Ontario Labour Relations Board

2839-00-U Lewis R. Reed, Applicant v. United Steelworkers of America, Responding Party v. Initial Security Services, Rentokil Initial Canada Limited, Intervenor.

BEFORE: Patrick Kelly, Vice-Chair.

DECISION OF THE BOARD; August 17, 2001

[1]. This is a request for reconsideration of the Board’s decision of June 19, 2001 which dismissed the applicant’s application alleging that his trade union violated the duty of fair representation as set out in section 74 of the Labour Relations Act, 1995, as amended (“the Act”).

[2]. 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.

[3]. 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.

[4]. 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.

[5]. The applicant in this matter submits that the Board disregarded his contention that the circumstances surrounding his three-day suspension grievance (the settlement of which was at the core of his section 74 application) involved no culpability on his part. Therefore, his trade union should have obtained a better settlement than it did. The applicant appears to argue that, in failing to do so, the union breached its duty of fair representation.

[6]. The applicant also appears to contend that the Board failed to comprehend the link between his unsuccessful attempt to secure elected office in the union and the allegedly inappropriate handling of an unspecified grievance.

[7]. In my view, the reasons advanced by the applicant for the request for reconsideration fall well below the standards which the Board has traditionally applied - and which I have set out in paragraphs 2, 3 and 4 above - in determining whether to reconsider a decision. With respect to the first reason, the Board’s focus in this section 74 application was not on the applicant’s culpability or innocence in respect of the events that gave rise to his suspension grievance, nor, for that matter, was the Board’s concern with the merits of that grievance. What was under scrutiny were the actions or omissions of the union in terms of its representation of the applicant vis-à-vis the intervenor. In that regard, the Board concluded that the union’s unilateral settlement of the grievance was not a breach of the Act.

[8]. I turn to the second ground advanced in his request for reconsideration, namely the link between the applicant’s aspirations to union office and the alleged inappropriate handling of a grievance. It is not possible on the face of this reconsideration application to ascertain which grievance, and its handling by the union, the applicant is linking to the internal union matter. However, my decision of June 19, 2001 noted that the applicant had filed between 6 and 9 grievances, and found no serious fault with the union’s handling of any of the applicant’s grievances. Therefore, the premise upon which the applicant builds his second argument is fundamentally flawed.

[9]. Accordingly, I decline to reconsider my decision of June 19, 2001.

“Patrick Kelly”

for the Board