Victor Carquez v. Canadian Union of Public Employees and its Local 229, 1994 CanLII 9841

[1994] OLRB Rep. July 857

0398-94-U Victor Carquez, Applicant v. Canadian Union of Public Employees and its Local 229, Responding Party v. Marriott Management Services, Intervenor

BEFORE: S. Liang, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.

APPEARANCES: William Moore for the applicant; Nancy Rosenberg, Linda Dumbleton, John Platt, Harold van der Tol and Heather Brennan for the responding party; David Cowling, Jim Fougere and Peter Myer for the intervenor.

DECISION OF THE BOARD; July 7, 1994

1. This is an application made pursuant to the provisions of section 91 of the Labour Rela­tions Act, alleging that the Canadian Union of Public Employees and its Local 229 (referred to in this decision as "Local 229" or "the union") has violated section 74(4) of the Act. Section 74(4) provides:

74.-(4) A strike vote or a vote to ratify a proposed collective agreement taken by a trade union shall be by ballots cast in such a manner that persons expressing their choice cannot be identi­fied with the choice expressed.

2. By brief written decision dated May 30, 1994, the Board decided on the basis of undue delay in the filing of this application, to exercise its discretion against inquiring into the merits of the matter. The following are our reasons for this determination.

3. At the outset of the hearing, over the objection of the union, the Board granted the employer, Marriott Management Services ("Marriott"), standing to participate in the hearing of these issues. Without determining whether Marriott had a strictly legal interest in the issues before the Board, the panel decided that it might be helpful to have the employer's participation and, in our discretion, granted it standing.

4. The union represents full-time and part-time employees who work in cafeterias servic­ing Queen's University. It has been engaged in negotiating a renewal agreement for the full-time bargaining unit, and a first collective agreement for the part-time bargaining unit. In a nutshell, the application alleges that the manner in which the union conducted a strike vote with respect to both units was not in compliance with section 74(4). The alleged deficiencies which the applicant identi­fies as most significant are a failure to provide a private place in which employees could fill out their ballots, and a failure to collect the ballots in a way that made it impossible for anyone to see how others voted. The general manner in which the union conducted the vote was consistent with other strike and ratification votes it has held in the past. In general, the dispute is with respect to whether the procedures applied by the union meet the requirements of section 74(4).

5. In his written materials, the applicant made reference to other sections of the Act, which were not pursued at the hearing or are ancillary to the allegations made under section 74(4).

6. The strike vote was held on March 8, 1994. This complaint was filed with the Board on May 5, 1994. In the intervening period, the union and Marriott continued negotiations towards a collective agreement and reached impasse in their bargaining. On April 11, the full-time bargain­ing unit commenced a strike and on April 16, the part-time unit commenced a strike. Shortly after the strike began, the school year finished, and most students left the campus.

7. At the commencement of this hearing on May 9, the union raised a preliminary motion. The union asserted that in light of the undue delay in the filing of this application, the Board ought to dismiss the complaint without inquiring into its merits. Further, the union asserted that improper motivation in the filing of this complaint should also lead the Board to dismiss the com­plaint. The union indicated that it was prepared to lead evidence on both of these issues. The Board found it convenient in all of the circumstances, including the desirability of an expeditious hearing and determination in this application, to direct that the parties lead their evidence and pro­vide their representations on all issues.

8. As we have decided this case on the basis of undue delay, it is unnecessary for us to detail the evidence with respect to the events of the meeting of March 8. For the most part, there­fore, the recitation of the facts below refers to events following that meeting. We make the follow­ing general comments with respect to the evidence and our findings of fact. The Board heard, on the issues of delay, the testimony of Victor Carquez, John Dennie, Linda Dumbleton (the CUPE National Representative), John Platt (the Local President) and, to a lesser extent, Joe Almeida, Heather Brennan and Clark Craig. In arriving at our findings of fact, we have considered all of the evidence and taken into account such factors as the demeanour of the witnesses, the clarity of their evidence, the witnesses' apparent ability to recall events and to resist the tug of self-interest in their responses to the questions, and what seems most reasonable and probable in all of the circum­stances and having regard to the evidence as a whole. Ultimately, we have found much of the evi­dence of John Dennie, and portions of the evidence of Victor Carquez, less than compelling and beset by a certain level of improbability, self-interest and exaggeration in its telling. Dennie, in particular, had difficulty keeping his personal history of disputes with the union over various issues from colouring his testimony, and was quick to invoke hearsay and innuendo to suit his purposes. Where there are contradictions between their evidence and the evidence of the other witnesses, including those called by the applicant, we prefer the evidence of the others, and we are inclined in general to give little weight to Dennie's evidence.

9. The applicant testified that he was "in awe" of the procedure by which the strike vote was held on March 8. He states that he had expected a place "where no bias was shown" and a place where he could vote in secrecy. He states that he discussed the matter that night with some other employees, and raised it the next day with a shop steward and member of the bargaining committee, Dan Smith. Carquez did not state how he put his concerns to Smith. He gave no detail as to this conversation, other than to say that Smith's response was that if he discussed it with any­one, he could be suspended or fined, as had John Dennie, another member of the bargaining unit who has been very vocally against the strike. Carquez stated that he did not feel intimidated by this and that, after what happened at the vote, nothing would stop him. Carquez also stated that a few days later he asked Smith for a copy of the union's constitution and by-laws. A few weeks after that, he started a petition with the object of delaying the strike until September. This petition, which is dated March 29, states:

Re: Strike action against Mariott co. (Before September 1994)

The Members signed herein are opposed to any strike action against Marriott co. before the commencement of the new school year.

We the undersigned members do not feel that a strike action would practically be in our best interest at this time.

IN SOLIDARITY THE UNDER SIGNED

10. Carquez also states that he spoke to Clark Craig, the chief steward, about the issue in the middle to end of March, telling Craig about the concerns of a number of people that they felt that they had "no secrecy" during the vote. It was after this that he started his petition above. In addition to his own petition, Carquez also assisted in the circulation of another petition drafted by John Dennie. The evidence is unclear as to when this other petition was drafted. It is dated March 10, but Carquez states that it was done during the week of April 6. The Dennie petition makes ref­erence to a number of objections to the way in which the strike vote was held, including an allega­tion that some people had the opportunity to view the ballots of other people. This petition was never presented to the union. Carquez testified that Smith saw him circulating it and warned him about it, saying that it was the letter that John Dennie was to be "brought up on charges" about.

11. Carquez and Dennie consulted with a lawyer after the strike began. The opinion that they received, dated April 20, 1994, was submitted into evidence before us. The letter states that the author was asked for an opinion on whether Carquez and Dennie could require the union to hold a new strike vote. It sets out the facts as they were related to the author. Nowhere in this let­ter is there any mention of a concern that the procedure for holding the vote was in violation of section 74(4) of the Act, or any mention of a concern regarding the secrecy of the ballots. Indeed, the author states that the impetus for a challenge to the strike vote was that Carquez and Dennie disagreed with the timing of the strike. They felt that when people voted in favour of the strike on March 8, they had been misled into thinking that the strike would begin soon, in the month of March. The letter states that they questioned the wisdom of a strike in April, since school was coming to an end.

12. The by-laws of the union provide for the calling of special meetings upon petition by a member. Carquez used these provisions to arrange a special meeting of the membership on April

13. The agenda of this meeting, which he established was two-fold: to discuss the addition of one member to the negotiating committee, and to discuss the mandate of the negotiating committees.

14. Carquez states that the reason why he delayed in making the present application was that he was attempting to deal with the issue internally. He also states that because others were fearful about raising a challenge to the secrecy of the vote, he used other issues, such as the timing of the strike, as the basis for his activities against the strike.

15. Joe Almeida, who testified for the applicant, actually drafted the petition of March 29. He states that when he voted in favour of the strike, he expected the strike to begin in March. Both he and Carquez were upset about the timing of the strike. He testified that the purpose of the petition was to move the strike to September. This is also the reason he signed Dennie's petition, in early April. At the time he and Carquez circulated the petition of March 29, there was no issue regarding the secrecy of the ballot. It was never a concern of his. He was present when the petition of March 29 was presented to John Platt, the president of the local, by Carquez, and states that the discussion centred around the timing of the strike. He testified that Carquez was completely sup­portive of the strike, until he found out that it would not start until April. Both he and Carquez were very upset about this.

16. The union's witnesses testified that at no time until at least April 26 did Carquez ever raise a concern with them as to the procedure of the strike vote. These witnesses included the National Representative and Local President both of whom were very active in the union's affairs at this time and attended at numerous union meetings in the months of March and April in connec­tion with negotiations and the strike. They were also known to Carquez. Clark Craig, the Chief Steward, testified that during the first week of the strike, he had a conversation with Carquez in which Carquez asked him if he thought the vote was "legal". Carquez did not elaborate. John Platt confirmed the evidence of Almeida that the discussion he had with Carquez over the March 29 petition was in regards to the timing of the strike. In a conversation on April 26 with Carquez, Car­quez raised some concerns about the method of the balloting.

17. Most of the union's witnesses testified about events at the union's meetings in March following the taking of the strike vote. On Monday, March 21, there was an information meeting of the membership following a mediation session. It became clear at that meeting that some mem­bers had not known that the timing of the strike was to be determined by the bargaining commit­tee. Some thought that it was an issue that should be put to a vote of all the members. Carquez, in particular, was quite vocal about the issue. He wanted to begin the strike as soon as possible. Car­quez made it clear that he thought the union should call the strike by March 24 at the latest.

18. On March 27, there was a meeting of picket captains in preparation for the strike. Car­quez had volunteered to be a picket captain. At this meeting, he stated that he was no longer going to be a picket captain. He stated that as the union had gone past his March 24 deadline for calling the strike, he intended to do everything possible to stop the strike. He indicated that he had polled the workers and most of them were against a strike in April, but were prepared to strike in the fall, upon the resumption of school.

19. We find on the evidence that to the extent Carquez was present and aware of the events of March 8, they did not concern him. Only once it became a possible avenue to pursue his real concerns, surrounding the timing of the strike, did he raise an issue concerning the strike vote pro­cedure. If we are to believe Carquez that he was aware right away on the evening of March 8 that there were "irregularities" in the voting procedure, then it is clear that he did not find it to his advantage to raise these irregularities until much later. The evidence shows that Carquez was a vocal and committed supporter of the strike, until he found out that it was not going to start until April. He disagreed vehemently with the union's decision as to the timing of the strike, to the point that he consulted legal counsel and started a petition with a view to compelling the union to defer the strike until the fall.

20. We are satisfied that Carquez did not raise the issue of the secrecy of the strike vote with the union until at least April 26. Even with respect to the conversation of April 26, with John Platt, the evidence is less than clear that the concerns expressed by Carquez related specifically to the secrecy of the balloting as distinct from other related issues. We choose not to accept the evi­dence of Carquez as it relates to discussions with Smith and with Grant as evidence that the union was aware of this impending complaint. Carquez' evidence as to his discussions with Smith is at odds with the evidence of other witnesses, notably Almeida, Dumbleton, Brennan and Platt, and with his own evidence. Carquez claims that he raised a concern regarding the secrecy of the vote early on. Yet the evidence is clear that he was a very vocal supporter of the strike, and in fact wanted it to start as quickly as possible. Carquez had participated in an information picket, and had even volunteered to be a picket captain. We find it improbable that he would have raised any issue regarding the procedure of the strike vote at this stage.

21. The Board was asked to draw an adverse inference against the union as a result of the failure to call Smith. We decline to draw such an inference in this case, because we have found the evidence of Carquez as to his conversations with Smith, to be lacking in plausibility. For instance, Carquez states that Smith told him that if he discussed the issue with anyone, he could be sus­pended or fined as had John Dennie, another member of the bargaining unit who had been very vocal against the strike. The evidence establishes that Dennie has been charged with contraven­tions of the union's constitution, over incidents which preceded March 8 and have nothing to do with the strike. The evidence also establishes that the charges against Dennie have not been tried, and no suspension or fine has resulted as of the date of these events, or even the hearing before us. Carquez later in his testimony acknowledges this. Further, it makes no sense that Smith character­ized Carquez along with Dennie as an opponent of the strike, since on Carquez's own evidence, he was a strong supporter of the strike at this point, and continued to be until the union failed to call the strike early enough for his liking. It also appears on the evidence that Carquez had made it well-known that he was in support of a strike. Further, Carquez did not provide any details as to the concerns that he raised with Smith, simply stating that he raised "it" (the vote). We therefore do not find the evidence of these conversations to be reliable. It is simply not reasonable to con­clude from it that as a result of these conversations with Smith, the union was put on notice that there was a challenge to the manner in which it had carried out the strike vote.

22. In any event, even if it is possible to conclude that Carquez had a conversation with Smith in which he "raised" the vote, the evidence is also clear that Smith was not a member of the executive and had no responsibility for the conduct of votes. Despite ample access to those who did, such as John Platt and Linda Dumbleton, Carquez chose not to bring the issue to them and neither did he ask Smith to. We are not prepared to infer from the circumstances that "notice" to Smith (if it was given) constituted "notice" to the union.

23. As to the evidence of a conversation with Grant, we prefer Grant's evidence as to the timing and content of this discussion.

24. With respect to the petition started by Dennie, the evidence is that this petition never came to the attention of the persons in the union with responsibility with respect to the strike vote. It may be that it came to the attention of Smith early in April, but since it was never presented to the union or made the basis of a request by either Dennie or Carquez to the union to conduct a fur­ther vote, we do not infer from Smith's knowledge that the union was put on notice of this impend­ing complaint.

25. Carquez also claims that the issue of the timing of the strike was a device to challenge the vote without having to surface the real issue, the secrecy of the vote. We find this incredible. We find no basis for his contention that the members were afraid to raise the issue regarding the secrecy of the vote, and therefore preferred to "shield" themselves behind the timing issue. We find improbable the contention that there was fear in raising certain issues but not in raising others. We find the letter of April 20 from legal counsel illuminating, for it is clear from that letter that to the extent that Carquez was now seeking legal advice, it was in support of his goal of having the strike deferred until the fall. To the extent there is a complaint made about the strike vote, it is to the effect that employees were misled into thinking that the strike would start much sooner than it did. On Carquez's own evidence, he is very quick to assert his views and not easily intimidated or dissuaded. If the strike vote procedure had been a concern at this point, we see no reason why he would not have sought advice on it.

26. On the evidence as a whole, therefore, we conclude that to the extent that Carquez says he took note of and had concerns about the balloting procedures at the strike vote held on March 8, he chose not to raise any concerns over these until he decided that the union was mishandling the timing of the strike. Alternatively, it is also possible to conclude from the evidence that Car­quez did not have any concerns about the voting procedure. at the time of the vote, and only when he was searching for a way to force the union to defer the strike did he seize upon this as a method of pursuing that other agenda.

27. We therefore find that the reasons for the delay between March 8 and the filing of this application is attributable, in large part, to a lack of concern by Carquez over pursuing the very issues which are at the heart of his application. We find that only once it became a means to pursue his goal of ending an ill-timed strike, did he decide to pursue these issues.

28. The Board has a discretion under section 91 of the Act to decline to hear a complaint on the merits. Over the years, the Board has developed a considerable body of caselaw dealing with the exercise of this discretion in the context of apparent delay in filing a complaint. The starting point of the Board's considerations of this issue is the reality that expedition in the resolution of labour relations disputes is essential to the maintenance of orderly labour-management relations. Most of the Board's cases on this issue relate to delays in the filing of fair representation cases. In its oft-cited reasons in The Corporation of the City of Mississauga, [1983] OLRB Rep. June 875, the Board reviewed the type of factors it has taken into account in deciding whether to exercise its discretion against inquiring into a complaint:

29. A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reason for it; when the complainant first became aware of the alleged statu­tory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailabil­ity of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to the parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.

30. More recently, the Board has observed that there may be cases where, depending on the combination of relevant factors, a delay of considerably more than a year will not prevent a hearing on the merits of a complaint or, conversely, a delay of considerably less than a year may warrant dismissal. Further, it also goes without saying that the factors outlined in the Mississauga case should not be viewed as exhaustive, for there may be additional concerns peculiar to any par­ticular case: see Eastern Welding, (decision dated June 14, 1994 as yet unreported.)

31. The Board has also observed that the passage of time during which a responding party has no notice that its conduct may be called into question is inherently prejudicial, and where the delay is excessive, it is not necessary to establish specific prejudice. In such a circumstance, absent a credible and reasonable explanation for the delay, the Board will decline to inquire into a com­plaint: see John Kohut, [1991] OLRB Rep. Dec. 1367.

32. In addition to cases of fair representation, the Board has also considered the conse­quence of undue delay on other types of applications. In Eastern Welding, supra, a case concerning the alleged improper layoff of a union supporter, a delay of 8 and 1/2 months was sufficient to lead to the dismissal of the complaint made under section 91 of the Act, in the absence of any justifica­tion for the delay.

33. Although the legal context is somewhat different than in the application before us, the treatment of delay issues by the Board in applications for interim relief is instructive. These cases highlight the fact that it is not necessarily the length of a delay that holds significant labour rela­tions consequences, but the intervening events which occurred during the period of delay. For instance, in Avenor Inc. (decision dated April 26, 1994 as yet unreported) [now reported at [1994] OLRB Rep. Apr. 340], a delay of fourteen days was a significant factor in the Board's decision to dismiss an application for interim relief, where during that period of fourteen days, the responding party had taken certain steps that would clearly have been difficult to reverse. In William Neilson Ltd., [1994] OLRB Rep. Mar. 326, a delay of seventeen days, during which time the employer effected the impugned structural changes to the workplace, was also a significant factor in the Board's decision to dismiss an application for interim relief.

34. In the case before us, following the strike vote and in reliance on the results of that vote, the union and the employer continued to negotiate towards a collective agreement. They underwent conciliation and, when the negotiations reached an impasse, prepared to invoke eco­nomic sanctions. The union commenced its strike, with respect to the full-time unit, on April 11 and with respect to the part-time unit, on April 16. Only on May 2, three weeks into the strike and eight weeks after the vote, was the union made aware that legal proceedings to challenge the pro­cedure of its strike vote would be taken. This application was filed on May 5.

35. There can be few situations as volatile and fluid in the life of a collective bargaining relationship as the time in which the parties are engaged in a strike. Almost equal in intensity is the time preceding a strike or lock-out, when the parties are engaged in negotiations towards an antici­pated strike or lockout. To the extent that certain assumptions are made by both sides to the nego­tiations about the context within which these negotiations take place, these assumptions become part of the fabric of the relationship during this crucial period. In the case before us, the parties to the negotiations understood that the union had received a strong strike mandate. Nothing before us suggests that either party had any reason to think that this mandate was open to challenge under section 74(4), and both in good faith proceeded on this basis. Because of the provisions of section 73.1, the union and the employer would both have anticipated that the effect of this strike mandate was that in the event of a strike or lockout, the ban on replacement workers would apply.

36. The result of all of this is that the negotiations and preparations towards a strike or lockout, and the strike itself, were based on good faith assumptions on the part of both sides to the negotiations, about the relative strength of their bargaining power in the event of a strike. It would be impossible to measure the degree of influence that these assumptions had on the dynamics of the relationship during this period, on the positions taken and withdrawn, and on the union's deci­sion to call a strike. We have no doubt it was considerable.

37. To this we add the factor that as negotiations proceed to impasse and a strike begins, it becomes less and less realistic to think that a union whose strike mandate has been called into question will be in any position to hold another vote which will recreate the atmosphere which was current at the time the original vote was taken. Applicant's counsel recognized .this difficulty in his submissions, acknowledging that there might well be very different incentives to vote one way or another at this date, than in March. Realistically, the later this issue is raised, the less likely it is that a union will be able to remedy the problem if it is found to be substantiated, by holding another vote. The passage of time, therefore, increases the severity of the consequences to the union of a potential negative determination on this type of application. It is one response to say, as was suggested in counsel's submissions, that if that is the case, it is only the result of the union's own misconduct in the handling of the vote. However, to the extent that there is merit to the prin­ciple that the union ought to bear the consequences of its own actions, there is also merit to the principle that it may not be fair for a litigant to bear the consequences to the extent they might have been avoided with timely action by the opposing side.

38. We find, therefore, that in the context of collective bargaining to impasse and the onset of a strike, any significant delay in raising an issue which challenges some of the crucial assump­tions underlying the negotiations and strike will lead to considerable prejudice. It would be consis­tent with and promote the rational and sensible ordering of labour relations for the Board to expect that disputes during this period be raised and pursued with some promptness. We find that a delay which extends over almost two months and covers a crucial period of negotiations, and sev­eral weeks of a strike, is significant. We therefore turn to a consideration of the reasons for this delay, and whether balanced against this prejudice, they support the exercise of our discretion in favour of determining the merits of this case. We have found that they do not.

39. In this case, the applicant was certainly aware of the facts set out in support of the appli­cation on the very evening of March 8. The applicant, although not perhaps legally sophisticated, was able once he decided it was necessary, to retain and seek the advice of counsel. The applicant was also not adverse to using both formal and informal methods within the union to press any con­cerns he had. Despite all of this, he chose not to pursue the issue regarding the strike vote until sometime in the latter part of April. We are compelled to the conclusion that the applicant did not pursue this issue when it did not suit his other purposes, and subsequently decided to pursue this issue when it became consistent with his other purposes i.e., to derail the strike he had initially supported. This is therefore unlike a case where an individual believes he or she has a complaint but through inexperience takes some time to focus the concerns. The applicant had the resources available to him early on to focus his concerns, if indeed he was concerned. Rather than providing any reasonable explanation for his delay in filing this application, his actions instead reveal one of the very mischiefs that the Board's delay caselaw seeks to avert: that of the complaint kept in a "back pocket".

40. In response to the submissions of union counsel regarding delay, counsel for Marriott suggested that it would be premature to require a member to litigate an issue regarding the con­duct of a strike vote before a strike actually begins. It is only once a strike begins that the issue is "actualized". We cannot agree with this, on the facts of this case. There might be situations where a strike vote is held well before it is clear that it will have any concrete effect, and it would be undesirable for the Board to encourage needless litigation by suggesting that a complaint ought to be made shortly after such a vote. However, on the facts of this case, it is clear that even at the time of the vote, the parties saw a strike as a looming possibility. The basis of the strike vote was an offer by Marriott, which the union found unacceptable. On the evening of the strike vote, the union sought volunteers for picket captain duty and shortly after the vote, began to make its prepa­rations for a strike. A strike, therefore, was far from a distant or unlikely event to the persons involved on March 8.

41. We therefore find that the delay in the filing of this application is significant, because of the events which occurred during the period of the delay. We find that the applicant has shown no reasonable explanation for this delay. Because of our findings, it is unnecessary for us to deal with the other objection raised by the union, relating to improper motivation. Accordingly, because we have decided to exercise our discretion against inquiring further into the merits of this complaint, the application is dismissed.