[1994] OLRB Rep. November 1535
2969-93-U Reginald Fitzgerald, Applicant v. Alex Keeney, Local 200, C.A.W., Responding Party v. Ford Motor Company Ltd., Intervenor
BEFORE: Pamela Chapman, Vice-Chair, and Board Members R. W. Pirrie and H. Peacock.
DECISION OF THE BOARD; November 14, 1994
This is an application pursuant to section 91 of the Labour Relations Act, alleging a violation of section 69 of the Act by the responding party.
The application was filed on November 24, 1993.
By letter dated November 30, 1993, the Board acknowledged receipt of the application, and advised the applicant that a Labour Relations Officer had been authorized to inquire into the application and to endeavour to effect a settlement. The applicant was further advised that the Officer would attempt to meet with the parties, and would then report back to the Board on the status of settlement efforts.
By letter dated December 16, 1993, the Labour Relations Officer wrote to the parties, confirming that arrangements had been made for a meeting between the applicant and representatives of the union and the employer on January 12, 1994, in Windsor. The letter stated further:
In consideration of the above arrangements, I have attached a request to withdraw your application which I provide for your signature. The withdrawal should be mailed to my attention at the Board's offices, 400 University Avenue, 4th Floor, Toronto, Ontario, M7A 1V4.
I will be contacting all parties subsequent to your meeting on January 12th.
- Subsequent to this meeting, which the applicant advises took place, the applicant signed a form dated January 13, 1994 which states as follows:
ONTARIO LABOUR RELATIONS BOARD
File No: 2969-93-U
Between:
Reginald Fitzgerald
Applicant,
- and -
Alex Keeney, Local 200 - C.A.W.
Responding Party,
- and -
Ford Motor Company Ltd.
(Intervener) - Responding Party.
The Applicant hereby seeks leave of the Board to withdraw his application in the above noted Board File.
Dated at Windsor this 13 day of Jan. 1994
"Reginald Fitzgerald"
Reginald Fitzgerald
- Once this request to withdraw was received, the Board issued a decision dated January
13, 1994, granting leave to withdraw the application.
A copy of the decision dated January 13, 1994, was sent to the applicant on January 19, 1994.
There was no further contact between the applicant and the Board until a letter from a
lawyer representing the applicant, dated June 28, 1994, was received at the Board on July 7, 1994. This letter is set out in full below, as it is significant to our d termination in this matter:
We are the solicitors for Mr. Reginald Fitzgerald, who has retained us to advise him concerning matters arising from his employment with Ford Motor Company of Canada in Windsor, Ontario ("Ford").
Mr. Fitzgerald advises us that he filed a complaint against his union, the Canadian Automobile Workers Local 200 at the Ford plant in Windsor under Section 91 of the Ontario Labour Relations Act for failure to act in good faith in processing a grievance on his behalf. Mr. Fitzgerald also advises that he was in contact with Mr. Tim Parker of the Ontario Labour Relations Board regarding the handling of this matter. He was subsequently advised in early 1994 that his file with the Board had been closed as he had signed some form of release or withdrawal form. Therefore, to assist us in properly advising Mr. Fitzgerald on these matters, would you please provide the undersigned with a copy of his complaint, all correspondence and documentation which you have on file relating to this complaint, including any release or withdrawal form that may have been signed by Mr. Fitzgerald.
In this regard, we enclose herewith a duly executed Consent Form authorizing you to release to the undersigned this requested information on behalf of Mr. Fitzgerald.
We would appreciate if this matter could be dealt with at your earliest convenience, as time is of the essence to ensure that Mr. Fitzgerald's rights are not adversely affected by any unavoidable delays.
Thank you for your anticipated cooperation in this matter and we look forward to receiving the requested information.
The Board provided copies of certain material in the file to the applicant, by letter dated July 19, 1994. Counsel for the applicant then wrote to the Board on July 27, 1994, filing a request for reconsideration of the decision dated January 13, 1994.
In making this request for reconsideration, the applicant acknowledges that he signed a request to withdraw the application and that he provided this request to the Labour Relations Officer. He asserts, however, that he was not fully advised of the nature of the form that he was signing and its consequences. He stated further that the provision of the form to him for signature was premature, as the application had not been resolved to his satisfaction at that time.
As noted above, the applicant was advised by letter dated January 19, 1994, enclosing a copy of the Board's decision dated January 13, 1994, that his application had been withdrawn by leave of the Board. The applicant does not dispute having been so notified of the consequences of his signing the request for withdrawal, and indeed his counsel specifically acknowledges in the letter dated June 28, 1994 that the applicant "was advised in early 1994 that his file with the Board had been closed as he had signed some form of release or withdrawal form".
Whether or not the applicant misapprehended the nature of his request for withdrawal at the time it was executed, it is difficult therefore to see how his confusion could have continued past his receipt of the Board's decision in January, 1994. Indeed, it does not appear that the applicant claims to have had any misapprehension about the effect of the withdrawal once he received the decision of the Board, as confirmed by the letter from his counsel cited above.
Rule 85 of the Board's Rules of Procedure provides as follows:
No request for reconsideration will be considered where it is filed thirty (30) or more days after the date of the Board's decision, except with the permission of the Board.
Given the sequence of events in this matter as detailed above, it appears to the Board that the applicant was in full possession of the facts relevant to his request for reconsideration at the time of his receipt of the Board's decision. No explanation for the subsequent delay between January, 1994 and June 28, 1994, when his lawyer first contacted the Board, is provided in his representations. Thus, this does not appear to be a case where the Board should abridge the time limit established by Rule 85.
We are satisfied that the applicant had an obligation, once he was aware that the effect of his signature on the withdrawal form was a withdrawal of the application, to promptly advise the Board if, as he now asserts, the request to withdraw had been made in error. For these reasons, the request for reconsideration is dismissed for delay.
We observe by way of closing, that the current attempt by the applicant to revive his complaint appears to have much to do with his dissatisfaction with the conduct of the responding party union subsequent to the withdrawal. As there was no written settlement of the application, the Board has no authority, in the context of the present application, to enforce any informal agreements made by the parties. In issuing this decision on the application dated November 24, 1993, however, we make no finding as to whether or not the withdrawal of that complaint is with prejudice to the applicant's right to file a further application concerning events detailed in that complaint, or occurring subsequently.