Ontario Labour Relations Board
[1985] OLRB Rep. July 1009
1528-84-M United Brotherhood of Carpenters and Joiners of America Local 18, Applicant, v. Coidmatic-Refrigeration of Canada Ltd., Respondent
BEFORE: Paula Knopf, Vice-Chairman, and Board Members H. Kobryn and W. G. Donnelly.
DECISION OF THE BOARD; June 11, 1985
This an application by the respondent, Coldmatic-Refrigeration of Canada Ltd. (Coldmatic), for the Board to exercise its power, pursuant to section 106(1) of the Labour Relations Act, to reconsider its decision of October 5, 1984 in this matter.
The particulars offered to support the request for reconsideration are contained in an affidavit of George Zafir. Mr. Zafir is the President of the respondent.
The business of the respondent is the manufacture and installation of coolers. Mr. Zafir explained that in or about 1980, the respondent was engaged in the manufacture of coolers. In addition, Mr. Zafir was an officer and shareholder of another company known as G. & G. Parkdale Refrigeration Ltd. together with a Mr. George Fevgas. However, at this time, the business relationship between the two men is at an end and G. & G. Parkdale Refrigeration is an inactive company.
Mr. Zafir's affidavit also explains that although a short-form voluntary recognition agreement dated August 15, 1980 exists between the applicant and the respondent, the agreement contains the signature of Mr. Fevgas purportedly on behalf of Coldmatic although Mr. Fevgas was at no time an officer, director or person entitled to execute contracts on behalf of Coldmatic. Mr. Zafir claims to have been unaware of the existence of the short-form agreement until he was served with a copy of the October 5, 1984 decision of this Board together with the Writ of Seizure and Sale obtained by the Union early in 1985. Mr. Zafir also presents documents in his affidavit which he says indicate that the applicant union dealt with G. & G. Parkdale Refrigeration and Coldmatic interchangeably in their correspondence from January, 1982 to February 28, 1985 despite the fact that no application had ever been made under subsection 1(4) of the Labour Relations Act involving the two companies.
Mr. Zafir gives the following as the reason why no one appeared on behalf of Coldmatic at the proceedings held on September 26, 1984:
Although the respondent was served with notice of the proceedings leading to a decision herein, the respondent did not appear at the hearing or retain counsel with respect to this matter inasmuch as I had no knowledge of any basis on which the applicant could claim to be a party to a collective agreement with the respondent.
After obtaining the decision of this Board in this matter, the Union obtained a certificate from the Supreme Court of Ontario and a Writ of Seizure and Sale against Coldmatic in order to enforce the award. Upon receiving these, the respondent launched this application for reconsideration. The bases he has given for the request are the following:
That Mr. Fevgas had no authority to contract on behalf of the respondent and that the respondent was unaware of this fact;
that the work in question, as described in paragraph 6 of the Board's original award in this matter, did not fall within the craft jurisdiction of the applicant; and
that the work in question actually required only 32 man hours of work and not 160 man hours as set out in the Board's decision.
The applicant union has opposed the request for reconsideration. With regard to the claim that Mr. Fevgas had no authority to bind the respondent to the Carpenters' Provincial ICI agreement, counsel for the applicant argues that that is a matter which ought to have been raised at the hearing on behalf of the respondent. In any event, the Union expressly denied that Mr. Fevgas lacked the authority to sign the agreement or that the agreement is not binding on the employer. In support of this, the Union points out that Mr. Zafir's affidavit contains a business card of the respondent Coldmatic which identifies Mr. Fevgas as Coldmatic's supervisor. Further, the Union asserts that in 1980 when the agreement was signed, Mr. Fevgas was in the respondent's employ and the person in charge of the respondent's job site operation. Further, the evidence before the Board, and as accepted in its decision, was that on three instances since the signing of the collective agreement the respondent has made remittances to the Health and Welfare benefits of the applicant pursuant to the agreements. The Union relies on the decisions of Vic Starchuk and Associates Inc., [1980] OLRB Rep. April 516 and Inspiration Ltd., [1967] OLRB Rep. Sept. 561 in support of the proposition that an employer's on-site representative can bind an employer to a collective agreement where it is held out that he has the authority to do so and the union reasonably believes him to have that authority.
Further, even if no such authority existed, the signature can be ratified by the conduct of the employer by honouring the collective agreement through, for example, the making of remittances towards a welfare plan. (See Vic-Starchuk and Associates Inc., supra.)
Further, the Union argued that the documentation presented by the respondent in support of the proposition that the applicant has dealt interchangably with Coldmatic and G. & G. Refrigeration does not in fact relate to the applicant but instead to other locals of the Carpenters' union.
The Union also argues that any claim that the work in question does not fall within the applicant's craft jurisdiction ought to have been made at the initial hearing and that the Board ought not to entertain such submission at this time. In any event, it was said that the submission is in contradiction with the Board's finding in paragraphs 4 and S of the original decision that the work which is the subject of this grievance was previously performed by the respondent on three separate occasions.
Finally, the Union argues that the respondent's claim that the number of man hours required for the jobs ought to have been raised at the initial hearing and no suggestion is made why the evidence which was accepted by the Board from the applicant ought not to have been believed.
In conclusion, the Union stressed that although the Board's initial decision was issued on October 5, 1984, no request for reconsideration was forthcoming until April 19, 1985. In the meantime, the applicant has attempted to enforce the Board's decision through the Supreme Court. It is the Union's allegation that the respondent is going "to great lengths" to put the applicant to expense, time and frustration in enforcing this award.
The Decision
The Board's practice and policy regarding the granting of a reconsideration can be characterized as falling into two general camps. First, the Board will not grant a reconsideration generally unless a party shows that it can adduce new evidence which was not previously obtainable by reasonable diligence and that evidence would, if adduced, be practically conclusive. Or, the Board will not grant a reconsideration unless the party requesting it can satisfy the Board that it had no opportunity to raise those representations or objections previously. (See Ottawa Truck Centre, [1983] OLRB Rep. Jan. 139, Cochrane Temiskaming Resource Centre, [19831 OLRB Rep. Feb. 222 and P. W. Bradley, [1983] OLRB Rep. June 865.)
There is no question in this case that the respondent had adequate notice of the original hearing. This is admitted by the respondent through Mr. Zafir's affidavit. What simply happened in this case is that the respondent chose not to attend. Thus, it cannot be said that the respondent had no opportunity to raise his objections or positions earlier or at the initial hearing.
Further, there is no suggestion that the evidence which the respondent seeks to adduce was not available to it or known to it at the time of the original hearing in September of 1984. Neither can it be said, given the position and the allegations of the Union, that the evidence which the respondent seeks to present can be considered to be conclusive of the issues which the Board would have to deal with.
The Board's concerns in cases like this have been expressed in the Detroit River Construction Ltd. case, 63 CLLC 16,260:
while depending upon the circumstances of the case and the applicable principles of natural justice, the Board ought not to be as strict or as technical as a Court. It must nevertheless, in our view, recognize the necessity for and apply some principle of finality to its decision. It stands to reason that when a party has gone through the ordeal, expense and inconvenience of a hearing and obtained a decision in its favour, that he should not be deprived of the benefit of that decision except for good cause. The Board ought not to encourage a practice whereby one party can remain silent throughout a hearing, and after he has discovered the weak points in his adversary's armour be permitted to exploit them by calling evidence at another and later hearing which he could and should have presented at the original hearing. If it were otherwise, the door would be open in any given case to ceaseless and neverending hearings each serving as a prelude to the next ad infinitum and no one could safely rely on any decision as settling the rights of the parties.
In the case at hand, the principles in the Detroit River Construction case, supra, are directly applicable. The Board cannot encourage a practice whereby one party can, being aware of the scheduling of proceedings, choose to not attend and then, after discovering that the award has been made against him, seek to reopen the proceedings when no compelling reason to do so has been presented.
In addition, the Board must express its concern about the timing of this application for reconsideration. It is clear from the materials presented by the respondent that this application was only made well after attempts were being pursued by the respondent to prevent the Supreme Court's enforcement of the Board's original award. While there is no time limit in the Act which applies to applications for reconsideration, the Board, in exercising its discretion, cannot fail to be concerned about an application made six months after the original award and a number of months after the award came to the unsuccessful party's attention. While this in itself is not a reason for denying the application for reconsideration, it is a factor which must be commented upon.
On the basis of the foregoing, the application for reconsideration is denied.