[1983] OLRB Rep. December 1995
0290-83-U International Woodworkers of America Local 2-69, Complainant, v. Consolidated Bathurst Packaging Ltd., Respondent
BEFORE: George W. Adams, Q.C., Chairman, and Board Members W. H. Wightman and B. K. Lee.
DECISION OF THE BOARD; December 9, 1983
The respondent seeks reconsideration of the Board's decision rendered on September 30, 1983.
In this request three grounds are set out. They are:
The Respondent, Consolidated-Bathurst Packaging Limited, requests reconsideration of the decision of the Board in this matter on the grounds and circumstances following:
The Board engaged in an improper and illegal practice in the course of reaching its decision which such practice on its face vitiates the award ab initio and requires that the case be heard by a new and independent panel of the Board, no member of which has been exposed to any of the evidence heard by the original panel of the Board.
That the Chairman of the Board improperly expanded the scope and basis of Union counsel's complaint to an extent and degree that took away from the Company and its counsel the opportunity of reply to which it is, by law, entitled.
That the majority failed utterly to consider evidence properly before it and recapitulated evidence in such a way as to disclose not only a number of errors in finding but also a failure to make findings of evidence adduced before the Board which precluded those others who participated in the decision making from any opportunity to fairly consider the case which was put before the panel at first instance.
In its first submission, the respondent states that the Board engaged in an improper post-hearing practice if it held a meeting of the entire Board at which evidence heard by the three person panel rendering the decision was discussed or at which views were solicited or expressions of opinion elicited from the members of the Board, other than those who heard the instant case. The submission, in this respect, reads:
In support of the first proposition put before you and the basis upon which reconsideration of decision is requested, I bring to your attention the following facts:
- On the 23rd day of September, 1983 I attended at the Ontario Labour Relations Board, #400 University Avenue, for the purposes of a scheduled hearing between the Retail, Wholesale & Department Store Union and the client by which I had been retained for that hearing, Knob Hill Farms Ltd.
During the course of that day, and by reason of certain settlement discussions which were being engaged in with the assistance of Ontario Labour Relations Board Settlement Officer, Wilson, I had occasion to attend at the second floor (cafeteria), the first floor, the fourth floor, and the sixth floors of premises municipally known as #400 University Avenue, all of which floors (with the exception of the cafeteria) are occupied by the Ministry of Labour of the Province of Ontario.
At exactly 11.56 a.m. on the morning of September 23rd, as I got off the elevator at the sixth floor, (a floor occupied by the Ontario Labour Relations Board and utilized for the purposes of hearing rooms and offices for various members of that tribunal), I found myself standing directly in front of a desk which was occupied by a person who subsequently identified herself to me as Dianne Smith, a Clerk in the employ of the Ontario Labour Relations Board.
At that time I overheard Board Member J.W. Murray say to her, in response to a question which I did not hear, "I won't be there. I am going to that full Board meeting."
As a practitioner who has been practising before the Ontario Labour Relations Board since the year 1969 I have come to be aware of a practice which the Ontario Labour Relations Board has adopted wherein cases, considered by it to be of a significant nature or impact, are discussed at meetings of the full Board. I have not, however, heretofore been aware that any case in which I have been involved has in fact been discussed at such a meeting.
By reason of the fact that I had, some weeks before the 23rd day of September, 1983, completed evidence and argument in a case between my client Consolidated Bathurst Packaging Limited and the International Woodworkers of America, Local 2-69 which I believed to be of some significant import in terms of the development of Ontario Labour Relations Board jurisprudence and because I was not aware that a decision in respect of that particular hearing had yet been released, I asked Mr. Murray if the purpose of the full Board meeting was to discuss the Consolidated-Bathurst Packaging Limited case relating to the Company's closure of its plant in Hamilton, Ontario.
Board Member J.W. Murray refused to answer my question.
Subsequently, and at the hour of 12:20 p.m. while I was in the presence of an Associate from my firm, Thomas A. Stefanik, Esq., and one Mr. Howard Wood, the solicitor from whom I take instructions at Knob Hill Farms Ltd., and while we were in the second floor cafeteria at the premises municipally known as #400 University Avenue, as aforesaid, having discussions with Ontario Labour Relations Board Officer Norman Wilson, our conversation was interrupted by Mr. R.O. MacDowell, a Vice-Chairman of the Ontario Labour Relations Board as aforesaid, who asked to speak to Mr. Wilson for a moment.
As Mr. MacDowell and Mr. Wilson left the table where we were sitting I said to Mr. MacDowell, "when is your full Board meeting?" Mr. MacDowell looked at his wrist watch and said to me "in about ten minutes".
Subsequently, and at the hour of 1:45 p.m., I attended on the third floor of the premises as aforesaid at the offices of the Solicitor of the Ontario Labour Relations Board, Harry Freedman, Esq. At that time I spoke to two young women, whose names are not known to me, and asked them if the Board Solicitor was in his office and available to talk to me. I was advised that Mr. Freedman was not in his office but, rather, was in Court. I then asked to speak to his Assistant and was advised that he was absent attending a meeting of the "full-Board"
I then inquired where the meeting of the "full-Board" was being held and was advised that the said meeting was being held in Board Room "E" on the sixth floor of the premises as aforesaid.
I immediately went up to the sixth floor of the premises as aforesaid and noted that the door to Board Room "E" was closed. Although I could overhear that there was conversation taking place in the said room, I was not able to hear what was being said.
Subsequently, and at about the hour of 1:55 p.m., and in view of developments which had taken place in the settlement discussions involving the Knob Hill case, I felt it important to speak to the Vice-Chairman of the panel which had carriage of that matter on that day, Mr. RO. MacDowell. Accordingly I attended at Board Room "E", knocked, and opened the foor. When I opened the door I saw the said J .W. Murray sitting at a table with a number of people whom I was not able to recognize. I did not see Mr. MacDowell and as it was obvious that there was a meeting going on in the room I withdrew.
Subsequently, I sat in an office located beside Board Room "E" with the said Mr. Howard Wood and used it as a "consulting room" for the purposes of the ongoing discussions with Ontario Labour Relations Board Officer Norman Wilson, as aforesaid. Throughout our meeting as aforesaid the door to the consulting room remained open and I was able to observe persons coming out of Board Room "E".
At about the hour of 2:13 p.m. I observed an individual known to me as C.A. Ballentine, and identified in the December 1981 copy of the "Rules of Procedure, Regulations and Practice Notes"of the Ontario Labour Relations Board as being a full-time member of the Board, come out of the said Board Room. As the said C.A. Ballentine came out of the said Board room, I approached him and said: "Clyde, can I speak to you for a minute?" The said Mr. Ballentine stopped, came overto me, and I then said to him: "Is that the Consolidated-Bathurst case that they are discussing in there?" The said C.A. Ballentine replied to me and said: ''Yes,,, that's what they are doing. It looks like it will go on all afternoon.
Immediately following that discussion the said C.A. Ballentine went into Board Room "D" together with two other individuals who had come out of Board Room "E", namely, R.A. Furness, Esq., identified in the said Rules of Procedure, Regulations and Practice Notes as being a full-time Vice-Chairman of the said Ontario Labour Relations Board, and one J.T. Wilson, identified in the said Rules of Procedure, Regulations and Practice Notes as being a full-time member of the Board.
At the hour of 2:26 p.m., I observed an individual known to me as one N. Dissanayake, a Solicitor in the employ of the Ontario Labour Relations Board and another individual known to me as Ms. Meslin, who is an Assistant to the Chairman of the Ontario Labour Relations Board, coming out of the said Board Room "E".
At about the hour of 2:32 p.m. I observed a person known to me as Kevin M. Burkett, Esq., and identified in the said Rules of Procedure, Regulations and Practice Notes, as an alternate Chairman of the Ontario Labour Relations Board, come out of the said Board Room "E".
At the hour of 2:35 p.m., I observed an individual known to me as M.G. Mitchnick, Esq., identified in the said Rules of Procedure, Regulations and Practice Notes, as a full-time Vice-Chairman of the Ontario Labour Relations Board, leave the said Board Room "E".
At the same time I observed an individual known to me as Corinne Murray, a Vice-Chairman of the said Ontario Labour Relations Board, leave the said Board Room "E".
At approximately the hour of 2:40p.m., I observed the said R.O. MacDowell, Esq., together with an individual known tome as F. Stewart Cook, Esq., and an individual known to me as W.H. Wightman, Esq., both of whom are identified in the Rules of Procedure, Regulations and Practice Notes as full-time members of the said Board leave the said Board Room "E" and walk towards Board Room "C" for the purposes of re-commencing a hearing involving my client Knob Hill Farms Ltd. and the Retail, Wholesale & Department Store Union, as aforesaid.
I immediately attended at Board Room "C" for the purposes of the resumption of the hearing between Knob Hill Farms Ltd. and the Retail, Wholesale & Department Store Union as aforesaid. As that hearing commenced before the said R.O. MacDowell, F. Stewart Cook and W.H. Wightman, it became important for the purposes of establishing future dates for hearing before the said panel of the Board to ascertain the whereabouts of the Registrar of the Ontario Labour Relations Board, D.K. Aynsley, Esq. Accordingly I addressed the said R.O. MacDowell and said: "I understand Mr. Aynsley is still in at the full Board meeting. Will I have to wait to get dates from him?" The said R.O. MacDowell replied and stated: "He should be in his office by now."
Submission with respect to the first ground:
On the facts as aforesaid it is clear that a so called "full Board" meeting was convened for the purposes of discussing both the evidence heard before the instantpanel of the Board and for the purpose of eliciting the views of all of the members of the Board for the purposes of reaching a decision. It is not known whether or not a "draft award" was prepared for the purposes of such meeting or circulated to the members of the "full Board". However it is respectfully submitted that if any of the evidence heard before the instant panel of the Board was discussed at the full Board meeting and if any views were solicited or expressions of opinion elicited from members of the Board other than those who heard the case then, and insuch case, the Board has engaged in an improper and illegal procedure and its decision cannot stand.
If any evidence is to be heard by the full Board and any conclusions are solicited or elicited from the members of the Board other than those who heard the case at first instance then, and in such case, the full Board must hear all of the evidence at first instance.
It must be kept in mind that the Ontario Labour Relations Board is a relatively large tripartite administrative agency first established in 1944. See The Labour Relations Board Act, 1944, S.O. 1944, c.29. See also Willes, The Ontario Labour Court, 1943-44 (Queen's University Industrial Relations Centre, Kingston, 1979). The Board represented, and continues to represent, an important feature of Ontario's social and economic policies aimed at achieving industrial peace. Over the almost 40 years since the Board's inception the Labour Relations Act has, by amendment, been significantly widened. See O.L.R.B. Annual Report 1982-83, Chapter 2 "A History of the Act" at page 2-5. At the end of fiscal year 1982-83, the Board employed a total of 94 persons on a full-time basis. The Board has two types of employees. The Chairman, Alternate Chairman, vice-chairmen and Board members who are appointed by the Lieutenant Governor-in-Council. The appointments generally bear three year terms at the pleasure of the Lieutenant Governor-in-Council. The administrative, field and support staff are civil service appointees. The total budget of the Ontario Labour Relations Board for the fiscal year was $4,272,800.00. In the same fiscal year the Board received a total of 2,762 applications and complaints. In addition to these cases, 427 were carried over from the previous year, making a total caseload of 3,189 cases in 1982-83. Of the total, 2,445 were disposed of during the year producing an average workload of 266 cases for the Board's full-time chairmen and vice-chairmen. Currently, the Board employs 12 full-time chairmen and vice-chairmen and 4 part-time vice-chairmen. There are 10 full-time Board members representing labour and management and another 22 part-time Board members representing the parties. Many of these part-time members are active labour relations practitioners and the involvement of labour and management on either a part-time or full-time basis in the administration of the statute constitutes, even today, a somewhat novel mechanism of self-regulation. The unique tripartite nature of the Ontario Labour Relations Board and the difficulty of strictly applying common law concepts such as bias to this agency are highlighted in Arthurs, H.W., The Three Faces of Justice: Bias in the Tripartite Tribunal (1963) 28 Sask. Bar Rev. 147.
Sections 102 and 103 establish the Board and set out many of its general procedural powers. Section 102(9) provides that the Chairman or a vice-chairman, one member representative of employers and one member representative of employees constitute a quorum sufficient for the exercise of all the jurisdiction and powers of the Board and section 102(10) provides that the Board may sit in two or more divisions simultaneously so long as a quorum of the Board is present in each division. The Board refers to these divisions as panels. A decision of the majority of the members of a Board present and constituting a quorum represents the decision of the Board by section 102(11). This provision also provides that if there is no majority, the decision of the Chairman or the vice-chairman governs. By section 102(4) the Chairman is empowered to assign the members of the Board to its various divisions or panels. Today, the constitution of the Board, sitting in three person panels, lends itself to hundreds of different combinations of Board members and vice-chairmen who may sit on any given case. What are the implications of these diverse panel configurations to the administration of the Act and to the attainment of the statute's objectives?
In considering this question, it is to be noted that the Act confers many areas of broad discretion on the Board in determining how the statute should be interpreted or applied to an infinite variety of factual situations. Within these areas of discretion, decision-making has to turn on policy considerations. At this level of "administrative law", law and policy are to a large degree inseparable. In effect, law and policy come to be promulgated through the form of case by case decisions rendered by panels. It is in this context that the Board is sometimes criticized for not creating enough certainty in "Board law" to facilitate the planning of the parties regulated by the statute. This criticism, however, ignores the fact that there is a huge corpus of Board law much of which is almost as old as the legislation itself and as settled and stable as law can be. Board decision-making has recognized the need for uniformity and stability in the application of the statute and the discretions contained therein. Indeed, it is because there is so much settled law and policy that upwards to 80% of unfair labour practice charges are withdrawn, dismissed, settled or adjusted without the issuance of a decision and that a high percentage of other matters are either settled or withdrawn without the need for a hearing. For example, in fiscal year 1982-83 the Board's eighteen labour relations officers were assigned a total of I ,680 cases to assist the parties to settle the differences between them without the necessity of formal litigation before the Board. The labour relations officers completed activity in 1,384 of the assignments obtaining settlements in 1,213 cases or 88%. Thus, there is great incentive for the Board to articulate its policies clearly and, once articulated, to maintain and apply them. Nevertheless, there remains, even in applying an established policy, an inevitable area of discretion in applying the statute to each fact situation. Moreover, the Board reserves the right to change its policies as required and new amendments to the Act create additional requirements for ongoing policy analysis. To perform its job effectively, the Board needs all the insight it can muster to evaluate the practical consequences of its decisions, for it lacks the capacity to ascertain by research and investigation just what impact its decisions have on labour relations and the economy generally. In this context therefore, and accepting that no one panel of the Board can bind another panel by any decision rendered, what institutional procedures has the Board developed to foster greater insightfulness in the exercise of the Board's powers by particular panels? What internal mechanisms has the Board developed to establish a level of thoughtfulness in the creation of policies which will meet the labour relations community's needs and stand the test of time? What internal procedures has the Board developed to ensure the greatest possible understanding of these policies by all Board members in order to facilitate a more or less uniform application of such policies? The meeting impugned by the respondent must be seen as only part of the internal administrative arrangements of the Board which have evolved to achieve a maximum regulatory effectiveness in a labour relations setting.
Since the inception of the Board, it has been understood that a division or panel which hears a case, ultimately, is alone responsible for deciding it. Panels deliberate on their own in executive sessions following the conclusion of hearings. At this session the vice-chairman is invariably charged with the responsibility of preparing a draft decision for the consideration of his or her two colleagues. The vice-chairman then, with or without the assistance of the two lawyers employed by the Board and their four articling law students, will undertake research in preparing the decision. This research may include a review of earlier Board decisions, applicable decisions rendered by labour relations boards in other jurisdictions, relevant court decisions, and the periodical literature in the fields of labour law and industrial relations. The Board possesses one of the most complete libraries of industrial relations materials in the Province and employs a professional librarian to manage this information. A second executive session will usually be convened by the panel to consider the draft decision. Many representatives and parties who regularly appear before the Board have become expert in the Board's prior decisions and will refer to these decisions in the course of making submissions. However, many other parties may not be well prepared or versed in Labour Board policy and, in effect, leave it to the Board to explore its past decisions and any other material relevant to the rendering of an informed decision. The Board prides itself as an institution where laymen can present their own submissions and feel at home in doing so. In major cases, in an effort to administer the Act consistently and thoughtfully, a panel will always undertake its own research in addition to receiving the submissions of the parties. The statutory policy of achieving industrial peace demands that cases not turn on the level of preparation or understanding of the individuals involved in particular cases coming before the Board.
After deliberating over a draft decision, any panel of the Board contemplating a major policy issue may, through the Chairman, cause a meeting of all Board members and vice-chairmen to be held to acquaint them with this issue and the decision the panel is inclined to make. These "Full Board" meetings have been institutionalized to facilitate a maximum understanding and appreciation throughout the Board of policy developments and to evaluate fully the practical consequences of proposed policy initiatives on labour relations and the economy in the Province. But this institutional purpose is subject to the clear understanding that it is for the panel hearing the case to make the ultimate decision and that discussion at a "Full Board" meeting is limited to the policy implications of a draft decision. The draft decision of a panel is placed before those attending the meeting by the panel and is explained by the panel members. The facts set out in the draft are taken as given and do not become the subject of discussion. No vote is taken at these meetings nor is any other procedure employed to identify a consensus. The meetings invariably conclude with the Chairman thanking the members of the panel for outlining their problem to the entire Board and indicating that all Board members look forward to that panel's final decision whatever it might be. No minutes are kept of such meetings nor is actual attendance recorded. Those attending may also include the Board's senior civil service officials such as the Registrar and Chief Administrative Officer of the Board, its solicitors and, possibly, the Managers of Administration and Field Services. Other Board business as well is regularly conducted at these meetings.
"Full Board" meetings are as important to fashioning informed and practical decisions which will withstand the scrutiny of subsequent panels as is the research and reflection undertaken by the vice-chairmen in preparing their draft decisions. As learned articles, labour relations texts, memoranda prepared by Board lawyers and law students, and previous decisions of the Board can provide insightful guidance on difficult policy issues, so can general discussion with the experienced full and part-time management and labour Board members who make up the tripartite Board and who have to live with the decisions rendered by individual panels hearing cases. Indeed, in the absence of a formalized Full Board meeting, Board members and vice-chairmen would be driven to discuss their cases with each other informally in order to better appreciate the issues involved and to develop a level of understanding and insight consistent with the large measure of deference the labour relations system needs to be paid to rendered decisions. The "Full Board" meeting merely institutionalizes these discussions and better emphasizes the broad ranging policy implications of individual decisions. The decisions therefore remain the individual decisions of particular panels and vice-chairmen. The "Full Board" meetings are merely reflective of the institutional setting in which these individual decisions are made.
The respondent's submission is really attempting to probe the mental processes of the panel which rendered the decision in question and in so doing ignores the inherent nature of judicial decision-making and administrative law making. See K. C. Davis, Administrative Law Treatise §17 (2d ed. 1980). In general, the deliberations of this panel were not unlike those engaged in by a judge sitting in court. The "Full Board" meeting, to the extent there is no judicial analogy, distinguishes an administrative agency from somewhat more individual common law judging. But, as an extra-record event, "Full Board" meetings are in substance no different than the post-hearing consultation of a judge with his law clerks or the informal discussions that inevitably occur between brother judges. Such meetings, we also suggest, have no greater or lesser effect than a judge's post-hearing reading of reports and periodicals which may not have been cited or relied on by the advocates. Is it seriously open for a litigant to question Supreme Court justices or other judges about their post-hearing reading, their thinking, and the contribution of their law clerks or brother judges to the ideas expressed in an opinion published under a justice's name? For example, could it be asked of a judge "Did you make a false start that your law clerk or brother judge in consultation corrected?" If such questions are improper for a judge, as we think they are, why are they not equally improper to be put to an administrator of an important public statute embracing a complex of socioeconomic objectives. The respondent's submission might have some substance in the context of an administrative agency manned internally by a host of anonymous civil service advisors, some of whom may have a prosecutorial role and whose extra-record advice may be concealed by the absence of reasons. See for example Asimov, When the Curtain Falls: Separation of Functions in Federal Agencies (1981), 81 Columbia L.Rev. 759. However, in the case at hand, as is the practice of this Board, the decision rendered thinks out in writing every facet of the decision-making against an equally comprehensive recitation of the material facts found by the panel (together with a great deal of evidence) and the representations of the parties. This panel of the Board, chaired by the Board's Chairman, decided the respondent's case and for the reasons set out in the panel's decision.
We are also obliged to note that the respondent's lawyer is no stranger to this Board and, as his submissions indicate, had been well aware of the Board's longstanding practice he now challenges. Indeed, the respondent was represented by this same lawyer some months earlier when it brought a successful complaint against the same trade union causing the Board to rethink its approach to secondary picketing in an industrial context. The result was a significant change in Labour Board policy in this area of industrial relations and a "Full Board" was held as it was in the instant matter. See Consolidated Bathurst Inc., [1982] OLRB Rep. Sept. 1274.
Before concluding our response to this first submission of the respondent, we also want to point out that consultation and research within the Ontario Labour Relations Board is not confined to "Full Board" meetings. The Chairman of the Board is the Chief Executive Officer and responsible for the Board's overall effectiveness. He assigns cases to panels and manages the settlement and administrative activities of the Board aided by highly competent civil service personnel. He responds to complaints made by the labour relations community, the general public, politicians, and by individuals through the Ombudsman. He is responsible, as well, for the Board achieving its overall objectives of contributing to industrial relations peace by thoughtful and expeditious dispute resolution. To these ends, the Chairman chairs an administrative committee of civil servants and meets with vice-chairmen every Thursday at lunch meetings. Computerized case status print-outs are reviewed with vice-chairmen to assess the reasons why certain cases have not been issued within the model times. These lunch meetings, as well as constituting an instrument of Board management, provide a forum for the exchange of ideas between vice-chairmen. Difficult issues of principle that individual vice-chairmen are facing are discussed with the vice-chairman receiving whatever advice his colleagues are able to give. Once again, however, no vote is taken nor is any other mechanism for registering consensus employed. Everyone understands that ultimately the vice-chairman and his or her two Board member colleagues on the panel considering the case must decide the matter. Groups of labour and management Board members inevitably engage in the same type of discussions but on a more informal basis. The Ontario Labour Relations Board is more than just the sum of its individual panels and effective administrative action in a sophisticated labour relations environment demands this to be so.
In summary, a "Full Board" meeting in the case at hand was held at the request of the Chairman who was hearing the case after the panel had deliberated and prepared a draft decision. The draft decision was then placed before all Board members who attended and the decision was explained by the members of the panel to those in attendance. The facts as found by the panel were not the subject matter of the discussion. The discussion focussed on the implications of the labour law principles set out in the draft and applied to the facts as found. Unsolicited disclosure in collective bargaining — the issue involved in the case — is an area of great significance to effective and harmonious collective bargaining in this Province and it is fair to say that many of the labour and management Board members in attendance at the meeting gave their reaction to the principles and their application as set out in the draft decision. No vote, however, was held and no other mechanism for measuring consensus was employed. No minutes were kept of this meeting nor was the attendance recorded. In addition to Board members, the Registrar of the Board and its solicitors may have been in attendance. Following the meeting complained of, the panel which heard the case continued to deliberate and eventually rendered its decision. It is our view that the Full Board meeting procedure described above, as well as the other aspects of the Board's general internal deliberation process set out herein, comply with the principles of natural justice as they are understood in a modern administrative law context and, as well, accord with section 102(13) of the Act, which provides:
The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Board may, subject to the approval of the Lieutenant Governor in Council, make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.
- In applying this latter provision, we believe the following comment of the Supreme Court of Canada made in Bakery and Confectionaty Workers International Union of America, Local 468 et al v. White Lunch Limited et al (1966), 66 CLLC ¶14,110 in respect of the somewhat unique labour board power to reconsider, is apposite.
Whatever merit the arguments of the respondent had at the beginning of labour relations legislation, it seems to me thatin the stage of industrial development nowexisting it must be accepted that legislation to achieve industrial peace and to provide a forum for the quick determination of labour-management disputes is legislation in the public interest, beneficial to employee and employer and not something to be whittled to a minimum or narrow interpretation in the face of the expressed will of the legislatures which, in enacting such legislation, were aware that common law rights were being altered because of industrial development and mass employmentwhich rendered illusory the so-called right of the individual to bargain individually with the corporate employer of the mid-2Oth century.
The respondent's submissions ignore the institutional requirements of a modern administrative tribunal whose objective is to further harmonious relations between employers and employees. They also ignore the inherent nature of judging in both judicial and administrative settings. We, therefore, cannot accept that natural justice, sensibly applied, demands more than the fairness accorded to the respondent in this case.
With respect to the respondent's second submission, we accept neither its accuracy nor relevance. The submissions of the parties were set out as we understood them and the particular submission of the complainant questioned by the respondent was rejected no matter how construed.
The third submission alleges a failure by the Board to comment on all the evidence adduced before it and points to at least one alleged inaccuracy. The Board set out the evidence and found facts it considered relevant and necessary to an evaluation of the issues before it and the representation of the parties. No attempt was made to recite all of the evidence.
For all of these reasons, the request for reconsideration is denied.