0471-01-U Ronald Douglas, Applicant v. Laundry and Linen Drivers and Industrial Workers Union Local 847 affiliated with the International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America, Responding Party v. Columbia MBF Inc., Intervenor.
1514-01-M Ronald Douglas, Applicant v. Laundry and Linen Drivers and Industrial Workers Union Local 847 affiliated with the International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America, Responding Party.
1600-01-M Ronald Douglas, Applicant v. David Young, Nancy Maharaj and Gary Hughson, Responding Parties.
1620-01-R Ronald Douglas, Applicant v. Columbia MBF and Teamsters Local 847, Responding Parties.
1685-01-U Ronald Douglas, Applicant v. Local 847 Teamsters, Gil Davis, Daniel Green and David Young, Responding Parties.
BEFORE: Patrick Kelly, Vice-Chair and Board Members J. A. Ronson and H. Peacock.
DECISION OF THE BOARD; October 15, 2001
Background
The applicant in all the above-noted Board files is Ronald Douglas, who throughout this decision we also refer to as “Mr. Douglas”.
In our decision of September 10, 2001 regarding Board File No. 1600-01-M (an application regarding employee status, which shall be referred to as “the employee status application”) we directed the applicant to provide written submissions setting out in concise detail what this dispute is about and the role of the individuals named as responding parties in the dispute. The applicant was directed to provide those submissions to the Board and the parties opposite by no later than September 21, 2001, or the application would be dismissed without further notice. The applicant failed to comply with the Board’s direction. The applicant’s written submissions were filed with the Board via facsimile transmission on September 22, 2001. There is no indication that those submissions were delivered to the parties opposite. Finally, the submissions contain no allegations which go to the issue of the status of the applicant as contemplated by subsection 114(2) of the Labour Relations Act, 1995, (“the Act”).
Though far from clear, what the applicant’s written submissions do reveal is the real nature of the dispute that he appears to have with his trade union, Laundry and Linen Drivers and Industrial Workers Union Local 847 affiliated with the International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America, (“the union”) and his employer, Columbia MBF Inc. (“Columbia”). That dispute appears to be at the heart of all the other applications (with the possible exception of one) that the applicant has filed with the Board. In fact, in Board File No. 0471-01-U (a duty of fair representation application under section 74 of the Act, which shall be referred to as “the DFR application”), a differently constituted panel of the Board issued a decision, dated June 14, 2001, summarizing the essence of that complaint, which summary accurately describes the concerns raised in the applicant’s written submissions in the employee status application. At paragraph 6 of the Board’s decision, it observed:
Although the allegations made in the application are not entirely clear, it appears that the gist of the applicant’s complaint is that his employer had been seeking to force him to retire, that he was unwilling to do so, and that his employer has nonetheless since terminated his employment. Finally, the applicant complains that the union has not assisted him in resolving his grievances/complaints in this regard including securing his reinstatement to employment. Having reviewed the allegations set out in the application, the Board is not satisfied that it should exercise its discretion to dismiss this application without a consultation in the circumstances.
Of interest is the fact that following the issue of the Board’s June 14, 2001 decision and the establishment of a consultation date of August 22, 2001, Mr. Douglas sought to withdraw the DFR application on July 31, 2001. By decision dated August 1, 2001, a differently constituted panel of the Board granted the applicant leave to withdraw. The applicant filed a request for reconsideration of that decision on August 31, 2001, a day after the expiration of the twenty-day period in which such requests must be made according to the Board’s Rules of Procedure (see Rule 96). Mr. Douglas did not seek permission of the Board to file the request for reconsideration beyond the twenty-day period. The request for reconsideration offers no reasons as to why the Board’s decision granting the applicant leave to withdraw the DFR application should be reconsidered.
Board File No. 1685-01-U is an application under section 96 of the Act (“the section 96 application”), alleging violations of sections 69 (the sale of business provision), section 74 (the duty of fair representation provision) and section 114 (the employee status provision) of the Act. It also appears, by implication, to refer to subsection 93(3), the provision of the Act dealing with a trade union’s obligation to furnish financial statements. In short, the section 96 application is an apparent attempt at a sort of consolidation or summary of all of the other applications. The section 96 application was filed on September 17, 2001. It names the union, two union representatives, and a representative of Columbia as responding parties, and it appears to traverse substantially the same ground as did the DFR application which, as we have indicated, was withdrawn at the request of the applicant.
Board File No. 1620-01-R is an application under section 69 and/or subsection 1(4) of the Act, filed on August 31, 2001. We shall refer to this proceeding as “the section 69/1(4) application”. Mr. Douglas filed a similar application (Board File No. 3339-00-R) on February 13, 2001 alleging certain facts concerning the same personal workplace concerns that permeate all other of his proceedings before the Board. In that matter, the Board observed in its decision of April 3, 2001 that the applicant did not appear to understand the import of section 69 or subsection 1(4), and that the application was so confusing as to render it incapable of a response by the responding parties. The Board dismissed that application without prejudice to the filing of a subsequent, properly pleaded application setting out all the material facts in support of a finding of a sale of business or a related employer finding, and identifying appropriate remedies. Apparently that is what Mr. Douglas attempted to do with this application. However, it is no less confusing than the first. And again, it appears driven by his personal concerns with respect to his seniority and reinstatement to active employment. There are no material facts upon which one could conclude that a sale of business had taken place or that certain employers were or are related.
Finally, we turn to Board File No. 1514-01-M. This is an application filed on August 24, 2001 alleging a violation of subsection 93(3) of the Act which requires a trade union, upon request of any member of the trade union, to furnish a copy of its audited financial statement to the requesting member. We refer to this as “the subsection 93(3) application”. The applicant contends that on July 25, 2001 he requested in writing a financial statement from the union (a copy of the request attached to the application indicates that, among other things, Mr. Douglas asked for an unspecified financial statement). He alleges further that he also made several telephone calls to the union, asking for the financial statements. His request has not been satisfied. The union indicates in its response that the application should be dismissed for failure to disclose a prima face case of a violation of the Act, and because of delay in bringing the application. It contends further that Mr. Douglas is no longer a member in good standing with the union, that the subsection 93(3) application is an abuse of process (given the previously withdrawn DFR application), and that the applicant cannot be trusted to keep the contents of the union’s financial statement confidential. Although Columbia did not file a response, and indicates that it does not intend to, its legal counsel wrote to the Board on September 10, 2001, contending that this application is the continuation of an abuse of process on the part of Mr. Douglas manifested by the filing of numerous applications that have no basis in law or which contain no material facts in support, as well as by the refusal of the applicant to take delivery of materials delivered to him by Columbia in respect of his various applications. (We note that the union complains of similar conduct on the part of Mr. Douglas regarding delivery of the union’s materials). Columbia moves that the Board dismiss the applicant’s request for reconsideration, his employee status application and the section 69/1(4) application. It also requests that the Board order that Mr. Douglas must seek leave of the Board to file any further applications against Columbia, or, in the alternative, that the Board impose a one-year bar on any new application from Mr. Douglas pursuant to section 111(2)(k) of the Act. (In its response to the section 96 application, the union reiterated Columbia’s allegations concerning the vexatious nature of these proceedings, and joined in the relief requested by Columbia).
Decision
We dismiss the employee status application because Mr. Douglas did not adhere to the Board’s direction concerning the filing of his written submissions, and, more importantly, because those written submissions fail to make out even the hint of an employee status issue within the meaning of section 114(2) of the Act. Moreover, the Board has previously stated on more than one occasion that only a party to a bargaining relationship may apply for a determination of employee status: see for example Central Park Lodges of Canada, [1980] OLRB Rep. Oct. 1373 and Vernon John Herman, [1988] OLRB Rep. Feb. 152.
We dismiss the section 69/1(4) application for failing to disclose any facts upon which the Board could possibly conclude that a sale of business has taken place, or that certain employers are related.
We turn to a consideration of the applicant’s request for reconsideration. 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.
In his request for reconsideration, the applicant did not seek to adduce any new information or evidence, there are no important policy issues raised by the applicant, and there is no obvious error in the Board’s decision of August 1, 2001. We therefore dismiss the request for reconsideration because it does not disclose any basis for reconsideration of the Board’s decision to grant the applicant leave to withdraw his DFR application.
With respect to the section 96 application, it appears to merely reiterate the facts alleged in the withdrawn DFR application. The applicant is therefore directed to provide to the Board and the other named parties in the section 96 application written submissions as to why the Board should not refuse to inquire into this matter, pursuant to the exercise of its discretion under subsection 96(4) of the Act. Those submissions are to be provided on or before October 29, 2001, failing which the section 96 application will be dismissed without further notice. Upon timely receipt of the applicant’s submissions, the Board will give further consideration to this matter.
We decline to dismiss the subsection 93(3) application. The union acknowledges that it has refused to provide the applicant with any financial statement (although it also contends, as a preliminary matter, that Mr. Douglas failed to be specific with respect to the year of the financial statement requested). The application therefore does disclose a prima facie case of a violation of the subsection. Moreover, contrary to the union’s assertion, there was no significant delay in the filing of this application. According to Mr. Douglas, the request for the financial statement was made at least as early as July 25, 2001. The application was filed on August 24, 2001. The union appears to contend that Mr. Douglas should have made his request for the financial statement months prior when his membership in good standing allegedly lapsed, and that his failure to have done so constitutes delay that warrants the dismissal of the application. We do not agree with that analysis. The Act does not impose time constraints within which a request under section 93(3) must be made. In our view, the relevant period for the consideration of the issue of delay is the period from the date on which the request was made until the date of application. In this case that period is one of only several weeks.
It may be, as both the union and Columbia contend, that these applications are brought by the applicant for the improper purpose of vexing the union and/or Columbia. The facts alleged in the applications (with the exception of the subsection 93(3) application) have either nothing to do with the proper subject matter of the respective applications or, as in the case of the section 96 application and – to a lesser degree - the section 69/1(4) application, are merely the reiteration of facts from previous applications which were withdrawn or dismissed. If the applications are brought for improper motives, it may be appropriate that the Board issue orders as contended by Columbia and the union in paragraph 7 of this decision. The applicant is directed to provide written submissions to the Board and all the named parties in all these applications with respect to the contention that the applications amount to an abuse of process. The applicant is also directed to answer why, if the Board finds an abuse of process, the Board should not impose a bar of one year to future applications from the applicant naming Columbia, the union or their respective representatives as responding parties, pursuant to section 111(2)(k) of the Act, or, in the alternative, why the Board should not require the applicant to seek leave to file any further applications involving those same responding parties. The applicant is to provide those submissions on or before October 29, 2001, following which the Board will give further consideration to Columbia’s and the union’s request for orders.
“Patrick Kelly”
for the Board