[1987] OLRB Rep. February 276
2795-84-U United Steelworkers of America, Complainant, v. Shaw-Almex Industries Limited, Respondent, v. Group of Employees, Interveners
BEFORE: Harry Freedman, Vice-Chairman, and Board Members R. J. Gallivan and J. Kennedy.
DECISION OF HARRY FREEDMAN, VICE-CHAIRMAN, AND BOARD MEMBER J. KENNEDY; February 16, 1987
Counsel for the respondent applies for reconsideration of the Board's decision of December 22, 1986, [1986] OLRB Rep. Dec. 1800, and also seeks a stay of the Board's order until we determine whether to grant the request for reconsideration.
We have not stayed or suspended the remedial order we issued pending the reconsideration request. Before making any determination with respect to the request for a stay, we invited submissions from the other parties. Since the amount of time necessary to receive and consider those submissions extended beyond the date for the meeting set out in our remedial order, the stay request became academic and we therefore did not consider it further.
The request for reconsideration is based on many grounds that allege errors in law, jurisdiction and in the Board's understanding of the evidence. Additionally, counsel submitted that the Board's order directing compensation until the earlier of the time the striking employees ceased being employees on strike or the date a return to work protocol is agreed to permits the complainant, in effect, to dictate the terms of the return to work protocol.
Counsel also alleged that "... a meeting of vice-chairmen of the Board was convened late in the month of October or early November, 1986 for the purpose of considering the decision to be rendered in this case." Counsel then submitted:
it is drawn to the attention of the Board that I, as counsel in this case, drew the attention of the panel to matters proceeding before the Courts of Ontario involving a decision of the Board in Consolidated-Bathurst Packaging Limited and International Woodworkers of America. I refreshed the learned Vice-Chairman's memory with respect to the circumstances of that case and asked for assurance that this case be dealt with only by the panel before which the evidence was being adduced and heard. Although the Ontario Court of Appeal has upheld the actions of the Ontario Labour Relations Board in the Consolidated Bathurst case, leave to appeal from that application was heard by the Supreme Court of Canada on Monday, the 8th day of December, 1986 and although the Supreme Court of Canada has not yet granted its leave for the hearing of an appeal, we take the position that any meeting of Vice-Chairmen which heard matters relating to the instant decision was wrong in law and in violation of the principle of 'audi alteram partem'."
We note here that although counsel states that he asked for an assurance, counsel does not submit that such an assurance was given. In any event, while the Vice-Chairman of this panel did discuss a draft of the decision in this matter with the Chairman of the Board and other Vice-Chairmen of the Board, the decision that was issued was made by the Vice-Chairman and the two Board Members that heard the evidence. No other vice-chairman or board member presented evidence or made factual assertions to any member of the panel that heard the evidence of the parties. The panel hearing the case relied exclusively on the evidence that was presented at the hearing to reach the conclusions we reached. In our deliberations and in the writing of our decisions we conducted ourselves in the manner described by Mr. Justice Osler in his dissenting opinion in the Consolidated-Bathurst case that was adopted by the Ontario Court of Appeal.
We do not accept that we erred in the way submitted by counsel. We each made our respective decisions based on the evidence and our understanding of the relevant labour relations and legal principles.
While we are not inclined to reconsider any of our findings, the argument of counsel that our award of damages based on the later of employees ceasing to be employees on strike or the date a return to work protocol is agreed to gives to the applicant the right to determine the return to work protocol is compelling. It was not our intention to have only one party determine the return to work protocol, but rather we wanted to leave it to both parties to negotiate and agree upon a return to work protocol. Therefore, we hereby reconsider our remedial order by deleting item (b) in paragraph 73 and replacing it with:
(b) the date the respondent presents to the complainant a return to work protocol that does not discriminate between the employees hired after the commencement of the strike and the striking employees.
- Counsel for the respondent also submitted that the Board indicated to the parties that the Board would remain seized with determining the appropriate remedy and not damages only. Counsel has reproduced his notes of the exchange among counsel and the Board. His notes are consistent with our recollection of the exchange. The relevant portion of the exchange set out in counsel's notes is:
Gordon: Mr. Chairman, just before we adjourned, I gave the Board an undertaking from which I would like to be relieved. It has to do with the Board remaining seized of this matter.
Freedman: With respect to damages?
Gordon: Yes. I would wish not to agree that you remain seized on second thought.
Freedman: Assuming we are prepared to say that's fine, what's to stop the Board on its own motion to say that in this type of case, why shouldn't the Board remain seized?
Gordon: To be blunt, my friend has closed his case in chief and adduced no evidence on the subject.
Freedman: That's rather blunt. The name of the case, it escaped me, that dealt with the matter where there was a claim by party of insufficient evidence. The Board wouldn't go ahead whether the Board remained seized or not. The Board is content to allow you to withdraw your undertaking, however, the Board will remain seized of the matter. Even if Mr. Shell had proceeded to adduce evidence, we would have remained seized of it.
Gordon: I had not obtained instructions on this. I thank you, I'm fine now.
Freedman: All right, the Board will remain seized on the matter for damages notwithstanding the employer's lack of approval.
It was our intention at the time, and it is, in our view, clear from the exchange, that the Board was remaining seized with the issue of determining the quantum of damages, if it became necessary to do so. We did not suggest that we would remain seized with determining the appropriate remedy. We observe here that the question that counsel for the respondent wished to ask that went to the issue of remedy and which prompted the exchange set out above and to which counsel for the complainant objected was withdrawn. The Board did not rule on whether that question or questions along that line were relevant.
Therefore, the request for reconsideration is hereby dismissed save to the extent referred to in paragraph 6 above.
DECISION OF BOARD MEMBER R. J. GALLIVAN;
For reasons similar to those which led me to dissent from the majority's decision of December 22, 1986 in this case, I disagree.
I continue to believe that in reaching the conclusions which it did in its December 22, 1986 decision, the majority erred in law, misconstrued or ignored the evidence of the respondent's witness Jonathon Shaw, and failed to observe principles of natural justice. I thus would grant the request for reconsideration without limiting it only to item (b) in paragraph 73 of the earlier decision.
If the majority would reconsider its decision as I believe it should, and come to the correct decision on the law and on the evidence, the issue of the Board remaining seized on remedy and damages would not arise.