3243-98-U Paul V. Marchese, Applicant v. U.S.W.A. 9392, Responding Party v. Dominion Castings Limited, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; May 23, 2000
This is an application for reconsideration of the Board’s decision dated October 29, 1999. dismissing an application made by the applicant under section 96 of the Labour Relations Act, 1995 (“the Act”), in which the applicant alleged that the responding party had violated section 74.
Pursuant to subsection 114(1) of the Act, the Board has the discretion to reconsider its decisions. Subsection 114(1) states:
(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
The principles which the Board applies in an application for reconsideration are set out in John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096, as follows:
The Board exercises its jurisdiction under section 95(1) [now 114(1)] of the Act to reconsider and vary or revoke any decision with care and caution in order not to undermine the finality of its decisions and, as stated by the Board in Canadian Union of General Employees, [1975] OLRB Rep. April 320:
Generally, the Board will not reconsider a decision unless a party proposes to adduce 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.
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 to 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.
- In K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, the Board stated at paragraph 4:
To avoid abuse of the reconsideration provision and bring some flexibility to its adjudicated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the case. Reconsideration is therefore generally restricted to allowing a party to adduce evidence to make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of the party’s conduct, and the resulting prejudice to another party if the case is reopened.
The Board may also reconsider a decision if an obvious error has been made or if the request raises significant and important policy issues which have not been given adequate attention or consideration. See, for example, Toronto Board of Education (Plant Operations), [1998] OLRB Rep. Jan./Feb. 104.
By decision dated October 29, 1999, the Board found that the applicant had not adduced sufficient evidence to show that the responding party (“the union”) had violated section 74 of the Act.
In his application for reconsideration, the applicant states:
I disagree with the Board’s decision dated November 1 [sic], 1999. I believe that I provided the Board with sufficient evidence to support my claim of misrepresentation by the Union both in written material and witnesses that the board chose not to hear.
I ask that you review this decision and find in my favour that the Union did not properly represent me in my matters against Dominion Castings Ltd.
Please find enclosed a copy of all written material and the full list of witnesses for your consideration.
The applicant enclosed background documents pertaining to incidents that he considers to be relevant to Dominion Casting’s alleged reprisal against him under the Occupational Health and Safety Act. He also enclosed statements from former fellow employees to the effect that Dominion Castings did not consistently enforce its policy in respect of requirements to call in when absent from work. These documents are not newly discovered evidence and indeed many were filed with the original application.
The applicant was terminated because he failed to call in when absent from work, in accordance with the collective agreement. The matter went to arbitration and the arbitrator found that Mr. Marchese had in fact violated the call-in requirement. The mandatory penalty for this infraction under the collective agreement was automatic termination, thus depriving the arbitrator of any discretion as to punishment.
The union’s position before the Board was that it could not prove reprisal at the arbitration because the applicant had not provided it with evidence to support his allegations. It had nothing but bald allegations. At the consultation, the applicant was unable to show that he had given his union something to go on at the arbitration with respect to the alleged reprisal.
At paragraph 11 of its decision dated October 29, 1999, the Board addressed the issue of whether or not the applicant should be able to call witnesses at the consultation. The applicant indicated that his witnesses would help him prove that he was reprised against. However, the issue before the Board at the consultation was not “reprisal” or inconsistent enforcement of call-in procedures. The evidence of the applicant’s proposed witnesses, even if true, would not assist the applicant in respect of his section 74 complaint. The purpose of the consultation was not to revive the applicant’s reprisal allegations against the company. It was to determine whether the union treated the applicant in a manner that was arbitrary, discriminatory or in bad faith.
This application for reconsideration is simply an attempt to reargue the matter. No new facts have been adduced that are relevant to the Board’s determination of whether section 74 was violated. No new policy considerations are raised in the application that would cause the Board to reach a different conclusion.
The application does not establish sufficient grounds for the Board to reconsider its decision. Accordingly, the application is dismissed.
“Anthony Brown”
for the Board