Ontario Labour Relations Board
File No.: 1478-00-U; 1479-00-U Date: December 7, 2000
Between: Canadian Union of Operating Engineers and General Workers, Applicant v. Brookfield Management Services Ltd. (BCE Place), Responding Party.
Before: Christopher J. Albertyn, Vice-Chair.
DECISION OF THE BOARD
1This is a reconsideration request filed pursuant to the provisions of section 114(1) of the Labour Relations Act, 1995, R.S.O. 1995, c.1, as amended (“the Act”). The request is made in respect of a decision issued on October 25, 2000.
2The reconsideration request has two principal parts: the first challenges the Board’s reliance in the decision upon information contained in a letter sent to the Board by the responding party subsequent to the hearing of the applications; the second deals more with the merits of the applicant’s case and contends that the Board ought to have found the responding party’s lock-out to be unlawful.
3The second part of the reconsideration request does not give cause for reconsideration. It re-argues, albeit eloquently, the issues which were before the Board when the matter was heard. The arguments raised are in the same vein as those presented earlier by the applicant’s counsel at the hearing, and they are arguments the Board was familiar with when the matter was heard, before the decision was written.
4The first part is a different matter. It contends that the Board has violated the audi alteram partem rule by taking account of information conveyed to it after the hearing, without giving the applicant an opportunity to respond to the information before taking it into account as being true. In broad terms the criticism of the Board’s conduct is accurate, though it requires some qualification.
5These applications were heard between August 28, 2000 and September 1, 2000. The matter was under consideration by the Board when a letter was received from counsel for the responding party on September 22, 2000. The content of that letter was as follows:
We are counsel for the responding party in this matter.
The Board scheduled these matters on an expedited basis. The hearing commenced on Monday, August 28 and concluded Friday, September 1, 2000.
The parties met at negotiations on September 7th. At that time, the Company tabled an Offer of Settlement to the Union Committee. The Offer of Settlement did not include a request for any agreement or undertaking on the part of the Union not to file grievances or commence proceedings before the Ontario Labour Relations Board.
The Union responded with an offer which it was prepared to recommend. This offer included the following provisions.
Article 23.01 Replace current language with the following:
For the life of this collective agreement, no bargaining unit employee shall have their regular daily or weekly hours of work reduced as a result of any contracting out.
New All employees to return to work the day following ratification to their normal shift and compensate them for lockout.
Following the tabling of this offer by the Union, Bill Lloyd, the mediator advised that he did not see any basis for settlement and he was adjourning the talks until he decided to call the parties back together.
It is apparent that no meaningful collective bargaining will take place until after the Board has issued its decision in this matter. The parties are scheduled to meet with Bill Lloyd on Thursday, October 12, 2000. It would therefore be helpful to all parties if the Board was in a position to render a decision by that date.
The letter was copied to the applicant’s counsel.
6No comment was received from the applicant in respect of the letter. In the Board’s decision reference was made in two places to the letter: at paragraphs 77 and 103. Paragraph 77 is the final paragraph of the narrative of what occurred between the parties in their bargaining. It reads:
Subsequent to the hearing of the matter, the Board has been informed in writing by the employer’s counsel that the parties met again on September 7, 2000. At that meeting the employer tabled an Offer of Settlement which did not include a request for any agreement or undertaking by the union not to file grievances or commence proceedings before the Board. That offer was not acceptable to the union.
7Paragraph 103 makes reference to the letter. That paragraph is part of the Board’s reasoning as to why the responding party’s lock-out was not unlawful. It reads:
As soon as the possible illegality of the Final Offer was conveyed to the employer by the union, the employer withdrew the offer. Both the Final Offer and the Offer were raised fleetingly, as part of the general endeavour by the parties to see if they could come to terms on that day before their meeting was to end. Parties understand that proposals presented and rejected can be withdrawn from the table and they then have no further efficacy. Despite the break-off in discussions on August 17, the situation was still fluid when they separated. The union made clear that it had room to move on its Options 1 and 2. Before they parted on August 17, the parties arranged further dates on which to bargain. They were still exploring options when the deadline arrived. From the context of the negotiations, I cannot conclude that the employer was so wedded to its proposals in paragraphs 10, 11 and 12 of the Discontinuance Agreement that it was not willing to reach an agreement unless those paragraphs formed part of it. That was clear from the withdrawal of the Final Offer. Those provisions had made no appearance prior to August 17, and they were gone on that day. When the parties got back together on September 7 the provisions were missing from the employer’s proposal. That too suggests that the employer did not pursue them to impasse.
8The reference to the letter is tangential to the conclusion reached by the Board that the Final Offer was withdrawn on August 17, 2000. The letter, containing information regarding the parties’ bargaining subsequent to the hearing of the applications, merely corroborated a conclusion reached by the Board concerning the bargaining that had occurred between the parties in the period leading to, and including, August 17, 2000. The Board did not rely upon the content of the letter other than to confirm conclusions reached in respect of the evidence presented at the hearing.
9The applicant now seeks to suggest that the content of the letter from the responding party was not accurate. Plainly the purpose of the letter was to convey to the Board information concerning the bargaining which occurred between the parties on September 7, 2000. The Board’s decision was issued on October 25, 2000. The letter was received on September 22, 2000. During the period September 22 to October 25, 2000 the applicant did nothing to suggest any inaccuracy in the letter; nor did the applicant suggest that the Board should not heed the letter because it might be inaccurate or misleading. In the circumstances the Board was left with the impression that the letter accurately conveyed what transpired between the parties on September 7, 2000. Although, as stated, the Board took account of the letter to a limited extent, there was nothing before the Board to suggest that it was not a fair representation of what occurred at bargaining between the parties on September 7, 2000.
10The applicant had ample opportunity to respond to the letter, yet chose not to do so. The applicant ought reasonably to have realized that the Board would not seek representations from it because no relief was being sought in the letter and no representations were required. The letter merely conveyed information. To the extent the applicant disputed the information, it ought to have brought that dispute to the Board’s attention. By failing to do so, it conveyed to the Board that the content of the letter was accurate.
11The Board is satisfied that, even if the information in the letter was not accurate, and if the true state of affairs was different from that conveyed in the letter, that would not have altered the decision. As stated earlier, the decision was founded upon events which occurred in the period leading to August 17, 2000.
12In the circumstances, the Board will not accede to the applicant’s request that the decision be reconsidered, alternatively that the matter be referred to a fresh hearing before a different panel of the Board. The request is denied.
“Christopher J. Albertyn”
for the Board