Ontario Labour Relations Board

4091-98-U Jodi Formosi, Applicant v. Ontario English Catholic Teachers’ Association and OECTA Halton Secondary Unit and Joe Pece, Gino DiCiocco, Dave Costie and Mark Whinton, Responding Party.

BEFORE: Russell Goodfellow, Vice-Chair.

DECISION OF THE BOARD; July 6, 2000

[1]. The Board is in receipt of a request for reconsideration of its decision dated September 9, 1999.

[2]. In that decision the Board dismissed Ms. Formosi’s section 96 application, which had alleged breaches of sections 74, 76 and 77 of the Labour Relations Act, 1995 (the “Act”). The Board found that sections 74 and 77 of the Act were not applicable to the facts as alleged, and that those facts did not establish a prima facie case of a breach of section 76. In the latter regard, the Board concluded that the acts complained of could not constitute “intimidation” or “coercion” within the meaning of the Act. Instead, the Board characterized the alleged conduct as a form of “social pressure”, indicating that it was not regulated by the statutory provisions. The Board noted, further, that the applicant’s bargaining agent was “entitled to seek to enforce solidarity among its members for the strike in accordance with its constitution” and that the matters in question were “between the applicant and her bargaining agent to be resolved in accordance with the constitutional requirements”.

[3]. The applicant disagrees with the foregoing conclusions and requests the following relief:

That the Board re-examine all of the facts previously submitted and reconsider their merits based on the information provided above. After considering some of the misinterpretations made in the original decision by Vice-Chair Goodfellow, I ask that my case be reconsidered by an alternate Vice-Chair.

[4]. Pursuant to section 114(1) of the Labour Relations Act, 1995 (the “Act”), the Board has a broad discretion to reconsider any decision or order made by it and to vary or revoke any such decision or order. However, the Board has repeatedly indicated that it will not reconsider its decisions unless there are good and valid reasons for doing so. Circumstances in which the Board has been willing to reconsider its decisions or orders include those in which the decision contains an obvious error; where the request raises important policy issues which have not been adequately addressed; where new evidence is sought to be presented which could not, with the exercise of due diligence, have been obtained and presented obviously and which could, if accepted, make a difference to the decision; and where representations are sought to be made which the party seeking reconsideration had no previous opportunity to make.

[5]. The applicant has indicated that she would prefer to have this matter dealt with by another Vice-Chair. However, it is not, nor has it ever been, the Board’s practice for one Vice-Chair to “review” the determinations of another. Decisions are decisions of “the Board”, not of individual Vice-Chairs, and a request for reconsideration is not an appeal; rather, its purpose is to allow an applicant to bring to the Board’s attention the kinds of matters identified above.

[6]. The basis for the applicant’s request for reconsideration is three-fold. First, the applicant refers, for the first time, to section 85 of the Act and suggests, again for the first time, that the strike may have been unlawful. Second, the applicant submits that her rights “as a Canadian Citizen, as guaranteed by the Canadian Charter of Rights and Freedoms, have been trivialized and ignored”. In particular, the applicant claims a Charter right in support of her “deep philosophical opposition to picketing”. Finally, the applicant disagrees that the alleged conduct can be described as a form of “social pressure”.

[7]. The third point was the subject matter of the earlier decision and that decision will not be restated here. Suffice it to say that requests for job action are never pleasant, and emotions typically run high on all sides. While the applicant may well have felt herself mistreated and believe that her position and values were not adequately respected, that does not make the alleged conduct unlawful. Whatever label is affixed to that conduct, the Board remains satisfied that it was not of a kind or to an extent that would constitute a breach of section 76.

[8]. As to the first point raised by the applicant, the Board notes that she was afforded an opportunity to respond to the union’s request for dismissal and that she took full advantage of that opportunity by supplementing her original detailed and lengthy submissions with further submissions of fact and law. At no time did the applicant suggest that the strike was unlawful. For this reason alone, there is no basis for this aspect of the request. However, the Board notes that even now the applicant does not squarely suggest that the strike was unlawful and, as far as the Board is aware, no such position has ever been taken by any party.

[9]. Finally, with respect to the reference to the Canadian Charter of Rights and Freedoms, the Board notes that a similar point was made in the applicant’s reply to the union’s request for dismissal. However, the Charter does not apply to the conduct of private parties, such as trade unions or their representatives.

[10]. To summarize, as the Board indicated in paragraph 6 of the earlier decision, this dispute is between the applicant and her trade union and is to be resolved, if at all, in accordance with the provisions of the union’s constitution. The conduct complained of does not give rise to a prima facie case of a breach of the Act.

[11]. The request for reconsideration is dismissed.

“Russell Goodfellow”

for the Board