Labourers’ International Union of North America, Local 527 v. Karson Kartage & Konstruction (1994) Limited
Board File Nos.: 1880-98-R, 2223-98-U, 2224-98-U, 3919-99-U
Labourers’ International Union of North America, Local 527, Applicant v. Karson Kartage & Konstruction (1994) Limited, Responding Party v. Karson Kartage & Konstruction Employees’ Association, Intervenor.
Labourers’ International Union of North America, Local 527, Applicant v. Karson Kartage & Konstruction (1994) Limited, Karson Kartage & Konstruction Employees Association, Responding Parties.
Labourers’ International Union of North America, Local 527, Applicant v. Karson Kartage & Konstruction (1994) Limited, Karson Kartage & Konstruction Employees Association, and Kevin Hanna, in his capacity as the President of the Karson & Konstruction Employees Association and in his personal capacity, Responding Parties.
Labourers’ International Union of North America, Local 527, Applicant v. Karson Kartage & Konstruction (1994) Limited, Karson Kartage & Konstruction Employee Association, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; June 22, 2000
Decision
1This decision deals with the submissions of the two responding parties in Board File 3919-99-U to the application filed therein and to the applicant’s request for reconsideration of the decision in the other three files dated March 2, 2000. The entire process has generated a vast amount of paper, and has taken up a considerable amount of the Board’s time. Most of this expenditure of time and resources was entirely wasted. In future, counsel are urged to consider the virtues of economy and brevity.
2Board File 3919-99-U is pleaded as an unfair labour practice complaint. It is in fact two different types of application. In part (paragraphs 3-17) it supplies some of the detail in support of the applicant’s request for reconsideration. In part (paragraphs 18-20) it is simply further particulars of the complaint in Board File 2223-98-U. No separate application was necessary to do either. If counsel is concerned about a need for an adjournment or the propriety of filing particulars at any point in time, that issue should be addressed directly rather than creating new files which appear themselves to require adjournments.
3The application for reconsideration is not a second application. It is a request to reconsider the Board’s decision of March 2, 2000. To suggest otherwise is simply to send the Board on a detailed examination of a number of overburdened files to no point at all.
4The application for reconsideration is one which is properly brought. While this is an argument that could have been (and in fact was) addressed before the Board, the applicant has raised an issue of previous decisions of the Board which appear to raise important policy issues. The applicant relies on Atlantic Packaging Products Ltd., [1980] OLRB Rep. Jan. p. 4. This case does suggest that the March 2, 2000 decision was overly broad. The decisions referred to therein appear to draw a distinction between later requests for reconsideration based on membership evidence on behalf of an individual who was a member of the bargaining unit at the time the original certificate was granted (where reconsideration was considered) and those where the membership evidence was in respect of persons hired since that date (where it was not). The decision in Atlantic Packaging appears to have been influenced by the fact that the employer’s workforce had increased from 2 to 15 in four months. To deny the intervenor in that case the right to seek reconsideration in order to make the “build-up” argument would have been to say that the violation of the Act suggested by the intervenor itself furnished a complete defence to the allegation. This would clearly have been inappropriate.
5Even taking these cases of the Board into consideration, reconsideration is not appropriate here. The applicant does not represent any person who was a member of the bargaining unit who was employed on the date of the original application for certification. While it is true that this is because of a 95% turnover in the membership of the bargaining unit, it means that the applicant cannot claim standing on that basis. There is no manifest injustice in not permitting employees hired after the event to relitigate an issue arising before they were hired. In addition, this application is brought two years after the original application was filed. As the Board said in Atlantic Packaging, there is a strong need to treat the Board’s decisions with finality.
6It is apparent that the particulars filed with respect to the propriety of including or excluding persons from the list of employees in the bargaining unit are based on inferences drawn from documents. The pleadings are bald in the extreme. Since these persons are no longer employees, it is impossible to know if they can be traced for the purpose of examination. Aside from the issue of finality, there is a prejudice to the other two parties in attempting to litigate the issue of what 23 persons were doing on March 24, 1998, where, even if they could be located, the likelihood of their recollections being accurate and complete is small.
7Accordingly, the Board will not reconsider the decision granting the certificate to the Association. We therefore do not need to deal with the issue of the implied undertaking.
8Paragraphs 18 to 20 are simply further particulars of the allegations of financial support made in paragraphs 3(iv) of the original application and paragraph 2 of the October 29 letter. It should not surprise the responding parties that further particulars are made after an examination of documents. Surely the examination of documents is intended to clarify and particularize the allegations, or there would be no point in producing the documents. Similarly, if the applicant were to note, for his own use, the entries on various documents and spring them on a surprised witness in cross examination, no doubt counsel for the employer would object strenuously to the lack of notice and lack of particulars. The only objection to these pleadings is that they are properly particulars in Board File 2223-98-U.
9The Registrar has set these matters for hearing on October 24, 25 & 26, 2000. Counsel should be prepared to start these cases filed some 22 months ago on the dates scheduled. In the meantime, the responding parties are to respond to paragraphs 1, 2, and 18 to 22 of the application in Board File 3919-99-U forthwith.
“David A. McKee”
for the Board