3051-95-R The International Brotherhood of Electrical Workers, Local 353, Applicant v. Volta Electrical Contractors Ltd. and Westbridge Electric Contractors Ltd. and 1086289 Ontario Inc. c.o.b. as Urban Electrical Contractors, Responding Parties.
BEFORE: Ken Petryshen, Vice-Chair.
DECISION OF THE BOARD; January 6, 2000
In a decision dated July 19, 1999, the Board found that there had been a sale of a business from Volta Electrical Contractors Ltd. (“Volta”) to 1086289 Ontario Inc. c.o.b. as Urban Electrical Contractors (“Urban”). The Board also found that Volta and Urban constituted one employer for purposes of the Act and it declared that Urban was bound to the relevant collective agreement. In an application dated August 17, 1999, Urban has requested reconsideration of this decision. The Board has reviewed the application for reconsideration as well as the comments made on behalf of the International Brotherhood of Electrical Workers, Local 353 (“Local 353”), which were filed with the Board on January 4, 2000.
The Board has previously indicated that a request for reconsideration is not an opportunity for a party who obtained an unfavourable decision to re-argue the case. In K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, the Board made the following comments concerning the application of its reconsideration power:
To avoid abuse of the reconsideration provision and bring some finality to its adjudicative decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the case. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of a party’s conduct, and the resulting prejudice to another party if the case is re-opened. …
In support of its reconsideration request, Urban has raised a number of issues. It claims that the Board erred factually and legally when it concluded that there had been a sale of a business from Volta to Urban and when it determined that these two entities constituted one employer for purposes of the Act. Urban referred to an application for certification filed on July 18, 1997, by Local 353 against Urban in which two-thirds of the employees voted against Local 353 (the count occurred in October, 1997). Local 353 noted that the decision dismissing the certification application was not issued until October 6, 1999. Urban argues that the vote against Local 353, which occurred after the hearing of the sections 69 and 1(4) application, but before the decision was released, should have been considered and should have caused the Board to dismiss the application. Finally, Urban argues that the delay in rendering the decision has prejudiced Urban. Urban has requested that the application in Board File No 3051-95-R be dismissed or, alternatively, that a new hearing be held before a new panel of the Board. The Board notes that the counsel representing Urban in its reconsideration request is not the same counsel who represented Urban during the sections 69 and 1(4) proceeding and the application for certification. The Board will briefly address the issues raised by Urban.
The assertions that the Board made incorrect factual determinations and that it applied legal principles erroneously to the facts is merely an attempt to re-argue the evidence and the law which were at issue during the hearing on the merits. The experienced labour relations counsel who represented Urban at the hearing made extensive and complete submissions on the factual and legal issues before the Board. Indeed, the submissions made in the request for reconsideration with respect to the evidence before the Board at the hearing and the appropriate legal principles were made at the hearing.
Urban suggests that the delay in issuing the decision would have made it difficult for the Vice-Chair to recall the oral testimony and other aspects of the evidence, thereby prejudicing Urban. There is no basis for this speculation and the suggestion is simply incorrect. With the benefit of detailed notes, the exhibits and a firm recollection of the case, the Vice-Chair had no difficulty in fairly dealing with the evidentiary and legal issues presented by this case. The serious inconsistencies in the evidence of Phil and Josie Bartuccio and the improbability of their factual assertions stand out as clearly now as they did at the hearing.
In its submissions, Urban places considerable reliance on the results of the certification vote which was made available to the parties in October 1997. From a number of perspectives, Urban now argues that the certification vote has some relevance to the application under sections 69 and 1(4) and that it should cause the Board to dismiss the application. The Board will comment on the timing of this submission and the merits of it.
Urban notes that the same Vice-Chair who decided the sections 69 and 1(4) application issued the administrative decision directing a vote in the certification application. Subsequent to that decision, I can recall no further involvement with that proceeding and I certainly was not advised of the results of the vote. At no time prior to the request for reconsideration did Urban take the position that the certification vote should have an impact on the sections 69 and 1(4) proceeding. The submissions that are being made now could easily have been made within a reasonable time after the vote result was announced. Urban has offered no explanation for why it did not raise this issue in a timely way or at least before the decision in the sections 69 and 1(4) proceeding was issued. The failure to raise the issue in a timely fashion is, by itself, fatal to the position advanced by Urban.
In any event, Urban’s assertion that there is a relationship between the application under sections 69 and 1(4) and the subsequent certification application is not sustainable. The Act permits applicants to take advantage of the two types of proceedings, each of which raise different issues. Although the wishes of the employees are paramount in a certification application, this is not the case in an application under sections 69 and 1(4) of the Act. The statutory purposes of sections 69 and 1(4) would be undermined if the wishes of the current employees were determinative. The Board notes that employees are given notice of a sections 69 and 1(4) proceeding. In this case, no employee of Urban elected to appear at the hearing. It would be inconsistent with the purpose of the statutory provisions to deny Local 353 the relief it was entitled to under sections 69 and 1(4) of the Act merely because employees did not vote for Local 353 in a subsequent application for certification.
Urban also asserts that it is been seriously prejudiced by the delay in the release of the decision and that this should result in the dismissal of the sections 69 and 1(4) application. This delay was certainly unfortunate and since the reasons for the delay are irrelevant, I will not set them out here, including those which arose subsequent to my tenure at the Board coming to an end. Urban asserts that the prejudice occurred subsequent to the announcement of the result of the vote in the certification matter because it then believed that the issue of representation by the union was over and, therefore, it conducted its business affairs accordingly.
Quite frankly, it is difficult to accept that Urban would have believed that the issue of union representation was over in October 1997. If it did have such a belief, it was certainly an unreasonable belief given the circumstances. Urban was involved in two proceedings, either of which could have implications with respect to union representation. The counting of the ballots in a certification proceeding clearly did not terminate the sections 69 and 1(4) proceeding. Neither the Board nor the union conveyed to Urban at any time that a decision would not issue in the sections 69 and 1(4) proceeding. It would have been unreasonable for Urban to make its business decisions after the certification vote was announced without recognizing that the decision in the sections 69 and 1(4) matter was still forthcoming and that the decision may not be in Urban’s favour. Any prejudice that Urban may have experienced is as a result of its own doing and it does not constitute a basis for reconsidering the July 19, 1999 decision.
For the foregoing reasons, the application for reconsideration is dismissed.
“Ken Petryshen”
for the Board