Frank Manoni and Lise Manoni v. Labourers' International Union of North America, Local 527, 1981 CanLII 801

[1981] OLRB Rep. December 1775

1095-81-U Frank Manoni and Lise Manoni, Complainants, v. Labourers' International Union of North America, Local 527, Respondent.

BEFORE: M. G. Mitchnick, Vice-Chairman and Board Members J. D. Bell and B. L. Armstrong.

APPEARANCES: Frank Manoni and Lise Manoni on their own behalf; A. M. Minsky and N. Scipioni for the respondent.

DECISION OF THE BOARD; December 23, 1981

1. This is a complaint under section 89 of the Labour Relations Act, alleging a violation by the respondent trade union of what are now sections l(l)(p), 66(c), 68, 70 and 80(2) of the Act. At the hearing the complaint with respect to sections 66(c) and 80(2) was withdrawn. The respondent applies to the Board to dismiss the remainder of the complaint pursuant to section 71 of the Board's Rules of Practice, on the ground that no prima facie case for relief is made out.

2. The complainant Frank Manoni was, for a period in excess of 20 years, the Business Manager of the respondent Local. Following Local elections in June of 1981, he was replaced in that capacity by Nello Scipioni, formerly a Vice-President of the Local. Lise Manoni, the second complainant, is Frank Manoni's wife.

3. The complainants have filled a statement of material facts with their complaint, amplified at the hearing, and which may be paraphrased as follows:

(1) In March of 1981 a Mr. Roy was permitted to join and participate in the regular activities of the Local, even though not employed "in the calling" as required by the Local's constitution.

In August 1980, a Mr. Marineiro was similarly treated, although not employed "in the calling", and subsequently permitted to run for office.

Lise Manoni, also not employed "in the calling", tendered her dues and initiation fee to the Local but was told she could not be present at a regular meeting of the Local on June 17, 1981. She was then permitted to remain at the meeting, but only as a "guest". The same night she was expelled from the Local Union.

The complainants argue that the above demonstrates a violation of section 13 of the Act, involving discrimination on the basis of sex.

(2) In May of 198 1, a member of the Local, Mr. Drolet, was expressing his opinion on matters related to the respondent Union's adminis­tration. Mr. Scipioni told Mr. Drolet that he would see to it that Drolet lost his membership with the Union and his job.

This the complainants allege is a violation of sections 3 and 70 of the Act.

(3) In December of 1980, Mr. Botelho, a member of the Local, was speaking at a regular meeting when he was shown a knife and was told to stop speaking. Mr. Botelho cannot identify the person holding the knife by name, but the complainants claim to be able to identify the person as a member of the faction supporting Mr. Scipioni.

In April of 1981 the complainant Frank Manoni was speaking as Business Manager at a membership meeting, when Mr. Scipioni, the Vice-President, attempted to physically assault him in the presence of all the members. Other attempts to physically assault Mr. Manoni were made by Mr. Scipioni in September and November 1980. Both Mr. Scipioni and Mr. Bernard Carrozzi indicated to Mr. Manoni that his life was in jeopardy.

The complainants claim the above to be a violation of sections 68 and 70 of the Act.

(4) In May of 1981 the judges of the Local's elections, after disqualify­ing certain proposed candidates, declared the remaining candidates elected by acclamation, contrary to the Local's constitution and objections by members.

This the complainants claim is a violation of section l(l)(p) and 68 of the Act.

(5) At the election of June 13, 1981, the same judges prevented the appointed "watchers" (i.e., scrutineers) from fulfilling their func­tions under the constitution. The judges were directed by Mr. Ber­nard Carrozzi (the newly-elected Recording Secretary of the Local) to order the watchers away from the polling area. When the watchers refused to move, they were told by the judges they would be expelled from the Hall. Over their protests, the watchers were not permitted to view the casting or the counting of the ballots. After the election the ballots were destroyed by the judges, contrary to the constitution, so that the results of the election could not be verified.

The complainants allege this to be a violation of sections 1(1 )(p), 68 and 70.

(6) As a result of the above, Mr. Scipioni took over the office of Business Manager and changed the keys of the Union Office.

4. The complainants request:

(1) A cease-and-desist order in relation to intimidation and coercion.

(2) Reinstatement in membership of Mrs. Manoni, with compensation.

(3) An order to re-establish the legal status of the respondent Union by reinstating the incumbent officers pending new elections, with com­pensation for time lost and damage.

5. An appeal to the General Executive Board in Washington was launched under the International constitution by Mr. Manoni and others, concerning the alleged irregularities in the election. A hearing was conducted by the "Central Hearings Panel", at which both Mr. Manoni and a Mr. Batista appeared in support of the appeal. Mr. Scipioni and Mr. Carrozzi appeared on behalf of the Local. The Panel, after considering the evidence and documents presented, found:

(1) That contrary to the contentions of Appellants Bastien and Batista, the Judges of Election were impartial and appeared to be qualified and to have acted in good faith and in accordance with the require­ments of the Constitution and the Canadian law.

(2) That, as contended by the Appellants, the Local Union erred in pro­ceeding to declare certain candidates elected by "acclamation" where disqualifications of various candidates occurred and the membership was not provided with the opportunity to make further nominations to fill vacancies created by such disqualifications.

(3) That, as a result of the foregoing irregularities which may have affected the outcome of the election, it will be necessary for the Local Union to re-run the nominations and provide an election for all offices and delegates to the District Council for Local Unions 527 and 527A.

(4) That, in view of the foregoing, the other allegations need not be considered.

6. The Panel therefore recommended:

That the appeal be sustained and that the Local Union, after due notice in accordance with provisions of the Uniform Local Union Constitution, provide for the nomination and election of officers and delegates to the District Council, and that said procedures be supervised by such Inter­national Union personnel as may be designated by the General President.

This recommendation was adopted by the General Executive Board on July 17, 1981.

7. Rather than implementing new elections, however, the respondent Union appealed, as was its right under the International constitution, to the General Convention of the Inter­national. The regular General Convention meets only once every five years, but, as it happens, was being held in Florida on September 14-18, 1981. It is not clear who attended the Convention on behalf of the respondent Union to present the appeal. Mr. Manoni himself did not attend because, he states, the cost of travelling to Florida, with his witnesses, was prohibitive. The Convention considered only the ground of declaring persons elected by acclamation, and, as the positions of Business Manager and Recording Secretary had not been affected by this irregularity, sustained the respondent's appeal with respect to these two positions. Re-elections for all other positions in the Local are now to proceed as directed by the General Executive Board.

8. It is against this background that the complainants come to the Board for relief. Dealing firstly with the allegations under section 68, the complainants' primary argument is that the misconduct and constitutional irregularities in this case are so profound as to place in jeopardy the very status of the respondent as a "trade union" under the Act, to the potential detriment of all of its 2,000 members. Hence the reference by the complainants to section l(l)(p), the definition of "trade union" under the Act. The complainants rely on cases such as J. Harris, 60 CLLC ¶116,177; Tridon Ltd., [1974] OLRB Rep. Jan. 16, and All Bright,[1972] OLRB Rep. Aug. 784 to demonstrate the Board's jurisdiction on the "status" issue, and submit that these cases establish the proposition that the failure to elect officers in accordance with a trade union's constitution can cause the organization to lose its status before the Board.

9. In answer to the complainants' argument, it can be observed that the Board does have certain requirements it considers necessary to the granting of "trade union" status under the Act, in order to ensure that such entities are ongoing, viable and capable of carrying out their responsibilities under the Act. The proper election of officers has always been one of them. The "status" issue does not, however, exist under the Act as an issue in itself. It only arises in the context of representation applications, where an organization is seeking bargaining rights before the Board for the first time, or is asserting bargaining rights as a bar to the acquisition of those rights by another organization. The mere failure to meet the Board's requirements for status does not, in other words, constitute an offence under the Act, and the simple definition of a "trade union" in section 1(1 )(p) does not alter that. If the complainants are to succeed on this branch of their complaint, they must do so on the basis of section 68 alone.

10. Section 68 provides:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the represen­tation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

The first problem facing the complainants in this regard is that neither of them are employees in a bargaining unit. This is more than a technicality. The section is an outgrowth of what certain American cases, such as Vaca v. Sipes (1967), 386 U.S. 171, described as "the duty of fair representation", and is concerned with the representation of employees with their employer.

11. This precise point was dealt with by the Board in Arthur Joseph Roberts v. Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 48, [1974] OLRB Rep. Mar. 169, in which the complainant, an elected business agent of the Local, complained that he was arbitrarily removed from office. The Board stated, at paragraph 8:

...the duty of fair representation owed by a trade union to an employee under section 60 (now section 68) of the Act does not contemplate controlling the manner in which a trade union conducts its affairs with its elected officials whether they be on the payroll or not. The case law indicates that the propriety of a trade union's behaviour vis a vis its members is governed by its constitution and by-laws and the procedural remedies provided therein. And recourse must be made by an aggrieved member of the governing rules provided under the constitution for relief. The safeguard provided by the controlling supervision of the courts are his assurance that these rules will be implemented fairly and impartially. (See White v Kuzych (1951), 1951 CanLII 373 (UK JCPC), A.C. 585; Lee v Showmans Guild(1952),All. E.R. 1175; Orchard v Tunney (1957), 1957 CanLII 57 (SCC), S.C.R. 436; 8 D.L.R. (2d) 273; Jurak et al v Cunningham (No. I) (1959), 1959 CanLII 340 (BC SC), 20 D.L.R. (2d) 377; Jurak et al v Cunningham (No. 2) (1959), 1959 CanLII 341 (BC SC), 20 D.L.R. (2d) 381; Gee v Freeman et al (1958), 1958 CanLII 258 (BC SC), 26 W.W.R. 546).

The Board went on to hold, at paragraph 20, that "under section 60 a trade union's duty of fair representation does not extend to members in good standing who are not employees in a bargaining unit". To a similar effect, see Gale Douglas Devereaux, [1975] OLRB Rep. Nov. 885, at paragraph 9. It should be added that even if brought by persons currently employed in a bargaining unit (and the complainants claim to "represent" a number of such persons), the present complaint still would be misconceived under section 68. The arbitrary, discriminatory or bad faith conduct directed at such employees and regulated by the section must be such as to produce actual, and not merely speculative prejudice to those employees at the hands of their employer.

12. In light of the foregoing, the Board need not comment on the other questions which the present complaint raises with respect to the scope and purpose of section 68. The complaint insofar as it alleges a violation of section 68 is dismissed.

13. Paragraph I of the complaint's statement of material facts compares the treatment afforded by the respondent to two male employees, Mr. Roy and Mr. Marineiro, with that afforded to Lise Manoni, and alleges this to establish a violation of section 13 of the Act. That section reads:

The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or ad minis­tration or has contributed financial or other support to it or if it discri­minates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin.

The complainants allege that they were told by a member of the Union Executive that Mrs. Manoni was expelled from membership because of her sex. However, as can be seen, while section 13 has the effect of barring certification in a representation proceeding, it does not create an offence of sexual discrimination per se. The result is that the complainants' allegation under section 13, even if established, would not make out a violation of the Act. The complaint under section 13 is accordingly dismissed.

14. Counsel for the respondent submits that the remainder of the complaint can be put no higher than an allegation that the respondent's constitution has been violated in various respects. Counsel points out that the Board in the past has made it clear it does not assume a "watchdog" role with respect to a Union's internal proceedings, and that that, in any event, is a matter for the Union's internal appeal procedures, together with the Courts in necessary (A. J. Roberts, supra; Moreira v. Labourers' International Union of North America, Local 506 and Labourers International Union of North America v. Ontario Hydro, [1980] OLRB Rep. July 1039; Howard v. Parrinton, 1971 CanLII 394 (ON HCJ), [1971] 3 O.R. 659 (S.C.O.)). Counsel points out, in addition, that the present complaint has already been carried to the highest levels of the International's appeal procedures, and disposed of, and that the complainants ought to be required to live with the results.

15. The first problem with the respondent's position is that the bulk of the Manonis' charges were not dealt with in the full appeal procedure. It is not clear from the report of the Central Hearing Panel exactly which issues were dealt with by the General Executive Board, but, in any event, it is clear that the only issue considered at the Convention level was that of acclamation following disqualifications. It will be recalled that the appeal to the Convention was taken up on that ground alone, not by the Manonis or their associates, but by the Local.

16. There is, in addition, some question whether the policy of deferral to internal appeal procedures referred to in many of the cases is anything more than a question of pre-maturity; i.e., one simply requiring that the internal appeal procedures be exhausted before moving to an external forum (see U.A., Local 46, [1974] OLRB Rep. Aug. 569; Amalgamated Transit Union, Local 113, [1979] OLRB Rep. Oct. 917, and the cases cited therein), and this has already taken place in the case before the Board. Beyond this, the Board has always taken into account matters of fairness and practicality in deciding whether to defer to internal procedures. As the Board went on to note in Amalgamated Transit Union, Local 113, supra, at paragraph 6:

if the issue involves a violation of public policy, if the alternate remedy is illusory in that it provides inadequate relief or if the speed, economy and convenience of the internal remedy is not approximately equivalent to the remedy available through the Board, it is unlikely that the internal remedy would be deemed satisfactory so as to cause the

Board to defer... (emphasis added)

In the present case, the timing of the General Convention (which occurs once in five years) did, by chance, afford a speedy forum for relief. The location, however (in Florida), can fairly be said to have raised significant cost restrictions on the complainants' ability to prosecute their charges fully, with the attendance of all of their potential witnesses. It was, in addition, not their appeal at that point, their own appeal having been totally successful on another ground at the General Executive Board level.

17. Finally, there is in the background to any question of deferral, as the Board noted in Amalgamated Transit, supra, the broad question of public policy. As Rand, J., noted in Orchard v. Tunney (1957), 1957 CanLII 57 (SCC), S.C.R. 436, at page 44, commenting on the self-government of voluntary associations like trade unions in the early days of the Court's evolving policy of intervention:

... In a degree depending upon the nature of their objects, they have been left largely to their own government on the ground, probably, that it is better to let family affairs settle themselves; but as they have evolved and membership has taken a greater economic importance resort to the Courts has become more frequent and the warrant for juridical inter­position to prevent injustice has called for a more critical analysis of the jural elements involved.

18. From the point of view of the Labour Board, however, all of this depends upon a complaint making out a prima facie violation of the Labour Relations Act. The Board does not enjoy the inherent jurisdiction of the Courts; it derives its jurisdiction from the statute which created it. As the Board noted in Mario Moreira, [1980] OLRB Rep. July 1039, "this Board has no specific authority under the Act to undertake any sort of watchdog role over a union's internal processes under its constitution and by-laws". To the extent that a complaint relies simply upon allegations of a trade union s constitution being violated, without more, it is not the function of the Board to intervene (again see A. I. Roberts, [1974] OLRB Rep. March 169; and for the supervisory authority of the Courts in such matters, see Howard v. Parrinton (1971), 1971 CanLII 394 (ON HCJ), 3 O.R. 659). Where, however, a violation of a specific section of the Labour Relations Act is involved, different considerations arise.

19. Section 3, upon which the complainants rely, provides:

Every person is free to join a trade union of his own choice and to partici­pate in its lawful activities.

In Deborah Brown, [1976] OLRB Rep. Feb. 4, the Board made it clear that section 3, as a declaration of rights (albeit an important one), cannot by itself create an offence under the Act. But what about section 70, in conjunction with section 3, as argued by the complainants? Section 70 reads:

No person, trade union or employers' organization shall seek by intimi­dation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

These sections by their terms appear to affirm an individual's right to freely join a trade union of his choice, and to participate in its lawful activities, without interference by way of intimidation or coercion. The respondent, however, submits that the protection for "union activity" under the Labour Relations Act was never intended to apply other than against employers.

20. The Board has heard that argument before. In International Brotherhood of Electrical Workers', Local 120, [1967] OLRB Rep. Sept. 586, for example, the complainant argued that he had been intimidated and coerced by the trade union and compelled to refrain from becoming a member of the trade union because an officer of the union had threatened and physically prevented him from writing the union's entrance examinations. The Board stated, at paragraph 12:

The activity usually dealt with under section 52 [now 70] of the Act, is activity on the part of an employer who does not wish his employees to become union members. In addition section 52 is intended to protect an employee from pressure by one union which tends to prevent the employee from becoming a member of another union. However, while it is not usually necessary for a person to invoke section 52 of the Act because of the conduct of the union, as alleged in this case, it is the opinion of the Board that the wording of section 52 afforded the complainant the protection he is seeking. To give any other interpreta­tion of section 52 of the Act would be to distort the literal meaning of the words used in this section.

21. In Canadian Textile and Chemical Union, [1971] OLRB Rep. Aug. 469, the Board had before it an allegation that the griever had been wrongfully removed from the office of President of the respondent union. The respondent argued, by way of preliminary objection, that this was an internal union matter, and that the complainant ought to exhaust the internal union appeal procedures. While the Board found that it could entertain the complaint, the Board dismissed the complaint on the ground that the respondent did not act improperly. The Board did, however, make the following comments with respect to possible allegations alleging a violation of section 52 [now 70] of the Act, at page 471:

The respondents have not removed Mr. Cauchi from office in violation of the Labour Relations Act or for any activity protected by the Act. The complainant has failed to distinguish removal from office for acting contrary to the interests of the union from removal from office in violation of the Act. Mr. Cauchi was not intimidated or coerced pursuant to section 52 of the Act nor was he removed for any reason that would violate section 59(2) [now 80(2)], nor has his freedom to join a trade union of his own choice under section 3 been violated.

(emphasis added)

While the Board in that case expressly preserved the possibility of a theory of "deferral" to internal trade union machinery, it went to place important restrictions on the "contract" basis of that theory. At page 471, the Board stated:

We are not prepared to accede to the "contract theory", which indicates that members of a trade union may have contracted to exhaust their rights within the internal trade union machinery before resorting to this Board where the issue prima facie indicates a violation of public policy.

22. In S. A. Greco, [1976] OLRB Rep. June 323, the Board was called upon to examine a continuing personal battle being waged between one Frank Amis, Business Manager of the respondent Local Union, and the complainant, one of the Local's members. The Board found that a meeting held with the complainant in Mr. Amis' office "was designed by Amis and his colleagues to intimidate and terrorize Greco because of his opposition to Amis". The Board at page 331 went on:

26 There was evidence adduced before the Board that on or about July 9, 1973 Amis physically assaulted Greco when the latter refused and urged others to refuse to sign a blank consent to check-off form. The Board has no difficulty in accepting Greco's statement that this assault took place.

27. The Board also accepts Greco's claim that on or about January 20, 1975 Amis demanded that he leave a union meeting because he had not paid a fine although Greco had never been advised that there was a fine or charge outstanding against him. Amis refused to proceed with the meeting until Greco left.

28. The respondent submitted that the latter two incidents were matters which should properly be dealt with through the internal, constitutional procedures of the union and were not matters with which this Board should concern itself.

After quoting with approval the comments of the Board in Canadian Chemical and Textile Workers Union, supra, the Board noted:

In the present instance the evidence and the issues are concerned with allegations of breaches of the Labour Relations Act, matters which thus are specifically brought within the jurisdiction of the Board. It might well be, nevertheless, that if the incidents were isolated and the proper internal machinery were readily available, with appropriate remedies, that the Board would defer to the constitutional procedures. In the present case, however, we are not concerned with an isolated incident. We are dealing with matters which go together to form a pattern of conduct in an ongoing relationship between Amis and Greco.

The Board concluded that the conduct complained of fell squarely within the provisions of section 61 [now 70] of the act, and directed a remedy.

23. What is the central complaint before the Board in the present case? It is that certain officials of the respondent engaged in a pattern of intimidating and coercive conduct designed to frustrate the mechanisms for free and open elections under the respondent's own constitution. Such mechanisms represent the very cornerstone of a democratic institution. In light of the Board's past comments, can it now be said that such conduct, if proven to be true, does not fall within the language of sections 70 and 3 of the Labour Relations Act? The Board on a daily basis is engaged in granting and protecting the collective bargaining rights of organizations like (and including) the respondent. If the Board has the jurisdiction, can it be argued that the Board has no interest, from the point of view of public policy, in entertaining allegations as serious as the present? The answer must be in the negative.

24. The Board wishes to emphasize once again that it does not consider it to be its mandate or function to act as a "watchdog" over a trade union's constitution, or to monitor irregularities in internal trade union procedure. Ample recourse is available in that regard through other forums. The Board is, however, prepared to receive the evidence which the applicant seeks to adduce in support of its allegations under section 70 of the Labour Relations Act leading to and including the disputed election in June, in order to determine whether, in fact, the internally-provided process for free elections has been frustrated by a pattern of intimidatory and coercive conduct on the part of responsible trade union officials. It is that alleged pattern of intimidatory conduct which sets this case apart, and the circum­stances in which these elections were conducted must be examined in that light. Meetings at the local union hall tend not to be models of parliamentary decorum, and the Board must take care, when all of the evidence has been heard, to distinguish the normal give-and-take of the union hall from the concept of "intimidation" and "coercion", as those words are used in section 70 of the Labour Relations Act. The allegations do, however, raise a prima facie case for the Board proceeding, and the respondent's motion under Rule 71 is denied.

25. The question of authority and responsibility for the various acts complained of is extremely complex in this case. All of them occurred, for example, while the complainant Frank Manoni was still the Business Manager of the respondent. On the other hand, the Board has not failed to note that the appeal to the General Convention, affirming and defending the conduct of the election, was taken in the name of the respondent. In order to ensure that all of the relevant issues are properly before the Board in this matter, the Board hereby adds Nello Scipioni and Bernard Carrozzi as respondents to the complaint.

26. The matter is referred to the Registrar for continuation of hearing, in order to entertain the evidence and representations of the parties with respect to paragraphs 2, 3 and 5 of the statement of facts set out herein.