Asmond Tulloch v. United Steelworkers of America Local 3129
File No.: 1520-00-U Date: November 10, 2000
Applicant: Asmond Tulloch Responding Party: United Steelworkers of America Local 3129 Intervenor: Camco Inc.
Before: Harry Freedman, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF THE BOARD
1The Board, by decision in this application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended, (the “Act”) dated October 5, 2000 alleging a violation of section 74 of the Act, dismissed the application on the grounds that the application had failed make out a prima facie case because the application did not set out any assertions of fact supporting the allegations of arbitrary conduct by the United Steelworkers of America, Local 3129 (“Local 3129”) and failed to set out what remedy the applicant sought. The Board concluded by finding that even if everything the applicant said was true, those assertions could not provide a basis for deciding that Local 3129 had violated section 74 of the Act.
2The applicant filed an application for reconsideration of the Board’s October 5, 2000 decision on October 27, 2000. As the application for reconsideration was filed within 20 working days of the date of the original decision, it is timely and properly before the Board. In the letter accompanying the application, the applicant states that he is applying for reconsideration and suggests that his application may not have been as complete as it might otherwise have been because, the applicant states: “At the time of my application, I was not able to concentrate on this matter since I was grieving the death of my mother.” The applicant goes on to state in that letter that he had enclosed with the application “substantial evidence (including new arguments) in order to justify my claim.”
3In considering the merits of this application for reconsideration, it is important to have regard to the principles the Board has invariably applied in deciding whether to grant a request for reconsideration. A concise statement of the relevant principles is set out in Cineplex Odeon Corporation, [1996] OLRB Rep. Nov./Dec. 922 where the Board wrote at page 924:
As to the general principles applicable on applications for reconsideration, there was little dispute. They are distilled in the following two quotations. First from Canadian Union of General Employees, [1975] OLRB Rep. April 320:
- Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously. (International Nickel Co. of Canada Ltd., [1963] OLRB Rep. 234, 64 CLLC ¶15.493 (Ont. H.C.); Detroit River Construction Case (1962) CLLC ¶16,260). Both legs of this principle depend upon the applicant having been diligent and therefore having had no opportunity to draw the Board’s attention to the objection of its concern. The applicant in the case at hand and his lawyer were not diligent in that they were given notice of the hearing date in the matter by the Board. Accordingly they would not appear to come with the ambit of the principle.
Secondly, from John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096 after quoting a portion of the above passage from Canadian Union of General Employees:
These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board’[s decisions some degree of certainty of what the expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly. Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise significant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision.
See also K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, which mentions the motives for the request and any resulting prejudice as factors to be considered.
The Board in that case also stated later at page 927:
Reconsideration is not available for the reargument of cases or more creative theories thought of later, in light of new information or jurisprudence; this has been affirmed repeatedly in the Board’s jurisprudence. See for instance, Silverwood Dairies, [1977] OLRB Rep. June 392.
4Even though the applicant has not demonstrated that he was unable to make the submissions contained in his request for reconsideration and indicates that he wishes to raise new arguments, we are prepared to review those submissions and consider whether there is any merit to the applicant’s request.
5The applicant sets out in some detail allegations about the difficulties he had had with Camco Inc., including allegations of discrimination on the basis of religion and racial harassment. He alleges that he was dismissed because he had made a phone call from his own home and continues to assert that the arbitration hearing that dismissed his grievance against his termination was flawed because Camco Inc. had a lawyer present its case. He also referred to the suspension that was imposed following the receipt of customer complaints and an agreement dated October 9, 1998 by which he agreed that his failure to comply with any of the conditions of the settlement would result in his termination.
6The applicant continues to assert that the arbitration hearing was conducted pursuant to the expedited arbitration rules under the collective agreement that prohibits the parties from using legal counsel. The applicant also attached as exhibit 5 to his application for reconsideration an excerpt from the collective agreement and a list of facts apparently prepared by Camco Inc. upon which he relies. Item 4(ii) of those facts state that the applicant had filed a grievance on April 10, 2000 and that “The Union applied for expedited arbitration pursuant to section 49 on May 26, 2000.” The applicant also filed the arbitration award dismissing the grievance.
7The allegations of racial harassment and religious discrimination were not raised earlier by the applicant. Nevertheless, even if they had been alleged in the original application, they would not have changed the result. The applicant was discharged because he had contacted a customer after having been suspended. The applicant does not allege that racial harassment or religious discrimination had anything to do with his termination from employment. Indeed, it is apparent from the arbitration award that Local 3129 had persuaded the arbitrator that the only basis for termination that Camco Inc. could rely on were the grounds set out in the termination letter and not the three customer complaints that had led to the suspension. The award stated at page 1
Although the grievance alleges that there has been an unjust suspension and termination, the union argued that the employer may only rely on the grounds set out in the April 10, 2000 termination letter (and not on the customer complaints which led to the suspension) in this arbitration. The employer did not challenge this position, and restricted its argument to the grievor’s conduct in contacting one of its customers after his suspension.
8The arbitrator concluded that the applicant’s conduct had violated a “last chance agreement” dated November 18, 1999 and determined that she would not exercise her discretion to mitigate the penalty of discharge. The arbitration award recorded that the applicant had been terminated previously and that the grievance over that earlier termination had been settled by the October 1998 agreement. The award also described the circumstances that gave rise to the November 18, 1999 agreement. I note that the applicant did not file the later November 1999 agreement with his application and made no reference to it in his request for reconsideration even though it was a violation of that later agreement which led to his ultimate discharge and unsuccessful grievance and arbitration proceeding.
9The applicant also sets out in further detail his allegations against Local 3129. The applicant points out that Local 3129 applied for an expedited arbitration on May 26, 2000 and refers to the statement that had been prepared by Camco Inc. which the applicant marked as exhibit 6. He also takes issue with the arbitrator’s conclusion that his phone call to the customer was for the purpose of engaging in further discussions about a previous interaction between the applicant and the customer and not for any purpose relating to his position as a service technician.
10The expedited arbitration process invoked by the Local 3129 on May 26, 2000 was, according to the document filed by the applicant, “expedited arbitration pursuant to section 49”. Expedited arbitration pursuant to section 49 is a reference to the arbitration process under section 49 of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended and not the expedited arbitration process under the collective agreement. The entire foundation of the applicant’s complaint about Local 3129 not objecting to Camco Inc. having a lawyer present at the hearing rests on the assumption that the arbitration hearing dealing with the applicant’s discharge was conducted under the expedited arbitration process provided by the collective agreement. It was not. Section 49 (1) of the Act explicitly permits access to the arbitration process under the Act “despite the arbitration provision in a collective agreement”. Arbitration hearings that take place under section 49 of the Act do not preclude parties from being represented by counsel at the hearing. As it is clear that the arbitration hearing to which this application relates was not an arbitration hearing under the expedited arbitration process in the collective agreement, there was simply no possible basis for Local 3129 objecting to counsel being present and representing Camco Inc.
11As for the applicant’s complaints about the findings by the arbitrator, there is nothing in those allegations or complaints that have anything at all do with the applicant’s representation by Local 3129. The arbitrator came to certain conclusions based on the evidence at the hearing and her interpretation of the November 1999 agreement that permitted the applicant to be dismissed if he violated that agreement. There are, in our view, no grounds for concluding that Local 3129 should have done anything differently with respect to the applicant’s termination of employment.
12In our opinion, the applicant has not demonstrated any proper basis for reconsidering our earlier decision. He has not provided any factual allegations, even assuming them to be true, that would lead the Board to conclude that Local 3129 had acted in a manner that was arbitrary, discriminatory or in bad faith in its representation of the applicant.
13This application for reconsideration is therefore dismissed.
“Harry Freedman”
for the Board