Ontario Labour Relations Board
Citation: [1989] OLRB Rep. March 306 File No.: 1101-87-R
Between: International Brotherhood of Painters and Allied Trades, Local 557, Applicant v. Wallcraft Painting and Decorating Ltd., Respondent
Before: N. B. Satterfield, Vice-Chair, and Board Members M. Eayrs and H. Kobryn.
Appearances: B. Fishbein and A. Colafranceschi for the applicant; George Vassos and Andy Cobean for the respondent; C. J. Abbass and Brad Cobean for Brad Cobean.
DECISION OF THE BOARD; March 20, 1989
1The applicant was certified by the Board, differently constituted, on August 6, 1987, as the exclusive bargaining agent of painters and painters' apprentices employed by the respondent in the construction industry in the industrial, commercial and institutional sector in the Province of Ontario and in all other sectors in the Board's geographic area #8. Brad Cobean, an employee of the respondent, has requested the Board to reconsider its decision to certify the applicant and revoke the certificates which were issued to the applicant. The request was made in a letter dated August 31, 1988 from Brad Cobean's solicitor. The letter contains allegations that the applicant and respondent together breached section 58 of the Act and that, by instructing its employees to join the applicant, the respondent has breached section 13 of the Act. A similar request was made by the respondent on July 20, 1988. It was dismissed by the Board in its decision which issued August 23, 1988.
2The Board received written submissions on Brad Cobean's request from the solicitors for the applicant and for the respondent and, in a decision which issued November 14, 1988, the Board directed that the matter be listed for hearing for the purpose of receiving the evidence and representations of the parties on the issue of "…..whether the Board should reconsider its decision to certify the applicant and, if so, whether the Board should vary or revoke the decision.".
3The Board has the discretion pursuant to subsection 106(1) of the Act to reconsider its decisions. That subsection states:
106.-(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.
The exercise of the Board's discretion involves two steps: first, should it reconsider, and second, if it does reconsider, should it vary or revoke the decision. An issue arose at the hearing as to whether the Board should receive the evidence and submissions of the parties on both steps or whether it should limit the evidence and representations to the first step. The Board received and considered the submissions of the parties and, for reasons given orally, ruled that it would proceed first to receive their evidence and representations relevant to and decide the question of whether the Board should reconsider its August 6, 1987 decision.
4The Board has assessed the parties' evidence and reviewed and considered their submissions on it and on the relevant law. The Board's conclusions set out herein have been made having regard to the evidence and the submissions of the parties.
5The Board's general practice with respect to requests for reconsideration of a decision is set out in its Practice Note No. 17. In order to bring some finality to its decisions, the Board's general practice is to not reconsider a decision unless the party making the request intends to adduce new evidence not previously available to it, and then only where that evidence, if proved, would be likely to make a substantial difference to the outcome, or to make representations which it had no previous opportunity to raise. K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, paragraph 4. The Board also has stated that those general standards should not be followed inflexibly. John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096, paragraph 5. In that case, the request for reconsideration did not satisfy the Board's general standard, but the Board decided to reconsider its decision because the request raised ". . .significant and important issues of Board policy...".
6Applicant counsel argues that Brad Cobean's request for reconsideration does not satisfy the Board's general standards for granting such a request because all of the evidence on which he relies for support of the allegations that the applicant and respondent together have violated section 58 and the respondent has violated section 13 of the Act, was known to him at the time the application for certification was made. Applicant counsel contends that there are other reasons why the request should be denied, including in particular that the request does not represent a separate and distinct one from the earlier request made by the respondent and dismissed by the Board, and that there was inordinate and inexcusable delay in making it. Counsel for Brad Cobean and for the respondent did not claim that the general standards for reconsideration have been satisfied. Instead, they relied on the alleged misconduct of the applicant and respondent as sufficient grounds for the Board to grant the request. It is not surprising, then, that their arguments ran directly counter to those of applicant counsel.
7Section 13 of the Act provides as follows:
- The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of any ground of discrimination prohibited by the Human Rights Code, 1981 or the Canadian Charter of Rights and Freedoms.
In Coons Heating & Sheet Metal Limited, [1978] OLRB Rep. June 525, the Board was dealing with a request to reconsider a decision to certify a trade union. An employee had alleged that the employer had contravened section 13. The Board was confronted with the argument from the union and the employer that the employee making the request had known about the employer's support at the time of the application for certification. The Board responded to that argument at paragraph 22, as follows:
- . . .The Board's general practice is, in fact, not to reconsider a decision or to entertain new evidence unless a party proposes to adduce evidence which it could not previously have obtained by the exercise of reasonable diligence. However, having regard to the strict prohibition contained in section 12 [now section 13] of the Act against certifying trade unions which have received employer support, and to the particular circumstances of this case - including the fact that Mr. Richardson was an employee acting at the relevant time at the behest of his employer - the Board is satisfied that it should exercise its discretion and reconsider its decision to certify [the union].
8In the instant case, the Board has before it cogent evidence which points to a possible violation of section 13. Having regard to the strict prohibition in section 13, and faced with an employee's allegation that his employer has engaged in the prohibited activity, that is enough, in the Board's view, for it to reconsider its decision to certify the applicant. It is unnecessary at this stage of the proceedings for the Board to make a conclusive finding that the respondent has violated section 13. Therefore, the Board is satisfied that it should exercise its discretion in the circumstances of this case to reconsider its decision to certify the applicant and proceed to the next step in the process; that is, to hear the evidence and representations of the parties respecting whether the Board should vary or revoke its August 6, 1987 decision and decide that issue. In the result, it is unnecessary for the Board, at this stage of the proceedings, to deal with the other allegations made in support of the request. Their merits can be dealt with appropriately in the context of deciding whether the Board should vary or revoke its decision.
9In coming to this conclusion, the Board has not overlooked applicant counsel's argument that the making of the request some 13 months after the Board's decision is inordinate and inexcusable delay, is in stark contrast to the delay of approximately two weeks in Coons and is reason enough to deny the request. In the circumstances of this case, where there is cogent evidence which points to a possible violation of section 13, together with the alleged violation of section 58, the issue of delay should not deter reconsideration of the Board's decision. That does not mean, however, that delay is not a proper factor for the Board to consider in deciding whether to vary or revoke its August 6, 1987 decision. The same may be said respecting applicant counsel's claim that this request is not separate and distinct from the earlier one made by the respondent.
10This matter is to continue for hearing on March 29, 1989, and, if necessary, April 25th, dates previously set by the Board on agreement of the parties. The purpose of the hearing will be to receive the evidence and representations of the parties on whether the Board should vary or revoke its decision which issued August 6, 1987 certifying the applicant. Counsel for Brad Cobean is reminded of the request for particulars set out in letters from applicant counsel dated September 23rd, December 19th and December 20th, 1988.