1549-97-R Teamsters Local Union 91, Applicant v. Bot Construction (Canada) Ltd. And Clarkson Construction Company Limited, Responding Parties v. International Union of Operating Engineers, Local 793, Intervenor.
1555-97-R Teamsters Local Union 91, Applicant v. Bot Construction (Canada) Ltd. and Clarkson Construction Company Limited, Responding Parties.
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members G. Pickell and A. Haward.
APPEARANCES: Harold Caley and Basil Humphrys for the applicant; S. C. Bernardo and J. Bilowus for the responding parties; Robert Gibson and Vic Prato for the intervenor.
DECISION OF THE BOARD; August 2, 2000
This is a request for reconsideration of the Board’s oral ruling denying the International Union of Operating Engineers, Local 793’s (“Operating Engineers” or “Local 793”) status to intervene in the certification application by the Teamsters Local Union 91 (“Teamsters”).
The Board’s reasons for the oral ruling are set out in its decision of April 10, 2000. At that same hearing the Board ruled it would allow the employer to raise the issue of the collective agreement bar for the reasons set out in the decision of April 10, 2000.
Submissions by Counsel for Operating Engineers
Counsel for the Operating Engineers submits the Board’s decision raises issues of Board policy as in John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096 or where a party has been denied natural justice Zaph Construction Ltd., [1977] OLRB Rep. Nov. 741 and Bechtel Canada Ltd., [1979] OLRB Rep. June 473.
The intervenor refers to Sal Piamonte & Sons Paining Contractors Ltd., [1975] OLRB Rep. Nov. 820 where the Board held that the incumbent union did not have sufficient notice and revoked a certificate which had been issued to another union.
Similarly, counsel for the intervenor submits the Board in Square One Carpentry Inc., [1988] OLRB Rep. Oct. 1112 Labourers Local 183 asserted it had not been provided with timely notice of an application for certification by the Carpenters and was granted its reconsideration request resulting in the certificate to the Carpenters being revoked.
Counsel asserts given the mandatory nature of section 7 of the Act, the public policy considerations underlying that provision, the requirements of natural justice and the Board’s Rules require that the intervenor be allowed to participate in the certification proceedings.
The intervenor submits the Board’s ruling in this case is contrary to its own previous jurisprudence concerning the requirement of notice.
Counsel submits it is unreasonable to conclude that notice to employees posted on the site somehow constitutes notice to the trade union. The Operating Engineers’ collective agreement is particularly complex given the nature of its pick-up clauses and those provisions applicable in the grey zone. The provisions of the agreement may change depending on the geographic location and any prevailing local agreements.
The intervenor submits the Board should follow its past approach in and reasoning set out in Sal Piamonte & Sons (supra) and Square One Carpentry (supra). Counsel submits that is the approach the Board applied to the employer’s assertion of a collective agreement bar in the instant case.
The second aspect of the intervenor’s reconsideration request deals with the Board’s decision to determine whether any of the disputed persons in the certification application were performing work that is covered by classification 5 of the Operating Engineers’ collective agreement.
Counsel submits the April 10, 2000 decision appears to misconstrue the intervenor’s second motion to intervene. The Board treated it as a reconsideration of its decision not to allow the Operating Engineers to intervene on the basis of a collective agreement bar.
Counsel asserts by denying the intervenor the right to participate in the hearing in which the Board is going to make a determination concerning the scope of the Operating Engineers’ bargaining rights, is a denial of natural justice. This would leave the employer to defend the union bargaining rights which is, from a labour relations perspective, an almost inconceivable decision and cannot stand.
Counsel requests the Board reconsider its decision to grant intervenor status to the Operating Engineers for all the reasons set out in its written submissions based on the issue of the collective agreement bar to enable the intervenor to participate in a proceeding which directly affects it. Local 793 further requests if necessary the Board reconsider its decision with respect to the second motion to intervene and enable Local 793 to participate in any determination concerning the scope of its collective agreement with the employer.
Submissions by Counsel for Teamsters Local Union 91
Counsel for the applicant Teamsters submits the Operating Engineers have already had their reconsideration of the Board’s decision and cannot seek a second reconsideration.
Counsel further raises a timeliness issue with respect to this request. It is the position of the counsel for the Teamsters that the date for the purposes of the reconsideration request is the date the oral decision was issued, not the date of the written reasons.
Counsel submits to the extend that the Operating Engineers are raising new arguments and/or cite new authorities not earlier given to the Board, the Board should not entertain the instant reconsideration request. The Operating Engineers cannot now come back and raise new issues and arguments or attempt to make a different argument than the one that was advanced at the hearing.
The Board heard full and complete argument on the issue of the Operating Engineers’ request to intervene on the basis that their collective agreement with the employer was a bar to the certification proceeding filed by the Teamsters. Argument on that issue consumed most of the day.
Counsel for the Teamsters asserts there is only one basis for the Operating Engineers’ intervention, that of a collective agreement bar. They are now again attempting to obtain intervenor status for exactly the same reason, namely to rely on the collective agreement. There is nothing new in the intervening months, the Operating Engineers had the opportunity to make full argument on their attempt to intervene and were unsuccessful.
Counsel submits the request is without merit. The decision of the Board is not a departure from its jurisprudence and there is no issue of ignoring section 7 of the Act. The employer is entitled to raise the collective agreement as a bar.
The request for reconsideration on the basis of the “collective agreement bar” and “determination of the scope of the collective agreement” is a distinction without a difference. The basis for the intervention is the “collective agreement”. This has been rejected by the Board on two occasions.
The Board should not entertain any new arguments and/or authorities. Counsel submits the Operating Engineers are raising new arguments in a 15 page document on an issue that was argued twice.
The cases relied on by the Operating Engineers in this request are not on point and are based on different factual circumstances. In Square One there was no vote or hearing held and the facts were substantially different.
The Operating Engineers are attempting to re-argue their case when they already had full opportunity to make full and complete argument and these arguments were rejected. If an inadequate or incomplete argument was made before a panel, a party is not permitted to revisit the matter by submitting 15 pages of repetitious argument. This has never been the purpose of a reconsideration request.
Counsel submits there has been notice of the application for certification, notices were posted on site, a vote was held, a Labour Relations Officer’s meeting was held. Notice was given to all employees on site, many of which were members of the Operating Engineers and some who were stewards. If they were not given direct notice of the application, they were aware of it or should have been aware of it. Unlike the cases cited by the Operating Engineers, this is a case where the Operating Engineers had a strong presence at the workplace location. It is the facts of this case that drove the result, which counsel submits is a correct result.
Counsel for the Teamsters submits this request should be denied.
Reply-Submissions by Counsel for the Operating Engineers
Counsel made lengthy submissions on the timeliness issue. It is not necessary to set them out in full. In summary counsel takes the position that the request is timely since it was made within the time limit after receiving the written reasons for the oral decision. Counsel submits it could not assess whether there is a basis for a request for reconsideration until it received the reasons for the ruling. In the alternative the Board can relieve against the time limit pursuant to Rule 96.
Counsel for the Operating Engineers disagrees with the applicant’s view as to whether there are one or two bases for reconsideration. The Operating Engineers reiteration their position that they are seeking to intervene firstly on the basis of a collective agreement bar and secondly on the basis of interpretation of the scope of the collective agreement. Their first motion with respect to the collective agreement bar was denied. Their second motion to intervene was made in light of the Board’s ruling to allow the employer to raise the collective agreement bar and the subsequent decision to determine whether the disputed individuals were covered by that collective agreement.
Counsel for the Operating Engineers submits this is an important legal distinction as the Board will be making a determination on the scope of the collective agreement and the Operating Engineers therefore have a clear legal right to participate in the proceedings as a party whose legal rights, irrespective of the issue of the collective agreement bar and this application for certification, would be directly and clearly affected by the Board’s determination.
The second motion is therefore a distinct motion to intervene and not a second request for reconsideration and the applicant’s objection to this second motion should be dismissed.
Counsel points out there was no evidence before the Board that any members of the Operating Engineers were at work in Board Area 15. The Teamsters could have called that evidence. They did not. The Teamsters are attempting to slip in evidence in their written submissions. They are asserting there were business representatives and stewards of Local 793 on the job site and that Local 793 knew of the application for certification. No such evidence was called by the Teamsters at the hearing.
The only factual finding by the Board was that there were rank and file members of Local 793 at the job site.
Counsel restates his position that notice to employees posted on the site which may or may not have been seen by these rank-and-file members is not sufficient notice to constitute notice to the trade union of the raid application for certification. This is particularly so in light of the Board’s Rules, its forms and procedures, and its caselaw involving such raid applications, as set out in greater detail in the intervenor’s submissions in support of this request for reconsideration.
DECISION
In the circumstances the Board finds this is a timely request for reconsideration. Full reasons were provided in writing after a brief oral decision was issued.
Counsel for the Operating Engineers made lengthy written submission which reiterated the arguments put forward on the day this matter was fully argued before the Board. Counsel raises additional and new arguments which it had not made earlier.
It appears that the Operating Engineers are taking the position that the second motion to intervene at the time of the last day of hearing was separate and distinct from the first motion to intervene and that even if the Board were not to reconsider the first motion it should reconsider the second motion .
For the purpose of this decision it is not necessary to decide whether there are one or two distinct motions to intervene by the Operating Engineers in this certification application.
The Operating Engineers in their request for reconsideration have not raised any new argument that had not already been made or should have been made at the time when this issue was fully argued.
Having carefully reviewed the submissions the Board is not persuaded to revisit its earlier oral rulings and its decision of April 10, 2000.
Some of the cases referred to by the Operating Engineers refer to a time before the certification process became vote-based. The resulting notices posted at the job site, and in this case the votes were held at the site, are circumstances that are substantially different than those postings prior to vote-based certifications.
Even if the Board were to accept the Operating Engineers’ position that the second motion to intervene is separate and distinct because it now deals with, in the Operating Engineers’ view, with the scope of their collective agreement, the Board does not find that to be sufficient reason to grant the Operating Engineers intervenor status in these circumstances.
This is a certification application. There is a list problem. The employer takes the position that certain persons are already covered by another collective agreement and will presumably be leading evidence to establish what work was performed on the date of application by the disputed individual(s).
If the employer is not properly applying the collective agreement that it is bound to with the Operating Engineers, or any other trade union, then those rights are protected by the grievance process. The right to file a grievance under their collective agreement cannot possibly be affected by this Board dealing with who is properly on the list for the purpose of this certification application.
In all of the circumstances of this particular case the Board declines to reconsider its oral rulings and its decision of April 10, 2000.
“Inge M. Stamp”
for the Board