[1998] OLRB REP. SEPTEMBER/OCTOBER

4462-97-JD United Brotherhood of Carpenters and Joiners of America, Local 1256 ("Carpenters"), Applicant v. Doug Chalmers Construction Limited ("Chalmers") and Labourers' International Union of North America, Local 1089 ("Labourers"), Responding Parties

BEFORE: G. T Surdykowski, Vice-Chair, and Board Members J. G. Knight and G. McMenemy

DECISION OF THE BOARD; September 1, 1998

1. Labourers' has filed an impassioned and somewhat strident request for reconsideration of the Board's July 2, 1998 decision in this dispute over the assignment of work. Labourers' requests the following relief:

2. That the Decision be reconsidered and revoked;

3. That the Board direct Chalmers to assign at least one construction labourer who is a member of Labourer's Local t089 on each of its individual scaffolds in issue to perform all work in connection with the tending of carpenters as directed by the Board in its 1997 Decision;

4. That this request for reconsideration be scheduled for hearing before a different panel of the Board than made the Decision;

5. Such further and other relief as may be appropriate.

6. Reconsideration is precisely that: consideration again. But it is not intended to provide an internal appeal process, or an opportunity for a party to reargue its case, either before a different panel of the Board or otherwise. It is not that kind of reconsideration. Accordingly, requests that the Board reconsider a decision are routinely put before the panel of the Board which issued the decision with respect to which reconsideration is sought, unless that panel cannot be reconstituted at all, or where the panel which made the decision cannot be reconstituted for that purpose within a reasonable time and everything which was before the panel which made the decision under reconsideration can also be put before a new panel. Neither circumstance is present in this case. Nor is there any allegation of bias or any other circumstance which would make it necessary or appropriate for the Board to depart from its general practice. The Labourers' request that its request for reconsideration be dealt with by a different panel is therefore denied.

7. Potentially, the Labourers' request that its request for reconsideration be dealt with at a hearing raises an interesting question. This is a jurisdictional dispute complaint, and under section 99 of the Labour Relations Act, 1995 the parties were not entitled to a hearing in the first place (subsection 99(3)). Indeed, as is generally the case in jurisdictional dispute proceedings, the Board required the parties to file comprehensive briefs and held a consultation, not a hearing, before it issued the July 2, 1998 decision (subsection 99(5)). How is it that Labourers' could be entitled to a hearing now, merely because it has requested reconsideration? The simple answer is that it is not.

8. In any event, before the Board will schedule anything with respect to a request for reconsideration, or even call on the other parties to respond to it (although we note that Chalmers has filed a response), the Board must be satisfied that there is some reason to think that there is something to the request. That is, the first question is: does the request make out a kind of prima facie case for reconsideration?

9. In that respect, the Board's approach to reconsideration is well-established. Section 114(1) of the Act gives the Board a broad discretion to reconsider any of its decisions. However, the same provision, and legal and labour relations considerations also demand that the Board operate from the premise that a Board decision should be final and conclusive for all purposes unless there is a good reason to change it. Accordingly, the Board will generally not reconsider a decision unless an obvious error has been made; or a request for reconsideration raises important policy issues which have not been given adequate attention or consideration; or the party requesting reconsideration proposes to adduce new evidence which it could not, with the exercise of reasonable diligence, have obtained and provided previously, and which new evidence would, if accepted, have a material impact on the decision in question; or a party seeks to make representations which it had no previous opportunity to make. Subsection 114(1) of the Act does not intend to provide an opportunity for a party to reargue its case, either de novo or as a form of appeal.

10. The basis for the Labourers' request for reconsideration is summarized on the first page of Schedule "A" to its request for reconsideration as follows:

11. In support of its request, the undersigned responding party relies on the following material facts and makes the following representations:

Labourers' International Union of North America, Local 1089 ("Labourers' Local 1089") seeks reconsideration of the decision of the Board dated July 2, 1998 ("the Decision") pursuant to section 114(1) of the Labour Relations Act, 1995 ("the Act") on the basis that the Decision is patently unreasonable and wrong in law for the following reasons:

(a) The Board failed or refused, without any proper basis, to follow and apply its recent decision in Doug Chalmers Construction Limited dated May 8, 1997 in O.L.R.B. File No. 1450-96-JD ("the 1997 Decision") and its decision dated January 29, 1993 in O.L.R.B. File No. 2214-92-JD ("the 1993 Decision") notwithstanding that those proceedings involved a dispute over the same work between the same parties in the same geographic area. The decision represents a stunning and draconian reversal of the 1993 and 1997 Decisions: where previously the Board directed Chalmers to assign scaffold tending work to members of the Labourers, it has now determined that only "general" tending work should be so assigned with all other tending work held to be within the work jurisdiction of the Carpenters. Moreover, such general tending work must only be assigned to construction labourers where there is sufficient such work to keep a labourer occupied for a minimum of 4 hours during the working day;

(b) The Board ignored the evidence before it and failed or refused to apply well-settled and relevant criteria for the adjudication of jurisdictional disputes as set down in the Board's jurisprudence and as reflected in the 1997 Decision;

(c) The Decision is internally contradictory or inconsistent;

(d) The Board has made an order based on a formula which is incapable of proper enforcement.

7. It is clear that Labourers' is very unhappy with the Board's July 2, 1998 decision. A party's unhappiness, however heartfelt, is not a basis for reconsideration, and the Board is not satisfied that Local 1089 has advanced any cogent reason to think that it might be appropriate to reconsider the July 2, 1998 decision in this case.

8. The Board's July 2, 1998 decision speaks for itself. It is true, as Labourers' points out, that the Board did not follow what has been referred to as the "1997 Decision" (Doug Chalmers Construction Limited, [1997] OLRB Rep. May/June 385). Indeed, the Board specifically declined to do so, for the reasons set out in the July 2, 1998 decision.

9. In its decision in this case, the Board briefly outlined how this jurisdictional dispute came to be before the Board. The Board observed that the history of the dispute dates back to at least 1991, and that notwithstanding the 1997 decision in Doug Chalmers Construction Limited, supra, which raised the same jurisdictional dispute which was before the Board in this case, "... the real dispute between [the parties] continued to focus on the assignment of tending work associated with the erection or dismantling of scaffolding".

10. The Board then reviewed the position of the parties, observing that the meaning and application of the 1997 decision was directly in issue in this proceeding. The parties at least implicitly agreed to in effect put the Board in the position of reconsidering that earlier decision, by taking a second look at the dispute between them which continued notwithstanding the 1997 decision. For that purpose, the parties agreed that the materials filed in the 1993 and 1997 jurisdictional dispute proceedings were also properly before the Board in this case. The parties also filed additional materials in this case, which served to supplement and update the earlier materials, and underlined the continuing nature of the dispute.

11. Having said that, it is somewhat disingenuous for Labourers' to suggest either that it merely sought "enforcement" of the 1997 decision in this proceeding, or that the appropriateness of the 1997 decision was not in issue. Whether the approach taken in the 1997 decision was appropriate was specifically in issue. Further, as the Board pointed out in paragraph 50 of the July 2, 1998 decision, although Labourers purported to be seeking a sort of reiteration of the 1997 decision, it ultimately wanted more; namely, a piece of the erection and dismantling work, which was specifically not in issue. Further, Local 1089 also wanted "more” in a sense that it hoped to have the Board order Chalmers to use more than the minimum of one construction labourer to tend carpenters on scaffolding jobs. It was not reasonable for Labourers' to think it had nothing to lose and everything to gain.

12. It is fair to say that Chalmers' misinterpretation of the 1997 decision was one reason for the continued conflict between the parties concerning the assignment of tending work associated with the erection and dismantling of scaffolding. It should be apparent from the July 2, 1998 decision that this did not escape the Board's attention. It was apparent that Chalmers was not complying with the 1997 decision. But should that cause a knee-jerk reaction from the Board? Surely not. Surely, the parties expect and are entitled to a rational and reasonable response, particularly where, as the record in this case shows, the parties agreed that the dispute required further attention from the Board, and agreed to a process which included a joint request that the Vice-Chair who chaired the 1997 panel (which could not otherwise be reconstituted) first engage in a mediation process with the parties, and if that failed (as it did) to sit as the Vice-Chair for litigation purposes. The Board does not criticize the parties for this. On the contrary, this was a sensible way to proceed in the circumstances. But it also serves to demonstrate that everyone, including Labourers, recognized that the 1997 decisions resolution to the dispute was not working.

13. Further, it is well-established that the Board is under no obligation to follow its own earlier decisions. Stare decisis does not apply to the Board's jurisprudence. And that is as it should be, for an expert administrative tribunal should have the ability to alter course as it in its expertise considers appropriate, without being required to slavishly adhere to a prior decision or line of jurisprudence which may be ill-suited to the particular case before it. As a practical matter, the Board recognizes and strives to achieve the virtue of consistency, particularly when it comes to matters of policy, approach or tests to be applied. But as Ralph Waldo Emerson observed:

A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and diviners ... Speak what you think today in hard words and tomorrow speak what tomorrow thinks in hard words again, though it contradicts everything you said today.

Consistency is not to be sought for its own sake. Consistency does not mean that there cannot be exceptions. On the contrary, every virtue or principle has its limits and there are exceptions to every rule. No test is applicable in the same way to every situation, without exception.

14. In this case, the parties agreed that this particular dispute merited a "second look" by the Board. Having accepted the parties' invitation to take that second look, the Board was neither obliged to come to the same conclusion as it had in the 1997 decision, nor was it restricted by that earlier decision. The second look was quite properly a fresh one.

15. In that respect, it was quite appropriate for the Board to test other approaches, to examine the materials filed in the earlier proceedings and the 1997 decision itself in the light of the additional material, information and representations, and to ask questions which had not been asked or properly addressed before. In that respect, for example, the issues of the merits of the statistical analysis undertaken by the Board in the 1997 decision, the specific versus the general approaches to scaffolding jobs, and the question of general versus self or trade tending work were specifically raised, and the parties had ample opportunity to address these and all of the other issues which were or could have been raised in a proceeding. These of course included the factors to be considered by the Board, and how the Board should consider them. The Board specifically referred to the general approach it takes to jurisdictional disputes and the factors it considers, but concluded that this case merited a "modified or different approach" (paragraphs 35 to 46 of the July 2, 1998 decision). The Board then took a more careful look at the tending work in dispute, and reviewed the competing jurisdictional claims and Chalmers' position in that context. The Board determined that there was more to the Carpenters' jurisdictional claim than had been credited in the 1997 decision, and that this was a dispute in which economy, efficiency and employer preference should be given greater weight than was accorded them in that earlier decision. In that respect, in the application of its expertise, the Board concluded that, on the basis of all of the materials before it, Carpenters' constitution and collective agreement claims should be given greater weight, that the memorandum of understanding between the Labourers' and Chalmers was not determinative but was a factor to be considered in assessing the weight to be given to economy, efficiency and employer preference, that the factor of skill, training and safety in fact favoured the claim of Carpenters, that economy, efficiency and employer preference favoured the Carpenters' claim and Chalmers' position, and that unlike most jurisdictional disputes the area practice materials did not, and in the circumstances could not, be of much assistance in resolving the dispute in this case.

16. In the result, the Board's approach was modified to the extent that the work concluded that the materials justified giving different weight to the factors generally considered in jurisdictional dispute proceedings, and to the weight which was given them in the 1997 decision.

17. Finally, Labourers' submit that the Board's July 2, 1998 decision is incapable of proper enforcement. The Board observes that the fact that this proceeding was necessary at all suggests that the earlier decisions apparently were not either, as does the some seven year history of this dispute. In any event, it seems premature to speculate about the enforceability of the July 2, 1998 decision, although if the parties insist on continuing their dispute, it will undoubtedly continue. In that respect, this dispute, and the parties' demonstrated attitudes towards it, stands as a testament to the poor labour relations between the parties. It is also as an example of a problem to which a litigated answer is probably a poor one.

18. Other than complaining about the decision itself (complaints which the Board considers to be without merit), the Labourers' merely seeks to restate its case. The Board is not persuaded that there is anything to the Labourers' request for reconsideration, or that there is any reason to inquire into it further. The request for reconsideration is therefore dismissed.