Ontario Labour Relations Board

[1996] OLRB Rep. July/August 632

3523-95-R Stephen R. Gerber, Applicant v. International Brotherhood of Electrical Workers, Local 353, Responding Party v. Edwards, A Unit of General Signal, Interve­nor

BEFORE: Pamela Chapman, Vice-Chair, and Board Members R. W Pirrie and H. Peacock.

DECISION OF THE BOARD; August 21, 1996

Decision

1. By letter dated February 6, 1996, the applicant ("Gerber") has requested that the Board reconsider its decision dated February 1, 1996. The applicant is joined in that request by the intervenor employer ("the employer"), which filed a Request for Reconsideration on February 14, 1996.

2. Pursuant to section 114(1) of the Labour Relations Act, 1995 the Board has the discretion to reconsider any decision it has made. Section 114(1) states:

114. (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.

3. The principles which the Board applies in an application for reconsideration have been detailed in numerous decisions, including K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185 and John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096. Generally, the Board has said that it will not reconsider its decisions unless a party proposes to adduce new evidence which would be practically conclusive of the matter, which could not previously have been obtained through the exercise of due diligence, or a party desires to make representations not previously considered by the Board which it had no prior opportunity to raise. The Board may also reconsider a decision if the request raises significant and important issues of Board policy not considered in the decision.

4. At the request of the Board, the responding party ("the union") responded to the request for reconsideration by letter dated February 28, 1996. On March 7, 1996, counsel for the applicant filed a letter commenting on the union's submissions. Finally, on July 3, 1996, counsel for the union wrote to the Board enclosing a further case in support of its submissions.

5. In reaching our decision in this matter we have carefully considered all of the submissions made by the parties with respect to the request for reconsideration.

6. The applicant and the employer have raised two grounds for reconsideration of the Board's decision.

7. First, they complain that the Board did not give the parties an opportunity to make submis­sions on two unreported Board decisions cited in the decision of February 1, 1996: Maidstone Manufac­turing Inc., unreported decision dated December 19, 1994, Board File 1097-94-R; request for reconsideration denied January 24, 1995; application for judicial review dismissed March 23, 1995, [1995] OLRB Rep. Mar. 388; and, Ian Martin Limited, unreported decision dated March 23, 1994, Board File 2705-93-R.

8. It is clear from a review of the decision of February 1, 1996, that the Board referred to these two cases as recent support in the Board's jurisprudence for the principle that a ballot may only be counted where it clearly and unequivocally, on its face, indicates the choice of the voter. This principle was articulated in an earlier decision of the Board, Fruehauf Trailer Company of Canada Limited, [1974] OLRB Rep. April 254, which was also cited in our decision.

9. The Fruehauf decision was cited by the responding party union in its written submissions to the Board filed January 22, 1996, in which the union clearly relied upon the principle discussed above. Furthermore, all three parties made argument about whether or not the ballot in question clearly indicated the intent of the voter despite the markings in both circles. Indeed, counsel for the intervenor employer, in written submissions dated January 15, 1996, made the following comment:

The Board has on numerous occasions dealt with the issue of spoiled ballots and it is submitted that the caselaw may be properly summarized as indicating that a ballot shall be counted so long as it does not identify the identity of the voter (which is not an issue in this case) and, further, where there is a clear indication on the face of the ballot of the choice of the voter. (emphasis added)

10. Thus, it is clear that the parties expected the Board to apply this principle to the facts of this case in reaching its decision, and had a full opportunity to comment on the way in which we ought to do so. The parties disagreed, however, on whether or not the ballot in question clearly expresses the intent of the voter.

11. The intervenor employer claims that the Board erred in law by failing to allow the parties to make submissions on the cases cited above, relying on the decision in Re Lawrence's Will Trust [1972] 1 Ch. 418 at 437. However, the court in this decision does not conclude that a court or tribunal must always seek the submissions of the parties on any authority cited by it in a decision. Rather