[1985] OLRB Rep. January 104
0960-83-U Cameron Douglas Wonch, Complainant, v. Rapid Ready Mix Limited, Respondent.
BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members B. L. Armstrong and J. Wilson.
DECISION OF THE BOARD; January 10, 1985
1In a decision of the Board dated September 20, 1983, the Board unanimously dismissed the complainant's unfair labour practice charges against the respondent company. By letter dated October 9, 1984, the complainant submits that there should be a new hearing, so that he can put further evidence before the Board. In order to properly assess this request, it may be useful to sketch in some of the background of this case and to comment briefly upon the nature of proceedings before the Board.
2The complainant, Cameron Wonch, was an employee of Rapid Ready Mix Limited ("the company") which runs a ready mix concrete business in the Sault Ste. Marie area. On or about December 16, 1981, Mr. Wonch ceased to work for the company. His employment was terminated without any specified or anticipated date of recall.
3The complainant was not rehired in the spring of 1982 at the beginning of the 1982construction season. He was not rehired at the beginning of the 1983 construction season. Nor did he seek to return. In the eighteen-month period between December, 1981 and June, 1983,the complainant made no effort to contact the company to request employment. Indeed, in a casual meeting with a foreman in October, 1982, he mentioned that he was working elsewhere and was making higher wages than the company had been prepared to pay. He expressed no interest in returning to work.
4As we have already noted, after leaving the company in December, 1981, the complainant's first contact with the company occurred in June of 1983. Under the collective agreement then in place he had no seniority-based right to recall or right to displace any existing employee. He filed this unfair labour practice complaint on July 30, 1983. The complaint contends that the failure to recall him was tainted by anti-union considerations. Mr. Wonch asserts that he was not rehired because he was a trade union supporter. Although the complaint, on its face, focuses on 1983, the allegations before the Board were extended back to 1982. The company denied those allegations.
5A hearing in this matter was held in Sault Ste. Marie on September 7, 1983. The company retained counsel to defend against the complainant's allegations. Mr. Wonch appeared without counsel, and as the Board observed in its initial decision, this may have been unwise. A party who chooses to proceed without counsel may be taking a tactical risk. While the Board's proceedings are relatively informal, any person alleging illegal conduct should understand the legal foundation for his charges, and may be called upon to support them with evidence. If such evidence is not led, because of inadequate investigation, unfamiliarity with the law, a failure to appreciate what is relevant, or otherwise, the complaint may be dismissed. And so it should be. It is relatively easy to make allegations. It may be much more difficult to sustain them. Yet the mere allegation may require a time-consuming and costly hearing. The Board (unlike a court) does not require a losing party to pay the costs of the winner, however, this does not mean that a Board proceeding is without cost to the parties or to the public. Litigation is expensive. It should not lightly be contemplated, prolonged or repeated.
6The Labour Relations Board is an independent quasi-judicial tribunal, exercising powers and responsibilities prescribed in the Labour Relations Act, and the Statutory Powers Procedures Act. Unlike some agencies of government, the Board does not perform a licensing function or regulate the flow of government benefits to public claimants. It does not investigate citizen complaints or dispense advice. The Board's primary function is adjudication: the determination of the rights of employers, employees, and trade unions, under the Labour Relations Act. In this respect the Board operates rather like a court; and, in fact, its origins can be traced to the Ontario Labour Court, which was first established in 1943.
7Like a court, the Board does not make a determination based only upon one party's version of the facts, nor does it merely compare the factual assertions made in the parties' pleadings, then issue a decision. It would be quite wrong to do so. (See section 102(13) of the Labour Relations Act.) Instead, the Board conducts a public hearing to entertain the evidence and representations of all parties with a legal interest in the proceeding. Typically, the Board will sit as a panel of three composed of a vice-chairman and nominees reflecting employer and employee interests. If there are assertions concerning the propriety of an individual's conduct, his good character, or his competence, he is entitled to notice of the proceeding and an opportunity to participate. He has a right to attend the hearing in order to meet and perhaps refute the allegations made against him. It would be contrary to the statute and the rules of natural justice to proceed in any other way.
8The evidence before the Board is given under oath and is subject to the test of cross-examination and rebuttal by the parties' adverse in interest. The Board makes a determination of the facts based upon the weight of the testimony presented, including an assessment of the credibility of the various witnesses. At the end of the case the significance of the evidence is weighed in accordance with the established legal and statutory parameters after the parties have had an opportunity to make their submissions. The Board then issues a written decision setting out its findings of fact, its legal conclusions, and the reasons therefor. Again, it will be seen that the Board's procedures are closer to a judicial model than those of many other agencies or arms of government. If it is alleged that the Board has erred in law and exceeded its jurisdiction or has denied natural justice, that issue can be canvassed on an application for judicial review to the Divisional Court of the Supreme Court of Ontario.
9It is this general approach which the Board followed in the instant case. The complainant alleged that his former employer had acted illegally. The Board scheduled a hearing. By virtue of the "reverse onus" provisions of section 89(5) of the Labour Relations Act, the respondent company was obligated to affirmatively demonstrate that its conduct did not constitute a breach of the Act. In other words, the Act provides that if there is an assertion of discrimination in employment, the employer must come forward with an explanation for its actions which is both credible and entirely free of anti-union considerations. In practice, this means that a respondent employer must proceed first and give bona fide reasons for the impugned conduct.
10Few employers welcome the prospect of dealing with a trade union. In this rather general sense, many employers may have, or express anti-union sentiments. However, in a case under section 64, 66 or 71 of the Act, what is important is whether the particular employer action in question (discharge, discipline, transfer, layoff, etc.) was motivated by the fact that the complaining employee was a trade union supporter or was exercising rights under the Act. It is not enough for an aggrieved employee to assert that this is so. If the employer denies it and tenders a reasonable explanation which is plausible and unshaken by cross-examination, the onus may well shift back to the employee to show that the employer's explanation should not be accepted. The issue is the employer's "real intention" and this, in turn, may well turn upon an assessment of the employer's credibility, and whether its actions are consistent with the existing business circumstances. Again, these judgments are made only after a hearing where the members of the Board have had the opportunity to directly observe the demeanour of the various witnesses and weigh the completeness, clarity, consistency, and credibility of their testimony.
11In the instant case, the employer proceeded first, calling as its witnesses, Gerald Hill, the owner, and Kenneth Trudeau, a foreman. The complainant called George Palanuk, a trade union representative, Randy Haskett, an employee (or former employee) and gave evidence himself. In reply, the employer called Carlo Barban, a local construction contractor with whom the company had had dealings in 1981 and 1982. Barban's evidence supported Hill's testimony about the low level of business activity in the spring of 1982 — an assertion which the complainant had questioned.
12This evidence (inter alia) is summarized in the Board's decision of September 20, 1983, and need not be repeated here. It suffices to say that the company explained that its failure to rehire the complainant was related to adverse business circumstances in the spring of 1982, its inability to contact the complainant, and the complainant's apparent lack of interest as evidenced by his own failure to contact the company in the eighteen-month period immediately following his termination by which time any seniority rights he might have had under the collective agreement had been extinguished. The company also pointed out that other trade union supporters had in fact been recalled — albeit, sometimes for short periods. Hill's testimony was forthright and plausible — in marked contrast to that of the complainant, whose recollection was fuzzy, and whose evidence frequently dealt with matters quite irrelevant to the issues in this case. Having heard this evidence, as well as that of the complainant's witnesses, the Board unanimously concluded:
On the basis of the totality of the evidence before us, we are not satisfied that the complainant has been discriminated against or dealt with improperly because of his membership in a trade union, we are not satisfied that the respondent has attempted to circumvent its employees' bargaining agent and bargain directly with them, and we are not satisfied that during the so-called statutory freeze established by section 79 of the Act, it did anything other than carry on "business as usual" — albeit in somewhat unusual and difficult economic conditions. We find that the evidence does not support any of the complainant's allegations and that, therefore, this complaint must be dismissed.
Copies of the September 20, 1983 decision were mailed to the parties on or about September 22, 1983.
13The request for a rehearing is dated October 9, 1984, and the complainant refers to and relies upon several affidavits sworn by the deponents between September 12, 1983, and September 25, 1983 — that is, in the two-week period immediately following the hearing but before the complainant would have received the Board's decision dismissing his complaint. These affidavits relate to events in 1982 or 1981, and either purport to contradict certain details of the evidence given by witnesses at the hearing, or contain entirely new assertions of fact from which one might draw an adverse inference of anti-union animus. We say "might" because the causal connection with the failure to rehire the complainant is not a necessary one, and because these submissions, even if true, do not necessarily undermine the evidence of the witnesses called by the employer concerning its action (or more accurately inaction) vis-a-vis the complainant. In response to these new assertions raised by the complainant, the company again retained counsel and submitted a detailed response explaining why, once again, the complainant's contentions are unfounded, misconceived, or fail to appreciate precisely what happened. The employer also resisted the reopening of a case which was dismissed more than a year ago.
14We are troubled by this belated submission of supposedly "new evidence" — not least because some of it is rank hearsay and there appears to be no reason why, with reasonable diligence, it could not have been put before the Board at the time of the first hearing. For example, Mrs. Haskett asserts that her husband told her that it was his opinion that he was not recalled in 1982 because of his support for the union. But Mr. Haskett's "opinion" supposedly expressed to his wife has little probative value. It is also interesting to note that the complainant called Mr. Haskett as one of his own witnesses — a witness whose credibility, it appears, he now seeks to impeach. If we did choose to disbelieve Haskett, it would not further the complainant's case one bit, nor would it in any way call into question Hill's testimony that there was no real need to rehire the complainant in 1982, and by 1983, he really didn't consider it. It simply does not matter that Haskett, recalling his work pattern a year previously, may have been in error concerning precisely how little he worked; nor does it matter that a driver may have delivered one load (or ten) in the spring-summer of 1982. At the hearing, the evidence demonstrated that: business was slow, there was no need to recall the complainant, and the complainant never sought such recall — even though, he said he was aware of at least some construction activity. Against the evidence of Hill, who was directly involved in the business at the time, there was that of the complainant who was working elsewhere, and whose evidence at its highest, was vague, impressionistic, and not even terribly consistent when subjected to cross-examination. Even assuming that these new statements were put in evidence before the Board at the original hearing (where they would, of course, have been subject to cross-examination, as they now are not), we do not think that they would have altered the result. The same can be said of the other statements relating to alleged employer statements or conduct long before the company's supposedly improper treatment of the complainant, not directly connected to that decision, and, of course, never previously raised with the respondent. Gerald Hill was questioned, in a general way, about what had happened at the initial certification hearing and whether two employees from the Sowerbee location had attended. But the particular allegations in the request for a new hearing were not put to him — as in fairness they should have been, so that he could respond at the time. Nor did the complainant seek to call evidence to rebut or amplify what Hill had to say. If the complainant was able to collect this supposedly "new" evidence within days of the hearing, why did he not do so beforehand? Why should the respondent be required to attend a new hearing to explain matters which could have been raised in the hearing conducted more than a year ago?
15Section 106 of the Labour Relations Act reads as follows:
1 06.-( 1) 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.
It is clear that a Board decision is intended to be final and binding. It is equally clear that the Board is empowered to reconsider any of its decisions, and that such reconsideration could include granting a new hearing to entertain further evidence or directing a "trial de novo". However, reconsideration should only be granted in exceptional circumstances. If it were otherwise, the first hearing before the Board would be but a "discovery" for some later proceeding.
16A losing party will not be granted a new hearing simply because it has lost, or because it has put its case badly or has failed to adduce potentially relevant evidence. A party is expected to come prepared to deal with the issues raised, and to have done its investigation and preparation prior to the hearing. If motive is an issue — as it is in most unfair labour practice cases — a complaining employee should be in a position to put before the Board the evidence from which it might infer anti-union animus.
17Section 106 is not intended to allow a losing party to correct its mistakes or shore up an inadequate case. To put the matter colloquially: "a party gets only one bite at the apple". The Board will not normally set aside a decision and schedule a new hearing to hear further evidence unless it is persuaded that the "new evidence" could not have been obtained by reasonable diligence prior to the first hearing, and that the new evidence is likely to be determinative of the matters in dispute. Even then, the Board might have to take into account the costs thrown away by the parties in the first hearing (which they expected to result in a final decision) and the potential impact of any remedial order, which a complainant might seek. In the instant case, for example, any new hearing would necessarily take place more than a year after the decision dismissing the complainant's charges, and would once again entail an examination of events dating back to 1981. The employer would be required to appear once again to refute factual assertions which could have easily been raised the first time. Since the complainant is seeking reinstatement, a new hearing would also raise, once again, the spectre of displacing one of the company's existing employees — even though under the collective agreement the complainant has no right to recall. And, as we have already noted, between December, 1981 and June, 1983, the complainant never bothered to approach the company to request re-employment. Nor did he raise any unfair labour practice allegations until more than a year after the allegedly illegal failure to recall him in the spring of 1982. Indeed, it is difficult to resist the conclusion that the complainant's concern about returning to work for the respondent company only crystallized some weeks or months after he lost his better paying job with C. A. Pitts Limited. The fact is, that the supposedly unlawful failure to recall Mr. Wonch in the spring of 1982 did not materialize into a concrete complaint until July, 1983.
18The Labour Relations Act contemplates an expeditious resolution of unfair labour practice complaints. The Act requires a hearing. A hearing was held. The Act contemplates that both parties will come to the hearing prepared to present their case, with the knowledge that evidence will be given under oath and subjected to the test of cross-examination. That is what happened here. The Board heard the respondent's evidence and the evidence which the complainant chose to call. Having weighed the evidence presented, the Board accepted the respondent's explanation, found that the failure to recall the complainant was not motivated by anti-union considerations, and dismissed the complaint.
19The complainant now requests the Board to reconsider its decision and schedule a new hearing so that he can present further evidence. We decline to do so. While section 106 permits the Board to reconsider any of its decisions, it is an extraordinary power which should not be exercised lightly. If it were otherwise, the twin goals of expedition and finality would he seriously undermined. This is especially so in a case such as this, where a party is seeking a new hearing to lead further evidence which, in our view, could with reasonable diligence have been available at the first hearing. Since the complainant was alleging anti-union animus, he could and should have put before the Board all evidence from which the Board might draw that inference in the employer's dealings with him. It is too late to do so now. If the circumstances of this case were sufficient to warrant a new hearing, it is difficult to conceive of any unfair labour practice case which could ever be resolved by one hearing. There are few cases which, with the benefit of hindsight, could not have been presented a little better and even fewer cases where the evidence is as complete as one party or the other would like it to be. But this does not mean that the hearing should be treated as something of a "trial run" for some later proceeding in which one can correct earlier evidentiary inadequacies.
20We might add that the same considerations would apply to the company if it sought reconsideration on the same grounds as Mr. Wonch. Suppose, for example, that the company had closed its case, without calling the evidence of Mr. Barban, the general contractor. Mr. Barban was a credible and disinterested witness whose evidence contradicted the complainant's assertions about the level of construction activity in the spring of 1982. The Board accepted his testimony. If he had not been called, and the Board had held that the respondent had not met the onus cast upon it by section 89(5), could the respondent later request a new hearing to put in this "new" evidence? We do not think so; and for the same reasons as are outlined above.
21Certain passages in the request for reconsideration touch upon the conduct of the hearing. It is said, for example, that the Board allowed the employer to file its reply late, beyond the period prescribed by the Rules. But the Rules clearly provide that the respondent shall file his reply, if any, within the designated time frame. An employer accused of an unfair labour practice is not required to file a reply at all, and this in no way precludes it from coming forward to satisfy the onus cast upon it by section 89(5) of the Act. The statute clearly provides that all parties are to be given the opportunity to present evidence and make submissions [see section 102(13)]. A late reply does not prevent an accused party from making full answer and defence to the accusations against it.
22The representations concerning the respondent's financial statements pose particular difficulties because, more than a year after the hearing, it is hard to recall or reconstruct the interchange with the respondent's counsel to which Mrs. Wonch refers, or to put it in proper context. As noted, the hearing was conducted on September 7, 1983, and the request for reconsideration was made on October 9, 1984. What is clear is that Gerald Hill, the respondent's owner, gave evidence. He was the first witness called. He did not introduce or refer to the company's financial statements. In cross-examination he was asked many things. He was not asked about the company's financial statements or financial position. He was not asked to produce those documents even though it appears that the complainant was supplied with a subpoena which, if properly served on Mr. Hill, would have required such production. Nor did the complainant seek to put these records in evidence as part of his own case, either through recalling Mr. Hill as the complainant's own witness, or otherwise. In reply, the respondent called only Mr. Barban, who would have no direct knowledge of the respondent's financial situation, and through whom its financial statements could not be introduced. The Board's best recollection (which after a year is far from firm) is that counsel's gratuitous offer to show Mr. Wonch the company's financial statements occurred during the course of argument, after the parties had closed their case. At that point, of course, it would have been quite inappropriate to receive further evidence — particularly where, as here, it was probably favourable to the company position and, in any case, should have been put in as part of the company's case or while Mr. Hill was on the witness stand. If there has been a denial of natural justice the complainant has his remedies in another forum. We do not think these submissions warrant a new hearing.
23There appears to be some misapprehension on the complainant's part concerning the Board's role in the litigation process. That misapprehension should, perhaps, be addressed.
24As we have already noted, in its adjudicative role the Board acts rather like a court. It hears the evidence and representations which the parties wish to present, ruling, as required, on matters of relevance, admissibility, and so on. The Board leaves it to the parties to present their cases as best they can. The Board itself does not enter into the arena to advise one party or the other about how to conduct the case — what evidence to call, what questions to ask, what objections to make, whether to seek an adjournment, and so on. Of course, where one or both of the parties is unrepresented, the Board may occasionally be called upon to explain why "hearsay" may be given little weight, or why a particular line of inquiry is not relevant to the issue, or the meaning of privilege, or the problem with "leading questions". But the Board cannot, and must not, step in to "help out" a party who may not be putting his case very well, or through ignorance or inadvertence may have missed some tactical opportunity. To do that, would be to call into question the Board's impartiality.
25For the foregoing reasons, the Board declines to reconsider its decision of September 20, 1983, or direct a new hearing for the purpose of receiving further evidence. The request for reconsideration is dismissed.