Re: Skeena Concrete Products, Division of Eastend Holdings Ltd. (the “Employer”) -and-Teamsters Local Union No. 213 (the “Union”)(Application for Reconsideration of BCLRB No. B254/93 – Case No. 16299/93) (the “Reconsideration Application”) (Sections 5 (1), 6(1), 6(3)(a), 6(3),(d), 9 and 32 – Case 16199/93) (the “Union’s Complaints”) (Sections 9 and 70(1) – Case No. 16512/93) (the “Employer’s Complaints”) (Section 11(1) – Case No. 16663/93) _(Bargaining in Bad Faith Complaint)
Brent Mullin
Judgment: November 05, 1993
Docket: B364/93
(i)The Reconsideration Application (Case No. 16199/93)
1 The Employer has applied for reconsideration of the Board’s decision in BCLRB No. B254/93. The Employer argues that it was denied natural justice in the decision and that the decision contains errors of law and policy under the Code.
2 The test for granting leave for reconsideration under Section 141 of the Code is that the party requesting leave “must demonstrate a good arguable case of sufficient merit that it may succeed on one of the established grounds for reconsideration”: Brinco Coal Mining Inc., BCLRB B74/93 (leave for reconsideration of BCLRB No. B6/93, pp. 11, 14). The grounds for reconsideration include the denial of natural justice or procedural fairness, and inconsistency with the principles expressed or implied in the Code: Brinco, supra, pp. 9 – 11, 14 – 15.
3 The reconsideration application does not meet the leave test and, as a result, leave is denied. In essence, the Employer’s reconsideration arguments are nothing more than an invitation to a reconsideration panel to make different findings of fact than the original panel. It is long established law that that is not a proper ground for reconsideration: Robinson Little and Co. Ltd., BCLRB No. 32/75, [1975] 2 Can LRBR 81, P. 85; Brinco Coal Mining Inc. supra, pp. 8, 15.
4 Two of the Employer’s submissions on reconsideration require further comment. The first is the Employer’s argument that the original panel at one point in its decision incorrectly stated the test for the determination of anti-union motivation. At page 9 of the decision, the original panel stated:
The employer has the burden of proving that it did not contravene Section 6(3)(a); see Section 14(7). To discharge this onus, the employer must prove, on a balance of probabilities, that its termination decision was made entirely for proper cause and was not, in whole or in part, motivated by anti-union sentiment: Bulkley Valley Forest Industries Ltd., BCLRB No. 17/76, [1976] 2 Can LRBR 453.
5 I agree with the Employer that is not correct. Under Section 6(3)(a) of the Code an employer need not establish that its decision to terminate, lay off, etc. was for proper cause. That is the test under Sections 6(3)(b) and 45(4). In regard to Section 6(3)(a), an employer need only establish that it was not motivated by anti-union sentiment.
6 However, the Employer also very properly acknowledged that the original panel went on to correctly state the test immediately prior to its determination. At page 20 of the decision, the panel stated:
A firing in the absence of anti-union motivation, even if there proves to be insufficient cause, will not put the employer in violation of the provisions of Section 6 of the Code: Bulkley Valley Forest Industries, Ltd., supra.
7 The original panel then went on to address the facts and the alleged anti-union animus of the Employer in the termination at issue. I find that it does so clearly in relation to the proper test of whether there was anti-union motivation in the termination. As a result, there is no error made by the original panel in its ultimate determination. Leave is thus denied as there is in the circumstances no “practical utility of the appeal” (Brinco, supra, p. 12).
8 The second point is the Employer’s argument that the original panel applied an improper test in its conclusion that Theresa Morrison was not included in the bargaining unit. I find that the Employer simply misreads the original panel’s decision in this regard. The decision on Morrison is not based on another employee’s community of interest. Rather, it simply reaches the logical conclusion that since both employees do the same work, and that work is outside of the applied for bargaining unit, neither should be included in the bargaining unit.
9 By way of letter to the Board the principal of the Employer, Grete Eichhorst, challenged some of the factual determinations of the original panel. That was in addition to the full submissions filed on reconsideration by counsel for the Employer. It is questionable whether this separate submission should be considered, but in any event I find that there is no basis in it for reconsideration of the original decision. Ms. Eichhorst is, in essence, simply unhappy with the factual determinations made by the original panel and the legal conclusions based on those factual determinations. As with counsel for the Employer’s submission, there is no basis for leave in these challenges based on disagreement with the findings of fact of the original panel: Robinson Little, supra; Brinco, supra.
10 As a result, leave is denied with respect to the Employer’s reconsideration application and the application is dismissed.
(ii) Harry Eichhorst’s Application for Interested Party Standing
11 Harry Eichhorst was determined to be an employee in the bargaining unit by the original panel (p.31). On October 13, 1993, he applied to the Board for interested party status in the Employer’s reconsideration application. He does so on the basis of his view of the impact of the original panel’s decision on the future employment of the employees and the negative effect of the decision on the economy of the city of Terrace and the outlying communities. He says that there will never be a workable agreement between the Employer and the Union, that the employees do not support the Union, and that they were intimidated into signing cards. He also says that he will provide information which will successfully challenge the conclusions of the original panel. He refers to natural justice.
12 At an earlier point in this matter, Mr. Eichhorst sought to directly appeal the original panel’s decision. He did so on a wide variety of bases, some of which were similar to some of those above. On October 6, 1993, the Registrar of the Board dismissed his application: Skeena Concrete Products, Division of Eastend Holdings Ltd. -and- Teamsters Local Union No. 213 -and- Harry Eichhorst, BCLRB No. B324/93 (leave for reconsideration of BCLRB No. 254/93). In doing so, the Registrar had “serious reservations concerning Eichhorst’s standing to seek leave”, however, finding “it is unnecessary to rule on the issue given the disposition on the merits” (p. 4).
13 I find that Harry Eichhorst’s request for interested party standing must be denied on two bases. Firstly, like all the employees, he was provided with notice of both the certification application and the Board’s hearing regarding that application. If he wished interested party standing, he should have requested it at that time. The reconsideration avenue is simply not a means of arguing what should have been argued at the original hearing: Brinco, supra, pp. 11 – 12. Both standing and leave are denied on that basis.
14 Secondly, Eichhorst’s arguments do not present “a good arguable case of sufficient merit that it may succeed in one of the established grounds for reconsideration”: Brinco, supra, pp. 11, 14. The arguments regarding the effect of the decision on the employees, the City and its outlying communities, and in terms of it not ultimately resulting in a workable collective agreement, do not meet any of the three grounds for reconsideration. Those grounds are new evidence now available, inconsistency with principles expressed or implied in the Code or another statute dealing with labour relations, or breaches of procedural fairness or natural justice: Brinco, supra, p. 14. The employee support argument and the challenges to the original panel’s conclusions ultimately again challenge the findings of fact of the original panel, which is not a proper basis for reconsideration: Robinson Little, supra; Brinco, supra. Lastly, I find that the arguments regarding natural justice are not of sufficient merit to meet the “good arguable case” standard. They also fail on the basis of not having been properly made at first instance; again reconsideration not being an avenue for advancing arguments which should have been made before the original panel: Brinco, supra, p. 15. As a consequence, on these bases as well, leave is not granted with respect to Mr. Eichhorst’s reconsideration application.
15 I have not dealt with Mr. Eichhorst’s claim regarding the employees being intimidated into signing Union cards because that claim is being processed separately by the Board under Case Nos. 16675 and 16677.
16 The Board also received letters from Debbie Kopec and Ron Eichhorst challenging some of the findings of fact and determinations in the original panel’s decision. Kopec is an employee of the Employer, but not within the Union’s bargaining unit. Ron Eichhorst is an employee of the Employer, but was excluded from the bargaining unit on the basis of his family relation to management, the nature of his employment in relation to the bargaining unit employees, and his resulting community of interest. Like Harry Eichhorst, both Kopec and Ron Eichhorst received notice of the Union’s application and the Board’s hearing into that application. If they wished to seek interested party standing in order to make independent submissions as they are now attempting to do, that should have been done by way of application to the original panel. As a consequence, as with Harry Eichhorst, they are not granted interested party standing or leave here on reconsideration.
17 (iii) The Employer’s Complaints, the Union’s Complaints, and the Bargaining in Bad Faith Application (Case Nos. 16199/93, 16512/93, and 16663/93)
18 In reviewing these matters, I find that, with one exception, there are facts in dispute which are material to their disposition. As a result, apart from that one exception, a hearing is necessary. The parties will be contacted by the Board with respect to the dates and location of the hearing.
19 The exception is the Employer’s Section 9 application. It alleges coercion or intimidation through the attempt to post a Union poster in management’s lunchroom. It also alleges intimidation and coercion through, in effect, a conspiracy among the Union, its counsel, its witnesses and possibly even the Vice-Chair of the original panel to the end of once again challenging findings of fact of the original panel. The former allegation, even if true, provides no basis for a Section 9 complaint. It is dismissed. Whatever else may be said about the second allegation, it is clear that it is not in essence a Section 9 complaint; rather, it is another attempt to seek reconsideration of the original panel’s findings of fact and other determinations. As a consequence, like the other such attempts dealt with above, it is dismissed on the basis that it does not “demonstrate a good arguable case of sufficient merit that it may succeed on one of the established grounds for reconsideration”: Brinco, supra, pp. 11, 14. I add that I find no apprehension of bias in the fact that the Vice-Chair would know the first name of a representative of one of the parties. That is common in the labour relations area and in fact may occur simply as a result of previously having a hearing involving that party and its representative. In and of itself it cannot possibly provide the basis for an apprehension of bias and the disqualification of a panel. As a result, only the Employer’s Section 70 application (along with the Union’s complaints and the bargaining in bad faith application) will proceed to hearing.