[1993] OLRB REP. MAY 442
3238-92-JD Ontario Sheet Metal Workers' & Roofers' Conference; Sheet Metal Workers' International Association, Local 473, Applicants V. Ontario Hydro; Electrical Power Systems Construction Association; Labourers' International Union of North America, Local 1059, Responding Parties
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
DECISION OF THE BOARD; May 12, 1993
This application concerned a complaint concerning an assignment of work. Pursuant to section 93 of the Labour Relations Act, the Board held a consultation with respect to the application on March 1, 1993. Upon considering the written representations and other materials filed by the parties, and their oral representations during the consultation, the Board disposed of the matter in an oral ruling, and issued a written decision in that respect on March 8, 1993 see Ontario Hydro, [1993] OLRB Rep. Mar. 227. The Board's ruling was in favour of the applicants Ontario Sheet Metal Workers' & Roofers' Conference and the Sheet Metal Workers' International Association, Local 473 (the "Sheet Metal Workers").
By letter dated April 20, 1993, the Labourers' International Union of North America, Local 1059 (the "Labourers") requested reconsideration of the Board's March 8, 1993 written decision (and presumably also of the Board's March 1, 1993 oral decision). Subsequently, on April 29, 1993, the Labourers refiled its request for reconsideration on Form A-47, the appropriate form in that respect. The Labourers requested that the Board entertain its request "... notwithstanding its late filing due solely to a lack of awareness of the Board's new requirements in this regard."
On April 28, 1993, the Electrical Power Systems Construction Association (the "EPSCA") also requested reconsideration. The EPSCA acknowledged that its request was late but requested that the Board exercise its discretion under either Rule 85 or Rule 22 to relieve against the late filing. The EPSCA has offered no explanation for its delay.
Rules 3, 4, 6, 17, 22, 83, 84, and 85 of the Board's Rules of Procedure provide that:
Where these Rules refer to a period of time, that period of time does not include Saturdays, Sundays and statutory holidays.
The Board may set the forms to be used in its cases, and may change those forms from time to time. Copies of the forms may be obtained from the Board's office in Toronto.
All filings with the Board must be made in the proper form, if any, and in the way required by these Rules.
An application or response may not be processed if it does not comply with these Rules.
The Board may relieve against the strict application of these Rules where it considers it advisable.
A request for reconsideration under subsection 108(1) of the Act must include complete written representations in support of the request.
Where a party is directed to file a response to the request, it must include complete written representations in support of its position.
85 No request for reconsideration will be considered where it is filed thirty (30) or more days after the date of the Board's decision, except with the permission of the Board.
Ignorance of the Board's Rules is no excuse, especially for a party and counsel who are often before the Board. However, the only real difference between the Labourers' April 20 and April 29, 1993 requests for reconsideration is that the latter was made on Form A-47 and the former was not. We find it appropriate to treat the Labourers' request for reconsideration as having been made on April 20, 1993, notwithstanding that the correct form was not filed until nine days later. Because of Rule 3, the Labourers' request is therefore a timely one.
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 section 108(1), the Board has a broad discretion to reconsider any decision. That discretion must be exercised judicially. Both section 108(1) and legal and labour relations considerations require the Board to operate from the premise that a Board decision is final and conclusive for all purposes, unless there is a good reason to change it. Consequently, the Board will not usually reconsider a decision unless an obvious error is identified; or a request for reconsideration raises important policy issues which have not received adequate attention or consideration; or the party requesting reconsideration proposes to present new evidence which it could not, with the exercise of due diligence, have obtained and presented 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.
- In many ways, the Board's approach to reconsideration mirrors the manner in which the Board applies the doctrine of res judicata (or a principle like it). Res judicata is a form of estoppel which, in its modern form, is based on two broad public policy principles:
(a) that all litigation should have an end; and
(b) no party should be forced to litigate the same matter more than once.
The doctrine of res judicata operates to preclude a party or its privies from re-litigating issues (other than through an available appellate process) which have been resolved by a final decision on the merits by a court or tribunal with the jurisdiction to decide the matter. In essence, a specific final determination of the right, question, or fact, is conclusive evidence thereof in any subsequent proceeding between the same parties or their privies (or, if the decision is in rem, in any subsequent proceeding) so long as the decision stands, unless the party otherwise bound by the decision alleges the fact which would, if proved, have a material effect on the decision and the evidence required to establish that fact could not, by the exercise of reasonable diligence, have been previously discovered (See Angle v. Minister of National Revenue, [1975] SCR 248; Town of Grandview v. Doering, (1975) 1975 CanLII 16 (SCC), 61 DLR (3d) 455 (Supreme Court of Canada)).
The Labourers have requested that the Board hold a hearing with respect to its request for reconsideration. It suggests no reason why one is necessary and it is not apparent to us why one is required. A request for reconsideration is not intended to provide a second chance for a party to make its case. Such a request does not necessarily require the Board to hold a hearing either on the merits of the matter decided, or with respect to the request itself. In our view, there is nothing in either request for reconsideration herein which merits a hearing.
For years prior to January 1, 1993, the construction labour relations community cried out for a more responsive and expeditious jurisdictional dispute process before the Board. On January 1, 1993 the present section 93 of the Labour Relations Act came into effect. This provision is a response to the community's call and contemplates a much more expeditious procedure. The Board's new Rules of Procedure with respect to jurisdictional dispute (Rule 72-76) complement the new section 93 of the Act and also contemplate a radically expedited procedure. The Act and the Rules both contemplate that a complaint concerning work assignment may be disposed of without an oral hearing. The Act specifically gives the Board a discretion with respect to whether or not it will entertain a jurisdictional complaint, and also with respect to how the Board proceeds with a complaint it decides to entertain (section 93(1.1)). The Act goes on to provide that the Board may make any interim or final order it considers appropriate after holding a consultation or a hearing (section 93(1.2)).
In this case, the Board found it appropriate to schedule a consultation, a proceeding which is something less than a hearing in the traditional sense. Nevertheless, a consultation is an opportunity, perhaps the only opportunity, for the parties to a jurisdictional dispute complaint to address the Board with respect to the matter. The rules of natural justice do not apply to such a proceeding in any traditional sense. However, the parties are afforded the opportunity to refer to the extensive materials which they are required to file in such cases, and to make representations with respect to how the Board should proceed (including whether the Board should hear evidence or otherwise hold a hearing on any matter or issue) or dispose of the complaint.
The Labourers advance what are essentially three arguments in support of its request for reconsideration: first, that the Board improperly refused to hear evidence which the Labourers wish to lead; second, that there was nothing before the Board to support at least some of the Board's conclusions; third, that the Board either misinterpreted or misapplied the material or "evidence" before it.
The jurisdictional dispute in this case involves some forty-eight worker hours. The parties filed extensive Briefs of submissions and documents, including literally hundreds of pages of material relating to the employer and area practice upon which they wish to rely. The Board reviewed and considered all of this material, together with the representations of the parties at the consultation on March 1, 1993, including the material and representations specifically referred to in the Labourers' request for reconsideration. Some of the material was unrelated to the dispute before the Board and was considered irrelevant. The relevant material was weighed in accordance with what the Board considered to be its probative value.
In that respect, it is true, as the Labourers suggest, that on August 15, 1984 its members were assigned to "rip out" non-reusable "building internals", and that this assignment formed a basis for a May 25, 1989 assignment of removal of scrap of building internals. We note that these assignments related to interior work which did not include sheet metal siding. Further, the same May 25, 1989 assignment (which was made after Ontario Hydro began to employ sheet metal workers directly - see Electrical Power Systems Construction Association, [1991] OLRB Rep. Feb. 185) shows that the "removal, replacement and repair of all flashing and sheet metal siding", which suggests that the "removal" was for scrap, was assigned to members of the Sheet Metal Workers. Past practice with respect to the removal of building internals was not relevant to the question of how the work in dispute herein; namely, the removal for scrap of exterior metal siding, is properly assigned. It was relevant to the Board's assessment of the Ontario Hydro policy with respect to the assignment of removal work referred to in paragraph 10 of the March 8, 1993 written decision.
With respect to the "field assignment" materials filed, the Board considered the Labourers' assertions in that respect. There was no need to hear evidence in that regard because the Board accepted the assertions as true for purposes of the consultation. (We also observe that the Board's experience with testimony with respect to such assignment is that it takes days to hear but consists largely of a regurgitation of the assertions themselves.)
As paragraph 11 of the Board's March 8, 1993 written decision indicates, the Board considered the field assignment and materials but gave them less weight than assignments of work made through a mark-up process. This is not the result of an application of any "... rule derived from other proceedings involving different parties...". We are unaware that any such "rule" has been articulated. On the other hand, as an expert labour relations tribunal we are also aware of the nature of field assignments and the manner in which they are made; namely, in the field, quickly and without notice or consultation with other trade unions. The Labourers now assert that there are unique circumstances in this case which justify giving greater weight to relevant field assignments in this case - To the extent that these unique circumstances are that the field assignments "flowed from and confirm previously marked-up assignments of similar work" which were not challenged by the Sheet Metal Workers (and which are the only "unique circumstances" identified by the Labourers), we considered them in making our assessment. Further, we note that the Sheet Metal Workers also submitted examples of field assignments which favoured their claim.
Just as the Board considered the Labourers' assertions, the Board considered those made by the Sheet Metal Workers, and by Ontario Hydro and the EPSCA, including the apparent conflicts or inconsistencies in that respect. With respect, there is no merit to the Labourers' assertion that the Board's decision herein was based on anything other than the material and submissions of the parties, and what could reasonably be inferred from them.
Certainly, the materials filed suggest that the Ontario Hydro removal policy has not been applied to the for scrap and building internals, or, perhaps, of block walls or concrete, and that the Labourers have been assigned such work. But that was not the work in dispute herein. Nor did the practice materials exclusively favour the Sheet Metal Workers' claim. As is common in jurisdictional disputes which come before the Board, the practice materials point in both directions. What is clear is that the removal of metal siding for scrap to the first drop point has been previously assigned to members of the Sheet Metal Workers. Even the Labourers request for reconsideration concedes that.
The Labourers submit that:
"The Board erred by finding in its decision that the "removal", "replacing" and "installation" assignments were of no real assistance to the Board while relying on evidence involving removal, replacing and installation assignments in support of its finding that the area practice favoured the Sheet Metal Workers. The only assignments of work "like" the work in dispute contained in the Sheet Metal Workers' filings involved replacement, repair or reuse.
We have some difficulty in understanding this assertion. However, the Board did find the "removal and replace" (not "removal", "replacing") and "installation" practice materials to be of little assistance since this was a "removal for scrap" assignment and the materials filed by all parties, and their representations at the consultation, indicated that there is a distinction between the two. We note that to the extent that "removal and replace" and "installation" practice is relevant it would clearly favour the claim of the Sheet Metal Workers.
The Labourers also complained that there was nothing before the Board which would suggest who installed the metal siding which was the subject of the removal assignment herein. More specifically, say the Labourers, there was no evidence that members of the Sheet Metal Workers had installed it. This is the first time that there has been any suggestion that members of the Sheet Metal Workers did not perform the installation. The consultation proceeded on the (unstated) assumption that they had. No one has previously suggested that the Ontario Hydro policy referred to by the Board did not apply because the Sheet Metal Workers was not the installing trade. Further, the installation of such siding is the work of Sheet Metal Workers, and both on that basis and the materials before the Board in this case, it seems highly unlikely that sheet metal workers did not install this siding. If they did not, who did? It certainly was not a labourer.
Finally, the Labourers assert that "separating the unfastening and lowering to the first drop point portion of the work by requiring that it be performed by other persons than those who perform the work of carrying the material to the disposal point, is self-evidently an inefficient and uneconomical method of carrying out the work." With respect, there is nothing self-evident about it. The fact that there was a "first drop point" suggests that there are at least two steps to the removal procedure and the first drop point provides a ready line of demarcation in that respect. This is a common way to draw a line between two or more trade jurisdictions.
We are satisfied that the Labourers' request for reconsideration should be dismissed.
The EPSCA's request for reconsideration is, as we indicated above, late. In our view, the EPSCA has offered no cogent reason why the 30-day time limit in Rule 85 should not be applied. The mere fact that the request is brief is no reason. Nor is the fact that the Labourers filed a request for reconsideration which the Board considers timely. It is generally inappropriate to allow one party to piggy-back upon another party's request, particularly when the two are completely unrelated. No explanation has been offered for the late filing and we do not find it appropriate to relieve against the time limits in the rules.
In any event, the EPSCA's request is that the Board amend its order by deleting the reference to the EPSCA in paragraphs 2 and 16 of the March 8, 1993 written decision on the basis that the EPSCA does not make work assignments. This position could have and should have been advanced in the EPSCA's Brief and at the consultation. It was not. The letter filed by the EPSCA in support of its request for reconsideration is dated February 26, 1993, only one day after the EPSCA and Ontario Hydro joint response to the application is dated, and prior to the consultation held herein. Clearly, it, or the point made in it, was available for use in these proceedings.
Further, both the Briefs filed by the EPSCA and Ontario Hydro, and the materials before the Board in this matter suggest that the EPSCA is directly involved in the mark-up process which results in assignment of work.
In our view, the EPSCA's request for reconsideration should be dismissed both because it is late and because there is no merit to it.
In considering these requests for reconsideration, the Board has once again exhaustively reviewed the materials filed in this matter. In the result, the Board is satisfied that there is no reason to amend, vary or otherwise reconsider its disposition of this application, either as requested or otherwise. The requests for reconsideration are therefore dismissed.