[1989] OLRB Rep. September 967
0927-88-M Laundry and Linen Drivers and Industrial Workers, Local 847, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant v. Goldcrest Furniture Ltd., Respondent v. Gerardo Mercante, Vincenzo Reda, Franco Bini and the United Steelworkers of America, Interveners
BEFORE: S. A. Tacon, Vice-Chair, and Board Members J. A. Ronson and E. G. Theobald.
APPEARANCES: Bernard Fishbein and Fernando da Silva for the applicant; Stewart Saxe and Anna Lavalatta for the respondent; Brian Shell, Brando Paris and Tom Steers for Gerardo Mercante, Vincenzo Reda, Franco Bini and the United Steelworkers of America, Interveners.
DECISION OF THE BOARD; September 6, 1989
1Following the interim ruling dated May 31, 1989, the hearing in this reconsideration request was continued. Three witnesses were called by counsel for the interveners, namely, the United Steelworkers of America (USWA) and three named individuals of the bargaining unit, in support of their request for reconsideration of the Board decision granting early termination of the collective agreement between the incumbent trade union (the Teamsters) and the company (Goldcrest).
2Once the evidence introduced by the interveners was concluded, counsel for the company brought a motion to dismiss the reconsideration application at that point in the proceedings. Counsel for the Teamsters concurred. Those arguments and the submissions of counsel for the USWA are next set out briefly.
3Counsel for the company submitted that no evidence had been led by the interveners which would warrant continuing with the reconsideration application. Counsel, however, distinguished his motion to dismiss from a non-suit and stated that there was no need in the circumstances for an election as to whether to lead evidence, nor was he prepared to so elect. It was argued the interveners were seeking an extraordinary remedy and had not led sufficient evidence to challenge the material in the file on which the Board had relied in consenting to early termination of the collective agreement. Counsel submitted circumstances in which the Board had indicated in the past that a respondent need not proceed following an applicant's case and dismissed the application were not uncommon and analogous to the situation herein. Finally, counsel contended that it would make labour relations sense not to continue with the proceedings and the concomitant burden on the other parties given the nature of the evidence led by the interveners.
4Counsel for the Teamsters concurred with the submissions that the reconsideration application be dismissed without the need for an election by the other parties. The evidence led by the interveners was briefly reviewed in support of counsel's assertion that the standard for reconsideration, particularly with respect to "new evidence", had not been met. It was contended that the interveners bore the onus of "ousting" reliance on the materials filed with the Board and on which it had relied and this burden had not been satisfied.
5Counsel for the interveners disagreed, submitting that the motion was in the nature of a non-suit and the usual procedure was to ask the moving party to elect whether it wished to call evidence. Counsel stressed that the interveners were placed in a difficult position of having to establish a "negative" (i.e., the absence of notice or of adequate notice) and, moreover, it was the integrity of the Board's process in dealing with early termination applications which was at issue given the grounds for the reconsideration. It was argued that the "not need to hear from the other parties" analogy only applied at the "appellate" level, whereas at the "trial" level the non-suit was the appropriate procedure.
6Notwithstanding the able arguments of counsel for the company and counsel for the Teamsters, the Board considers that the motion brought by the company counsel and adopted by the Teamsters' counsel is properly characterized as analogous to a non-suit motion in civil proceedings. This is not a motion to dismiss on the basis that the interveners have not pleaded a prima facie case. The Board, on receipt of the interveners' reconsideration request, directed that the reconsideration be heard and the matter was listed for hearing. Rather, the notice was brought after the close of the interveners' evidentiary case. In the Board's view, the instant situation is indistinguishable from the usual circumstances wherein an opposing party moves for dismissal following the evidentiary case of an applicant/complainant or a respondent in cases where the reverse onus applies. That the instant case deals with a reconsideration request is not significant with respect to the "non-suit" analogy.
7The Board's usual practice where a non-suit motion is brought is to put the party to its election as to whether or not that party wishes to call evidence. The Board sees no reason to depart from that practice in the instant case. Thus, the Board will put counsel for the company to his election as to whether he intends to call evidence. Given that counsel for the Teamsters, in effect, supported the motion, the Board will put that party to its election as well. If both counsel for the company and counsel for the Teamsters elect to call no evidence, the hearing will be reconvened on the dates already set so as to permit all parties to make full submissions as to whether the interveners' request for reconsideration should be granted in the context of the evidence before the Board. If either counsel for the company or counsel for the Teamsters elect to call evidence, the Board will reserve its ruling on the preliminary motion pending the conclusion of the evidence and final submissions. In the Board's view, this procedure responds appropriately to the circumstances in the instant case wherein there are three parties to the proceedings and a non-suit motion brought by the company is supported by the Teamsters: see generally Sun Parlour Greenhouse Growers' Co-operative Limited, [1971] OLRB Rep. Nov. 743.
8In order to facilitate the proceedings on October 26, 1989, the date scheduled for continuation, counsel for the company and counsel for the Teamsters are directed to notify the Board of their election decision (and to copy the other parties) not later than October 12, 1989.
9This matter is referred to the Registrar in accordance with the above.