REASONS FOR DECISION [2016] L.R.B.D. No. $

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1 5574 [2016] L.R.B.D. No. $ IN THE MATTER of the Public Service Collective Bargaining Act, R.S.N.L Chapter P-42 and an application pursuant to Section 45(2) of the Act affecting Dr. Nasir Ahmad Applicant - and Newfoundland and Labrador Association of Public and Private Employees Respondent - and College of the North Atlantic Employer Before: Sheilagh M. Murphy, Q.C. Chairperson William Parsons, Employee Representative Aubrey Drover, Employer Representative REASONS FOR DECISION Introduction 1. On May 5, 2016, Dr. Nasir Ahmad (the applicant ) brought an application to the Labour Relations Board pursuant to section 45(2) of the Public Service Collective Bargaining Act R.$.N.L Chapter P-42 (the Act ) requesting the Board to review, rescind, alter or vary its Order of April 20, On June 15, 2016 the Board considered and denied the Applicant s request and made the following order: WHEREAS on 20th day of April, 2016, the Labour Relations Board rejected a complaint (matter 5552) from the Applicant in which he alleged that the Respondent had violated Section 43 of the P;tblic Service Collective Bargaining Act;

2 2 AND WHEREAS pursuant to Section 45(2) of the Public Service Collective Bargaining Act the Labour Relations Board has received an application from Dr. Nasir Abmad requesting the Board to review, rescind, amend, alter or vary its Order of 20th April 2016; AND WHEREAS the Board, following consideration of the application and the representations of the interested parties declines the request to review, rescind, amend, alter or vary its Order of 20th April 2016; NOW THEREFORE it is hereby ordered by the Labour Relations Board that the application for review be and it is hereby rejected. THE official seal of the Board was hereunto affixed and attested to by the Chief Executive Officer of the Board at the City of St. John s in the Province of Newfoundland and Labrador this 15th day of June, Chief Executive Officer 3. On July 8, 2016 the Applicant requested written reasons for the board s order. 4. The following are the board s reasons for that decision. Facts 5. Dr. Ahmad brought his original application to the Labour Relations Board The board pursuant to Section 43 of the Public Service Collective Bargaining Act R.S.NL c F- 42 alleging that the respondent union ( NAPE ) acted in a manner that was arbitrary, discriminatory or in bad faith in how it handled a grievance that he filed or attempted to file with his bargaining agent against his former employer, College of the North Atlantic ( the College ). 6. The Board s investigating officer conducted an investigation into the original complaint, which included performing interviews with the parties and / or their representatives, and obtaining information in support of the complaint and the replies that had been filed by all parties. The board officer then drafted an investigation report and circulated it to the parties, giving them an opportunity to respond to that report, in writing, before the report and the file were put to the board for consideration. 7. Dr. Ahmad responded to the board officer s report on April 15, In that response, he provided an analysis of and commentary on the board officer s report, on a paragraph by paragraph basis, giving his comments on specific statements in the report, and

3 3 providing his input on each. It is a four-page document. His comments largely reiterate the comments made in his original application. 8. At its meeting of April 20, 2016, the board considered the application, the responses and replies, the Board officer s investigation report, and the parties replies to that report. The information considered by the board included Dr. Ahmad s April 15, 2016 response to the board officer s report. The board s decision was based on the totality of the information put before the board on April 20, The board denied that the Union acted in a manner that was arbitrary, discriminatory or in bad faith in how NAPE handled Dr. Abmad s grievance. 9. On May 2, 2016, Dr. Ahmad formally requested written reasons from the board for that Order. On May 6, 2016, the board provided its reasons for that decision. Those reasons are indexed in the board s decision system as [2016] L.R.B.D. No 6. The reasons were provided to all parties. The request for reconsideration 10. Tn the within application, Dr. Ahmad asked that the board review, rescind or alter its original decision. The primary reason was that in his view, his matter was turned down without any hearing. His request for relief is that the board rescind its original decision so that he may have the matter heard in person before the board and that grievance itself be sent to arbitration. 11. Dr. Abmad alleged that NAPE submitted many wrong facts to the board to sabotage the original grievance. The general request of his reconsideration application was for the Board to give me the opportunity in person to explain the issue to the board. He then went on to reiterate the facts he had already submitted in his original application. He discussed the merits of his lay-off (or lack thereof), which was the subject of the grievance, the definition of termination, the College s prior practice with respect to extending his annual employment over the summer months, and the date on which his renewal letter had been sent to him in September of Respectfully, this is a reiteration of the facts and arguments he brought in support of his original application to the board, which the board duly considered when it made its original decision. Many of the facts alleged, while important to Dr. Ahmad and possibly relevant to a determination of his grievance on the merits of that grievance, are not germane to the issue of whether the Union acted in a way that was arbitrary, discriminatory or in bad faith in how it handled that grievance. This was explained, in detail, in the original board decision. Those facts and arguments are not relevant to this current application, which is limited to whether the board ought to exercise its discretion to rescind, amend or alter its original order.

4 4 NAPE s and the College s responses to the reconsideration application 12. NAPE and the College were each notified of the application for reconsideration. NAPE responded by advising that it relied on its previous submissions with respect to the original complaint. The College replied saying that, consistent with its replies of October 23, 2015 and April 18, 2015 in which it did not express any commentary or opinion with respect to the propriety of NAPE s actions in response to Dr. Ahmad s grievance, the College had no new information to provide to the board in response to the reconsideration application. The College did not request any opportunity to appear before the board. Neither did NAPE. Respondents are not required to file a response to an application. NAPE and the College chose not to file substantive replies to this reconsideration application, as was their prerogative. Analysis: the board declined to reconsider its decision 13. Complaints brought under section 43 of the Act deal with whether the union acted in a manner that was arbitrary or discriminatory or in bad faith in how the union itself dealt with the grievance. As iterated at paragraphs 32 and 55 of the original decision, the board does not consider the merits of a grievance itself. The board does not have the jurisdiction to do so and not the Labour Relations Board. this fits squarely within the jurisdiction of the arbitration process 14. Dr. Abmad s application for reconsideration alleges that NAPE not only improperly dealt with his grievance, but that it submitted many incorrect facts (under oath) to the Board in their reply. This was the same allegation made in the original application. The facts alleged are not germane to the issue of whether the Union acted in a manner that was arbitrary, discriminatory or in bad faith in how the union handled his grievance. furthermore, the board determined in the first instance that it was satisfied with the evidence presented to it on the issue to be considered and therefore decided not to conduct a hearing. Paragraphs of the original decision deal with this specific argument. 15. As a trier of fact, the Board is able to and must consider and weigh evidence, whether that information is brought by way of affidavit or viva voce evidence. It did so. Dr. Ahmad disagrees with the Board s findings of fact in the first instance and wishes to have a reconsideration of his application. However, he brings no new evidence and no new legal argument in support of that application for reconsideration. Reconsideration is not a right. 16. The Labour Relations Board is not an appellate court. With respect to reconsideration, the Act states: 45. (2) A decision or order of the board made under this Act is not open to review or question, but the board may, where it

5 5 considers it advisable to do so, reconsider a decision or order made by it under this Act and may vary or revoke a decision or order so made by it. 17. There is no requirement for the board to reconsider a decision and reconsideration application is not a right of appeal (see Cargill Ltd. And Syndicat national des employes de Cargill Ltee (re), [2003] C.I.R.B. 215.) The board makes every effort to ensure that its decisions are final. This is important for all parties, as was discussed in the Imperial Tobacco Case (Imperial Tobacco Products (Ontario) Ltd. [1975] at p. 21) wherein the Ontario Labour Relations Board stated: 1 Can. LRBR 21 (Ont) Section 95 of the Labour Relations Act, RSO 1970 c. 232 provides the Board with a unique jurisdiction to... if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling. However, this jurisdiction is very carefully and cautiously exercised by the Board in that free recourse to the Board after the initial disposition of a matter would substantially undermine those values of speed and economy associated with the administrative practice of this Board. In other words, except for exceptional circumstances, litigation between the parties ought not to be prolonged. This principle was approved of in International Nickel Company and United Steelworkers ofamerica 63 C.L.L.C. 16,284. (As cited by Adams in Canadian Labour Law 2 at s ). 18. The language of the Ontario legislation as discussed in Imperial Tobacco is nearly identical to that of the Newfoundland legislation. As discussed by Adams, Supra: The Ontario Labour Relations Board takes a less expansive view of the reconsideration power than its federal and British Columbia counterparts. A request for reconsideration is remitted to the original panel that was seized with the case. The grounds for reconsideration are restricted to the presentation of new evidence where this new evidence could not have been obtained by reasonable difigence before the original hearing and new legal argument where the original decision is clearly wrong in law or inadvertently contrary to earlier board practice. ( at s (emphasis added)) 19. This has been the general rationale behind this board s approach to applications for reconsideration: the board will decline to reconsider a decision unless it is presented with new evidence where that evidence could not have been obtained by reasonable diligence by that party before the board considered the application in the first instance, or unless

6 6 there was new legal argument where the original decision was clearly wrong in law or contrary to earlier practices. Generally, as in the case in Ontario, the reconsideration application is remitted to the original panel that was seized with the case. 20. With respect to Dr. Abmad s application for reconsideration, the application reiterated the complaints brought forward in the original complaint. While he brought accusations of false facts in the original application, the board considered NAPE s and the College s responses to those accusations, as well as the documentation they supplied to the board in support of their sworn statements and attachments. The board reviewed the information and made a decision. Dr. Ahmad is entitled to disagree with the board s analysis of the facts and the evidence presented, but that does not mean that the board considers the reiteration of previous arguments to be the presentation of fresh evidence, nor does it consider it to be new legal argument or otherwise evidence that the board was clearly wrong in law in its original decision or that it breached its earlier practices. As it stated in the original decision, the board was not able to consider the facts pertaining to the merits of the grievance itself, just the facts pertaining to how the union handled that grievance and whether such treatment was arbitrary, discriminatory or in bad, faith. 21. Dr. Abmad argued that the board ought to reconsider its decision because it took only four days to provide written reasons for its decision following his request for reasons. This rapid response to the request for reasons, he argued, showed that the board itself has shown bias against him, presumably by having made a rush to judgment. The board notes that in order to have made its original Order of April 20, 2016 the board had to have reviewed the facts and law applicable to the matter and performed an analysis of them before issuing the Order. The written reasons are an articulation of the reasons why the board decided what it did when it did so. The amount of time that passes between the date the Order is granted and the date the written reasons for decision are circulated depends on a myriad of factors in each case. Factors such as complexity of the matter, the board s hearing schedule, the availability of members of the panel for deliberation, whether a panel member writes a dissenting opinion, and others, play a part in the length of time it takes a written decision to be issued. This does not mean that the board took less time to review and analyze the file before making the Order than it would ordinarily have done. No requirement to conduct a hearing 22. Dr. Ahrnad argued that the board erred by failing to conduct a hearing in this matter and as such, it should rescind its order and conduct a hearing. The board denied this request. The board regularly considers matters without proceeding to a hearing, as articulated in its original decision in this matter. The board makes every effort, through its investigation and mediation services, to ensure that matters can be resolved without proceeding to costly oral hearings. Oral hearings delay the process and cost the parties, witnesses, and the public purse significantly more expense. This is not to say that the board will not conduct an oral hearing in instances where it deems it appropriate. However, it has been this board s practice, as it is with many other Labour Relations 4A

7 7 Boards in Canada, to attempt to dispense with matters without a hearing where it is possible to do so. As the British Columbia Labour relations Board articulated: In doing its job under the Code, the Board expends public funds. Evidentiary hearings incur expense and delay. Evidentiary hearings are an essential part of the quasi-judicial processes at the Board where warranted, but it would be irresponsible to engage in an evidentiary hearing where not warranted. We add that unless warranted, the expense and delay of evidentiary hearings are not consistent with the purposes of the Code (see Section 2 of the Code). It does not assist labour relations or the public interest under the Code to make the proper determination of labour relations matters more expensive and less timely. (See ACFC West v. Motion Picture Studio Production Technicians, Local 891 (2005) B.C.L.R.B. No B191/2005 (BC LRB) as quoted by Adams at section 5-290). 23. This accurately describes the Newfoundland and Labrador Labour Relations Board s use of hearings, as the board articulated in the original reasons for decision in this matter. This is not to say that the board will not conduct oral hearings where warranted. However, in this case the board determined in the first instance that an evidentiary hearing was not warranted, for the reasons given in its original decision. The Applicant in the application for reconsideration has not brought any new evidence or legal argument to warrant rescinding that decision. Therefore, it declined to do so. 24. The evidence presented to the board in the first instance was sufficiently clear for the board to make a decision on the merits of the application. Therefore, the board determined the matter without forcing the parties to incur the time and expense involved with an evidentiary hearing. 25. As discussed in the original reasons for decision: 58. Dr. Ahmad had requested a hearing into this matter before the board. The employer and the union did not. The board considered that the information it had before it allowed it to make the necessary findings of fact and to apply the law to the facts of the application. When possible, the board will choose this manner of proceeding because it is more expeditious and far less costly for all parties than proceeding with a full hearing. (See, as examples, Pierre Neaiy v. Pan Maritime Services Ltd LRB file 4807; 4816 and Locke s Electrical [200$] L.R.B.D. No. 24).

8 $ 59. In a similar vein to the Supreme Court of Canada s reasons to endorse the summary trial process where possible (Hiyniak Mauldin 2014 SCC 7 at paragraphs 4-7), the board has, where appropriate, adjudicated matters without hearings with oral evidence. For this application, the board had before it all the documents, contracts, s and statements germane to the issue of how the union handled the applicant s grievance. The differences between Dr. Ahmad s argument and the union s argument boils down to the interpretation of the law with respect to what constitutes arbitrary, discriminatory or bad faith handling of a grievance and, particularly, the decision by the union to not take the grievance to arbitration. While much of the information and many of the arguments put forward in this matter were not germane to the issue of whether the union acted in a manner that was arbitrary or discriminatory or in bad faith in how it handed Dr. Ahmad s grievance and more appropriately deal with the merits of the grievance and of the settlement proposals, the evidence with respect to the complaint pursuant to section 43 of the PSCBA was also provided and the board was able to consider the merits of the application itself. V. 60. Dr. Alimad filed his application with substantial information attached by way of statutory declaration, then the union and employer filed replies to the application, again with affidavits attached, and Dr. Abmad filed a response to those replies, with a supporting affidavit attached. The labour relations board officer, in accordance with the provisions of the Labour Relations Act, then conducted an investigation into this application and provided and investigation report. That report was then sent to each of the parties for their responses. The employer replied to the investigation report, stating primarily that it considered the report to be a fair representation of CNA s understanding of the events and communication in relation to the issues therein. NAPE did not respond to the report. Dr. Mimad filed a substantial response to the investigation report, with an affidavit in support of the response. It dealt primarily with a reiteration of the allegations he previously made to the board and much dealt with the merits of the grievance itself and his request to withdraw funds from the pension program some of the facts presented were not germane to this application and were therefore not articulated in these reasons. However, he also thanked the board officer for providing such a detailed report.

9 9 61. Combined, the application, replies, responses to the replies, the investigating officer s report and the responses to the report, along with all exhibits attached thereto, is the evidence and information upon which the board made its findings of fact and upon which it applied the law in this case. The labour relations board is not bound by the rules of evidence in the same manner in which a court is. Specifically, section 15 (2) of the Labour Relations Act states unequivocally that the board or a panel may receive or accept evidence and information on oath, affidavit or otherwise that it considers appropriate, whether or not that evidence or information is admissible as evidence in a court of law. For these reasons, and based on the information before it, the board declined to conduct a hearing into the complaint and made its decision, as above, on the merits. Conclusion 26. For the reasons articulated above, the Board denied the application to review, rescind or alter its original Order of April 20, The Board made its Order of June 15, 2016 accordingly. DATED at St. John s in the Province of Newfoundland and Labrador this 8th day of September, for,koard Sheilagh Nf. Murphy, Q.C Chairperson