Ontario Labour Relations Board

[1982] OLRB Rep. November 1698

0452-82-R Canadian Union of Public Employees, Applicant, v. The Corporation of the City of Ottawa, Respondent

BEFORE: R. D. Howe, Vice-Chairman, and Board Members L. Hemsworth and S. Cooke.

APPEARANCES: John Elder and Ginette Thibert for the applicant; J. Bellomo, D. Gamble, S. Keith and J. Cyr for the respondent.

DECISION OF THE BOARD; November 23, 1982

1. The purpose of this decision is to record and confirm an oral decision given by the Board at the November 18, 1982 hearing of this matter, following a recess during which the Board reviewed and considered the submissions of the parties. That oral decision is set forth in the remaining paragraphs of this decision.

2. This is an application for certification in which the Board, differently constituted, directed by decision dated June 22. 1982 that a pre-hearing representation vote be taken in the following unit, which the parties agreed to be an appropriate voting constituency and bargaining unit at the pre-hearing vote meeting held on June 16, 1982 concerning this matter:

"All employees of the respondent in the City of Ottawa regularly employed for not more than twenty-four hours per week, save and except students employed during the school vacation period."

3. Pursuant to that direction, a pre-hearing vote was taken on July 6, 1982, in which 52 ballots were cast, including 41 segregated ballots. At the completion of the vote, the ballot box was sealed and the matter was subsequently listed for hearing in Ottawa on September 7, 1982 for the purpose of hearing the evidence and submissions of the parties with respect to all matters arising out of and incidental to this application. At that hearing, the respondent, through its counsel, requested the Board to direct that a further representation vote be taken on the basis of what he characterized as an expected "build-up" of the work force in the bargaining unit. At that hearing, the respondent also presented evidence and argument in support of its contention that none of the 41 segregated ballots should be counted. (Through a "Statement of Desire to Make Representations" dated July 13, 1982, filed with the Board pursuant to section 70(2) of the Board's Rules of Procedure, the respondent had duly notified the Board of its intention to raise those issues at that hearing.) In a decision dated September 9, 1982, the Board disposed of those issues as follows:

"3. At the hearing in this matter, counsel for the respondent asked the Board to direct that a second, deferred representation vote be taken on the basis of what he characterized as an expected 'build-up' of the work force in the bargaining unit. However, the circumstances of this case do not justify setting aside the pre-hearing representation vote that has already been taken, or directing that a further vote be taken. As noted by the Board at the hearing of this matter, this is not a 'build-up' case; rather, it is a case in which the 'part-time' bargaining unit is subject to seasonal fluctuations, the effect of which is somewhat accentuated by the fact that the parties have agreed to the exclusion of 'students employed during the school vacation period'. The approach which the Board had generally adopted in such situations is described as follows in Filkon Food Services, [1981] OLRB Rep. Dec. 1771 (application for reconsideration dismissed, [1981] OLRB Rep. Dec. 1772) in which the Board wrote (in paragraph 4):

.... the Board has consistently refused to take into account seasonal fluctuations in a work force from the point of view of either 'build-up' or bargaining unit configuration, outside of certain historically-recognized industries such as canning and tobacco-harvesting (see Universal Cooler, [1967] OLRB Rep. Sept. 546, and Melnor Manufacturing Ltd., [1976] OLRB Rep. May 215). The Board in most instances, in other words, does not take into account the normal ebb and flow of the work force.'

There is nothing in the circumstances of this case which would prompt the Board to adopt a different approach in this context.

4. Eight of the 41 segregated ballots were cast by persons whose names do not appear on the voters' list (including two persons, P. Burke and C. J. Shoihet, whose names were originally on the list but were removed by reason of the termination of their employment prior to the date of the vote). Having regard to the agreement of the parties that those persons were ineligible to vote, the Board directs that those eight ballots not be counted.

5. Counsel for the respondent contended that none of the other 33 segregated ballots should be counted because (in his submission) they were cast by 'students employed during the school vacation period'. The only evidence called by the respondent in support of that submission was the testimony of Personnel Officer Robert Dehler, who told the Board that although those 33 persons were regularly employed for not more than twenty-four hours per week as of the date of the application (and also as of the terminal date), by the date of the vote they had been 'transferred to summer employment' and had become 'summer employees' who work more than thirty hours per week. In response to questions put to him by the Board, Mr. Dehler stated that the 'majority' of the 'summer employees' are students, but that 'some of them' might be non-students who have other full-time jobs 'somewhere else' during other seasons of the year. No evidence was adduced from which the Board can discern which of the 33 individuals in question are 'students' and which are not. Thus, in view of the rather vague and unsatisfactory evidence which was placed before us concerning that issue, the respondent has not satisfied the onus which rests upon it of establishing its contention that those 33 persons, or any specific individuals within that group, were ineligible to vote because they were 'students employed during the school vacation period' on the date of the vote.

6. The respondent has satisfied the Board that of the 33 individuals in question, the following two persons were ineligible to vote because they were not regularly employed for not more than twenty-four hours per week as of the date of the vote (see Trenton Memorial Hospital, [1980] OLRB Rep. May 805): J. Conley and A. Rabeau.

7. For the foregoing reasons, the Board directs that all of the ballots cast in the July 6, 1982 pre-hearing representation vote be counted, with the exception of the eight ballots cast by persons whose names do not appear on the voters' list and the ballots cast by J. Conley and A. Rabeau."

8. Pursuant to that direction, the remaining 41 ballots cast in the pre-hearing representation vote were counted on September 21, 1982. Of those ballots, 34 were marked in favour of the applicant and 7 were marked against the applicant. After receiving the Form 73 Notice of Report of Returning Officer on Counting of Ballots, the respondent forwarded to the Board a statement of desire to make representations relating to the conclusions the Board should reach in view of that Report and requested "that the matter be further considered at a public hearing". Upon receipt of that statement of desire which is dated September 27, 1982, the Registrar served a Notice of Hearing upon each of the parties in accordance with section 70(4) of the Board's Rules of Procedure.

9. At this hearing, which was originally scheduled for November 1, 1982 and was subsequently adjourned to November 18, 1982 on the agreement of the parties, the Board called upon the respondent to show cause why we ought to reconsider our decision dated September 9, 1982 in this matter, as it appeared from the statement of desire that the respondent was, in effect, seeking to relitigate the issues dealt with, either expressly or implicitly, in that decision, namely, the "representativeness" of the pre-hearing vote, and the eligibility to vote of the 41 persons who cast segregated ballots in that representation vote. In his submissions to the Board on November 18, 1982, counsel for the respondent confirmed that the respondent was "in effect ... seeking a rehearing".

10. Section 70 of the Board's Rules of Procedure provides, in part, as follows:

(2) Subject to subsection (3), where a pre-hearing representation vote is taken,

(a) a party; or

(b) any employee or representative of a group of employees,

who desires to make representations in connection with the application or as to any matter relating to the representation vote or the accuracy of the report of the returning officer or the conclusions the Board should reach in view of the report, shall file a statement of desire as prescribed in Form 71 or 72, as the case may be, on or before the last day for the posting of copies of the report and notices under subsection 69(3).

(3) Where a representation vote is taken in connection with a direction that the ballot box be sealed and the Board subsequently directs that the ballots be counted,

(a) a party; or

(b) any employee or representative of a group of employees,

who desires to make representations as to the accuracy of the report of the returning officer on the counting of the ballots or the conclusions the Board should reach in view of the report, shall file a statement of desire as prescribed in Form 73, on or before last day for the posting of the copies of the report and notices under subsection 69(3).

(4) Upon receiving a statement of desire to make representations in the form and manner required by this section that contains a statement that a party or any employee or representative of a group of employees desires a hearing before the Board, the registrar shall serve a notice of hearing in Form 8 upon each of the parties to the proceedings and upon each person who has filed a statement.”

We do not interpret section 70(3) of the Rules as giving a party a right to relitigate matters which have already been litigated at a hearing held to deal with matters raised in a statement of desire filed with the Board in accordance with section 70(2). Nevertheless, the Board has a broad discretion under section 106(1) of the Labour Relations Act to "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." However, that jurisdiction has always been very carefully and cautiously exercised. As stated by the Board in Imperial Tobacco Products (Ontario) Limited, [1974] OLRB Rep. Sept. 609, at paragraph 3:

"Section 95 [now section 106] of The Labour Relations Act ... provides the Board with a unique jurisdiction to '..., if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling.' However, this jurisdiction is very carefully and cautiously exercised by the Board in that free recourse to the Board after the initial disposition of a matter would substantially undermine those values of speed and economy associated with the administrative practice of this Board. In other words, except for exceptional circumstances, litigation between the parties ought not to be prolonged. This principle was approved of in International Nickel Company and United Steelworkers of America, 63 CLLC 16, 284. Therefore, unless it can be established that new evidence is proposed to be adduced and this evidence could not have been obtained by reasonable diligence before the original hearing in this matter, the Board ought not to entertain the request for reconsideration."

See also K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185; H. Kerr Construction Limited, [1980] OLRB Rep. Aug. 1204; Rehau Plastiks of Canada Limited, [1980] OLRB Rep. May 774; Thames Steel Construction Limited, [1979] OLRB Rep. May 440; and York University, [1976] OLRB Rep. Apr. 187. As noted in the York University case, the Board is conscious that delays encountered in protracted proceedings operate to the prejudice of employees seeking rights to collective bargaining; in our experience delays occasioned by untimely objections and inordinately lengthy proceedings have in a number of instances contributed to the defeat of employees' expectations and have thereby undermined the very design of the Act as expressed in the preamble, namely, that of furthering harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees. Moreover, as recently noted by the Board in Auto Jobbers Warehouse Ltd., [1982] OLRB Rep. May 649, at paragraph 4:

"We do not believe that the Board's reconsideration power was intended to be exercised for the purpose of permitting a party to repair the deficiencies of its case. Indeed, if such were the practice, proceedings before the Board would be interminable and decisions inconclusive ."

(See also Lorain Products (Canada) Ltd., [1978] OLRB Rep. March 262, and Scarborough General Hospital, [1970] OLRB Rep. March 1471.) 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, and not to permit relitigation of issues by a party which, having received an adverse decision, now feels that a stronger case could have been presented.

7. We are of the view that the evidence which counsel for the respondent proposes to adduce at this hearing could have been garnered by reasonable diligence before the September 7, 1982 hearing of this matter. Moreover, counsel does not seek to make any legal argument which he did not have every opportunity to make on behalf of the respondent at that hearing. While the respondent may be dissatisfied with the decision dated September 9, 1982 which we issued following that hearing, we are of the view that the decision in question is neither wrong in law nor contrary to earlier Board practice. In reaching that view, we have considered the various authorities to which we were referred by counsel for the respondent, including Trenton Memorial Hospital, [1980] OLRB Rep. May 805; Noranda Mines Ltd., (1969), 1969 CanLII 104 (SCC), 7 D.L.R. (3d) 1 (S.C.C.); Peter Austin Manufacturing Company, Division of Kelton Corporation Limited, [1967] OLRB Rep. May 144; Emil Frant, 57 CLLC ¶ 18,057; United Co-operatives of Ontario, Owen Sound Retail Branch, [1970] OLRB Rep. Dec. 954; and Success Display Limited, [1971] OLRB Rep. Oct. 636.

8. Thus, although section 106 of the Labour Relations Act gives the Board the broadest possible discretion to reconsider its own decisions where it considers it just or appropriate to do, having regard to all of the circumstances the Board is of the view that this is not an appropriate case in which to vary or revoke its decision dated September 9, 1982 in this matter. Accordingly, we will dispose of this application on the basis of the results of the 41 ballots cast by persons whom we found in that decision to be eligible to vote.

9. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

10. Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in the City of Ottawa regularly employed for not more than twenty-four hours per week, save and except students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

11. The Board is satisfied that not less than thirty-five per cent of the employees of the respondent in the bargaining unit were members of the applicant at the time the application was made.

12. As noted above, on the taking of the pre-hearing representation vote directed by the Board more than fifty per cent of the ballots cast were cast in favour of the applicant.

13. A certificate will issue to the applicant.

14. The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.