Ontario Labour Relations Board
Parties
3032-98-U Betty Jane Burkitt, Applicant v. Office and Professional Employees International Union, Local 491, Responding Party v. Canadian Union of Public Employees, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
APPEARANCES: Betty Jane Burkitt for the applicant, Sean Clancy and Lin Pennesi for the responding party; Anne Cumming for the intervenor.
DECISION OF THE BOARD; May 4, 2001
Decision
1This is an application for reconsideration of a decision issued in this matter, dated April 5, 2001.
2Generally the Board will not reconsider a decision unless there are compelling reasons for doing so. The Board does not view an application for reconsideration as an opportunity for a party dissatisfied with the result of the Board’s decision to relitigate the matter. As was stated in Cineplex Odeon Corporation [1996] OLRB Rep. Nov. /Dec. 922 at page 927:
Reconsideration is not available for the reargument of cases or more creative theories thought of later, in light of new information or jurisprudence; this has been affirmed repeatedly in the Board’s jurisprudence. See for instance, Silverwood Dairies, [1977] OLRB Rep. June 392.
3Further the Board will not consider a party’s proposal to adduce new evidence unless such evidence could not previously have been obtained by reasonable diligence.
4In the application the grounds for reconsideration essentially involve two issues:
(a) the questioning of the applicant of the testimony given by Mr. Clancy;
(b) issues as to alleged mistakes in the decision in regards to the applicant’s contention that she had not been properly notified or advised by the Union.
5Mr. Clancy gave his evidence under oath and was subject to cross-examination. The Board accepted the evidence given by Mr. Clancy and is not prepared to review such acceptance.
6In relation to the alleged purported mistakes in the decision, even accepting these are indeed mistakes, and accepting for the purpose of this reconsideration application that such mistakes were made, the result of the decision would not change. In this regard the fact that a conversation reported to have taken place on June 2, 1998 actually may have taken place on June 3, 1998 would not alter the rationale of the decision. Neither would the fact that the applicant alleges she was never contacted by the Grievance Committee. What is not disputed is that she was contacted by responsible Union representatives. Much of the other purported differences relate to the applicant’s attempt to relitigate the evidence given by Mr. Clancy.
7In the Board’s opinion this request to reconsider is merely an attempt to relitigate the matter, or present evidence that could have previously been obtained by reasonable diligence.
8Further, in any event, the additional evidence the applicant wishes to adduce would not, in the Board’s view, alter the decision rendered in this matter. The basis of the decision dated April 5, 2001 was that the Union had been reasonable in its decision not to file a grievance in this situation. Though the Union agreed with the applicant that the employer had not followed proper procedure the Union felt that to pursue a grievance, given the possible remedy at arbitration even if successful would not justify proceeding. The Board found this decision reasonable. In the words of the decision of April 5, 2001 “the decision as to why not to proceed to file a grievance is entirely reasonable. O.P.E.I.U. was faced with a situation in which a re-posting, in its view, would ultimately result in Ms. Scullard being the successful candidate in any event. To proceed would affect negatively on Ms. Scullard’s assuming a full-time position. I am satisfied that the union conducted a proper investigation and that its decision to notify the employer by letter, of its concerns was a reasonable decision in the circumstances”.
9For all the above reasons the request for reconsideration is dismissed. The Board will not re-open this matter or order additional testimony be given as requested by the applicant.
“Timothy W. Sargeant”
for the Board