0920-00-R Sheet Metal Workers’ International Association, Local Union No. 47, Applicant v. Les Toitures Raymond 1997 Inc., and/or Les Toitures Raymond et Ass. Inc. and/or Raymond and Associates Roofing Inc., Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; December 18, 2000
This is a request for reconsideration of the Board’s October 16, 2000 decision around voter eligibility in an application for certification in the ICI sector of construction industry. Put simply, the Board concluded that the only persons eligible to vote were roofers and roofers’ apprentices at work in the bargaining unit that the Board had found to be appropriate for collective bargaining. Specifically, the Board excluded from eligibility to vote roofers and roofers’ apprentices not at work on the application date and roofers and roofers’ apprentices who were working in Quebec on the application date.
The responding party has made detailed submissions in respect of request for reconsideration, which relate only to the Board’s determination that employees working in Quebec on the date of the application for certification were not entitled to vote. The responding party asks that the Board either hold a hearing so that the responding party can make full submissions or “rectify the errors contained in its decision”.
Counsel wanted an opportunity for an oral hearing with respect to the certification application, but the Board did not consider it necessary because there were no factual disputes and the Board gave the parties ample opportunity to make full submissions, an opportunity both utilized. Again, the Board is satisfied that the responding party had an opportunity to set out its reasons for reconsideration in writing, and an oral hearing is not necessary. The Board typically adjudicates requests for reconsideration on the basis of written materials filed.
In paragraph 1 of the request for reconsideration, counsel wrote that the Board had misstated the responding party’s position about who was eligible to vote. At paragraph 1 of the decision, I merely recited that the parties were in agreement that 8 were eligible, but at paragraph 2 clearly set out that the responding party took the position that more than the 8 were eligible, so I do not believe that I misunderstood the responding party’s position; I merely started by outlining what was not in dispute. The employer’s position has always been clear; it submitted that those eligible to vote included not only employees working in the trade in the bargaining unit on the application date, but also those not at work, and those working in the trade in Quebec on the application date.
Counsel for the employer’s most significant submission is that the Board failed to distinguish between voting constituency and bargaining unit description. I agree that there are fundamental differences between the two, but with respect, I believe that my decision distinguished them. At paragraph 9 I wrote:
The Board has carefully reviewed the employer's submissions. I conclude that the arguments raised, or very similar arguments, have already been considered and rejected by the Board. For more than 50 years, the Board has determined eligibility to vote in the construction industry on the basis of whether the person was at work in the bargaining unit on the application date. In the typical case, the Board has to determine whether the person was actively at work, and whether or not he or she was doing work that falls within the craft description. The Board has also heard disputes about whether the person is doing work in the particular sector of the construction industry which has been applied for. I disagree with the suggestion that whether or not a person working in Quebec is eligible to vote has not been considered. Determining whether or not a person was working within the geographical scope for which the application is made is merely another aspect of deciding whether or not a person was at work in the bargaining unit on the application date.
Counsel also submitted nothing in the case law requires that employees be performing work within the geographic boundaries of Ontario to be eligible to vote. Again, I believe that point was also addressed in paragraph 9 of the October 16, 200 decision.
I do agree with counsel that the Board misstated the responding party’s submission with respect to whether a bargaining unit could encompass employees outside of Ontario. Counsel wrote that although the bargaining unit could not extend beyond Ontario, there was nothing in the law that prevented the Board from including workers outside of Ontario in the voting constituency. The Board regrets its misstatement, but does not conclude that it constitutes grounds for reconsideration.
The responding party provided further submissions in support of its reconsideration request, by letter dated November 14, 2000. The responding party referred the Board to the recently released decision in 1206468 Ontario Ltd. c.o.b. as Quadracon, Board File No. 2560‑99‑R, decision dated October 31, 2000 (unreported), a case which re-examined voter eligibility rules for persons who are working in the trade that is the subject of the application for certification, but have not met the licensing requirements of the Trades Qualification Act. Counsel submitted that Quadracon, supra, supported a less technical view of voter eligibility, that recognized the mobility of workforces in the construction industry.
I have reviewed Quadracon, supra. In that case, there was no doubt that on the application date, the employees at issue were performing the work of the trade (electrical) in the bargaining unit sought, which was in Ontario. The only issue was whether they were “lawfully” working in the trade. The facts before me are quite different. At the risk of repetition, the roofers who the employer seeks to have eligible to vote were not at work in the bargaining unit that the Board found to be appropriate, on the application date. The employees do not meet the Board’s test of voter eligibility. What makes this case different is that their absence from the bargaining unit was not because they were off moose hunting, or working as carpenters or home ill but because they were working as roofers in Quebec. But the result is the same; they are not eligible to vote because they were not at work in the bargaining unit on the date of the application for certification.
The Board’s test for reconsideration has been set out in numerous decisions. The statement of it in Toronto Board of Education (Plant Operations), [1998] OLRB Rep. Jan./Feb. 104 is particularly apposite. At paragraphs 20 and 21 the Board wrote:
Where the Board does embark on a reconsideration inquiry, it should generally not be just because a matter turns on a question of significant Board policy or is arguably wrong. Most cases will in fact turn on such points. It is rare for cases to be decided where an alternative result is not arguable. This is why matters require adjudication in the first place, because reasonable people disagree on the appropriate solution to a problem. What should justify the reconsideration exercise is some considerable uncertainty around the policy, or an apparent absence of consideration or discussion of the policy in Board decisions, or apparent inadvertence or a failure to deal with the issues or authorities which are at the heart of the matter in dispute.
Practically, and as a guidepost for parties, this approach means that the Board will examine requests for reconsideration on a case by case basis and that it may depart from the usual threshold test if there are compelling reasons to do so. Compelling reasons may include the fact that in the words of Imperial Tobacco ([1974] OLRB Rep. Sept. 609), the earlier decision was “clearly wrong in law” or “inadvertently contrary to Board policy”. Generally, however, parties should not be permitted “another kick” at the case simply on the theory that the decision is arguably incorrect or touches on a matter of significant Board policy. There must be more to it than that, usually something about the Board’s treatment of those issues or questions of law. (emphasis in the original)
- The Board agrees that issues of voter eligibility are important ones. I further appreciate that the responding party disagrees with the Board’s conclusions. However, in my view the responding party had not established that the Board failed to consider the issues or authorities which are at the heart of this dispute.
DISPOSITION
- For the reasons set out above, this request for reconsideration is dismissed.
“Mary Ellen Cummings”
for the Board