International Brotherhood of Electrical Workers, Local 303 v. Weinmann Electric Limited
2519-99-G International Brotherhood of Electrical Workers, Local 303, Applicant v. Weinmann Electric Limited, Responding Party.
BEFORE: David A. McKee, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
DECISION OF THE BOARD; February 16, 2000
[1]. This is a referral of a grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (“the Act”). By a decision dated November 30, 1999 the Board issued an interim decision. The applicant had filed a grievance and referral along with some supporting documents and statements. No Request for Hearing and Notice of Intent to Defend (the “A-87 Notice”) was filed by the responding party within the time prescribed by the Board’s Rules. Accordingly, the Board deemed the facts as asserted by the applicant to be true. On this basis, the Board found that the responding party was bound to the collective agreement and had violated the collective agreement. Since the material was inadequate for the assessment of damages, that issue was left to the panel of the Board hearing the matter on the date set for the hearing of the grievance, December 3, 1999.
[2]. On that date, the hearing was adjourned on the consent of the parties to permit the responding party to file a request for reconsideration. It did so by application dated December 23, 1999, setting out several grounds on which it sought reconsideration. This is the first time the Board has had to consider such an application. Since this involves dealing with a new procedural area for the Board, it is appropriate to decide such cases on an incremental, case by case basis. Nonetheless, some issues are relatively clear.
[3]. As the applicant points out, the Board has typically reconsidered a decision at the request of a party only where evidence or argument is sought to be placed before the Board that could not reasonably have been led or raised at the original hearing, or where a Board decision appears to raise issues concerning Board policy not considered in the decision, see John Entwistle Construction Limited, [1979] OLRB Rep Nov. 1096 and K-Mart Canada Limited (Peterborough) [1981] OLRB Rep. Feb. 185. Many applications are made, few are appropriate, and fewer still are granted.
[4]. This policy of the Board arises primarily from a need for finality. Whether at the end of a hearing in which evidence is called and argument addressed, or after a consideration of pleadings in a file to determine a “no prima facie case” motion, no party should be permitted or required to relitigate a matter they have litigated once. When a decision determines the rights of parties in an application, it must have a high degree of finality to be effective.
[5]. In dealing with an application to reconsider a decision made under rule 160 or 161, there are somewhat different considerations. Finality is still an important policy objective. Further, the entire process developed over the past twenty-five years in administering what is now section 133 is based on a need for expedition. Given the transient nature of the construction industry, it is often necessary to be able to move speedily to ensure that rights are determined, and any appropriate remedy granted, in a manner which has both a practical and a legal value. If the Board is going to be able to ensure that parties in the construction industry do not resort to “self help” remedies, it must be able to provide a meaningful dispute resolution mechanism. Many grievances (although not this one) are simply a question of collecting monies owed to pension and health and welfare plans on behalf employees. Rules 158 to 162 and section 133 are part of a process designed to provide the necessary expedition. It is relevant to look at the question of reconsideration in the context of the Board’s need to provide an expeditious process for the determination of grievances in the construction industry, having regard to the nature of the provision of the collective agreement violated.
[6]. However, reconsideration of this type of decision, essentially a “default” decision, is a different matter from any other type of reconsideration application. There has been no hearing; no evidence has been adduced. Grievances may be terse, and often provide less in the way of pleadings than a typical application under other sections of the Act. The Board is in a position easily to assess the materials and assertions made in the section 133 referral, and in the material offered in the request for reconsideration. Therefore, in dealing with a request for reconsideration of a “default” decision, this panel of the Board believes it is appropriate to look at different standards than are normally applied to a request for reconsideration. However, the exact formulation of these standards will have to be decided on an incremental basis.
[7]. Several of the grounds raised by the responding party do not, in this panel’s view, raise a valid basis for requesting reconsideration of the November 30th decision. We shall deal with these briefly.
[8]. First, the responding party engages in a detailed analysis of the Board’s forms and suggests that they misled the responding party and would mislead any reasonably objective recipient. Without analyzing in detail these submissions, we give no weight to them. The responding party received the documents which the Board’s Rules require an applicant to serve on a responding party. The first such document is a Notice to Responding Party, Form C-38. This document provides the following advice:
… A referral of a grievance under the Labour Relations Act is a legal proceeding and may affect your legal rights and obligations. You may wish to seek legal advice immediately.
IF YOU WISH TO DEFEND AGAINST THE GRIEVANCE OR TO PARTICIPATE IN THE PROCEEDING IN ANY WAY, you must file a Request for Hearing and Notice of Intent to Defend/Participate (Form A-87) in the office of the Board, 2nd Floor, 505 University Avenue, Toronto, not later than five (5) days after the date of the Confirmation of Filing and Notice of Hearing (Form B-68) that will be sent to you by the Board.
IF YOU DO NOT FILE YOUR REQUEST FOR HEARING AND NOTICE OF INTENT TO DEFEND AND FILING FEE WITHIN FIVE DAYS OF THE DATE OF THE CONFIRMATION OF FILING AND IN THE WAY REQUIRED BY THE BOARD’S RULES, THE BOARD MAY DECIDE THE REFERRAL WITHOUT A HEARING AND WITHOUT FURTHER NOTICE TO YOU. FURTHERMORE, UNLESS THE BOARD ORDERS OTHERWISE, YOU WILL BE DEEMED TO HAVE ACCEPTED ALL OF THE FACTS STATED IN THE REFERRAL.
[9]. In addition, the applicant is required to serve on the responding party a copy of the Board’s “Information Bulletin No. 20”. This document sets out the process of a section 133 referral in detail and in clear and simple language. Page 3 of this document states as follows:
Where the responding party fails to file a timely Request and filing fee, the referral will be placed before a panel of the Board for decision.
If the referral indicates that the applicant wants a default award in such circumstances, the Board will deem the facts alleged by the applicant to be true. If those facts establish liability, the Board will make an award in favour of the applicant. If the applicant has filed sufficient material to prove its damages, an order in respect of those damages will also issue and the previously scheduled hearing will be cancelled. If the applicant has not filed sufficient material to prove damages, the matter will continue to hearing, as previously scheduled, but solely for the purpose of proving damages.
[10]. Nothing elsewhere in the material served on the responding party or in any communication from the Board contradicts these statements and nothing could reasonably lead any party to believe that these are events which would not occur. The Board cannot be responsible for the particular and idiosyncratic interpretation placed on the documents received by each person who receives them. The notices are clear. There is a great deal of information conveyed to a responding party with each application. The purpose of requiring the applicant to serve this large volume of information on the responding party is to ensure that the responding party has as much information as possible before it to deal with the application. If the volume of information is not easily digested by a recipient, then such party might well be advised to act on the suggestion offered in paragraph 3 of Form C-38 quoted above and seek the advice of others qualified to give it.
[11]. The second issue raised by the responding party relates to the fact that a representative of the responding party attended a settlement meeting scheduled by a Labour Relations Specialist on November 30, 1999. The responding party submits:
“This case is not a typical collection case and, if the Board had communicated with its Labour Relations Specialist, it would have been aware that the respondent had attended the pre-hearing meeting. In those circumstances the Board should not have issued its decision of November 30, 1999. If the Board is going to issue default decisions in these circumstances then it needs to establish appropriate principles when it will reconsider those default decisions so that the process of grievance dispute resolution at the Board is not brought into disrepute”.
In fact, there was limited communication between the Labour Relations Specialist and this panel. The only information conveyed by the Labour Relations Specialist was that the matter had not been settled. No other information was sought, nor should any other information be conveyed. Settlement meetings convened by Labour Relations Officers are “off the record”, and Board Officers are careful to ensure that they remain that way. It would be entirely inappropriate for the Board to base a decision on whether or not to issue a “default” decision based on the assessment of a Labour Relations Officer of the intentions or demeanor of a party at a settlement meeting.
[12]. The third argument raised by the responding party is that the applicant failed to disclose replies to the grievances which had been delivered to the applicant by the responding party, or to set out the position of the responding party to enable the Board to assess the applicant’s claim in light of the responding party’s position. The applicant is not obliged to do so. If the responding party wishes the Board to consider a fact or a document, it is under an obligation to place that properly before the Board. It is no one else’s responsibility.
[13]. A fourth ground alleged is that there was an insufficient factual basis in the pleadings of the referral to support the legal conclusions reached in the Board’s decision. If this were true, it might be a valid ground for reconsideration. However, that is not the case here. Paragraph 6 of Schedule B of the section 133 referral states:
…since on or about May1, 1999 and continuing, the Responding Party has failed or refused to pay the members of the Applicant in its employ their appropriate straight time rates for all time spent travelling when its employees were using company vehicles for transportation to and from job sites. The employees at issue include,…
Section 806 of the collective agreement states:
When Employees are using Company vehicles for transportation to and from job sites, the Employees will be paid straight time rates of pay for all time spent travelling and existing arrangements shall remain in force.
The facts alleged, while minimal, do set out facts which would, if true, constitute a violation of the collective agreement. It is clear from the additional facts pleaded by the responding party that the issue is likely more complex than the bald statement in paragraph 6 of the referral. However the facts as alleged, in the absence of any contradiction or qualification by the responding party are sufficient for the Board to find a violation of the collective agreement. A default decision is not a detailed examination of the precise facts and all legal issues behind a grievance. It has no precedential value in another similar case.
[14]. The refusal to recognize Ed Lavoie as steward is more clearly documented. Whether this amounts to anything, however, could only be determined by the panel hearing the matter for the calculation of damages. Again, on a default proceeding, a bare minimum of facts will be sufficient to enable the Board to find a violation of the collective agreement.
[15]. In dealing with a request for reconsideration, this panel of the Board prefers to analyze the request in terms of the following factors:
(1) whether the circumstances giving rise to the default are adequately explained, that is, some explanation is given as to why the A-87 Notice was not filed in the first place;
(2) whether the request for reconsideration was brought as soon as possible after discovering that a decision had been issued;
(3) whether the responding party can demonstrate that there is a real and substantial defence to the grievance and that the matter is of sufficient importance to the ongoing relationship of the parties that the original decision should be set aside and the matter relitigated;
(4) whether there is any prejudice to the applicant or, if so, the extent of such prejudice.
[16]. Analyzing these four factors, this panel concludes as follows.
[17]. First, with respect to the explanation given as to why no A-87 notice was filed in the first place, the Board does not accept the explanation offered as reasonable. The responding party had ample notice, and its failure to file the A-87 notice was not based on any reasonable ground. While the process adopted and the Rules with respect to “default” decisions were effective only on August 1, 1999, it is up to the responding party to be aware of, or to obtain advice about, the proper process of any application before the Board.
[18]. Second, the responding party clearly made its request for reconsideration reasonably soon after the decision was issued. It advised the applicant of its intention to do so on December 3rd, the day set for hearing, and filed it with the Board twenty calendar days later.
[19]. The third and most important issue in any reconsideration, in this panel’s view, is the issue of whether or not there is a reasonable defense to the grievance. It is not enough simply to allege that a party has a defense, or to sketch out the general nature of that defense. On a request for reconsideration, the responding party should set out in detail each fact, including the evidence by which it intends to prove those facts (i.e. names of witnesses, a summary of the evidence they would give, and copies of the documents upon which the responding party intends to rely) and a brief statement of the legal issues raised. In this case (which is the first such request for reconsideration, after all), the responding party did not focus as precisely as the Board would like on this issue. However, on the basis of the material filed, we are satisfied that there is a reasonable and substantial issue with respect to both of the grievances filed.
[20]. By itself, this is not necessarily enough to cause the Board to reconsider its decision. An employer who has been “putting off” a Union for some time, even if it has some basis for legitimately disputing the grievance as alleged or the quantum of damages, should not expect to use the Board’s reconsideration process as a means of adding another period of delay in the adjudication of a grievance. In this case, however, we note that it would appear that the calculation of damages is likely to involve much of the same argument as the question of whether there has been a breach of the collective agreement. While under rule 162 the Board could refuse to permit the employer to participate as a party in the assessment of damages, it is not at all obvious why the Board should do so. Thus in this case, the same arguments are likely to be made with respect to the calculation of damages as would be made on the issue of the question of liability. For that reason, this factor does weigh in favour of the responding party.
[21]. With respect to prejudice to the applicant, there is very little in this case. The applicant was clearly aware of the responding party’s position with respect to these grievances before the referral was made. The applicant was aware of the difference between it and the responding party with respect to the interpretation and application of the collective agreement. There is some prejudice in the loss of a day’s hearing, but this is not determinative. This grievance was referred prior to the date on which the Board was required by the statute and regulation to collect filing fees. Had the union been put to the expense of the filing fee for the first day of hearing, it might have been appropriate to require the responding party to reimburse the applicant for that expense.
[22]. On balance, the Board determines that this is an appropriate case for reconsideration. The responding party is directed to file its A-87 notice and its response within five working days of the date of this decision. If it does so, the November 30th decision will be revoked and the matter scheduled for hearing.
[23]. There is one final procedural matter of importance. This is the first application for reconsideration of a decision made under rule 161. No form A-87 was filed with the application for reconsideration. Because of the date on which the application was filed, no filing fees are payable in this file. Section 133(12) states:
(12) A party may participate in a proceeding only if the fees payable by the party are paid in accordance with the schedule of fees.
In the future, the Board will not consider an application for reconsideration of a decision made under section 133(7) and rules 160-162 unless the party seeking reconsideration files with the application for reconsideration a completed Notice of Intent to Defend (Form A-87), payment of the appropriate filing fee, and a Response (Form A-88). No application will be considered until all three have been filed with the Board.
[24]. This panel is not seized of this referral.
“David A. McKee”
for the Board