Mauri Ahokas et al. v. The Canadian Union of Public Employees, Local 87, 1984 CanLII 1038

[1984] OLRB Rep. July 1032

1800-81-U;1971-81-R Mauri Ahokas et al, Complainants, v. The Canadian Union of Public Employees, Local 87, Canadian Union of Public Employees, Grace Hartman et al, Respondents; The Municipal Technicians Association of the City of Thunder Bay, Applicant, v. The Corporation of the City of Thunder Bay, Respondent, Canadian Union of Public Employees, Local 87, Intervener

BEFORE: M. G. Picher, Vice-Chairman and Board Members W. F. Rutherford and J. A. Ronson.

DECISION OF THE BOARD; July 23, 1984

1. By letter dated May 31, 1984 counsel for the complainants in the section 89 complaint and applicant in the request for certification asks for reconsideration of the decision of the Board herein dated May 4,1984 (now reported at [1984] OLRB Rep. May 759).

2. The principles which the Board generally applies in the exercise of its discretion to reconsider a decision have been reviewed in a number of prior Board decisions. Generally reconsideration will be limited to cases where a party seeks to advance new evidence or representations not available to it at the time of the hearing by the exercise of due diligence. In the interests of finality, the Board normally guards against allowing reconsideration to be used as an appeal or reargument the same case. Imperial Tobacco Products, (Ontario) Limited, [1974] OLRB Rep. Sept. 609; York University, [1976] OLRB Rep. Apr. 187; Thomas Steel Construction Limited, [1979] OLRB Rep. May 440; Rehau Plastiks of Canada Ltd., [1980] OLRB Rep. 774;H. Kerr Construction Limited, [1980] OLRB Rep. Aug. 1204; K Mart Canada Ltd. (Peterborough), [1981] OLRB Rep. Feb. 185; Auto Jobbers Warehouse Ltd., [1982] OLRB Rep. May 649; The Corporation of the City of Ottawa, [1982] OLRB Rep. Nov. 1698.

3. The submission of counsel for the complainants is lengthy and reiterates a number of arguments which were advanced at the hearing. One argument made is that:

"The Board failed to give consideration to the factor of the wish for self-determination on the part of the group of employees which is in violation of the Canadian Constitution which guarantees freedom of association

The Canadian Constitution, and in particular the Charter of Rights and Freedoms, received only the most cursory and indirect mention in the oral submissions of counsel for the complain­ants at the hearing. The Board was given no argument in substance respecting the complainant's constitutional rights. Counsel made one brief and unexplained comment that to maintain the existing bargaining unit would be to disregard the freedom of association of his clients. Because of the gratuitous nature of that comment, which received no elaboration and was unsupported by any specific references to the case law, statute law or the words of the Charter of Rights itself, the Board did not consider that it merited any specific or extended analysis in its decision.

5. Lest there be any misunderstanding, however, we are prepared to comment, however briefly, on that aspect of the request for reconsideration. Freedom of association is protected by section 2(d) of the Charter of Rights and Freedoms which provides:

Everyone has the following fundamental freedoms:

(d) freedom of association.

The relationship between the right of freedom of association and collective bargaining rights remains to be defined by the time-honoured process of case by case analysis and development. That is how our tribunals and courts develop the construction of statutes, and nowhere is that incremental process more appropriate than in the interpretation and refinement of constitution­al rights. It is therefore incumbent upon tribunals such as this Board to deal with such issues as they arise, but insofar as possible, to deal with the specific issue raised, avoiding unnecessarily broad pronouncements which could impede or obscure the long range process of constitutional development. (Dry Bulk Form workers Ltd., [1974] OLRB Rep. Sept. 629; Windsor Airline Limousine Services Ltd., [1980] OLRB Rep. Feb. 272; Third Dimension Manufacturing Limited, [1983] OLRB Rep. Feb. 261.

6. Considerable guidance is beginning to emerge from the decisions of the courts on the Charter of Rights and Freedoms. It is becoming more and more apparent that the restrictions on rights which exist in a number of statutes are not viewed by the judiciary as contrary to the Charter. That has been specifically confirmed with respect to labour relations statues, in general, and the Ontario Labour Relations Act in particular.

7. Labour relations laws are, by definition, devoted to the relations between employees and employees formed into associations. By the application of majoritarian principles employees are permitted to obtain, exercise and terminate bargaining rights according to the will of the majority. To ensure the viability of the collective bargaining system the Act imposes certain constraints in the exercise of collective bargaining rights. Collective agreements must be for the minimum period of time provided in the Act. The right to terminate or displace a union can be exercised only within time limits which are also established in the Act. The right to strike and lock out are also limited in time.

8. Provisions of that kind have not been found to infringe upon freedom of association. In Re Prime and Manitoba Labour Board, (1983) 23 A.C.W.S. (2d) 130 (Man. Q.B.) the Court concluded that the decision of the Board certifying a union did not infringe the employees' freedom of association because neither the Act nor the Board's decision forced the employees to join or refrain from joining a union. In Re United Headwear, Optical and Allied Workers' Union of Canada, Local 3 and Biltmore/Stetson (Canada) Inc., (1983)1983 CanLII 1802 (ON CA), 43 O.R. (2d) 243 (C.A.) the Ontario Court of Appeal was asked to declare, among other things, that the decision of this Board which in that case interpreted the Act as time-barring a further application for certification by the unsuccessful union was in violation of the freedom of association guaranteed to the employees under section 2 of the Charter. At p. 256 of its decision, in the briefest of remarks, the court dismissed that argument by stating that it saw no merit in the submission.

9. Freedom of association is not the unfettered right to enter into the ranks of a bargaining unit of one's choosing. While the Board may take the wishes of employees into account in deciding on the appropriateness of a given unit of employees for collective bargaining purposes, it must also consider other factors which are important in the establishment of a sound and viable bargaining structure. That was expressly reflected in the following comment in this Board's decision of May 4,1984:

Of paramount concern is the possibility of severing the existing unit of office and clerical employees, or "inside employees", as they are generally known. In any application for certification it is the obligation of the Board to consider what deliniation of employees will be suited to collective bargaining as a group. While the Board has noted that it must not necessarily select the ideal bargaining unit designation, it does strive, insofar as possible, to fashion and preserve the most comprehensive unit of employees which will constitute a viable bargaining structure. The wish for self-determination on the part of a group of employees is a factor to be considered among others, but it is not the determining factor in all cases. (McDonald's Restaurants of Canada Ltd., [1974] OLRB Rep. Oct. 755; Ponderosa Steak House, [1974] OLRB Rep. Nov. 7; Canada Trustco Mortgage Co., [1977] OLRB Rep. June 330 and see also Parnell Foods Ltd., [1969] OLRB Rep. Apr. 38; Stratford General Hospital, [1976] OLRB Rep. Sept. 459.)

10. If, as counsel for the complainants implies, the determination of bargaining units is to be determined solely by reference to the preference of a given group of employees (and in this case, in apparent disregard of the contrary wishes of a larger group of employees), the Board's jurisdiction to determine the appropriate bargaining unit would be reduced to poll-taking. That is not what the Act intends. It is axiomatic that in any disputed case some employees will disagree with the bargaining unit structure established by the Board. That is inevitable. It does not follow, however, that a Board decision rejecting the preference of a group of employees infringes their freedom of association. Nothing in the Board's decision respecting the bargaining unit limits the freedom of association of any employees.

11. The Board has reviewed the other arguments raised in the letter of counsel from the complainants and sees in those submissions no basis to reconsider its decision. Nor do we see in the material filed anything that would, if proved, establish a prima facie case that the respondent union has failed or refused to implement the Board's remedial order of May 4,1984. It appears that the union called two meetings, one in June to establish an ad hoc committee to prepare for bargaining and one in September, to choose the bargaining committee pursuant to future amendments of the Local's by-laws to comply with the Board's order. On the face of the material filed by counsel for the complainants both of the committees are to be structured in accordance with the Board's direction. It does not appear, nor is it alleged, that eligibility to participate on either committee has been or will be denied to any of the complainants.

12. Counsel for the complainants suggests that the Board is biased in favour of the respondent union. We refrain from making any comment upon that allegation. It would scarcely be appropriate for the Board to become the arbiter of an allegation of its own bias or bad faith. Issues of that kind are best dealt with by another forum.

13. For the foregoing reasons the request for reconsideration must be denied.```