Shannon v. National Automobile, Aerospace and Agricultural Implement Workers of Canada (CAW – Canada), 2000 CanLII 12345

Ontario Labour Relations Board

0091-97-U Peter Shannon and other members of the Preferential Hires Defence Committee, Applicant v. National Automobile, Aerospace and Agricultural Implement Workers of Canada (CAW – Canada) and its Local No. 222 CAW, Responding Party v. General Motors of Canada Limited, Intervenor.

BEFORE: Pamela Chapman, Vice-Chair.

DECISION OF THE BOARD; January 18, 2000

1. By letter dated March 9, 1999, the applicants have requested that the Board reconsider its decision dated November 17, 1998.

2. Pursuant to section 114(1) of the Labour Relations Act, 1995 ("the Act") the Board has the discretion to reconsider any decision it has made. Section 114(1) states:

114. (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.

3. The principles which the Board applies in an application for reconsideration have been detailed in numerous decisions, including K-Mart Canada Limited (Peterborough), [1991] OLRB Rep. Feb. 185 and John Entwhistle Construction Limited, [1979] OLRB Rep. Nov. 1096. Generally, the Board has said that it will not reconsider its decisions unless a party proposes to adduce new evidence which would be practically conclusive of the matter, which could not previously have been obtained through the exercise of due diligence, or a party desires to make representations not previously considered by the Board which it had no prior opportunity to raise. The Board may also reconsider a decision if the request raises significant and important issues of Board policy not considered in the decision.

4. The request for reconsideration in the instant matter raises essentially two issues. First, the applicants have reiterated their argument that the procedure adopted by the union in entering into the Letter of Interpretation dated December 16, 1993 was contrary to the union constitution and the local union by-laws, and therefore a violation of section 74 of the Act.

5. The assertions made by the applicants in respect of the constitution and the by-laws do not make out a prima facie case that the union’s approach to the execution of the Letter of Interpretation was improper. More importantly, though, the claims made by the applicants in this respect relate to internal union matters which can, should they have some merit, be remedied through recourse to the procedures set out in the union constitution. Even were it established that the procedure adopted by the local union in agreeing to a certain interpretation of the various seniority provisions contained in the master and local collective agreements and seniority regulations was in some way contrary to the constitution or the by-laws, unlawfulness in that sense would not equate with a finding that the Act had been violated, as the standards in section 74 address only whether union conduct is arbitrary, discriminatory or in bad faith. As set out in the reasons for the Board’s decision, I have concluded that the evidence which the applicants intended to call on the procedure adopted by the local union in entering into the Letter of Interpretation would not establish conduct contrary to section 74. These issues have therefore already been fully argued, and ruled upon, in the decision which the applicants seek to have reconsidered.

6. The remainder of the request for reconsideration is taken up with a reiteration of many of the arguments made by the applicants in their filings with the Board, and at the consultation, regarding what they perceive as a central unfairness in the Letter of Interpretation and its impact on the Scarborough van plant employees. The arguments of the applicants in this regard are reviewed carefully in the decision of the Board dated November 17, 1998, and the largest section of the decision deals with their claim that the union’s actions favoured trades employees who worked originally at the Oshawa plant over the Scarborough van plant employees who were transferred there. As can be seen from the decision, the Board has rejected those arguments and found that the union did not violate the Act by entering into the Letter of Interpretation dated December 16, 1993. The following quote from the decision deals directly with the assertions made by the applicants in their request for reconsideration:

There is no basis for a claim in the present case that this delicate and complex balancing by the CAW of various seniority interests, in circumstances where many employees have been, and continue to be, threatened with job loss, is anything other than a proper exercise of the union’s obligation to represent all employees in the bargaining unit, fairly and without discrimination. A union will always be vulnerable to claims of unfairness and discrimination when it is forced to choose between the interests of various groups of employees, but in the absence of evidence that those choices are motivated improperly it will not be found to violate the Act by making hard choices. There is no evidence of improper motive in the present case; only of difficult decisions made in a context of scarce resources and competing employee demands for those jobs that remain.

7. I appreciate that the applicants do not agree with the conclusions reached by the Board in its earlier decision, and that they are frustrated by their inability to reverse the union’s approach to the difficult seniority issues reviewed in the decision. However, nothing in the request for reconsideration raises any facts, or issues, which could not, or indeed were not raised in the consultation and in the multitude of documents and submissions filed with the Board. The Board analyzed a variety of complex collective agreement provisions, and gave careful consideration to the competing interests identified in the decision, before reaching the conclusion that the union had not breached section 74 of the Act. We are satisfied that the applicants have not raised any grounds which would merit a reconsideration of that decision, and the request for reconsideration is therefore denied.