[1992] OLRB Rep. February 191
3103-90-R Practical Nurses Federation of Ontario, Applicant v. The Mississauga Hospital, Respondent v. United Steelworkers of America, Intervener
BEFORE: M. A. Nairn, Vice-Chair, and Board Members W. A. Correll and K. Davies.
DECISION OF VICE-CHAIR M. A. NAIRN, AND BOARD MEMBER K. DAVIES: February 18, 1992.
We are in receipt of a letter from counsel for the respondent requesting reconsideration of the Board's decision of December 5, 1991. We have now received comments from both the applicant and intervener with respect to that request. Having regard to all of those submissions we are not persuaded that we ought to reconsider our earlier decision.
The Board's jurisdiction to reconsider a decision is set out at section 108(1) of the Labour Relations Act (the "Act") and the Board's approach to its exercise of that authority is set out in Board Practice Note No. 17. In order not to undermine the finality of its decisions the Board generally will not reconsider a decision unless it can be shown that new evidence is available which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive, or, a party seeks to make representations or objections not already considered by the Board and that party has not had a prior opportunity to raise them.
Although in limited circumstances the Board has entertained a request to reconsider a decision involving significant issues of Board policy we are not persuaded that it is either necessary or appropriate in this case.
We note firstly that the only issue that the decision deals with is whether or not a bargaining unit comprised only of employees employed as registered or graduate nursing assistants is an appropriate bargaining unit in the circumstances of the case. There is nothing in the request for reconsideration that suggests the respondent has new evidence or did not have full opportunity to call evidence or make submissions on this issue. While the respondent states that it would have framed its reply differently had it known that "the Board proposed to undertake a review of its jurisprudence", the fact is, the respondent was fully aware from the outset that the applicant had placed this issue before the Board and was intending to call evidence and make submissions in support of its position. With that knowledge, the respondent filed its reply. At no subsequent time did the respondent seek to amend its position or seek to argue in the alternative. In addition it had full opportunity and did call evidence and make submissions on the issue.
The respondent submits that the panel placed undue emphasis on the need to facilitate access to collective bargaining and has no such power to consider that factor in fashioning an appropriate bargaining unit and thereby the majority exceeded its jurisdiction. We only note that under section 6(1) of the Act the Board is exercising a discretion to fashion an appropriate bargaining unit in the circumstances of the case before it, obviously taking into account larger policy issues. One of those policy issues is and has been (see Hospital for Sick Children and Stratford General Hospital both referred to in the decision) the issue of access to collective bargaining and an employee's ability to exercise their rights under section 3 of the Act. The task is to balance that with the other relevant factors including attempts to avoid undue fragmentation and to fashion bargaining units that are viable for collective bargaining purposes. We see no reason to comment further than the decision itself.
The panel is aware that this decision may be seen as a shift by the Board in determining bargaining unit structures in the hospital sector. The respondent argues that this decision is also an invitation to litigation. For both those reasons the majority of the panel made the comments that it did at paragraph 48 in an attempt to provide some direction to the parties and to the larger community who may feel affected by it.
The respondent submits that the Board ought to hear representations from other "stakeholders in the hospital sector" and refers to a number of trade unions. In addition we have received comments from the Service Employees International Union (SEIU) in support of the respondent's request for reconsideration and a letter from the Canadian Union of Public Employees (C.U.P.E.). Firstly, we reject that the respondent can advance a position on behalf of trade unions who have not done so on their own behalf.
As indicated in the majority decision at paragraph 7, the panel received a letter from the SEIU just prior to the commencement of the final day of hearing in this matter, which letter sought leave to intervene. We advised the parties of that letter but indicated we were not prepared to delay proceedings on the basis of the contents of the letter. Implicit in that comment was the conclusion that nothing in that letter raised any basis for SEIU's entitlement to standing in the proceedings. The Board is not, as was the Johnston Commission, an inquiry seeking opinions and submissions from a large community. The Board is charged with resolving disputes between parties of interest to that dispute. The SEIU now submits that it has been denied the opportunity to participate in the proceedings in that it did not have notice from the Board. The SEIU however was not entitled to notice of the proceeding. While it may have an interest in any policy implications of the decision for the future it has not indicated that it has any interest in this particular dispute. The Steelworkers obtained intervener status in these proceedings because it filed evidence of membership on behalf of employees affected by the application. The panel was not prepared to further adjourn these proceedings on the basis of SEIU's initial request. We did however provide it with a copy of the Board's decision. In its subsequent submissions it indicates no basis on which it could properly seek standing from the Board to intervene in this case. Similarly, the letter from C.U.P.E. provides no basis for its entitlement to standing in these proceedings.
In Stratford General Hospital [1976] OLRB Rep. Feb. 41 the Board discusses this issue as follows:
…….In St. Mary's of the Lake Hospital the Board observed:
- It is quite a simple matter for a trade union to file evidence of representation on behalf of employees in a bargaining unit in order to participate in an application as a party. (See Essex Health Association Case, O.L.R.B. Monthly Report, February 1967, p. 885). If a trade union does not file evidence of representation which evidence may take the form of a collective agreement or certificate covering employees in the bargaining unit~ documentary evidence of membership or some other written form of authorization, then the Board has no other recourse than to find that the trade union which has failed to file such evidence is a stranger to the proceedings and is not entitled to participate as a party.
And in Regina v. Ontario Labour Relations Board Exparti Northern Electric Co. Ltd. the Court of Appeal denied a would-be appellant status to appeal a decision on the basis that the "decision... [did] not aggrieve the would-be appellant in the sense of wrongfully refusing it any legal right depriving it of any legal right, affecting any title it may have in any matter or casting upon it any legal burdeni". Clearly the Society does not meet any of those tests.
- The Board appreciates the purport of these submissions but is unable to accede to the request. The Ontario Labour Relations Board carries out its primary function by way of adjudication - the adversary presentation [sicl of reasoned argument and proofs to a neutral third party. In fact, given the legislative and judicial umbrella under which it operates the Board is required to act in this manner. (See The Statutory Powers Procedure Act, 1971 Stat. Ont., 1971, c.47). The interest claimed by the Society is an interest that could be claimed by another association or employer interested in the field of collective bargaining in the hospital industry and as such, in the context of an adjudicatory procedure, is too impractical to recognize. Moreover, while the Board considers the instant case to be important, it must be recognized that the Board proceeds on a case by case basis and is prepared to deviate from earlier decisions as the facts, argument and experience of subsequent cases demands. Thus the Society, when it is able to represent an affected employee, will have its "day in court".
And see Pillar Construction Limited [1966] OLRB Rep. Aug. 322; Fergus Cables Limited [1966] OLRB Rep. Sept. 417; Re Northern Electric Company Limited, (1963) 1963 CanLII 616 (ON HCJ), 2 OR. 301, 63 CLLC 15,484; Regina v. Ontario Labour Relations Board, exparti Northern Electric Co. Ltd. (1970) 1970 CanLII 564 (ON CA), 14 D.L.R. (3d) 537 (Ont. C.A.).
- For these reasons we decline to reconsider our decision. This matter is referred to the Registrar to be re-scheduled in accordance with paragraph 49 of the majority decision of December 5, 1991.
DECISION OF BOARD MEMBER W. A. CORRELL; February 18, 1992
I have made a dissenting finding from the majority decision in this case for which a request for reconsideration has been filed by the respondent.
While the request does not fulfil all the basic criteria for reconsideration under the Board's Practice Note No. 17, we must consider that this was an unusual and extraordinary decision when one considers the prior jurisprudence of the Board and the long-standing collective bargaining procedures in this sector.
An overturning decision and award of such magnitude is extraordinary and requires overwhelming evidence and clear disclosure of the compelling reasons that drove the majority to their conclusions.
The Board's Practice Note No. 17 is broad enough, in my opinion, to support a request for reconsideration in that the majority decision leaves open to question important issues of Board Policy which have not been addressed adequately by not answering in all aspects, why it overruled prior decisions or by showing in a full and forceful way its reasons for ignoring substantial precedents.
I support the request for reconsideration made by the respondent.
I also have some sympathy for the position taken by the Service Employees International Union in support of the request for reconsideration. That union wanted a chance to have their say. The Board might have given this union and other interested parties who bargain in this sector some observer status in a case of this significance.
It would have been useful and instructive for the Board to have heard the views of an experienced and concerned party to labour relations in the hospital sector. It would at the least have satisfied all parties interested in the maintenance of harmonious relations in this particularly complex area of labour relations, that the potential consequences of the majority decision had been explored in the fullest detail.