- May 26, 2021
- Certifications/Decertifications
In its October 12, 2018 decision, the Board dismissed the Employer’s request for reconsideration of its May 29, 2018 decision. The Employer had previously requested reconsideration on a number of grounds. In its August 7, 2018 decision, the Board dismissed all of the Employer’s grounds for reconsideration except the Employer’s request that the Board should hold a hearing to permit the Employer to make submissions on the status of the 57 employees in dispute. The Board held a hearing on August 28, 2018 where the parties made submissions regarding whether the Board should entertain the Employer’s reconsideration request. By way of this October 12, 2018 decision the Board dismissed the Employer’s request.
The Board determined that the Employer’s reconsideration request did not meet the threshold requirements for the Board to entertain it. The Employer argued that the Board did not properly consider the facts because it received written submissions and did not receive oral argument. The Board affirmed that this is did not meet the threshold for reconsideration because the written submissions afforded the Board an opportunity to properly consider the facts. The Board also rejected the Employer’s argument it had a legitimate expectation of an oral argument as a determination on written submissions is not unprecedented. The Board confirmed that procedural fairness does not require an oral hearing to be held.
Although the Employer failed to satisfy the threshold question, the Board went on to consider the request on the merits. The Board affirmed that it is within the Board’s authority to determine the appropriate procedure in a matter before it and decide a matter without an oral hearing. The Board was entitled to treat the 35% issue as a threshold issue and determine that those who worked less than 35% of the time at the Sheraton were not regularly employed there. The Board held that the interpretive framework used was not flawed because it considered the organization of the workplace and the employees agreed to be in the bargaining unit. The Board further clarified that it did not use the parties’ agreement on members in the bargaining unit as a basis for the Board’s determination of who was regularly employed. The Employer did not persuade the Board to amend its decision.