Ontario Labour Relations Board
3851-98-G Labourers’ International Union of North America, Local 506, Applicant v. C.S.B.I. Contracting Ltd., Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair and Board Members G. Pickell and
A. Haward.
DECISION OF THE BOARD; June 21, 2000
This is a Request for Reconsideration of the Board’s decision dated January 21, 2000.
Pursuant to section 114(1) of the Labour Relations Act, 1995 (the “Act”), the Board has a broad discretion to reconsider any decision order made by it and to vary or revoke any such decision or order. However, the Board has repeatedlyindicated that it ill not reconsider its earlier decisions unless there are good and valid reasons for doing so. Circumstances in which the Board has been prepared treasons reconsider an earlier decision or order include those in which the decision contains an obvious error; where the request raises important policy issues which have not been adequately addressed; where new evidence is sought to be presented which could not, with the exercise of due diligence, have been obtained and presented previously and which could, if accepted, make a difference to the decision; and where representations are sought to be made which the party seeking reconsideration had no previous opportunity to make.
A concise statement of the relevant principles the Board applies in deciding whether to grant a request for reconsideration is set out in the following passage in Cineplex Odeon Corporation, [1996] OLRB Rep. Nov./Dec. 922 at page 924:
As to the general principles applicable on applications for reconsideration, there was little dispute. They are distilled in the following two quotations. First from Canadian Union of General Employees, [1975] OLRB Rep. April 320:
- Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representatives or objections not already considered by the Board that he had no opportunity to raise previously. (International Nickel Co. of Canada Ltd., [1963] OLRB Rep. 234, 64 CLLC 15,493 (Ont. H.C.); Detroit River Construction Case (1962) CLLC 16,260). Both legs of this principle depend upon the applicant to draw the Board’s attention to the object of its concern. The applicant in the case at hand and his lawyer were not diligent in that they were given notice of the hearing date in the matter by the Board. Accordingly they would not appear to come within the ambit of the principle.
Secondly, from John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096, after quoting a portion of the above passage from Canadian Union of General Employees:
These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board’s decisions some degree of certainty of what they may expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly. Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise significant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision.
See also K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, which mentions the motives for the request and any resulting prejudice as factors to be considered.
In its decision dated January 21, 2000, the Board found in favour of the applicant with respect to its motion that the facts as alleged by the responding party could not give rise to a finding of abandonment. The parties agreed that for the purpose of the applicant’s motion they would be restricted to the facts set out in the Response to the Grievance and the documents filed with the Board. The basis for the reconsideration is that the Board improperly considered facts, which were not set out in the Response to the Grievance or in the documents filed with the Board in making its decision.
The first instance in which the responding claims that the Board improperly relied on facts not properly before it is found at paragraph 16 of the decision. The responding party pleaded that it had carried out work on 35 ICI projects mainly in Board Area No. 8 and that all of the affiliated bargaining agents were aware of this activity. The Board quite correctly noted that there was no evidence before it asserting that each of the affiliated bargaining agents had knowledge that the responding party had been working in their respective geographic territory. The Board’s jurisprudence is clear that it is not sufficient for a finding of abandonment for the responding to simply claim that each of the affiliated bargaining agents have knowledge of a company performing work in a geographic territory which is not their own; they need to have knowledge that the company was working in their geographic area and they did nothing to assert their bargaining rights.
The second instance is found at paragraph 19 of the decision. The Board noted that there was a dispute between the parties as to whether all of the affiliated bargaining agents received notice of the subsequent application for certification. For the purposes of the decision, the Board assumed that they did (so there was no need to address the argument regarding John Mozynski in his role as counsel for the Employee Bargaining Agency and for Local 183). The Board proceeded to conclude, however, that even if they all had notice, it was unreasonable to infer that “each affiliated bargaining agent reviewed the information, cross-referenced their files to determine if the responding party was one for whom bargaining rights may have already existed and taken steps to notify the Board of the existence of such rights and that their failure to do so is evidence that they considered their bargaining rights to have been abandoned”. It is an appropriate exercise of the Board’s discretion to draw inferences from facts pleaded by parties before it. Even if the Board had not drawn the conclusion referred to above, the Board would still have reached the same result. The fact that an affiliated bargaining agent filed an application for certification in the face of existing bargaining rights, does not in itself give rise to a finding of abandonment.
Having considered the submissions of the responding party, the Board finds that there is no basis for reconsidering the Board’s January 21, 2000 decision.
“John Morgan Lewis”
for the Board