHARGE OR THREATEN TO DISCHARGE ANY EMPLOYEE BECAUSE OF THAT EMPLOYEE'S UNION ACTIVITY OR SYMPATHIES.

WE WILL NOT IN ANY OTHER MANNER INTERFERE WITH OR RESTRAIN OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER THE ACT,

WE WILL COMPLY WITH ALL DIRECTIONS OF THE ONTARIO LABOUR RELATIONS BOARD,

WE WILL PROVIDE THE SERVICE EMPLOYEES INTERNATIONAL UNION FORTHWITH WITH A LIST OF THE NAMES AND ADDRESSES OF EMPLOYEES IN THE BARGAINING UNIT AND KEEP THE LIST

UPDATED FROM TIME TO TIME AS ORDERED BY THE BOARD.

WE WILL PROVIDE REPRESENTATIVES OF THE SERVICE EMPLOYEES INTERNATIONAL UNION ACCESS TO THE STORE DURING WORKING HOURS FOR THE PURPOSE OF CONDUCTING THREE SEPARATE MEETINGS OF THE EMPLOYEES IN THE BARGAINING UNIT, IN GROUPS OF 10 TO 15, IN THE LADIES' LOUNGE AND OUT OF THE PRESENCE OF ANY MEMBER OF MANAGEMENT.

WE WILL PROVIDE REPRESENTATIVES OF THE SERVICE EMPLOYEES INTERNATIONAL UNION ACCESS, WITH REASONABLE NOTICE BEFOREHAND, TO ANY MEETING OF EMPLOYEES SPONSORED BY K-MART WHICH INVOLVES THE DISCUSSION OF COLLECTIVE BARGAINING, WITH EQUAL TIME TO BE AFFORDED THE UNION REPRESENTATIVES TO RESPOND.

WE WILL GIVE THE SERVICE EMPLOYEES INTERNATIONAL UNION REASONABLE NOTICE OF ANY VISIT TO THE PETERBOROUGH STORE BY MRS. FOX OR ANY OTHER OFFICER OR AGENT OF K-MART CANADA LIMITED FOR THE PURPOSE OF DISCUSSING EMPLOYEE RELATIONS WITH MEMBERS OF THE BARGAINING UNIT AND WILL ALLOW UNION REPRESENTATIVES EQUAL ACCESS TO THE EMPLOYEES AS IS PERMITTED TO MRS. FOX OR ANY OTHER REPRESENTATIVE OR AGENT OF K-MART.

WE WILL PROVIDE THE UNION, FOR A PERIOD OF ONE YEAR FROM THE DATE OF THE BOARD'S ORDER, REASONABLE ACCESS TO ALL EMPLOYEE NOTICE BOARDS TO POST UNION NOTICES, BULLETINS AND OTHER UNION BUSINESS LITERATURE TO THE ATTENTION OF THE EMPLOYEES.

K-MART OF CANADA LIMITED (PETERBOROUGH)

PER: (AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.