Timothy G. Mitchinson v. International Brotherhood of Electrical Workers, Local 303
3600-98-U Timothy G. Mitchinson, Applicant v. International Brotherhood of Electrical Workers, Local 303, Responding Party.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; September 20, 2000
This is a request for reconsideration of the Board’s decision dated December 17, 1999 in which the Board dismissed the applicant’s complaint alleging violations of sections 74 and 75 of the Labour Relations Act, 1995, S.O. 1995, c.1 (“the Act”) by the responding party trade union (“the union”). The applicant seeks to have his application granted, or in the alternative, an order directing the union to disclose all relevant documents followed by a full hearing before the Board.
The applicant’s section 74 and 75 complaint focussed on the union’s decision to enter into a letter of understanding with the employer’s organization, the Niagara Peninsula Electrical Contractors Association (“NPECA”), whereby the NPECA contractors were entitled to “name-hire” 50% of the selections of employees from the out-of-work list (maintained by the union) for work assignments. The letter of understanding was subject to revocation by the union in the event of abuse by NPECA contractors of the selection process.
The Board dismissed the applicant’s complaint on the basis that the union had entered into the “name-hire” arrangement in good faith, and there was no information to show that the arrangement had been abused by NPECA with the union’s acquiescence or knowledge.
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 finality 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.
The first reason advanced by the applicant in support of his request for reconsideration is his allegation that the union produced inaccurate and misleading documents pertaining to the selection of bargaining unit members from the out-of-work list work assignments. This allegation is completely unparticularized. Nor does the applicant state the nature of the alleged inaccuracies or misrepresentations.
The second reason advanced for reconsideration concerns the applicant’s assertion at the consultation that the letter of understanding to which the union was a party, and which was the impetus for the applicant’s complaint against his union, never had the approval of the union’s international president, and was thus null and void pursuant to the union’s constitution. In its decision, the Board observed that it was not its role to inquire into internal trade union matters, and in any event, whether or not the letter of understanding complied with the constitution was not determinative of the applicant’s complaint. The real issue was whether or not the union’s agreement to the new selection
process was arbitrary, discriminatory or in bad faith vis-à-vis the applicant. In his request for reconsideration, the applicant asked for the opportunity to call evidence concerning the internal union approval process. Given the Board’s finding that the issue is not determinative of the applicant’s complaint, there is no reason to hear evidence concerning this point.
The applicant’s third point is that the Board failed to give greater consideration to the basis upon which the union made its decision to agree to the letter of understanding. The union relied upon a provincial survey of IBEW locals which rejected the “name-hire” concept, but which indicated that the union’s members who participated in the survey were in favour. The applicant claims that the union should have had regard to the overall provincial results of the survey. The short answer to this contention is that the union’s duty of fair representation is owed to the employees for whom it has bargaining rights. The union considered the results of the survey applicable to the bargaining unit it represented. In any event, the applicant’s argument on this point was made at the consultation and is merely being repeated in the request for reconsideration.
The applicant went on to state, again along much the same lines as he stated at the consultation, that it was unfair for the union to let all the employees of the bargaining unit participate in a vote ratifying the letter of understanding. The applicant insists that only those members who were unemployed at the time should have been allowed to vote.
Although raised by the applicant at the consultation, the Board did not deal specifically with that argument in its decision of December 17, 1999. It suffices to say that such an argument has no merit. All employees represented by the union may potentially be unemployed at one time or another. They all have an interest in the issue of employer selection from the out-of-work list. To have excluded some employees from the ratification vote might well have given rise to complaints of arbitrariness against the union.
The fourth point in the applicant’s reconsideration request is an assertion that the union never explained what legitimate interests were being advanced by entering into the letter of understanding, nor what prejudice would follow if the letter of understanding were to be revoked.
The union was not required to explain the consequences of a revocation of the letter of understanding. What it was required to do was establish a reasonable basis for having agreed to be a party to it. Contrary to the applicant’s assertion, the union did exactly that. At paragraph 24 of the December 17, 1999 decision in this matter, the Board found that:
The representatives of IBEW determined that a different method of work distribution might better ensure the commitment of the NPECA contractors to the use of Local 303 members for their projects, while still providing a fair distribution of work among qualified members.
The applicant had no information at the consultation to refute the union’s motivation in having entered into the new selection arrangement. He perhaps had hoped to discover such evidence through cross-examination of NPECA officials and representatives of the union. However, that would have been an inquiry in the nature of a “fishing expedition”, and that is why the Board did not decide to refer the application to a full hearing.
The fifth ground advanced by the applicant in his request for reconsideration relates to his insistence that he had no opportunity to examine NPECA witnesses concerning the selections from the list. The applicant blames an earlier decision of the Board, differently constituted, dated August 30, 1999 for this lost opportunity. That applicant also states that the Board in that decision denied his request for the production of documents from the union.
No reasonable reading of the August 30, 1999 decision of the Board leads to a conclusion that the applicant was deprived of the opportunity to bring or compel witnesses, including NPECA witnesses, to attend at the consultation. That panel of the Board simply pointed out that it was up to the parties to make their own arrangements with respect to witnesses, and that, normally, consultations do not involve the tendering of oral testimony. The applicant could have taken steps to ensure the attendance of witnesses, but he apparently did not do so. In any case, the applicant’s assumption that NPECA would have been under some burden of proof pursuant to section 96(5) of the Act is incorrect. NPECA was not a party to these proceedings, and even if it had intervened, the application was framed as a section 74 and section 75 complaint against the trade union.
The burden of proof in section 96(5) lies only upon an employer or employer’s organization, not a trade union. Moreover, that burden only comes into play when there is a complaint alleging that an employer or employer’s organization acted contrary to the Act. The applicant had previously attempted to include in his application a section 70 complaint against NPECA, which the Board, again differently constituted, found to be an improper application. That panel of Board, by decision dated September 21, 1999, struck that portion from the applicant’s complaint, which, as I have indicated, then proceeded as a section 74 and section 75 application. No employer or employer’s organization can be found to have acted contrary to section 74 or 75 of the Act.
Nor did the August 30, 1999 Board decision deny production to the applicant. It simply directed that the issue of production be dealt with by the panel of the Board assigned the consultation. At the consultation, the union provided documents concerning the selections from the list (which, as the Board noted in paragraph 3 above, the applicant now says are misleading and inaccurate).
The applicant’s sixth ground for reconsideration is his contention that the Board dismissed the application without giving the applicant an opportunity to investigate and submit evidence of alleged instances of abuse of the selection process by NPECA, and the union’s alleged knowledge of such abuse.
The applicant had no evidence whatsoever to present at the consultation concerning union knowledge of or complicity in abuse of the selections from the list by the employer. He did contend that he had examples of improper selections by the employer, but with no explanation as to how he intended to prove them or, more importantly, how they affected him personally. The applicant was unable to refer me to any instance in which, but for the union’s alleged conduct, the applicant would have obtained specific work that was assigned instead to another member of the bargaining unit. It was clear that he wanted the Board to draw certain inferences generally concerning the union’s role in those alleged improper selections, but he had no direct evidence of union misconduct. He gave no reasons why he had been unable to fully investigate all of his allegations, and to proceed to tender evidence regarding same.
Nor did he seek an adjournment in order to prepare his case in light of the documents produced by the union at the consultation.
Finally, the applicant appears to suggest that the union failed to ensure adequately that the employer making a selection from the list does so in a manner which is not arbitrary or discriminatory. As the Board indicated in its decision of December 17, 1999, the letter of understanding contains a provision enabling the union to revoke the arrangement in the event of abuse of the selection process. And as indicated in that decision and this one, the applicant had no evidence that the union was ever aware of abuse of the selection process as it affected the applicant.
In summary, the applicant relies in support of his request for reconsideration on unsubstantiated allegations of inaccurate and false documents produced by the union at the consultation, the repetition of allegations contained in the application that the applicant was not in a position to prove on the day of the consultation, and further allegations which, even had they been proved, would not have changed the outcome of his application. These are insufficient to support the applicant’s request.
For all of the above reasons, the applicant’s request for reconsideration is denied.
“Patrick Kelly”
for the Board