2455-99-U Rosemary Ferro, Applicant v. Power Workers’ Union CUPE Local 1000 – C.L.C., Responding Party v. Ontario Power Generation Inc., Intervenor.
BEFORE: Brian McLean, Vice-Chair.
DECISION OF THE BOARD; November 8, 2000
1. This is a request for reconsideration of the Board’s decision dated June 27, 1999. The Board hereby amends that decision to reflect the correct date of the decision, June 27, 2000.
2. This request for reconsideration was filed outside of the time limits set out in the Board’s Rules for such requests to be made. However, given the circumstances as set out in the applicant’s request which resulted in the delay, the Board hereby extends those time limits.
3. The Board’s practice and procedure regarding requests for reconsideration is well established and is encapsulated in the following excepts from Cineplex Odeon Corporation, [1996] OLRB Rep. Nov./Dec. 922 where the Board wrote at page 924:
12. 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:
11. 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 within 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 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. 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.
4. The applicant’s request for reconsideration is an attempt to reargue the issue of whether the application discloses a prima facie breach of the Act. All of the evidence and arguments included in the request for reconsideration were or could have been advanced prior to the Board’s decision (now correctly) dated June 21, 2000. For these reasons alone, the application for reconsideration can be dismissed.
5. Having said that, there is also nothing in the application for reconsideration which would, under all of the circumstances, cause the Board to change its decision. In order to assist the applicant and the other parties to understand why that is, the Board will consider some, if not all, of the arguments made by the applicant in her request for reconsideration.
6. Paragraphs 1 and 8 of the applicant’s “Response” to the Board’s decision appear to assert that the Board’s procedure was flawed in this case. It was not. All proceedings before the Board commence, as was done here, by filing an application. The responding party to the application then may file a response. Intervenors may file an intervention. If the application is made under section 96 of the Act (and usually otherwise) a Labour Relations Officer is appointed to attempt to resolve the dispute. At any time in the proceedings, the responding party or intervenor may request that the Board dismiss the application because it does not disclose a prima facie breach of the Act. Usually, as here, the Board will ask the other party to respond to the request. The Board only deals with applications which disclose a breach of the Act. A consultation will only be held if the applicant discloses a prima facie breach of the Act and there is no settlement. In this case, therefore, the Board followed its usual practice in complaints under section 74 of the Act. The reverse onus provision contained in section 96(5) of the Act only applies where an applicant makes a complaint that s/he has been penalised by the employer for exercising rights under the Labour Relations Act, 1995. Here, the applicant’s complaint is that the union did not represent her in accordance with section 74 of the Act. Accordingly, section 96(5) does not apply.
7. Paragraph 3 of the application asserts that the applicant could have file a grievance under section 6.1 of the Act. The Board agrees that some or all aspects of the applicant’s complaint could have at least potentially formed the bases of a grievance under that section. However, the applicant or the union, as it is entitled to do, chose the other avenue contained in the collective agreement (the discrimination complaint procedure, Article 6.2). for the adjudication of the applicant’s Human Rights complaint. The Board disagrees with the applicant’s assertion that Article 6.2 “is not intended to include a poisoned workplace which can include personal harassment, reprisal or threatened reprisal”, as all of those circumstances are clearly potential violations of the Human Rights Code, particularly in regard to the allegation made by the applicant in her grievance.
8. The applicant agrees that she agreed to a temporary transfer. Because of that, the union decided not to grieve that temporary transfer. Nothing in the request for reconsideration causes the Board to change its view that the union’s decision in this regard was not reasonable, and certainly not arbitrary, discriminatory or in bad faith given that the applicant agreed to the transfer. However, the Board reiterates the statement it made in its earlier decision: the decision says nothing about the applicant’s rights if the union were to fail to proceed with a grievance were that transfer to become permanent.
9. Finally, it is not a violation of section 74 of the Act for a union to appoint a “full” investigator to be the applicant’s representative, instead of a member of the support staff. In my view, it is apparent that the applicant received adequate representation by the person chosen by the union to represent her.
10. As a union member, the applicant has the right to file a complaint against her union alleging a violation of section 74 of the Act. That right does not, however, guarantee that the applicant will get a hearing or consultation. The Board only holds a hearing if the application discloses a prima facie breach of the Act. Nothing in the request for reconsideration affects the Board’s decision that the application does not disclose a prima facie breach of the Act. Accordingly, the request for reconsideration is denied.
“Brian McLean”
for the Board