3010-00-PS Canadian Union of Public Employees and its Local 4705, Applicant v. City of Greater Sudbury; Canadian Union of Public Employees and its Local 148; Sudbury Professional Fire Fighters Association, Local 527 of the International Association of Fire Fighters, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair
DECISION OF THE BOARD; May 10, 2001
- The Sudbury Professional Fire Fighters Association, Local 527 of the International Association of Fire Fighters (“Local 527”) applied for reconsideration of the Board’s decision in this matter dated March 20, 2001. The Board in its decision in this matter dated April 6, 2001 described the issued raised by Local 527 in the following way:
Local 527 seeks, in effect, a clarification of the description of the “fire fighter” bargaining unit determined by the Board to be appropriate. It makes the request for reconsideration because it is concerned that the City of Greater Sudbury (the “City”) “may claim that a greater number of ‘Assistant Fire Chiefs’ can be identified as ‘automatically’ excluded from the bargaining unit.” Local 527 suggests that the City might do so “regardless of whether the individuals in question actually perform managerial or confidential duties and in contravention of the specific limit on the number of Assistant Fire Chiefs to be excluded agreed upon in January, 1999.”
- The City of Greater Sudbury (the “City”) opposes the request for reconsideration and submits that the Board should exercise its discretion to refuse the request on the grounds that the application for reconsideration does not raise any new or fresh evidence and more importantly, does not make submissions that Local 527 had been unable to make earlier at the hearing convened to deal with this matter. Counsel for the City submits that as this proceeding is an application under the Public Sector Labour Relations Transition Act, S.O. 1997, c. 21, ( the “Act”) there is both a need for expedition (see section 37(8)) and finality (see section 37(9)) and relies on City of Toronto, [1998] OLRB Rep. November/December 920. The Board in City of Toronto commented on those two provisions of the Act in the context of an application for reconsideration when it wrote at page 921:
However, given the need for expedition and finality under Bill 136 (see sections 37(8) and 37(9)), it seems to me that the discretion to reconsider should be very cautiously exercised. That is especially so with respect with bargaining-unit determinations made under section 22…. Any belated tinkering with the bargaining unit perimeters established under section 22 will interrupt the statutory sequence in ways that may cause the whole structure to unravel. At the very least, revisiting earlier bargaining-unit determinations will cause further delay in a context in which the statute commands expedition.
Against that background, it seems to me that a request for reconsideration must be launched quickly, and must raise compelling submissions which could not reasonably have been advanced earlier.
Local 527 submits that the Board, when it described the bargaining unit that would be represented by Local 527, omitted the limitation on the number of assistant fire chiefs. Local 527 argues that the Board, in describing the bargaining unit, was cognizant of the January 1999 memorandum of agreement between Local 527 and the City of Sudbury which contained a numerical limitation in respect of the classification of Assistant Fire Chief.
At paragraph 36 of the Board’s March 20, 2001 decision, I noted, in my reasons for refusing to grant an adjournment to Local 527 that “the issue of the bargaining unit description was raised squarely by the material filed….” At the hearing, the parties directed the Board’s attention to the support clerk position and whether it should be included in or excluded from the bargaining unit. Neither party in their submissions specifically raised the numerical limitation in respect of the Assistant Fire Chief classification in the bargaining unit description.
Local 527 in its response to the application submitted a bargaining unit description that the Board did not accept. It made no submissions in its response about why its proposed bargaining unit description should have been accepted and merely appended to its response the January 1999 memorandum of agreement. It did not draw attention to or signify in any way that it was necessary, from its perspective, to limit the number of excluded assistant fire chiefs.
Local 527 submitted in its reply to submissions made by the City with respect to the request for reconsideration that “there was some confusion with respect to the purpose of the Board proceedings of March 16, 2001.” It goes on to state that “the Board was not advised by either party of significant facts which were relevant to its decision and which give rise to the request for reconsideration.” Local 527 does not suggest that the notices issued by the Board were ambiguous or that the parties were unaware that the Board would be ultimately determining the description of the Local 527 bargaining unit. In my view, the parties knew or ought to have known the nature of the proceeding and that the Board would be exercising its authority under section 22 of the Act. I do, however, accept that the Board was not advised of the significant facts on which Local 527 seeks to rely; nevertheless, there is no reason given for Local 527 not having provided those facts to the Board before the request for reconsideration, either in written submissions prior to the hearing or at the hearing on March 16th.
It is apparent from those further submissions that the parties are engaged in litigation over the number of assistant fire chiefs that the City may exclude from the bargaining unit. At paragraph 37 of the Board’s March 20, 2001 decision, I noted:
I also indicated to the parties that I was not prepared in this proceeding to make any determination under section 54(2) of the FPPA with respect to managerial or confidential exclusions from the definition of fire fighter contained in section 41(1), nor was it appropriate, in my view, for me to determine whether it was open to the City to make one or more designations under sections 54(4) or 54(8.1) of the FPPA.
It is clear, in my view, that the Board was not making a determination about the actual number of individuals that would occupy the excluded positions when it described the bargaining unit. Rather, the Board was describing the bargaining unit in terms of job classifications. Simply put, as neither party sought to have the Board adopt the unusual approach of limiting an excluded classification from the bargaining unit to a specific number of individuals who can be placed in that classification, the Board did not specifically import that limiting number into the bargaining unit description it ordered under section 22 of the Act with respect to Local 527. Whether it would have had the matter been raised squarely by Local 527 at the appropriate time is not something on which I am prepared to comment since it did not happen. Furthermore, as there was no acceptable reason for Local 527 not to have raised that matter at the appropriate time, it is too late for it to do so in a request for reconsideration.
The Board’s decision of March 20, 2001 in relation to the Local 527 bargaining unit dealt with the issues the City and Local 527 had placed before the Board for determination. It is open to the City and Local 527 to argue in the appropriate forum the effect, if any, of that decision on whether more than three assistant fire chiefs are properly excluded from the Local 527 bargaining unit. I am not, however, prepared to reconsider that decision as Local 527 has failed to “raise compelling submissions which could not reasonably have been advanced earlier”.
This application for reconsideration is dismissed.
“Harry Freedman”
for the Board