Canadian Union of Public Employees and its Local 229 v. Marriott Management Services, 1994 CanLII 9864

Canadian Union of Public Employees and its Local 229 v. Marriott Management Services

[1994] OLRB Rep. August 1018

0227-94-U Canadian Union of Public Employees and its Local 229, Applicant v. Marriott Management Services, Responding Party

BEFORE: Robert D. Howe, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.

DECISION OF THE BOARD; August 15, 1994

Reasons for Decision

1. In a decision dated May 3, 1994 regarding these proceedings, the majority of this panel of the Board, with Board Member Rundle reserving her decision, wrote as follows:

1. This is an application under section 91 of the Labour Relations Act.

2. For reasons which will be provided at a later date, the majority of this panel of the Board, with Board Member Rundle reserving her decision, hereby finds that the responding party has contravened section 73.1 of the Act by using Saskia Wagemans, Sandra Gilmour, Carole Smith, Linda Symonds, Cohn Johnson, and Lorna Willis to perform the work of employees in the bargaining units that are on strike, and hereby orders the responding party to cease and desist from using those persons to perform that work.

Those reasons were provided by decision dated June 20, 1994 [now reported at [1994] OLRB Rep. June 729].

2. On June 6, 1994 the responding party (also referred to in this decision as the "Employer" and "Marriott", for ease of exposition) filed a request for reconsideration of the Board's May 3, 1994 decision (and a request for an expedited hearing of that reconsideration request). The applicant (also referred to in this decision as the "Union") responded to those requests by letter dated June 13, 1994. By letter dated June 14, 1994, counsel for the Employer filed Marriott's initial reply to the Union's response, "without prejudice to its ability to make further representations and argument regarding the Response to the Request for Reconsideration". In a letter dated June 15, 1994, after acknowledging receipt of that initial reply (and of the Union's response), the Board's Registrar wrote as follows:

Please be advised that if counsel for the responding party has any further representations or argument regarding the applicant's response to the Application for Reconsideration, counsel should forward such to the Board on or before Friday, June 17, 1994.

In response to that letter, counsel for the responding party provided the Board with further submissions by letter dated June 17, 1994.

3. After duly considering all of that written material, the Board dismissed the Employer's request for reconsideration (as well as its request for an expedited hearing in respect of that reconsideration request) by means of the following "bottom line" decision dated June 21, 1994:

For reasons which will be provided at a later date, the responding party's request for reconsideration of the Board's decision dated May 3, 1994 in respect of this application is hereby denied.

The purpose of this decision is to provide the Board's reasons for denying the Employer's request for reconsideration.

4. As noted in paragraph 3 of the Board's decision dated June 20, 1994, the parties (through their respective counsel) agreed, during the course of the first day of hearing of the Union's section 91 application, that the preconditions set forth in subsections 73.1(2) and (3) had been met in this case in respect of both the full-time and part-time bargaining units. The Employer's reconsideration request is, in essence, an attempt to resile from that agreement on the basis of information which it subsequently acquired concerning the manner in which the strike vote taken by the Union was conducted.

5. Subsections 73.1(2) and (3) provide as follows:

(2) This section applies during any lock-out of employees by an employer or during a lawful strike that is authorized in the following way:

1. A strike vote was taken after the notice of desire to bargain was given or bargaining had begun, whichever occurred first.

2. The strike vote was conducted in accordance with subsections 74(4) to (6).

3. At least 60 percent of those voting authorized the strike.

(3) For the purposes of this section and section 73.2, a bargaining unit is considered to be,

(a) locked out if any employees in the bargaining unit are locked out; and

(b) on strike if any employees in the bargaining unit are on strike and the union has given the employer notice in writing that the bargaining unit is on strike.

Subsections 74(4) to (6), which are referred to in paragraph 2 of subsection 73.1(2), provide:

(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.

(5) All employees in a bargaining unit, whether or not the employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement.

(6) Any vote mentioned in subsection (4) shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots.

6. As further noted in paragraph 3 of the Board's decision dated June 20, 1994, after the parties agreed that the preconditions set forth in subsections 73.1(2) and (3) had been met in this case in respect of both the full-time and part-time bargaining units, they further agreed that the case should be decided on the basis of the stipulated facts set forth in that paragraph. The manner in which the case proceeded after the parties had reached those agreements is described as follows in that decision:

4. Since time constraints precluded the Board from completing the hearing of this matter on April 27, 1994, and since the Board found it appropriate to adjourn the continuation of hearing scheduled for April 28, 1994, the hearing of this matter continued on May 2, 1994. At the commencement of the continuation of hearing on that day, counsel for the responding party provided the Board with a copy of an application which he had been advised was soon going to be filed by an employee named Victor Carquez, calling into question the legality of the strike vote conducted by the applicant (also referred to in this decision as the "Union"). On the basis of that information, he requested that the instant application be adjourned until such time as a decision had been rendered in respect of that application. After hearing and recessing to consider the submissions of the parties in respect of that request, the Board made the following unanimous oral ruling:

Having regard to all of the circumstances, we find it appropriate to proceed today as scheduled with argument in this case on the basis of the facts agreed to by the parties last Wednesday, during the first day of hearing of this matter. Those facts include an agreement between these two parties that the three conditions set forth in section 73.1(2) of the Act have been satisfied in the circumstances of this case. Although counsel for the responding party has brought to our attention an application which it is his understanding will soon be filed with the Board by Victor Carquez and which may call into question the legality of the strike vote conducted by the Union, there is no certainty that the application will in fact be filed nor that if filed, it will proceed to hearing and ultimately be successful. If that does in fact occur, it may ultimately have some effect on the enforceability of any order which the Union may obtain in the present case. However, we are satisfied that a ruling concerning the propriety of the responding party's using as replacement workers the six persons in question in these proceedings will serve the useful purpose of providing the parties with guidance on that important issue, and will ensure that the Union is not unnecessarily prejudiced by any delay on the part of Mr. Carquez in raising with the Board the legality of the strike vote conducted by the Union on March 8, 1994. Accordingly, the responding party's request that these proceedings be adjourned is hereby denied.

5. Counsel for the responding party then requested the Board to give his client "an automatic right of reconsideration in this matter". After hearing his submissions in support of that request (and advising applicant's counsel that it was unnecessary to hear from him on that matter), we indicated that we were not prepared to rule on that request as we were of the view that it was premature. We further indicated that if the application succeeded and Marriott was so advised, it could file an application for reconsideration, as could any party in proceedings before the Board. We also indicated that whether such application would be entertained by the Board and ultimately granted was not a matter which needed to be determined at that time.

7. Mr. Carquez filed a section 91 application with the Board on May 5, 1994. The hearing of that complaint against the Union (File No. 0398-94-U) commenced on May 9, 1994, before another panel of the Board. In a decision dated May 30, 1994, that other panel of the Board wrote as follows in dismissing Mr. Carquez's application:

1. In this application made pursuant to the provisions of section 91 of the Labour Relations Act, the union has asked the Board to exercise its discretion against inquiring into the merits of the matter, on the basis of undue delay in raising the issue.

2. Having heard the evidence and representations of the parties, the Board is satisfied that the passage of time since the events which form the basis of this complaint has resulted in a course of events and corresponding prejudice to the responding party such that the Board ought not to entertain the complaint. Accordingly, this complaint is dismissed. Further reasons will follow.

8. It is the responding party's position that, in the instant case, the Board erred in law and breached the rules of natural justice by declining to permit the Employer to reopen the issue of whether the strike vote taken by the Union was conducted in accordance with subsections 74(4)-(6), and proceeding to hear argument regarding the Union's application in the manner described above. However, the Board has concluded that there is no merit in that position for the following reasons.

9. The section 91 application initially filed by the Union makes no reference to a strike vote. It merely alleges that "[s]ince the commencement of a legal strike on April 11, 1994, Marriott Management Services have used newly hired employees to do work of employees in the bargaining unit(s) that are on strike", in violation of "Section 73 et al", and requests that Marriott "immediately cease and desist the use of replacement workers as outlined in Section 73 of the Ontario Labour Relations Act". In response to a demand for particulars by counsel for the Employer, Nancy Rosenberg (the Senior Officer in the Union's Legal and Legislative Department) wrote the following letter to the Board's Registrar (and sent copies of the letter to a number of persons, including Employer's counsel):

The Applicant is in receipt of Mr. Cowling's letter of April 22, 1994 in respect of the above-noted matter.

The Applicant submits that the Respondent is fully aware of the Applicant's case with respect to the alleged violation of Section 73.1, given the exchange of correspondence which has taken place between the parties.

However, the Applicant wishes to amend its application to provide the following particulars:

1. On March 8, 1994 a strike vote was taken in accordance with s. 73.1(2). (attachment #1)

2. The strike vote was conducted in accordance with sub-sections 74(4) to (6) as required by s.73.1(2).

3. At least 60% of those voting authorized the strike as required by s.73.1(2).

4. By letters of April 11 and April 15, 1994, the Applicant gave the Respondent notice in writing that the bargaining unit was on strike in accordance with s.73.1(3)(b). (attachments #2 and #3)

5. By letter dated April 14, 1994 Linda Dumbleton wrote to Jim Fougere alleging that certain individuals were replacement workers and requesting that the Employer cease and desist using these individuals to perform bargaining unit work. (attachment #4)

6. By letter dated April 19, 1994, Jim Fougere responded and indicated that the following individuals are newly hired employees:

Saskia Wagemans

Sandra Gilmour

Carole Smith

Linda Symonds

Cohn Johnson

Lorna Willis

(attachment #5)

7. The Applicant relies on the Respondent's admission therein that those individuals above-named are newly hired employees and submits that they are replacement workers performing bargaining unit work.

The Applicant respectfully submits that the application is sufficiently particularized and should not be dismissed.

10. Marriott's request for reconsideration asserts that Ms. Rosenberg's letter "contained assurances that the Applicant had complied with the requirements under s. 73.1(2)". However, that assertion is clearly incorrect. Ms. Rosenberg's letter contains no such assurances; all that it contains are pleadings (in the form of "particulars"), which are statements or representations of what the Union alleges the material facts to be. The same is true of the statements made by Union counsel during the course of the hearing of this matter on April 27, 1994. If the responding party wished to test the validity of those statements or representations, it was open to it to put the Union to the strict proof of them. If it wished to avoid the necessity of having such evidence called by the Union at that time, but to leave open the possibility of reopening that issue in the event that it subsequently obtained (through the exercise of due diligence) information suggesting that the Union had not complied with the requirements of subsection 73.1(2), it could have advised the Union and the Board that it was only prepared to agree on that conditional basis that those requirements had been met. It might also have sought to obtain an undertaking from Union counsel that the Union had complied with the requirements of subsection 73.1(2), or that the Union would not oppose a reopening of the issue in the event that the Employer subsequently obtained information suggesting that there had been a lack of compliance with the requirements of that provision. However, in the absence of any such condition or undertaking, the agreement between the parties that the preconditions set forth in subsections 73.1(2) and (3) of the Act have been met in this case in respect of both the full-time and part-time bargaining units (and that the case should be decided on the basis of the stipulated facts set forth in paragraph 3 of the Board's decision dated June 20, 1994) is binding upon both parties, and we are not persuaded that it would be appropriate to permit the responding party to resile from that agreement on the basis of information subsequently acquired, even if the Employer exercised due diligence in obtaining that information.

11. The Board has throughout the course of its history attached great importance to settlements and agreements which either totally or partially resolve issues in dispute in Board proceedings. See, for example, Lorne's Electric, [1990] OLRB Rep. Sept. 935, in which the Board wrote, in part, as follows:

10. The value and importance of the settlement process in labour relations cannot be overstated. Settlement documents are not and should not be entered into lightly and as a general rule a party seeking to resile from a settlement document will not be looked upon favourably by an adjudicator.

11. As the Board observed in Crown Electric, [1978] OLRB Rep. Apr. 344 at para. 17:

"Parties who enter into written settlements have a responsibility to ensure that they are fully aware of the implications of any document to which they attach their signatures. In the absence of any allegation of fraud the Board must assume that parties have agreed to any settlement plainly expressed in a written document, or otherwise no settlement would be immune from a subsequent challenge".

12. The Board's jurisprudence contains numerous examples of the sentiment expressed in the above quotation being applied to circumstances which may not involve a full settlement of all issues in dispute between the parties (see for example Harnden & King Construction Ltd., [1986] OLRB Rep. May 635 where the respondent, having certified in writing the accuracy of the Officer's Report, was subsequently precluded from resiling from the parties' agreement (as reflected in the report) that a particular individual was not in the bargaining unit; ivaco inc., [1987] OLRB Rep. Apr. 511 where the Board declined to entertain an application brought under section 106(2) by a trade union which had several months earlier agreed that the very individuals now the subject of the 106(2) application be excluded from the list of employees for purposes of the count in the certification application; Lady York Food Market Ltd., Board File 1139-88-R, unreported, Jan. 12, 1989 where the respondent had initially raised allegations of intimidation and coercion in regard to the manner in which membership evidence had been obtained but subsequently signed an Officer's Report (and a waiver of hearing form) indicating the applicant was in a "vote position" and was ultimately found by the Board to be precluded from claiming a position - i.e. that the application should be dismissed without a vote on the basis of the allegations - inconsistent with the facts agreed to in the Officer's Report; and Cedarwood Acres Limited, Board File 0189-90-R, as yet unreported, July 20, 1990 where the objectors, having agreed, inter alia, to the voters' list and having certified that the vote had been fairly conducted, were not subsequently permitted to seek to add persons to the voters' list).

13. Also of interest in the present facts is the case of We're Econoprint Fast, [1987] OLRB Rep. Mar. 440. A group of objectors sought an extension of the terminal date so that an untimely statement of desire would be accepted by the Board. The petitioner explained that the petition had not been filed earlier as a result of his reliance upon the employer's assertion that he was not to be included in the bargaining unit. The Board declined to extend the terminal date and cautioned that employees who rely on the advice of their employer with respect to this kind of issue do so at their peril.

14. In the present case the union, admittedly in reliance upon information provided by the employer during the course of the meeting with the Officer, agreed that there was only one employee in the bargaining unit. The union makes no allegation of fraud. If the union asserts that the information relied upon is incomplete or inconclusive, the appropriate time to raise such a concern is before, not after, agreeing to the conclusions which otherwise flow from the information provided. To allow the union to now advance a position inconsistent with its previous agreement as reflected in the Officer's Report would seriously undermine the efficacy and integrity of the Board's processes and the fundamental role of Labour Relations Officers within those processes.

12. Although that decision pertained to an agreement reflected in a Labour Relations Officer's Report, similar considerations apply to agreements reached by counsel and conveyed to the Board orally or in writing during the course of a hearing. It is quite common for parties in proceedings before the Board to agree that various questions of fact or law, or of mixed fact and law, are agreed to, undisputed, or otherwise not being placed in issue. Moreover, it is not unusual for a party taking that approach to be lacking complete knowledge, or indeed any knowledge regarding those matters. A union, for example may advise the Board that it does not dispute the voluntariness of a termination petition, even though it has little if any knowledge concerning the origination and circulation of the petition. An employee who has been discharged by an employer for reasons which are exclusively within the knowledge of the employer may agree to accept reinstatement without compensation for lost earnings, or compensation without reinstatement, even though s/he may have been entitled to both remedies if the matter had been heard and decided by the Board. A party may elect not to pursue an issue of delay on the assumption that there is a reasonable explanation for the delay, even though that may not in fact be the case. If the Board were to permit a party to resile from such agreements or tactical decisions on the basis of after-acquired information, there would be no finality in Board proceedings, and its processes would become interminable, to the serious detriment of all members of the labour relations community, including employees, trade unions, and employers.

13. Thus, for the foregoing reasons, the Board denied the responding party's request for reconsideration of the Board decision dated May 3, 1994 in this matter.

CONCURRING OPINION OF BOARD MEMBER JUDITH A. RUNDLE; August 15, 1994

In concurring with the majority opinion, I would draw attention to paragraph 10 of the decision which outlines how a responding party may wish to address the preconditions required in section 73.1-(2).