1002-99-U Amalgamated Transit Union, Local 1731, Applicant v. McIntosh Limousine Service Ltd., Air Cab Limousine Services (1985) Ltd., and Aaroport Limousine Service Ltd., Responding Parties.
BEFORE: Gail Misra, Vice-Chair.
DECISION OF THE BOARD; August 1, 2000
The Board has received a request for reconsideration dated July 6, 2000 in which the applicant seeks reconsideration of the Board’s decision of May 30, 2000. The responding parties have filed a full response submission dated July 12, 2000.
Section 114(1) of the Labour Relations Act, 1995 (the “Act”) gives the Board the authority to reconsider, vary or revoke any decision it makes, and states as follows:
(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.
Rule 96 of the Board’s Rules of Procedure states:
No request for reconsideration will be considered where it is filed more than twenty (20) days after the date of the Board’s decision, except with the permission of the Board.
The Board’s Rules define a day as follows:
In these Rules,
e) “day” means any day of the week from Monday to Friday, excluding a statutory holiday and any other day the Board is closed;
As has been noted above, the decision issued on May 30, 2000, and the application for reconsideration was filed on July 6, 2000. The 20th day after the decision issued was on June 27, 2000 and the application is therefore on its face untimely. The applicant provided no explanation for the lateness of the application and did not seek the Board’s permission to file an untimely application. The Board therefore finds that the application is untimely.
Notwithstanding the Board’s finding that the application is untimely, having reviewed the applicant’s submission, the Board would not have reconsidered its decision of May 30, 2000 for the following reasons.
A recurring theme in the reconsideration application is that the Board made findings based upon evidence not before it. It is unclear what the basis of this assertion is as the Board, in its decision of May 30th, explicitly indicated what it was relying upon. At paragraph 15 of the decision the Board found it would consider the Memorandum of Agreement of August 18, 1999 for all purposes in determining the bad faith bargaining aspect of the complaint. The union had argued against that finding, and had been unsuccessful in its motion. At paragraph 16 the Board indicated what it would be relying upon in reaching its finding of facts. The documents that the Board relied upon, as outlined in that paragraph, were all put before the Board by the parties. Except for the August 18th Memorandum of Agreement, which has been dealt with above, there was no issue raised with respect to any of the other documents. Those documents were therefore properly before the Board and could be relied upon.
In the course of a teleconference held on March 27, 2000 counsel for the union specifically indicated she took no issue with the 1997 Memorandum of Agreement being put before the Board. It was therefore properly before the Board and available for the Board to rely upon.
At the outset of the hearing held on March 31, 2000 counsel for the union put the majority of the remainder of the documents that the Board relied upon before the Board. In fact, contrary to an agreement made during the teleconference, the applicant had not provided the various documents to the responding parties, including the draft collective agreement the parties had reached in 1997, prior to the hearing date. The Board therefore had to stand down for one half hour to permit counsel for the responding parties to review the documents. The responding parties noted that the applicant had not provided the correct lease document, and counsel for the applicant undertook to provide that document to the Board and the responding party after the hearing. It was sent to the Board on April 13, 2000.
Counsel for the union specifically reiterated at the March 31, 2000 hearing that the Board could rely upon the 1997 Memorandum of Agreement, and further stated that the Board could consider the collective agreement prepared and signed on August 26, 1997. The parties agreed that a Service Agreement and a lease agreement were also properly before the Board. The only stipulation was one articulated by the responding parties, that the Board not rely upon any documents that had been typed by counsel for the applicant, as the responding parties wanted the Board to rely on the original documents. The applicant did not object to the responding party putting the Rayner award and the Teamsters’ collective agreement before the Board.
On the face page of the draft collective agreement prepared in 1997 there is a statement in a large box, which says:
This Collective Agreement has been tentatively agreed to by the Union and the Company as of August 26, 1997, subject to ratification by the membership. The amendments to the previous version of the agreement between the parties are in bold. The Union hereby agrees to recommend ratification of this Collective Agreement to its membership.
The Board was advised that a ratification vote had been held but that the draft collective agreement had been rejected. Nowhere in the union’s pleadings, nor indeed in its submissions, did the union indicate that it had acted contrary to its stated agreement to recommend ratification to its membership.
The last full paragraph of the August 18, 1999 Memorandum of Agreement (that had been signed off by the union) states:
This collective agreement is agreed to subject only to ratification by the membership. The Union hereby agrees to recommend ratification of this collective agreement to its membership.
The Board was advised that a ratification vote had been held but that the Memorandum was rejected by the membership. Again, there were no submissions made to the Board that the union had acted contrary to its stated agreement to recommend ratification. In these circumstances, the Board accepted the documents on their face.
The remainder of the reconsideration application is a reargument of the applicant’s case and an iteration of the applicant’s view that the decision is incorrect.
The principles that the Board applies in an application for reconsideration are set out in Ellis-Don Limited, [1989] OLRB Rep. March 234. At paragraph 5 of the decision the Board states:
The Board’s power to reconsider its decisions is a broad one. However, both the Act and the realities of labour relations dictate that the premise from which the Board must operate is that its decisions should be final and conclusive. In recognition of the need for finality, the Board will not usually reconsider a decision unless an obvious error has been made; or, the request raises important issues of Board policy which have not been addressed adequately or at all; or, the party requesting it proposes to adduce evidence which it could not, with the exercise of due diligence, have obtained previously, and which new evidence would be virtually conclusive; or, if a party wishes to make representations it had no previous opportunity to make. The Board’s approach to a Request for Reconsideration is a stringent one. A less stringent approach would create uncertainty and tend to have a negative impact on the labour relations of this province.
As noted earlier, a review of the applicant’s submissions indicates that it simply disagrees with the Board’s decision of May 30, 2000. However, that is not a ground for reconsideration. The Board considered the union’s application, the parties’ full submissions, and all of the documents put before it in reaching its decision. The Board is satisfied that, even had the reconsideration application been timely, it would not have reconsidered its decision of May 30, 2000.
The application for reconsideration is hereby dismissed.
“Gail Misra”
for the Board