National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Dresser Canada, Inc.
[1987] OLRB Rep. October 1243
0564-87-R; 0693-87-U; 0820-87-U; 0821-87-U National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Dresser Canada, Inc., Respondent v. Group of Employees, Objectors; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Complainant v. Dresser Canada Inc., Respondent; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Complainant v. Dresser Canada Inc., Respondent v. United Steelworkers of America, Intervener; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Complainant v. Dresser Canada Inc., Respondent v. United Steelworkers of America, Intervener
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. M. Sloan and B. L. Armstrong.
APPEARANCES: L. N. Gottheil, Wayne Mackay, Sheila Sager, Janet Oliphant, Murray MacDonald and Andy Moran for the applicant/complainant; Thomas A. Stefanik, James P. Adams, Bernie Jones, Gary Aubry and John Mellors for the respondent; Leslie Doherty for the objectors; Brian Shell and Jim Pudge for the intervener.
DECISION OF THE BOARD; October 8, 1987
These matters came on for hearing together in Toronto on July 15, 1987. The first issue before the Board was whether or not the four proceedings should be consolidated as the applicant requested. The respondent took no position on that issue. Both interveners opposed consolidation. After hearing the representations of the parties, the Board adjourned to consider the applicant's request and, upon returning, ruled orally, with brief reasons, that Board File Nos. 0564-87-R and 0693-87-U would be consolidated and proceed that same day and, further, that Board File No. 0820-87-U and 0821-87-U would be consolidated and be adjourned sine die to a date to be set by the Registrar in consultation with the parties. Upon receiving the Board's ruling, counsel for the National Automobile Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) ("CAW") immediately advised the Board that he intended to seek reconsideration of the Board's decision and he did indeed do so by letter dated July 16, 1987.
In essence, counsel for the CAW repeats the arguments made orally to the Board on July 15, 1987 in support of his request for reconsideration. He submits that it is plain on the face of the filings in the application for certification and the various complaints under section 89 of the Act that they are all so interrelated that it would be inappropriate not to consolidate them all. Counsel also suggests that the Board's ruling will result in a significant waste of resources in that the CAW and Dresser Canada Inc. ("Dresser") would have to adduce, and the Board will have to hear, the same evidence twice. He also raises as a possibility the spectre of inconsistent rulings. Therefore, submits counsel, the Board erred in declining to consolidate all four proceedings and should reconsider its decision in that respect accordingly.
Board File No. 0564-87-R is an application for certification by the CAW for a bargaining unit of employees of the respondent which is described in its application as:
all office, clerical, technical employees of the respondent in the Town of Paris, save and except supervisors, those above the rank of supervisor and sales staff.
The application has subsequently been amended to include all such employees in the Town of Cambridge as well. A group of employees of the respondent who object to the certification of the applicant has intervened.
Board File No. 0693-87-U is a complaint by the CAW under section 89 of the Labour Relations Act in which the union alleges that Dresser has acted in a manner contrary to sections 3, 64, 66, 70 and 80 of the Act and requests that "the Board certify the applicant as per section 8 and that the grievors be reinstated immediately with full redress".
Board File Nos. 0820-87-U and 0821-87-U are identical complaints under section 89 of the Act in which the CAW alleges that Dresser has acted in a manner contrary to sections 64, 66, 70, 72, 75 and 80 of the Act. More specifically, the CAW alleges that Dresser is attempting to "escape" from it and a collective agreement between the parties which covers a bargaining unit of production employees of Dresser in Paris, Ontario. With respect to that aspect of the complaints, the CAW requests relief in the nature of that granted by the Board in Westinghouse Canada Inc., [1980] OLRB Rep. Apr. 577, upheld 80 CLLC ¶14,062 (Ont. Div. Ct.). In addition, the CAW refers to the certification proceedings in Board File No. 0564-87-R and requests that the Board grant a certificate with respect to the same amended bargaining unit set out in paragraph 3 above. The actions of the respondent Dresser which the CAW alleges are improper involve the shifting of its production operations in Paris to its plant in Cambridge. The United Steelworkers of America ("USWA") represents a bargaining unit of production employees, and none of the office, clerical or technical staff, of Dresser in Cambridge. It has intervened in these two complaints on the basis that the remedy sought by the CAW would "directly and adversely" affect its bargaining rights with respect to those employees.
The applicant's request of reconsideration is based, as was its original motion that all four proceedings be consolidated, on its assertion that the evidence relating to the respondent's move of its production facilities from Paris to Cambridge is relevant to all four and, further, on the fact that there is an overlap in the relief being requested.
Section 106(1) of the Labour Relations Act provides that:
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.
The Board's jurisdiction to reconsider its decisions is a broad one. However, both the Act and the realities of labour relations dictate that the premise must be the Board's decisions should be final and conclusive for all purposes. The Board's Practice Note No. 17 accurately sets out the circumstances under which the Board will reconsider a decision. In the interests of certainty and finality, the Board usually will not reconsider a decision unless an obvious error has been made; or, the request raises an important issue of Board policy; or, the Board is satisfied that the party requesting reconsideration proposes to adduce new evidence that it could not, with reasonable diligence, have obtained previously, and that this new evidence, if adduced, would be virtually conclusive of a relevant issue; or, if a party wishes to make representations or objections it had no previous opportunity to make. In this instance, the applicant's request for reconsideration is based on what it submits is an error by the Board relating to the conduct of these four proceedings.
Strictly speaking, the effect of a consolidation is to fuse two or more proceedings into one. Accordingly, consolidation will only be appropriate in circumstances where there is an identity of parties and issues in two or more proceedings. The term has come to be used somewhat more loosely so that "consolidation" may be appropriate where the parties and issues are substantially the same. Technically, it is more appropriate, in such circumstances, that the matters be "heard together" rather than "consolidated". When matters are heard together, they retain their individual identities but the evidence and representations of the parties with respect to all matters in issue in all the proceedings are heard at one time by one trier of fact and law. Hearing matters together can be a useful alternative to consolidating them into one, where the circumstances are such that consolidation is inappropriate but the practical exigencies make it desirable to have the matters proceed together. The object of either consolidating a number of proceedings, or have them heard together, is the same; that is, to save expense and avoid a multiplicity of proceedings. Underlying these practical concerns are legal considerations; namely, the parties involved and the issues raised in the various proceedings in question. Where the parties and issues are not substantially the same, it will generally not be appropriate or particularly useful to either consolidate the various proceedings or have them heard together. It is trite to say that it will not always be obvious that two or more proceedings should or should not proceed together and the Board, as master of its own procedure, has the discretion to determine the manner in which matters brought before it will proceed.
The Board's first impression with respect to these proceedings was that the application for certification (File No. 0564-87-R) and the section 89 complaint relating thereto (File No. 0693-87-U) affect one group of employees of the respondent and the other two section 89 complaints (File Nos. 0820-87-U and 0821-87-U) affect another. Upon reflection, however, it appears that all four proceedings potentially affect the respondent's office, clerical and technical employees at both Paris and Cambridge. Consequently, although the group of employees objecting to the certification of the CAW indicate that they do not wish to be involved in the latter two complaints (File No. 0820-87-U and 0821-87-U) they may have a legal interest therein. It does not appear that the USWA has a legal interest in the certification application or the section 89 complaint related thereto. However, there is likely to be a substantial overlap in the evidence relating to Dresser's move from Paris to Cambridge which is relevant to all four proceedings, including the two in which the USWA has a direct interest.
In the result, we are persuaded that it would, on balance, be preferable that the matters be heard together (but not consolidated). The Board's oral ruling of July 15, 1987 should be, and it hereby is, varied accordingly. The Registrar is direct to schedule all four proceedings to be heard together. The purpose of the hearing is to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to all four proceedings.
The Registrar is further directed to schedule three days of hearing in consultation with the parties. The Board will schedule further days at the beginning of the hearing. In that regard, the parties are directed to come to the hearing prepared to set ten additional dates.