4436-97-U Steven Lenkey, Alfonso Furgiuelle, Jacques Debien, John Anderson, Ernes Palmer, Applicants v. United Steelworkers of America, Local 2868, Responding Party v. Case Canada Corp., Hamilton, Intervenor.
BEFORE: Kevin Whitaker, Vice-Chair.
APPEARANCES: Steven Lenkey for the applicants; Mark Rowlinson, Ted Jez and Moe Sandhu for the respondent trade union; Scott G. Thompson and Paul Baldwin for the respondent employer.
DECISION OF THE BOARD; June 27, 2000
This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) in which the applicants’ claim that the respondent trade union has breached the provisions of section 74 of the Act.
The matter was heard as a consultation on August 27, 1998. At the end of the consultation, I dismissed the application orally on the basis that the applicants’ complaints as against the respondent trade union were untimely. What follows are my reasons.
The applicants were at the relevant times, employed by the intervenor Case Canada Corporation and represented in their employment relationship by the respondent trade union as bargaining agent.
The intervenor and the respondent negotiated a memorandum of agreement dated April 27, 1997. The memorandum was ratified by a vote of the respondent’s local membership on April 29, 1997. As a result of the ratification of the memorandum of agreement, the intervenor and respondent entered into a collective agreement for the term of May 2, 1997 to April 24, 1999.
As part of the memorandum of agreement, the parties negotiated to merge managerial and bargaining unit pension plans into one plan. The parties also agreed to settle a layoff grievance filed by the applicant Steven Lenkey.
The applicants take the position that the respondent failed to provide them with information in its possession which would properly permit them to understand the proposed merger of the pension plans and then to make an informed decision as to whether the memorandum of agreement should be ratified. The applicants also attack the process by which ratification occurred on a number of grounds.
The applicants challenge the settlement of the grievance concerning Steven Lenkey. It appears that the concern here relates to the amount of monies deducted from the settlement of the grievance with respect to an Employment Insurance deduction and over-payment. It is not apparent from the application or materials filed in support, what it is that the respondent has done in this regard which is in breach of the Act.
This application was filed on February 20, 1998. As a remedy, the applicants wish to have the memorandum of agreement and the subsequent collective agreement between the respondent and intervenor, set aside.
At the outset of the consultation, the respondent and intervenor took the position that the application should be dismissed for delay and for the fact that it fails to make out a case that the Act has in any way been breached.
In Marriot Management Service, [1994] OLRB Rep. July 857, the Board has observed that where a complaint is delayed and during the delay, significant events occur which change the circumstances of the parties, the delay and prejudice may be such that the complaint is rendered untimely. In that case, the Board explained why a delay of only two months was sufficient to cause an application under section 74 of the Act to be dismissed as untimely:
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 case law 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:
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.
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.)
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.
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.
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), 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.
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.
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.
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.
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.
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.
In the case at hand, the complaint with respect to the ratification of the memorandum of agreement, challenges the basis of the collective bargaining relationship between the intervenor and the respondent at its most fundamental level. Nothing could be more critical between the parties than the integrity of a memorandum of agreement which has been ratified and then entered into as a collective agreement.
Despite the fact that the applicants’ were aware of the facts set out in support of the application at the point of ratification on April 29, 1997, the application was not filed for a further period of ten months. During this time, the intervenor and the respondent continued to manage the collective bargaining relationship between them on the basis of the collective agreement which the applicants now wish to have set aside. A myriad of discrete matters have been decided or settled on the assumption by the parties that the collective agreement between them is the document which governs their relationship.
In these circumstances, it would be highly prejudicial to the respondents and intervenor to permit the application to proceed, particularly in the absence of any explanation as to why the matter was delayed for 10 months.
For these reasons, it is appropriate to exercise the Board’s discretion under section 96 of the Act to decline to inquire further into the application.
“Kevin Whitaker”
for the Board