Ontario Public Service Employees Union v. The Regional Municipality of York
2994-99-R Ontario Public Service Employees Union, Applicant v. The Regional Municipality of York, Responding Party v. Canadian Union of Public Employees, Local 4900, Intervenor.
BEFORE: D. L. Gee, Vice-Chair.
DECISION OF THE BOARD; April 12, 2000
1The Board is in receipt of a request for reconsideration of its decision dated March 2, 2000 from the applicant.
2The applicant submits that the Board has substantially departed from Board practice, as set out in Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250, with respect to the question of the “bargaining unit” in which majority support must be demonstrated in the case of an agreement that expands bargaining rights. The applicant asserts that the Board should not have departed from a decision that has existed for a considerable number of years and that Bestview Holdings Limited is good law and is compelling in light of the principles of “majoritarianism” that are now even more clearly enshrined in the current Labour Relations Act, 1995 (the “Act”).
3There can be no doubt that the Board’s decision of March 2, 2000 departs from Bestview Holdings Limited. As stated at paragraph 41 of the March 2, 2000 decision, I declined to follow the Board’s determination in Bestview Holdings Limited. At paragraph 45, I comment that I was not persuaded by the Board’s reasoning in Bestview Holdings Limited and at paragraph 49 state that, if Bestview Holdings Limited was correct at the time it was written, considerations applied by the Board in the course of determining the appropriate scope of bargaining units have changed so as to render Bestview Holdings Limited no longer good law. The applicant is correct, the Board’s decision of March 2, 2000 departs from Bestview Holdings Limited.
4The applicant is also correct when it states that the Board generally follows rules and principles expressed in its decisions for a number of reasons including the fact that the community governs itself according to the principles expressed therein. The Board is reluctant to overturn longstanding, well-known Board principles and rarely does so. As stated in St. Clair College of Applied Arts & Technology, [1980] OLRB Rep. July 1067 cited by the applicant, the Board follows rules established in earlier cases unless they can be distinguished, appear to be unreasonable or are clearly wrong.
5As I stated in the March 2, 2000 decision, it is my view that Bestview Holdings Limited was wrong or, in the alternative, no longer correct, given the Board’s present approach to determining appropriate bargaining units.
6This is not the first time that the Board has changed its approach to an issue. In Gilvesy Enterprises Inc., [1987] OLRB Rep. Jan. 220, involving an application for certification filed pursuant to the construction industry provisions of the Act, the Board departed from its pre-existing, longstanding policy of considering a representative period for the purposes of determining whether an individual was in the bargaining unit and restricted its consideration to what the person was doing on the date of application. Recently, in Royal Ottawa Health Care Group, [1999] OLRB Rep. July 711 the Chair of the Board signaled a change in approach to allegations that there has been a breach of the statutory freeze. Thus, while the Board attempts to provide the community with certainty by consistently applying the principles expressed in its jurisprudence, there are instances where a change has been effected.
7The Board’s reasons for departing from Bestview Holdings Limited are set out in the March 2, 2000 decision. Nothing contained in the request for reconsideration persuades me that I ought to reconsider the March 2, 2000 decision. Accordingly, the request for reconsideration is hereby denied.
“D. L. Gee”
for the Board