United Brotherhood of Carpenters and Joiners of America v. Local Union 38, St. Catharines, Ontario
[1980] OLRB Rep. October 1568
T-118-79 United Brotherhood of Carpenters and Joiners of America, Applicant, v. Local Union 38, St. Catharines, Ontario, Respondent, v. Group of Employees.
BEFORE: R. D. Howe, Vice-Chairman and Board Members L. Hemsworth and O. Hodges.
APPEARANCES: B. Chercover, T. G. Harkness and B. Wunovic for the applicant; no one appeared for the respondent; Rocco Condirston, George Rowe, Peter J. Hanshar, Joseph Haberer, Henry Forget, H. Winter, Donald Lea, G. Belanger, Stanley Warren, Robert I. Meredith and Arthur Varty for the Group of Employees.
DECISION OF THE BOARD; October 3, 1980
1This is an application under section 73(2) of The Labour Relations Act.
2The applicant, United Brotherhood of Carpenters and Joiners of America, assumed supervision or control over its Local Union 38 ("Local 38") on May 7, 1979 on the recommendation of a committee appointed by the General President of the applicant on January 17, 1979. After conducting three days of hearings in St. Catharines, the committee issued a report in March of 1979 in which it made 17 "findings" and a number of recommendations, including a recommendation that Local 38 "be placed under full supervision." John Carruthers, a member of the applicant's General Executive Board, was appointed as the supervisor of Local 38 with Thomas Harkness as his assistant. (These two persons are hereinafter referred to as the "Supervisors").
3This application was filed on April 8, 1980 and the matter was scheduled for hearing on May 13, 1980 in Toronto. At the request of several members of Local 38 who desired to attend the hearing to give evidence in relation to the application, the Board adjourned the hearing to August 7, 1980 in St. Catharines. A continuation of that hearing was held in Jordan Station on September 26 and 27, 1980.
4In addition to the evidence of Assistant Supervisor Thomas Harkness (the applicant's Regional Director of Organization), the Board received testimony from nine members of Local 38. Mr. Harkness testified that although most of the circumstances set forth in the report (as the bases for the recommendation that Local 38 be placed under supervision) have been remedied, there remains a substantial problem of friction, disharmony, lack of unity and lack of co-operation among the members. It was his evidence that there are "four factions" within Local 38 which are unable to reach agreement on anything.
5As a result of serious "disruption" which continued to take place at meetings of Local 38, in June of 1979 the Supervisors cancelled all executive and monthly meetings of the Local for an indefinite period of time. Local 38 President Peter Hanshar and Vice-President George McCabe were removed from office by the Supervisors as was Arthur Varty, one of the two business representatives of Local 38. Thereafter, only meetings called for special purposes (such as ratification of a province-wide collective agreement) were held. The Supervisors attempted to resume monthly membership meetings on February 25, 1980 but found to their dismay that excessive friction, disharmony, lack of unity and lack of co-operation among the members continued to preclude the proper functioning of the Local. Accordingly, the applicant found it necessary to apply for a continuation of supervision.
6The applicant requests that the Board consent to the continuation of supervision until February 28, 1981. In support of this request, the applicant presented a plan of action for the proposed period of continuation. During the course of the hearing, the applicant substantially revised its plan of action as a result of suggestions and constructive criticisms made by members of Local 38 during their testimony before the Board. Ultimately, Mr. Harkness and counsel for the applicant gave undertakings to the Board that the following steps, which counsel consented to being made conditions of Board consent to continuation of supervision, would be taken if the Board consents to the continuation of supervision until February 28, 1981:
(1) Regular meetings of Local 38 will resume on a monthly basis commencing in October of 1980.
(2) The following three persons, who in the opinion of the Supervisors are major causes of disruption at meetings, will be prohibited from attending the regular monthly meetings of the Local during October, November and December of 1980, and January of 1981: Arthur Varty, Peter Hanshar and Rocco Condirston.
(3) Supervision will be terminated on or before February 28, 1981. Nominations of officers of Local 38 will take place at the February, 1981 regular monthly meeting of the Local. The election of officers will occur at the March, 1981 meeting of the Local.
(4) In the interim period preceding the election, ten persons will be appointed as officers on a pro tem basis to run Local 38 with the assistance of the Supervisors. The role of the Supervisors will diminish as the ten persons gain more experience. (Mr. Harkness testified that he has contacted ten persons who are willing to accept appointment to the Local 38 executive on a pro tem basis if supervision continues and if the aforementioned three persons are excluded from the meetings.)
(5) The Supervisors will provide for consideration by the members of Local 38 a draft amendment of the By-laws of the Local under which the position of business agent will be changed from an elected position to one appointed by the executive of the Local on application by members. A second aspect of the draft amendment will be a provision which prevents a person from holding any other office in the Local while he is a business agent for the Local.
(6) The Supervisors will consult counsel with respect to the legality of precluding persons who have been business agents of the Local from holding other offices in the Local for a specified period of time after they cease to be business agents. Counsel will consider the legality of such exclusion in light of the Constitution and By-laws and, if it is found to be permissible, counsel will provide George Rowe with amendment language necessary to accomplish this change.
7Section 73 provides as follows:
"73. 1) A provincial, national or international trade union that assumes supervision or control over a subordinate trade union, whereby the autonomy of such subordinate trade union, under the constitution or by-laws of the provincial, national or international trade union is suspended, shall, within sixty days after it has assumed supervision or control over the subordinate trade union, file with the Board a statement in the prescribed form, verified by the affidavit of its principal officers, setting out the terms under which supervision or control is to be exercised and it shall, upon the direction of the Board, file such additional information concerning such supervision and control as the Minister may from time to time require.
(2) Where a provincial, national or international trade union has assumed supervision or control over a subordinate trade union, such supervision or control shall not continue for more than twelve months from the date of such assumption, but such supervision or control may be continued for a further period of twelve months with the consent of the Board."
In Operative Plasterers' and Cement Masons' International Association of the United States and Canada, [1978] OLRB Rep. March 223, the Board described the purpose and scope of section 73 as follows:
"10. Section 73(1) requires that when a trade union places a subordinate local under trusteeship (using that term to refer to all manner of supervision and control) it must file certain information concerning the trusteeship with the Board. The Act, however, places no impediments or constraints on a union when it places a local under trusteeship. This lack of impediments or constraints would appear to reflect a recognition on the part of the Legislature that most trusteeships are imposed as a result of real and legitimate concerns on the part of the union involved. For example, a trusteeship may be imposed because of mismanagement or dishonest use of local funds, because a local has become so torn by dissent that it cannot function properly, or perhaps to remove officers who have either become dictatorial or who have failed to administer the local in a responsible manner. At times, particularly with small locals, a trusteeship may be imposed simply because none of the members of the local are willing to assume the responsibilities of elected office.
The Legislation recognizes that trusteeships generally have a legitimate purpose, but it also places restrictions on their duration. Trusteeship is inevitably accompanied by a restriction on the ability of the local's membership to participate in the government of the local or to have a say in the policies adopted by the local. The longer the trusteeship is allowed to continue the more serious will become the resulting denial of self-government and the greater will the likelihood that the policies and practices adopted by the local will not be reflective of the wishes of the local's membership.
In essence then, section 73 appears to be an attempt by the Legislature to balance the legitimate interests of a union which may require the suspension of a local's autonomy against the desirability of local self-government through officers elected by, and responsible to, the local membership. The section allows a full twelve months in which a union can resolve the problems which led to the trusteeship being imposed. The very existence of such a time limit should prompt responsible union officials to move with reasonable dispatch to correct the problems which led to the imposition of trusteeship. The section, however, also makes allowance for the fact that not every problem which leads to a trusteeship being imposed may be able to be resolved in 12 months, and thus some flexibility has been provided by stipulating that trusteeships can be continued for a further period of 12 months with the consent of the Board. Because of the Act's obvious concern with the length of trusteeships, the most reasonable interpretation of the section is not that a trusteeship must be extended for a further 12 month period in every case, but rather that it can be extended for any period of time up to 12 months. This is clearly the view which was adopted by the Board in The United Brotherhood of Carpenters and Joiners of America case, [1972] OLRB Rep. Sept. 833 where just prior to the expiration of the first 12 months of a trusteeship the Board agreed to the continuation of the trusteeship until such time as it issued a further decision in the matter. Approximately 4 months later the Board issued a second decision wherein it refused to grant its consent to any further continuation of the trusteeship.
A union which requests the consent of the Board to a continuation a trusteeship always faces the possibility that such consent may not be granted. In some instances - particularly where a local executive exists or where there is sufficient time to conduct local elections before the end of the initial 12 months period - a refusal on the part of the Board to any continuation of a trusteeship might not result in any serious disruption in the local's affairs. However, where there is no local executive and little or no time available in which to conduct elections, a refusal to consent to a continuation might well result in a serious upheaval in the affairs of the local. Another possibility is that the Board in certain circumstances might become of the view that a lengthy continuation of a trusteeship would not be justified but that it should grant its consent to a continuation solely for the purpose of allowing the trusteeship to be brought to an orderly end." [Emphasis added.]
8All the persons who testified before the Board, including Mr. Harkness, shared the common goal of bringing supervision to a conclusion as quickly as possible so as to restore the normal democratic processes and autonomy of the Local. However, views differed concerning how soon such restoration could effectively be accomplished. Although a few witnesses expressed the view that supervision should be removed immediately since, in their view, it should not have been imposed in the first place, the testimony of the majority of the witnesses reflects the view that control of meetings by someone from outside the Local continues to be necessary to the effective operation of the Local at the present time. Moreover, at least one of the three persons proposed for exclusion from meetings on a short term basis as described above, recognized that his exclusion might be in the best interest of the Local. Several witnesses also recognized the desirability of injecting "new blood" into the leadership of the Local to avoid a recurrence of the problems which the Local has experienced in the past. Accordingly, Mr. Harkness proposes to appoint a pro tem executive and provide them with a four-month period during which they can gain experience with the assistance of the Supervisors in the relatively calm atmosphere which will be insured by the exclusion of the three persons who, in the opinion of Mr. Harkness (which opinion was shared by some of the other witnesses who testified before the Board), have been one of the major causes of the severe disruption and friction at meetings of the Local. Although barring certain members from attending meetings of the Local on a short term basis is a very serious step, it is, as noted by Mr. Harkness, a much less drastic step than expelling or suspending those persons from membership in the Local.
9Continuation of supervision beyond its initial year of operation is a serious matter which will not be countenanced by this Board in the absence of compelling circumstances. However, having regard to all the evidence before it and the submissions of the parties, the Board finds that Local 38 has become so torn by dissent that it cannot function properly. The Board further finds the plan of action which the applicant has undertaken to implement, to be reasonable in the circumstances of this case. Accordingly, the Board hereby approves the continuation of supervision of Local 38 by the applicant until February 28, 1981, conditional upon fulfilment by the applicant of the aforementioned undertaking.
10The Board will remain seized of this matter in the event that any difficulties arise concerning its implementation.