Ontario Labour Relations Board
File No.: 3142-98-U Date: December 1, 2000
Between: Eugene Meikle, Applicant v. United Brotherhood of Retail, Food, Industrial, and Service Trades International Union (UBR FIST), Responding Party v. 935772 Ontario Limited c.o.b. as "Royal Taxi", Intervenor.
Before: Russell Goodfellow, Vice-Chair.
Decision of the Board
1The Board is in receipt of a request for reconsideration by the applicant in this matter dated November 6, 2000 (copy attached). The request relates to an interim decision in which the Board dismissed a motion by the responding party and intervenor that the application be dismissed for failing to establish a prima facie case of a breach of the Act. As part of that decision, the Board also rejected an argument by the applicant that the exception to the ratification requirement set out in section 44(2)(a) of the Labour Relations Act, 1995 (the "Act") does not apply to a collective agreement that is concluded by voluntary arbitration under section 40. It is to the latter aspect of the Board's decision that the request relates.
2Pursuant to section 114(1) of the Act, the Board has a broad discretion to reconsider any decision or order made by it and to vary or revoke any such decision or order. However, the Board has repeatedly indicated that it will not reconsider its earlier decisions unless there are good and valid reasons for doing so. Circumstances in which the Board has been prepared to reconsider an earlier decision or order include those in which the decision contains an obvious error; where the request raises important policy issues which have not been adequately addressed; where new evidence is sought to be presented which could not, with the exercise of due diligence, have been obtained and presented previously and which could, if accepted, make a difference to the decision; and where representations are sought to be made which the party seeking reconsideration had no previous opportunity to make.
3A request for reconsideration is not an "appeal"; it is not intended to provide a party with an opportunity to re-argue its case or to attack the Board's reasoning or findings of fact. It exists for the limited purposes set out above.
4Although the present request does not meet the Board's tests, certain of the points made will be addressed. First, there were no "errors of fact" or "erroneous assumptions of fact" underpinning the Board's ruling. The issue, as previously described, was a dry legal one. The paragraphs said to contain errors of fact or erroneous assumptions of fact were offered as a general explanation to the applicant as to the way in which the Act works. They were not intended as a description of the alleged facts of this case.
5Second, the applicant is correct that the Board did not address his assertion concerning section 43(18). With the greatest of respect to the applicant, not every point that is made in a hearing needs to be addressed in a decision – especially where that point arises in the context of a broader argument that is, in the Board's view, clearly wrong. Having said that, the Board notes that section 43(18) is not a power granted to trade unions and employers to include agreed upon matters in a collective agreement the absence of which in section 40 is somehow telling; rather, section 43(18) is intended to circumscribe the matters that may be litigated in the context of a provision that, when introduced, was thought to constitute something of an incursion into free collective bargaining. In other words, section 43(18) serves to limit the matters that will be taken out of the parties' hands and determined by involuntary third party resolution. No such limitation is required where the submission to arbitration is entirely voluntary.
6The applicant's third argument addresses a point made by the Board in its decision. The applicant suggests that the scenario identified in paragraph 16 of the Board's reasons (i.e. of the parties being without the statutory tools for achieving a collective agreement if ratification is required following an arbitration under section 40 but is not forthcoming) can be avoided by conducting the ratification vote in advance of the arbitration. In the Board's view, that assertion is without merit. Section 44(1) requires ratification of a "proposed collective agreement" or "memorandum of settlement". These terms are sui generis and require finalized terms and conditions of employment, not terms and conditions of employment some of which are final and some of which remain to be determined. If it were otherwise, the right of employees to ratify a proposed collective agreement would be a hollow one indeed and the scope for "abuse" would be greater than that which the applicant suggests exists at present.
7Finally, the Board would observe that the applicant's request appears to reveal a fundamental misunderstanding as to what was decided on the motion. Prior to the motion, there were two aspects to the applicant's case. The first was essentially factual (arising under section 74); the second was primarily legal (involving the interplay between section 44(2)(a) and section 40). Only the second argument was rejected. The section 74 argument remains and will proceed to a hearing on the merits. In the context of that hearing the applicant will be entitled to call evidence to establish that the union acted in "bad faith" in the representation of its members by "abusing" the statutory processes for achieving a collective agreement. Such evidence would appear to include much of what the applicant asserts as fact in the context of the present request.
8Accordingly, the request for reconsideration is dismissed.
"Russell Goodfellow"
for the Board