[1995] OLRB Rep. October 1246
0437-94-R International Brotherhood of Painters and Allied Trades, Applicant v. Bradscot Construction Limited, Bradscot Limited, Bradscot Management Limited, Bradscot Northern Limited, Bradscot Western Limited and Bradscot (MCL) Ltd.; R.D. Painting; and Alberto Henriques Painting & Decorating, Responding Parties
BEFORE: Jerry Kovacs, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF THE BOARD; October 18, 1995
By request dated August 28, 1995, the Bradscot companies ("Bradscot") ask the Board to reconsider a decision dated August 22, 1995 in which the Board issued certificates to the applicant.
The August 22, 1995 decision was the last of several decisions in this matter, which occupied numerous hearing dates and involved the Board's determination of a variety of issues. Aside from oral rulings, the Board issued the following written decisions:
(i) on July 28, 1994, the Board upheld the applicant's request to list additional Bradscot companies as responding parties;
(ii) on August 16, 1994, the Board upheld Bradscot's request to add R.D. Painting as a responding party;
(iii) on January 18, 1995, the Board held that, because the certification application had been reprocessed upon the addition of further responding parties, the Bradscot companies could add names to the list of employees;
(iv) on January 27, 1995, the Board dismissed the applicant's request for reconsideration of the decision that permitted Bradscot to add names to the list of employees;
(v) on February 27, 1995, the Board determined that four persons should be removed from the list of employees;
(vi) on July 28, 1995, the Board determined that R.D. Painting was not a dependent contractor, and that certificates should issue to the applicant after resolution of a dispute regarding description of the bargaining unit;
(vii) on August 22, 1995, the Board noted the parties' resolution of the bargaining unit description and ordered the issuance of certificates to the applicant.
In its request for reconsideration, Bradscot asks the Board to revoke the certificates issued on August 22nd. It suggests that the Board should have responded first to a request made on August 18th. In its August 18, 1995 correspondence, Bradscot argues that the Board failed to indicate the evidence used to support its findings in the February 27, 1995 decision, and Bradscot requests "supplementary reasons" that would "fully canvass" the evidence. In Bradscot's further submission, the February decision "does not constitute sufficient c3'reasons' for any purpose". Indeed, Bradscot alleges an "absence of reasons" in the decision. Bradscot believes that the decision was simply a "bottom-line decision", and that further reasons were to follow.
The Board will not reconsider a decision unless a party intends to introduce new relevant evidence which could not have been previously obtained by the use of reasonable diligence, and which, if adduced, would be practically conclusive of the case. Alternatively, the Board may reconsider its previous decision if a party intends to raise objections or make representations which were not already considered by the Board and which the party had no prior opportunity to raise. The rationale for these well-established limits on exercise of the discretion to reconsider earlier decisions is obvious: only if Board decisions are considered to be final can they be relied upon as establishing rights as between parties. This is especially important for the ongoing relationships of parties in labour relations. (See, for example, Bannerman Enterprises Inc., Board File No. 0262-94-R, unreported decision dated April 18, 1995.)
Those criteria are not met in this case. Bradscot does not seek to introduce any new evidence. Nor does it suggest that it would make further representations that it had no prior opportunity to raise. Instead, it argues that no certificates should have issued until the Board offered what in Bradscot's view would constitute better or sufficient reasons for an earlier decision. For Brad-scot, the point appears to be that reasons for decision should assist parties in deciding whether to exercise their right to seek judicial review. While Bradscot is certainly entitled to assess the sufficiency of reasons in considering its further legal options, we see no reason for the Board to delay issuance of certificates pending a party's assessment of the quality of a prior decision.
Similarly, a request for further reasons is not sufficient ground for reconsideration of a decision to issue final certificates. Indeed, such an approach would undermine the Board's occasional resort to the use of "bottom-line" decisions. In effect, what Bradscot seeks is a stay of the certification decision pending issuance of reasons. Even if Bradscot's case involved a 'bottomline" decision in respect of which the Board had indicated that further reasons would follow, the Board would not find reason to revoke or stay the certification decision pending issuance of reasons. In issuing a bottom-line decision, the Board balances the importance of reasons with the need for expedition. (See the discussion in Royalguard Vinyl Co., [1994] OLRB Rep. June 775, where the Board refused to stay a "bottom-line" certification decision pending issuance of reasons.)
For these reasons, the application for reconsideration is dismissed.
We turn to Bradscot's request for further reasons for the February decision. Bradscot's allegation of the inadequacy of the February decision focuses on the purported failure to "indicate the evidence used to support the Board's findings." With respect, we do not accept that contention.
In challenging the employee list in a certification application, the onus of proof lies with the party which seeks to exclude the person whose status is in issue, except where it would have to prove a negative in order to succeed, in which case the onus lies with the other party. Accordingly, the trade union bears the onus where it contends that a person is a manager. Where the trade union contends that a person was not an employee performing bargaining unit work on the certification application date, the employer bears the onus of proof. (See Camaro Enterprises limited, [1992] OLRB Rep. April 423.) In the instant matter, the trade union contended that four of the listed employees were not performing bargaining unit work (i.e., painting) on the certification application date. In particular, the Board had to determine whether Mr. O'Reilly, Mr. Noftle and Mr. Hoernke spent a majority of their time painting on May 5, 1994.
The Board found that, on the evidence, the employer did not prove that it was more probable than not that those persons spent the majority of their time painting on May 5, 1994. With respect to Mr. O'Reilly, the Board considered pages from Mr. O'Reilly's dairy, relating to May 5 and surrounding days and Mr. O'Reilly's testimony regarding his diary entries; this included consideration of the discovery of two separate entries for a three-day stretch in that critical time-period, and the lack of similar "double-entries" for any other dates in this full-year diary. As noted, the evidence led us to conclude that the entries for the critical period were not made contemporaneously with the events in question. With respect to Mr. O'Reilly's memory of his activities on May 5, we noted that he testified that he was able to recall precisely his activities of that day but that he was unable to recall duties performed on other specific dates. Based on that evidence, we did not accept Bradscot's assertion that Mr. 0 Reilly's recollection was proof that he was painting for the majority of the work day on May 5.
With respect to Mr. Noftle and Mr. Hoernke, we noted that there was evidence of their duties performed on other dates, and of evidence of where they performed unspecified duties, but there was no cogent evidence that they spent the majority of their time painting on May 5.
In our view, the Board has provided the evidentiary basis upon which it reached its conclusions. It is understandable that Bradscot notes the distinction between the intensive review of facts in the July 28, 1995 decision as opposed to the summary referral to facts (or lack thereof) in the February decision. However, the Board's approach to the canvassing of evidence varies from decision to decision depending on many factors, including the nature of the issue to be determined. As with every administrative tribunal, the Board finds that a lengthy recital of evidence is often unnecessary and, indeed, in conflict with the tribunal's role in providing expeditious adjudication.