[1992] OLRB Rep. September 1007
0054-92-U; 0068-92-R Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 598, Complainant v. Labourers International Union of North America, Local 506 and Metro Concrete Floors (1990) Inc., Respondents; Labourers' International Union of North America, Local 506, Applicant v. Metro Concrete Floors (1990) Inc., Respondent v. Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 598, Intervener
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members G. O. Shamanski and P. V. Grasso.
DECISION OF THE BOARD; September 3, 1992
By decision given orally at the hearing on June 17, 1992 and in writing, with reasons, on June 29, 1992 (the "first decision") the Board dismissed the complaint in Board File No. 0054-92-U, dismissed the challenges with respect to Manuel Garcia and Jose Gomes in the certification application in Board File No. 0068-92-R, and directed that a hearing be scheduled to deal with the remaining matters in dispute in the application.
By letter from counsel dated July 28, 1992, the Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 598, ("Local 598") seeks reconsideration of the first decision. Further, and in the alterative, Local 598 seeks reconsideration of the decision (by a differently constituted panel of the Board) dated April 30, 1992 (the "second decision") regarding the voter eligibility determination therein.
Local 598 specifically does not seek reconsideration of the dismissal of the complaint in Board File No. 0054-92-U as against the Labourers' International Union of North America, Local 506 ("Local 506"). Its request for reconsideration is limited to that part of the first decision dealing with the complaint as against Metro Concrete Floors (1990) Inc. ("Metro"). Local 598 refers to Maplehurst Hospital Limited, [1986] OLRB Rep. Feb. 247; Crafiline Industries Limited, [1977] OLRB Rep. Apr. 246 and Comstock Funeral Home Ltd., [1981] OLRB Rep. Dec. 1755, and submits that the Board erred in drawing the inferences it did in the first decision. Local 598 argues that the fact that the settlement referred to does not include compensation for lost wages suggests nothing about whether the individuals concerned would have been working on the material dates but for what it asserts were Metro's unfair labour practices. Local 598 argues that:
In this regard. it is pertinent to note that at the time the settlement was entered into, the employer was aware that Local 598 had challenged the terminal date list on the basis that Games and Garcia would have worked on the terminal date but for the employer's unfair labour practices (see Pre-Hearing Vote Report). There is nothing in the settlement to suggest that Local 598 was abandoning its position on the list. Looking at the settlement on its face, the most that can be said is that the parties agreed, for reasons unknown, that no compensation in respect of the past would be provided. The employer does, however, acknowledge on the face of the settlement that the failure to employ Garcia and Gomes was in violation of the collective agreement. Contrary to what the Board inferred, this admission suggests that Garcia and Gomes would have been employed on April 16, 1992 (the terminal date) in the ordinary course of events.
Local 598 submits that the Board erred in that it improperly went behind the grievance settlement and drew an insupportable inference which was fatal to its position. Local 598 points out that sections 91 and 126 of the Labour Relations Act serve different purposes and invite distinct remedial responses. It submits that the Board failed to take into account these distinctions and Local 598's pleadings in that respect.
In the second decision, the Board determined who would be eligible to vote in the prehearing representation vote requested by Local 506 as follows:
Having regard to the above, the Board directs that a pre-hearing representation vote be taken of the employees of the respondent in the following voting constituency:
All construction labourers in the employ of Metro Concrete Floors (1990) Inc.:
(i) in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario: and
(ii) in all other sectors of the construction industry, save and except the industrial, commercial and institutional sector in O.L.R.B. Board Area #8:
save and except non-working foremen and persons above the rank of non-working foreman. employees for whom bargaining rights are already held by the Applicant and/or any other affiliated bargaining agent of the designation of The Labourers' International Union of North America and The Labourers' International Union of North America, Ontario Provincial District Council and employees covered by the subsisting collective agreement between the Applicant and the Respondent.
Clarity Note
For the purpose of clarity, the Board declares that employees of the Respondent engaged in cement finishing and waterproofing are included in the bargaining unit.
Local 598 concedes that this decision reflects the Board's normal practice at the time but points to the decision in Crete Flooring Group Limited, [1992] OLRB Rep. July 792 in which the Board reviewed that practice and determined that it ought not apply in the construction industry. Local 598 also refers to Country Masonry Inc. (Board File No. 0401-92-R, May 6, 1992, unreported) in which the Board adopted the Crete Flooring Group Limited, supra, analysis and voter eligibility rule. Local 598 argues that the same "law" should apply to the application herein, which application was filed after the one in Crete Flooring Group Limited, supra but before the one in Country Masonry Inc., supra.
Local 506 and Metro responded by letters (from counsel) dated August 10 and August 12, 1992 respectively. Local 506 submits that Local 598's request for reconsideration should be dismissed because Local 598 was adequately represented at the hearing and advances no new evidence or argument which was not available to it at that hearing. Local 506 refers to Metropolitan Separate School Board, [1974] OLRB Rep. May 318 and Lorain Products (Canada) Ltd., [1978] March 262 in that respect and submits that Local 598 should not be allowed to repair the deficiencies in its case or to reargue it.
In the alternative, Local 506 submits that the request for reconsideration should be dismissed on its merits. Local 506 argues that Local 598 has misstated or misinterpreted the first decision in that the Board did properly consider its pleadings, drew the appropriate inferences and made the appropriate findings. Further, Local 506 submits that the Board correctly refused to proceed with the complaint herein because it could not, as the Board found, have any impact on the application for certification.
Local 506 submits that the request for reconsideration of the second decision ought to be denied as well because the parties have conducted themselves and joined issue on the matters in dispute between them on the basis of the voter eligibility rules in effect prior to the Crete Flooring, supra, decision and because the vote has been taken (though not counted) in this case.
Metro submits that "the request for reconsideration is directed at the 'competition' between Local 598 and Local 506 to represent employees of the respondent company" and takes no position in that respect. Metro does, however, submit that the requests disclose no new evidence or arguments which could not have been placed before the Board at the hearing on June 17, 1992 and that they should therefore be dismissed.
Section 108(1) of the Labour Relations Act provides that:
108.-(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.
Under it, the Board has a broad discretion to reconsider any of its decisions. However, the same provision and practical labour relations considerations require the Board to operate from the premise that a Board decision should be final conclusive for all purposes unless there is a cogent reason to change it. Accordingly, the Board will not usually reconsider a decision unless an obvious error has been made; or a request for reconsideration raises important policy issues which have not received adequate attention or consideration; or the party requesting reconsideration proposes to adduce new evidence which it could not, with the exercise of due diligence, have obtained and adduced previously, and which new evidence would, if accepted, have a material impact on the decision in question; or that a party seeks to make representations which it has had no previous opportunity to make (see Board Practice Note #17).
In this case, Local 598 had a full and fair opportunity to make representations to the Board with respect to the matters determined in both the first and second decisions. Indeed, it does not assert that it did not. Further, it advances no argument or allegation of fact which it did not make or have the opportunity to make at the hearing on June 17, 1992. Nor is Local 598's two part request for reconsideration based on any obvious error in either decision.
It is (or should be) patently clear from the first decision that the Board considered all of Local 598's pleadings. Indeed, Local 598's pleadings are quoted at length in paragraphs 2, 8 and 18 of the first decision.
In coming to the first decision, we were mindful of the differences between arbitral (section 126) and unfair labour practice (section 91) proceedings. The Board's "deferral to arbitration" jurisprudence (see, for example, Valdi Inc., [1980] OLRB Aug. 1254; The General Hospital Port Arthur, [1986] OLRB Rep. Sept. 1218) illustrates the distinctions between them. We note, however, that these distinctions are somewhat muted where, as here, the Board is also the arbitrator.
The cases cited by Local 598 in support of its request for reconsideration of the first decision provide little support for it. In paragraph 5 of Craftline Industries Limited, supra, the very paragraph cited by Local 598, the Board stated that evidence with respect to matters which had been previously settled or withdrawn would be admitted "... for the limited purpose of establishing a pattern of unlawful activity and not for the purpose of gaining redress for the alleged unlawful activity (emphasis added)." In Comstock Funeral Home Ltd., supra, the reasoning of which Maplehurst Hospital Limited, supra, adopted and applied, the Board ruled that evidence of matters raised and complaints which had been settled were admissible in "... a fresh complaint arising from subsequent events ..." (emphasis added). It is clear from the Board's decision in Comstock Funeral Home Ltd., supra, that the Board ruled that no relief could be obtained with respect to the, events which were the subject of the previously settled complaints.
It was (and is) obvious on the face of the complaint herein that it was not a fresh one "arising from subsequent events". Even as amended by letters which post-date the settled grievance (but predate the settlement itself), it raises substantially the same matters as were raised in the grievance settled by the May 11, 1992 Memorandum of Agreement and disposed of by the May 25, 1992 Board decision in Board File No. 0158-92-G. The grievance alleged that Metro had failed to employ duly appointed stewards of Local 598 and had to employ persons who are members in good standing of Local 598, and sought, among other things, full monetary compensation arising out of the alleged failures to hire. In the complaint herein, Local 598 made the same allegations (in different words) and sought the same relief (among other things). Indeed, it was the only relief of substance which was left once the section 13 allegations were dismissed (with respect to which Local 598 does not seek reconsideration).
Nor did the Board go behind that settlement or the Board decision. On the contrary, the Board specifically ruled (in paragraph 17 of the first decision) that it would not permit Local 598 to do so. In determining the issue placed before the Board in that respect, we had to interpret and apply that settlement. In effect, Local 598 sought, and still seeks, to have the Board inquire into and award relief with respect to the very matters which were the subject of the grievance and settlement in Board File No. 0158-92-G. Local 598 seeks to rely upon Metro's admissions in the settlement agreement while at the same time it argues that the Board should not have applied and drawn inferences from the rest of it. Local 598 cannot have it both ways. We are satisfied that Local 598 should be held to the settlement it made, and that we drew the appropriate inferences from it.
This left only the allegations in paragraph 2 to 6 and 8 of the complaint as originally filed. In paragraph 18 of the first decision, we thought it appropriate to exercise our discretion to not inquire into those. There is nothing in Local 598's reconsideration submissions which causes us to think we should have done otherwise. Indeed, we note that the pleadings in paragraphs 2 to 4 refer to proceedings with respect to an earlier grievance which was also referred to the Board in Board File No. 4063-91-G. That grievance was disposed of by the Board by decision dated April 2, 1992 (unreported) on the basis of a Memorandum of Agreement between Local 598 and Metro dated March 26, 1992 (although Local 598 pleaded that this Memorandum was entered into on April 2, 1992). On its face, Local 598's April 9th grievance covers the allegations made in paragraphs 5 and 7 of its complaint. In our view, these pleadings even if they could sustain a finding that Metro had breached section 65, 67 or 71 as alleged (which we doubt), should probably have been dismissed as covering the same matters settled and disposed of by the Board in Board File Nos. 4063-91-G and 0158-92-G.
This left paragraphs 6 and 8 standing alone. Paragraph 6 relates to the allegation that two Local 506 organizers were at a Metro job site. There is not even an allegation that they were there at the instance of Metro, or any assertion as to how this constituted a violation of the Act by Metro. That is not the sort of thing which another party, or the Board, should have to guess at. Everyone is entitled to know, with' particularity, precisely what is being alleged. Quite apart from the absence of particulars, this allegation could not affect Local 506's entitlement to the representation vote it had requested since the section 13 complaint had been dismissed. The same is true for the allegation in paragraph 8. Further, Local 598 has never alleged, in a timely way or otherwise, that the conduct alleged in paragraphs 6 or 8, or anything else, has tainted or otherwise affected the reliability of the representation vote taken on May 14, 1992. That being the case, we were (and are now) unable to discern what labour relations or other legitimate purpose could be served by inquiring into that allegation. To the extent that there is a representation issue which transcends the arbitration proceedings before the Board, it remains to be disposed of. We remain of the view that the determination of that issue could not be affected by an inquiry into what was left of Local 598's complaint and that to do so would serve no useful purpose. We remain of the view that it was appropriate for us to exercise our discretion in that respect in the way that we did in the first decision (at paragraph 18).
In the result, we decline to reconsider our June 17, 1992 oral or June 29, 1992 written decision as requested by Local 598 and that request is dismissed. However, we do wish to amend the June 29, 1992 by:
a) amending the title of Board File No. 0054-92-U by inserting the word “and" between the words "Local 506" and "Metro" and adding an "s" to the word respondent, and the title of Board File No. 0068-92-R by adding" Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 598" as an intervener;
b) amending the Board File No. reference in the last line on page 15 from "0068-92-2" to "0068-92-R";
c) deleting the letter "s" from the end of the word "grievances" in the fourth line on page 16;
d) inserting the word "is" between the words "grievance" and "dated" in the fourth line on page 16;
e) dismissing the allegations in paragraphs 2 to 5 and paragraphs 7 of the complaint for the reasons given herein, in the alternative to exercising our discretion to not inquire into them.
The second aspect of the applicant's request for reconsideration (that is. with respect to the second decision) must also fail.
On July 17, 1992, the Board issued the following notice to the community:
July 17, 1992
NOTICE TO THE COMMUNITY
The attention of the community is directed to the Board's recent decision in Crete Flooring Group Limited (decision dated July 8, 1992, not yet reported, Board file number 4150-91-R). In Crete Flooring, the Board reconsidered its customary practice with respect to voter eligibility in construction industry certification applications.
The Board concluded that dual voter eligibility dates in the construction industry are not appropriate. It determined that establishing a single date (being the application date) was the more appropriate practice.
Accordingly. in construction industry certification applications, those eligible to vote will be those at work in the bargaining unit ("voting constituency" in pre-hearing applications) on the application date.
There is nothing in this notice, or the Crete Flooring Group Limited, supra, decision, which suggests that the "new" practice will be applied to applications for certification in which, as here, a representation vote has already being taken, whether or not the ballots have been counted. Nor are we aware of any case in which it has been so applied.
As Local 506 has submitted, the application for certification has proceeded and the parties have joined issue on the matters remaining in dispute between them on the basis of the pre-Crete Flooring Group Limited, supra, voter eligibility rules. Further, Local 598 is a party in the Crete Flooring Group Limited, supra, proceedings (and was represented by the same counsel as in this case), and was aware at the time that this matter came on for hearing on June 17, 1992 that the Board's voter eligibility practice had been placed in issue (by Local 506, the applicant in that case as well) and was being revisited by the Board in that case. In our view, Local 598 could have, and should have, raised the second aspect of its reconsideration request at or before the June 17, 1992 hearing herein.
Further, the reasons for the change in practice, as articulated in Crete Flooring Group Limited, supra, (with which reasons we agree) do not exist here. Nor are we persuaded that it is unfair or prejudicial to Local 598 to proceed in accordance with the second decision. Indeed, to reconsider that decision in the way Local 598 requests would be to allow the kind of conduct, in the circumstances of this case, which the new practice is intended to avoid.
In the result, Local 598's requests for reconsideration are dismissed. However, the Board does find it appropriate to amend its decision as set out in paragraph 18 above.