3502-99-JD Clifford Restoration Limited, Applicant v. Brick and Allied Craft Union of Canada, the Brick Employee Bargaining Agency (formerly Ontario Provincial Conference of International Union of Brick and Allied Craftsmen); Brick and Allied Craft Union of Canada, Local 5 (formerly International Union of Brick & Allied Craftsmen, Local 5); Labourers’ International Union of North America, Local 1059; Operative Plasterers Cement Masons and Restoration Steeplejacks International Association of the United States and Canada, Local 598; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America; United Brotherhood of Carpenters and Joiners of America, Local 1946 and Tower Scaffold Services Inc., Responding Parties.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
DECISION OF THE BOARD; May 11, 2001
The Board by decision in this matter dated May 7, 2001 dismissed the applicant’s request for reconsideration of the Board’s decision dated March 21, 2001. Counsel for the applicant, by letter dated May 10, 2001 submits that the Board ignored the submissions in paragraphs 1(b) and 2(c) of Appendix 2 of its request for reconsideration.
Paragraph 1(b) of Appendix 2 of the request for reconsideration submitted that the Board should grant reconsideration on the ground that hearing ought to have been conducted “…in relation to certain issues, in relation to which the positions, submissions and the evidence of the parties were/are fundamentally different and thus in dispute.” Although paragraph 2 of Appendix 2 purported to set out the submissions in support of the applicant’s grounds for reconsideration, the request for reconsideration did not identify what issues required a hearing, nor did the request provide any specific examples of what material facts were in dispute about which the Board should have received viva voce evidence before it could decide the matter. The Board wrote at paragraph 3 of its May 7, 2001 decision:
The Board had the authority under sections 99(3) and 110(18) of the Labour Relations Act, 1995, S. O. 1995, c. 1, as amended and Rules 76 and 77 to determine this matter without a hearing or viva voce evidence.
The Board then went on to comment upon the factual submissions the applicant had made in its request for reconsideration. The Board did not ignore paragraph 1(b) of Appendix 2 of the request for reconsideration. Rather, after considering that ground for reconsideration and the submissions filed in support of it, the Board did not accept it.
- Paragraph 2(c) of Appendix 2 of the request for reconsideration submitted that the Board “should not have applied area practice evidence which was patently unreasonable and should have applied employer practice.” The Board was cognisant of that submission (which was made in support of the grounds for reconsideration set out in paragraph 1 of Appendix 2) when it wrote at paragraph 5 of its May 7, 2001 decision:
The applicant suggested in its request for reconsideration that it had an established or “consistent practise in the geographic area affected by the decision” of using members of Local 598. At paragraph 12 of the Board’s March 21, 2001 decision, the Board noted:
Counsel for the applicant submitted that the Stone Masonry Work being done by the applicant was the first time that the applicant had done work in Board Area 3.
The applicant does not, in its request for reconsideration, take issue with the Board’s description of the applicant’s submissions. If, as the applicant had submitted to the Board, its performance of the work in dispute was the first time the applicant had done that work in Board Area 3, then the applicant cannot have had a “consistent practise in the geographic area affected by the decision” of doing the work in dispute in a particular way.
Simply put, the employer did not have a practice in Board Area 3 and therefore, under those circumstances, there was no employer practice that should have been applied.
Counsel for the applicant requests that the Board respond to his May 10, 2001 letter “before further action is taken.” This decision is the Board’s response to that letter.
The Board reiterates that it is satisfied that there was no merit to the applicant’s request for reconsideration and for that reason dismissed it.
“Harry Freedman”
for the Board