0409-00-U Service Employees International Union and its Locals 101, 183, 210, 220, 268, 528, 639 and 777, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Responding Party.
0410-00-U Service Employees International Union and its Locals 101, 183, 210, 220, 268, 528, 639 and 777, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; July 18, 2000
Board File 0409-00-U is a complaint pursuant to section 96 of the Labour Relations Act (the “Act”). The applicant (the SEIU) alleges that the responding party (the CAW) has violated sections 73(2) and 76 of the Act. Those section provide as follows:
(2) No trade union council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.
No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
Board File 0410-99-U is a request by the SEIU for the consent of the Board to bring a criminal prosecution against the CAW for allegedly committing the above offences.
The context for the complaint is a rivalry between the SEIU and the CAW over the right to represent a large number of bargaining units, which have been represented to this date by the SEIU. This is but one piece of the litigation, which is being played out in both the courts and through the Board, most notably through displacement certification applications.
In a decision dated June 5, 2000, I dismissed the applications because I determined that the applicant had failed to make out a prima facie or arguable case that there had been a breach of the Labour Relations Act or entitlement to the remedies sought. I undertook the review of the applications at the request of the responding party. I made the determination without first seeking submissions from the applicant.
On June 8, 2000, the applicant made a request that the Board reconsider its decision on the basis that it had been denied natural justice. The applicant put forward that the Board should have given it an opportunity to make submissions before making its determination, and requested an opportunity to make arguments in support of its assertion that it had made out a prima facie case.
Although the Board does not invariably seek the submissions of an applicant before determining whether it has made out an arguable case, the Board agrees that in this case, that would have been the appropriate course. Consequently, the Board reconsiders its June 5, 2000 decision. The applicant shall deliver and file any submissions it wants to make no later than August 4, 2000. The responding party may file and deliver any reply it wants to make no later than August 11, 2000.
The applicant has requested that its submissions and a consideration of whether it has made an arguable case be placed before a different panel of the Board, "Given that the views of the Board chair who wrote the June 5, 2000 decision have been made patently clear (in the absence of allowing the applicant the opportunity to make any representations). …"
The Board declines to put this matter before another panel. The need to keep an open mind, to consider new submissions and perspectives, and be persuaded by new facts is integral to the duties of an adjudicator. I am satisfied that I can fairly assess the submissions of the applicant, and am quite prepared to be convinced that my first decision was substantively wrong.
“Mary Ellen Cummings”
for the Board