International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128 v. Labourers International Union of North America, Local 1089, 1989 CanLII 3482

[1989] OLRB Rep. May 451

0929-88-JD International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, Complainant v. Labourers Interna­tional Union of North America, Local 1089 and Foster Wheeler Limited, Respondents

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members I. Trim and N. A. Wilson.

DECISION OF THE BOARD; May 24, 1989

1. This is a request by the respondent Labourers International Union of North America,

Local 1089 ("Labourers Union") for reconsideration of the Board's decision dated February 15,

1989 [reported at [19891 OLRB Rep. Feb. 128]. Each of the parties has made written representa­tions and submissions to the Board in respect of the request for reconsideration.

2. The request is set out in a letter dated April 13, 1989 in the following terms:

We are in receipt of the Decision of the Board dated February 15, 1989 (the "Decision"). Pur­suant to Section 106(1) the Respondent, Labourers' International Union of North America, Local 1089 and the Labourers' International Union of North America, Ontario Provincial Dis­trict Council, request reconsideration of the evidentary aspects of the said Decision.

At paragraph 12 of the Decision the Board ruled that:

"The evidence to be adduced will be limited to the evidence within the following parameters:

"Only evidence relating to field erected, steam generating boilers, for industrial appli­cation, originally erected using Boilermakers, which were or are being dismantled or disassembled in an operating environment in the province of Ontario."

It is respectfully submitted that the Board ought to reconsider this ruling. It constitutes a predet­ermination of the issues of relevance and weight to be assessed with respect to the evidence to be preferred by the parties. These issues of relevance and weight must be determined by the trier of fact, the Hearing Panel, determining the merits of the jurisdictional dispute (the "Merits Hearing Panel").

As noted in the Decision on page 7, paragraph 11, Labourers' counsel made the following argu­ments with respect to these issues of natural justice:

…..counsel also argued that to accede to the submissions of Foster Wheeler and the Boilermakers to limit the evidence would be a denial of natural justice as it would result in this panel of the Board 'pre-determining' the case, without having heard any evidence as to what the case is about. In addition, a restrictive ruling in respect of the relevance of certain evidence at this stage of the proceeding would unduly fetter the discretion of the panel of the Board which will hear the merits of this complaint if that panel is a panel different than this one."

Pursuant to Section 102(13) the Board is required to:

"Give full opportunity to the parties to any proceeding to present their evidence and to make their submissions..."

The Board's ruling with respect to the scope of evidence to be accepted by the panel of the Board hearing the merits of this Complaint Concerning Work Assignment in effect violates the statutory obligation contained in Section 102(13), Statutory Powers Procedure Act, s. 10(b) and (c) and the principles of natural justice. This determination has been rendered by a Board Pre­Hearing Panel and not by the trier of fact, being the Merits Hearing Panel.

It should also be added that, were the Board to schedule the same panel to commence the hear­ing of the merits of this case as participated in the Decision, it would thereby violate its own Practice Note 15 and specifically paragraph 9 thereof. It must be noted that the Hearing Notice which issued with respect to the proceedings of February 1 and 2,1989 is contained in the letter from the Board Deputy Registrar dated October 19, 1988, a copy of which is annexed hereto. Clearly, the panel rendering the Decision was constituted as a Pre-Hearing Panel.

Most importantly, the Pre-Hearing Panel accepted the bald assertion by Foster Wheeler and the Boilermakers that a limitation of relevant evidence along the lines sustained by the Decision was warranted. Simply put, that assertion was NOT accepted by Labourers' counsel and further was specifically denied. The Pre-Hearing Panel, by the Decision, simply preferred the assertions of the Complainant Boilermakers and Foster Wheeler to those of the Respondent Labourers, with­out hearing any evidence to prove those assertions. The Pre-Hearing Panel "pre-determined" issues of relevance and weight in the absence of cogent evidence substantiating the assertions of counsel opposite. In addition, clearly, the Pre-Hearing Panel has no jurisdiction to determine practice or procedure relating to the hearing on the merits by another panel of the Board. To do so unduly fetters the discretion of the Merits Hearing Panel and clearly denies full and fair opportunity to present evidence to that Panel.

The motion to limit evidence put forward by counsel for Foster Wheeler and supported by the Complainant Boilermakers, seeks to limit the scope of evidence in self-interest as opposed to a full and complete presentation of the issues to be determined by the Merits Hearing Panel. No evidence was adduced to establish that demolition in connection with the Work in Dispute was significantly distinct from all other forms of demolition to render evidence with respect to these other forms of demolition irrelevant to the considerations of the Board. There was no evidence heard to distinguish:

"(i) field erected from shop erected boilers;

(ii) boilers from any other structure or form of construction;

(iii) construction for industrial application from con~trnction for any other application;

(iv) construction originally erected using members of ]3oilermakers Lodge 128 from any other type of construction erected by any other trade;

(v) demolition in an operating environment from demolition in circumstances where the surrounding installations are not in use,"

in relation to the issues to be determined in these proceedings.

The Pre-Hearing Panel has arbitrarily excluded manifestly relevant evidence relating, inter alia, to the demolition of:

"(a) shop erected boilers;

(b) any other types of construction including but not limited to other construc­tion for industrial application;

(c) all types of construction for applications other than industrial application such as buildings, structures, roads, sewers, water or gas mains, pipelines, tunnels, bridges, canals or other works at a site (cf. Section I(1)(f));

(d) boilers or any other construction erected by any trade other than members of the Complainant Boilermakers Local 128;

(e) demolition of boilers or any other construction where the surrounding installations are not in use"

by Labourers.

Simply put, by example, where members of the Boilermakers Lodge 128 perform less than 1% of steam generating boiler installations. Compounded by the fact that boiler demolition "in an operating environment" constitutes less than 1% of all boiler demolition. The arbitrary decision of the Pre-Hearing Panel has limited evidence to be adduced before the Merits Hearing Panel to .01% of available relevant evidence. This example seizes on only two of the limitations imposed by the Pre-Hearing Panel. Of course, the further restrictions simply compound the arbitrariness of the ruling exponentially.

Legal precedent substantiates that issues of relevance and weight must be determined by the trier of fact namely, the Merits Hearing Panel and not by the Pre-Hearing Panel. Any such deci­sion by the Pre-Hearing Panel arbitrarily fetters the determination of the merits of the case.

Algoma Central Railway v. Herb Fraser and Associates Ltd. et al (1988) 1988 CanLII 4740 (ON HCJ), 66 O.R. (2d) 330 (Ont.Div.Ct.)

Where Chilcott J. at p. 333 states:

"Argument as to admissibility of such evidence at trial and the weight to be attached thereto should be left to be decided by the trial judge."

At p. 335:

"Matters of admissibility and the weight to be given such evi­dence at trial should be left to the trial judge to determine."

Grand River Conservation Authority [1987] O.L.R.B. Rep. Nov. 1371

Bigras et al v. Canadian National Railway Co. et al (1987) 8 W.D.C.P. 27 (Ont.H.C.)

Re Ontario Public Service Employees Union et at and the Queen in the Right of Ontario (1984)5 D.L.R.

(4th) 651 (Ont.Div.Ct.)

Where O'Driscoll J. at p. 659 stated:

"A trier of fact may believe all or part or nothing of the evidence of any witness or any exhibit. However, a trier of fact cannot ignore, nor fail to evaluate, nor forget a relevant portion or por­tions of the evidence. The trier of fact must consider all the evi­dence before deciding what is believed and what is rejected. If the trier of fact fails to carry out that fundamental responsibility, it results in a denial of natural justice as defined for the Supreme Court of Canada by Dickson J. in Nipawin, supra.

Pre-trial or pre-hearing procedures ought to afford maximum latitute [sic] to the parties to present the foundation of their case, leaving questions of relevance and weight to be determined by the trier of fact.

Algoma Central Railway v. Herb Fraser & Associates et al, supra, where at p. 334 Chilcott I. states:

"The questions should be allowed at the examination for discovery stage, leaving admissibility and weight to be determined by the trial judge...

And at p. 336,

“…..how can it be said with certainty at the discovery stage that such evi­dence will or will not be admissible at trial unless that area can be discov­ered upon? It is a circular argument to say that one cannot ask a question because the answer may be inadmissible unless it falls within certain excep­tions. Whether or not the answer falls within the exceptions cannot be determined with precision since the question cannot be asked. While the discovery process should not be a 'fishing expedition', neither should it be unduly restricted by concerns about the admissibility or weight which may be given to the evidence at trial.

"Therefore, such questions may properly be put at the examination for dis­covery. Matters of admissibility and the weight to be given to such evidence at trial should be left to the trial judge to determine..."

As a secondary matter, it cannot be challenged that Panel rendering the Decision was a Pre­hearing Panel as only the Pre-1-learing Conference was scheduled to take place on February 2, 1982 as provided in the Notice from the Registrar by letter dated October 19, 1988. The direc­tion from the Panel of February 1, 1982 provides insufficient notice to the parties.

Statutory Powers Procedure Act R.S.O. 1980 C. 484, ss. 6(1) and (2)(a)

Rules of Procedure, Regulations and Practice Notes, Labour Relations Act, Practice Note 15, paragraph 9

Re Seven-Eleven Taxi Co. Ltd. and City of Brampton et al (1975) 1975 CanLII 601 (ON HCJ), 10 OR. (2d) 677 (Ont.Div.Ct.)

The determination of the bounds of relevance and weight not only must be determined by the trier of fact, the Merits Hearing Panel, but also must be determined on the basis of evidence substantiating the objective criteria used to determine the bounds of relevant evidence. The Pre­Hearing Panel cannot simply determine the criteria on which to base its determination of the bounds of relevant evidence simply by preferring the ultimate assertions of the Complainant and Foster Wheeler on the merits of the dispute.

The Board attempts to rationalize the Decision as follows:

"In our view the reference to 'particular work' in section 91 compels the Board when examining 'employer' and 'area' Practice to inquire into work involving the same or similar type of structure, in the same or similar type of environment."

The Board Pre-hearing Panel has misinterpreted Section 91 to apply legislative guidelines as to the determination of the issue before it, i.e., a Complaint Concerning Work Assignment with respect to "particular work" as circumscribing the bounds of relevant evidence. To take the Decision to its logical and fullest extent, relevant evidence would be limited to solely the perfor­mance of the Work Dispute at the particular project involved. This cannot be correct. Work jurisdiction is to be determined in accordance with the criteria considered relevant by the Board. These are:

(i) collective bargaining relationships;

(ii) trade agreements as to jurisdiction;

(iii) Union Constitutions;

(iv) skills experience and qualifications;

(v) training;

(vi) employer practice;

(vii) area practice;

(viii) job loss.

Each of these criteria extend well beyond the confines arbitrarily imposed upon "employer" and "area" practice by the Decision. Section 91 directs the Board to determine Complaints Con­cerning Work Assignment in the context of complaints over "particular work", but does not direct the Board to arbitrarily restrict its consideration of relevant evidence and limit same to solely the performance of that "particular work".

Accordingly, we respectfully request the reconsideration of the Decision and in particular vacat­ing the oral ruling or direction contained in paragraph 12 thereof.

3. Counsel on behalf of the applicant made the following submissions in respect of the request for reconsideration in a letter dated May 1,1989:

On behalf of our client, International Brotherhood of Boilermakers, Iron Ship Builders, Black­smiths, Forgers and Helpers, Local 128, we respond to Mr. WahI's letter dated April 13, 1989, wherein the Labourers seek reconsideration of the Board's decision dated February 15, 1989 which resulted from a hearing which took place on February 2, 1989.

We respectfully request the Board to deny this request for reconsideration. The parties were all given a full and complete opportunity to be heard at the hearing on February 2, 1989. Mr. Wahl's letter does not, in our submission, raise any matters which was not either fully argued on February 2, 1989 or could have been argued at that time. In our submission the Labourers fail to meet any of the Board's usual tests to allow a reconsideration and thus the request ought to be denied.

Further, the Labourers argue that the Board had no jurisdiction to make the ruling contained in the decision of February 2, 1989. The pre-hearing panel in this matter is the Surdykowski panel and the pre-hearing panel specifically declined to determine the issue of the scope of relevant evidence relating to area and employer practice. Instead that issue was dealt with by a regular panel of the Board on February 2, 1989. The Board has the jurisdiction to make rulings relating to the scope of evidence to be called in any matter, whether at the beginning or during a hear­ing. As well, although the issue was open to them to raise, the Labourers did not contest the jurisdiction of the Davies [sic] panel on February 2, 1989. There was no reason (and certainly nothing new has developed) to suggest that this issue could not have been raised at that time.

The Labourers further argue that the Board ought to have heard evidence to allow it to deter­mine the scope of relevant evidence. The Labourers could have requested the opportunity to call such evidence on February 2, 1989 but did not do so. In any event, when an objection is made as to relevancy of evidence a party is called upon to demonstrate by submissions why the evidence that it is planning to call is relevant. That party is not allowed to call the challenged evidence to demonstrate its relevancy. Therefore, we submit that such a request made now ought not to influence the Board to reconsider its decision. For the record, we strongly dispute the factual assertions contained in Mr. WahI's letter of April 13, 1989.

The Labourers again make submissions relating to natural justice and notice. These submissions are no more than a repetition of matters fully argued and considered by the panel on February 2, 1989 and ought not, in our submission lead the Board to reconsider this matter.

The Labourers final submission is that the Board misinterpreted section 91. In our submission, this suggestion is clearly without any merit. In making an evidentiary ruling as to the scope of relevant evidence relating to two of the many factors the Board considers under section 91, the Board has, in no way, departed from the accepted criteria considered in section 91 complaints.

For all the foregoing reasons we respectfully request the Board to dismiss this application for reconsideration.

4. Counsel for the respondent employer wrote as follows on April 27, 1989:

We acknowledge receipt of your letter of April 18th, 1989, enclosing a copy of Mr. Wahl's letter of April 13th, 1989, in which he has requested reconsideration of the Board's decision of Febru­ary 15th, 1989. On behalf of Foster Wheeler Limited, we strenuously object to Mr. Wahl's request for reconsideration and submit that it should be rejected for the following reasons.

1. Mr. Wahl's letter does not make reference to any new evidence which could have been uncovered with the exercise of due diligence prior to the hearing. In fact, Mr. Wahl's letter does not suggest that there is any new evidence at all. Rather, he has simply made a number of arguments which are either restatements of arguments which were made before the Board or which could have been made before the Board.

2. The Board's decision of February 15th, 1989 was not made by a prehearing panel. Rather, it was made by a panel of the Board charged with the responsibility of commencing the hearing. In discharging that responsibil­ity, the Board made the evidentiary ruling which Mr. WahI is now com­plaining about.

3. In making its evidentiary ruling, the Board did nothing more than any panel of the Board would be required to do in any case. Whether the issue arises by way of objection of a specific question or line of questions, or whether it arises by way of preliminary submissions, the Board is invariably called upon to make evidentiary rulings relating to the scope of relevant evidence which the parties will be entitled to adduce. It is patently absurd for Mr. WahI to suggest that such a procedure violates the principles of nat­ural justice.

4. No legitimate purpose would have been served by the Board hearing evi­dence concerning the scope of evidence to be adduced. In accordance with its normal procedure, the Board made its evidentiary ruling based on the representations of the parties. Counsel for each party had full opportunity and did in fact inform the Board of the evidence which it wished to adduce.

For all these reasons, it is respectfully submitted that Mr. Wahl's request for reconsideration should be denied.

5. In response to these submissions counsel for the Labourers Union wrote on May 12,

1989 as follows:

It is specifically denied that the hearings convened before your panel on February 2, 1989 were before the Merits Hearing Panel and in particular no notice was given to any of the parties that any hearings in connection with the merits of this matter would take place on that day. Specifi­cally as stated in our Request for Reconsideration, the notice to the parties was restricted solely to the pre-hearing conference. Accordingly the hearings held in decision of February 2, 1989 relate to the pre-hearing conference. It is interesting to note that counsel opposite offer no legal basis upon which to refute this assertion.

6. We have considered the extensive submissions of the parties both in support of, and in opposition to the request for reconsideration. We hereby deny the application for reconsideration.

7. The Board's policy regarding reconsiderations has been clearly enunciated in its Prac­tice Note No. 17 which states in part:

Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise

To this we add that where significant issues of Board policy are raised, the Board may also recon­sider its decisions. Generally, however, the Board will not reconsider a decision unless either the applicant party intends to introduce new evidence which could not previously have been obtained by reasonable diligence and such evidence if adduced would be practically conclusive, or the par­ties intend to raise objections or make representations not already considered by the Board and which the party did not have an opportunity to raise previously. These limits are placed around the exercise of the Board's discretion to reconsider as a recognition of the need for the Board to apply a principle of finality to its decisions so that in the normal course of proceedings a party can safely rely on a decision as establishing the rights between the parties. Without this level of finality the intended expediency of the Board would not be realized. The purpose of the Act and this Board to further harmonious labour relations would be seriously hampered without such level of finality.

8. The request for reconsideration expresses no intention to introduce new evidence. The request does not raise an argument or objection that could not have been raised at the hearing. Indeed, the application seeks merely to reargue matters that were placed before the Board at the time of the hearing or which certainly could have been placed before the Board at the time of the hearing.

9. We do wish to address specifically that portion of counsel's request for reconsideration which is based, in part, on the assertion that this panel of the Board which ruled upon the scope of admissible evidence of employer and area practice was a "pre-hearing panel" and not the "merits hearing panel". Counsel submits that the notice provided to the parties with respect to the pro­ceedings on February 1 and 2, 1989 refers to a continuation of the pre-hearing conference which had commenced on August 16, 1988. Counsel further submits that the notice in respect of the pro­ceedings before this panel of the Board on February 2, 1989 was inadequate and/or insufficient.

10. We do not agree that this panel was a pre-hearing panel. As the decision of February 15, 1989 notes the pre-hearing conference panel (Vice-Chair G. T. Surdykowski and Board mem­bers H. Kobryn and W. N. Fraser) "directed that a hearing be convened before a panel of the Board... for the purpose of determining the evidence of Area and Employer Practice which the Board will admit in respect of this complaint." This panel of the Board adjudicated upon the scope of evidence at a hearing convened for that purpose. This panel was not party to or privy to the pre­hearing conference and our role in adjudicating upon a preliminary matter relating to the evidence differed significantly from the role of a pre-hearing conference panel. As the practice note indi­cates the purpose of the pre-hearing conference is to settle the dispute or, in the absence of settle­ment, to narrow the issues in dispute. That this panel was charged with the responsibility of con­ducting a hearing for the purpose of adjudicating upon a preliminary matter is made clear in the direction of the pre-hearing conference panel which direction was reduced to writing on February 14, 1989.

At the pre-hearing today, February 1, 1989, it soon became evident that the nature and scope of the evidence which is relevant to the complaint is, as a preliminary matter, an issue of some sig­nificance with respect to any further proceedings in this matter. The complainant and the respondent Foster Wheeler Limited urge the panel to determine that preliminary issue before proceeding further.

The panel has expressed its view that, having regard to its involvement in the pre-hearing process, it cannot, or should not, adjudicate that issue. However, another panel of the Board is available to deal with it tomorrow, February 2,1989, a day already scheduled for a continuation of the pre-hearing conference.

The issue which it is proposed this panel remit to be adjudicated is the scope of the evidence of area and employer practice which the parties will be permitted to adduce in the hearing with respect to the merits of this complaint.

[emphasis added]

After other references to an adjudication of the preliminary evidentiary issue the pre-hearing con­ference panel concludes:

In all the circumstances, we are not persuaded that there is any cogent reason for the matter not to proceed before a differently constituted panel of the Board tomorrow (February 2, 1989) for the purpose of determining the scope of the evidence of area and employer practice which the Board will admit with respect to this complaint and we so direct.

We note that the Board has not received a request for reconsideration of this direction by the pre­hearing panel.

11. We note also that, although counsel at the hearing made submissions in respect of the sufficiency of notice, no issue was taken in respect of the jurisdiction of this panel of the Board to adjudicate upon the preliminary evidentiary issue. Indeed, it was our understanding that, although the counsel for Labourers objected to the manner in which the hearing had been convened, namely that it had been convened without sufficient notice, counsel did not dispute the jurisdiction of the Board to convene a hearing to deal with this type of preliminary issue.

12. In respect of the position that the hearing was convened without sufficient notice we concur with the decision of the Board dated February 14, 1989 in which the pre-hearing panel directed that this matter proceed before us. The adequacy or sufficiency of notice must be assessed in view of all the circumstances. In this instance, the parties received notice that they would have to proceed by way of hearing before a panel of the Board to address an issue of which they had some five and a half months notice. Two of the parties apparently indicated their preparedness to proceed in this manner. The third party, (the Labourers) indicated that it was not prepared to con­sent to proceed on that basis not withstanding that the issue was "one which has, in large part, been raised by the Labourers International Union of North America, Local 1089 itself." We agree with the comments of the pre-hearing conference panel that it is "not too much to expect, having regard to the pre-hearing process which has been established, that a party be prepared to articulate and argue its position with respect to an issue it has itself raised". In our view, to hold otherwise would make the pre-hearing conference and the provisions of the Board's Practice Note 15 pointless and ineffective.

13. As noted in the decision of the pre-hearing conference panel, in recent months the Board has been advised on various occasions of the concerns in the labour relations community relating to delays in proceedings before the Board. To this we would add that particular concerns have been expressed by the labour relations community involved in the construction industry about the length of hearing required in jurisdictional disputes. In recent times it is not unusual to find that jurisdictional disputes take a considerable number of hearing dates to adjudicate. These dates are inevitably spread over several months because of the unavailability of counsel or the scheduling difficulties of the Board, consent adjournments of the parties, etc. The Board's Practice Note 15 in respect of jurisdictional disputes is one method by which the board has attempted to expedite the hearing of jurisdictional disputes. Logic supports the proposition that the number of hearing dates required for the adjudication of jurisdictional disputes may well be less, (and consequently scheduling of the cases may well be more efficient,) if the parties effectively use the pre-hearing confer­ence to (a) articulate the issues in dispute and the material facts upon which each party intends to rely in support of its position, and (b) narrow the issues in dispute between the parties through full and frank disclosure of all matters arising as a result of the jurisdictional dispute.

14. Effective use of the pre-hearing conference is not attained if parties are unwilling or unable to argue or articulate their positions during the conference. Parties who choose not to attend a pre-hearing conference, or who choose not to prepare themselves to deal with the issues raised during a pre-hearing conference do so at their own peril. They also do a disservice to other parties and to the Board. In light of these circumstances we also concur with the comments expressed by the pre-hearing panel and view the notice provided as sufficient.

15. If these comments appear unduly harsh or critical to counsel who argued the matter before us they are not made for that purpose. Indeed, Mr. Gold in his submissions before this panel at the hearing very thoroughly and ably put forth the position of the Labourers. His argu­ments before the Board, and the submissions contained in Mr. Wahl's letter requesting reconsider­ation are not materially different. Mr. Wahl's letter in substance makes many of the same or sum­lar representations made by Mr. Gold at the hearing. We note also that we do not accept counsel's written submissions that the evidentiary ruling made somehow departed from the usual criteria which the Board considers in the adjudication of section 91 disputes. The ruling goes merely towards the scope of the evidence in respect of two of the criteria which the Board normally con­siders.

16. In light of the fact that the application does not disclose any adequate grounds for reconsideration, we hereby deny the application for reconsideration and affirm the decision of February 15, 1989.