[1983] OLRB Rep. August 1344
1095-81-U Frank Manoni, Complainant, v. Labourers' International Union of North America, Local 527, Nello Scipioni, and Bernardino Carrozzi, Respondents
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. G. Donnelly and H. Kobryn.
APPEARANCES: Frank Manoni on his own behalf S. B. D. Wahl, N. Scipioni, and B. Carrozzi for the respondents.
DECISION OF THE BOARD; August 29, 1983
- This is the continuation of a complaint under section 89 of the Labour Relations Act. The Board in its interim decision of December 23, 1981 (reported [1981] OLRB Rep. Dec. 1775) dismissed the complaint insofar as it affected the complainant Lise Manoni, and also insofar as it alleged violations of sections 1(1)(p), 66(c), 68 and 80(2) of the Act. On the basis of local elections held on June 13, 1981, the complainant was replaced in his job as business manager by the respondent, Nello Scipioni, and the complainant now seeks to have the Board set aside that election. The sole basis on which the Board found that it had the jurisdiction and grounds to proceed was the alleged violation of section 70 of the Act, in conjunction with the rights guaranteed in section 3. Those sections, once again, provide:
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.
Every person is free to join a trade union of his own choice and to participate in its lawful activities.
- Pursuant to the Board's ruling, hearings were held to receive the evidence pertaining to the following allegations set out in the complaint:
(1) In September of 1980, then Vice-President Nello Scipioni attempted to physically assault the complainant.
(2) In November of 1980, Mr. Scipioni again attempted to physically assault the complainant, and both Mr. Scipioni and Mr. Carrozzi indicated to the complainant that his life was in jeopardy.
(3) The day before that (an allegation not considered in the interim decision), Mr. Scipioni, as chairman of the monthly niembership meeting, was reported to have had a wrench in his desk drawer on the stage.
(4) In December of 1980, Mr. Botelho, while speaking in support of Mr. Manoni at the monthly membership meeting, was given a threatening gesture and told to be quiet by a member seated on the "Scipioni" side of the audience.
(5) In March of 1981, Mr. Scipioni attempted to physically assault the complainant in the presence of the general body of the membership.
(6) In May of 1981, Mr. Drolet was expressing his opinion on matters relating to the administration of the Local Union, when Mr. Scipioni told Mr. Drolet that he would see to it that Mr. Drolet lost his membership with the union and his job.
(7) At the election on June 13, 1981, the judges of the Local's elections refused to permit the appointed "watchers" (i.e., scrutineers) to fulfill their functions under the constitution. The judges were directed by Mr. Bernardino Carrozzi to order the watchers away from the polling area.
It is the cumulative effect of these events, and particularly how the impugned events on the day of election itself may have been influenced by these prior events, that is the issue before the Board.
Local 527 was organized in the late 1950's by Frank Manoni himself. Mr. Manoni was its first business representative and, when the name of the office changed, its first Business Manager as well. Until the events now in question Mr. Manoni was, in fact, its only Business Manager, and he had never before June of 1981 faced opposition in the Local's elections. Nello Scipioni and Bernardino Carrozzi were brought into the Local by Mr. Manoni, and both men held staff positions under him for a number of years. The relationship between. the three men had always been, as Mr. Manoni described it, "wonderful".
All of that changed in August of 1980. Both Scipioni and Carrozzi were at that time business representatives, and Mr. Scipioni was the elected Vice-President of the Local as well. Charges of mismanagement were laid against Mr. Manoni, ostensibly by the Local's President, Jacques St. Croix, and a Trial Board was set up under the Local Constitution. Mr. Scipioni was named chairman of the Trial Board, and the other members of the Board were appointed by him. Mr. Carrozzi acted as Recording Secretary. The hearing took place on August 28th, and Mr. Manoni was found guilty. As a penalty, the Trial Board fined him $20,000 and barred him from holding any office in the Local Union for 20 years. Mr. Scipioni purported to assume the role of Business Manager pro tem, and was formally appointed to the position by the Local Executive Board on September 22, 1980. It appears that the International intervened to roll back this appointment, but it is apparent from the evidence that Mr. Manoni from this time forward ceased to enjoy his normal authority as Business Manager. In March of 1981 Mr. Manoni tried unsuccessfully to terminate Messrs. Scipioni, Carrozzi and St. Croix as business representatives, and later in that month Mr. Carrozzi supervised the laying of further charges against Mr. Manoni. Throughout this period the Local had clearly become polarized into two camps (those supporting Manoni versus those supporting Scipioni), and the affairs of the Local were characterized by confusion and acrimony. All of this served as a prelude to the election of June 1981.
The conduct of the election itself raised ample cause for concern on the part of the defeated candidate, Mr. Manoni. The three persons named as judges were Jose Martens, Rodolphe Chenier and Carlo Moscardi, but it is clear that Mr. Moscardi assumed the role of chief judge and took the initiative in carrying out all of the steps both prior to and during the election. Mr. Moscardi was one of the members appointed by Mr. Scipioni to serve as a judge in Mr. Manoni's Trial Board hearing of August of 1980, and he was also one of three signatories to the charges laid against Mr. Manoni in March of 1981. Mr. Moscardi, in addition, comes from the same village in Italy as Mr. Scipioni, and is an officer in the same Italian social club of which Mr. Carrozzi is the President. It was Mr. Moscardi who, through Mr. Carrozzi, obtained the ballots for the election, and who otherwise took the lead in carrying out the steps of the election.
It appears that roughly 350 members cast their ballots on election day. The judges did not emerge with the results for some 9 hours after the polls were closed, while the members waiting in the parking lot pondered the reasons for the delay, and attempted to catch glimpses through the meeting hall windows. The procedure adopted by the judges throughout the election, including the count, was to have the candidates' "watchers" (or scrutineers) sit some 10 feet from the judges' table, with the result that the watchers were not able to verify the ballots as each one was counted; the judges simply compared their tally sheets at the end and announced a final tally for all candidates when the counting had been completed. The tally sheets, the used and unused ballots, and other material of the election were then placed in a ballot box which was locked with two locks. This, according to Mr. Chenier, included at least one ballot which the judges had rejected as a photocopy. There were, apparently, also a number of smaller photocopied ballots being circulated by Scipioni supporters as campaign material prior to the election, but it does not appear that any of these found their way into the ballot box. Mr. Moscardi kept a key to one of the locks, and Mr. Chenier a key to the other. The judges testified that the box was taken by Mr. Moscardi to his home, and that a couple of days later all three judges attended at Moscardi's home to wrap and tape the ballots. The package of ballots was then delivered to the Local union and to its Ottawa solicitor for safekeeping. Midway through the Board hearings, the respondents tendered the package of ballots as a complete answer to the complainant's claim that he had been wrongfully deprived of office. The Board, however, alerted the respondents to the difficulty the Board had in accepting such evidence as conclusive in all of the circumstances, and the respondents did not press that position in argument. One further point reflecting on the overall credibility of Mr. Moscardi before the Board is that a dinner obviously for the Scipioni/Carrozzi faction took place with Messrs. Scipioni and Carrozzi at the Capri Restaurant immediately following the announcement of the election results on June 13, and Mr. Moscardi was there. When this was put to Mr. Moscardi himself on cross-examination, he admitted to being at the restaurant that night, but was, he said, unable to recall whether Messrs. Scipioni or Carrozzi had been in attendance. Given the results of the election and the timing of this dinner, the Board finds this lack of recollection difficult to believe.
The complainant on the strength of his allegations asks for:
(1) restoration of himself as Business Manager, with full compensation for all time lost;
(2) a new election;
(3) an order for the respondents to cease and desist in all intimidation and coercion.
The complainant has, however, distanced himself somewhat from the Local since the time that this complaint was filed. He has, for example, assisted a group of his former supporters in Local 527 to form a new trade union called the Labourers' Union of Canada. That union was formed to organize construction labourers in general, placing it in direct competition with Local 527. The only application for certification which turned out to be a "raid" on Local 527, however, has in fact been withdrawn. In addition, however, the complainant himself was encountering difficulty in acquiring new employment within his field, and in November of 1981 finally accepted an offer from the Carpenters' Union to join their international staff. After a series of denials, the complainant finally conceded what was readily apparent: i.e., that it was understood that he would be organizing Local 527’s members on behalf of the Carpenters’. Mr. Manoni then went on to emphasize how easy it had been for him to do so, stating that he had been able to file seven displacement applications for certification in his first 15 days on the job. This evidence focused attention on the question of the relief still being sought by the complainant, and the complainant, after consultation with counsel, indicated no change in the relief as originally requested. He was then asked by his counsel whether, if the Board were to order a new election for Business Manager of Local 527, the complainant would participate. Mr. Manoni responded that that was a difficult question to answer: he stated that his heart had always been with the Labourers’ Union, but that he now had responsibilities to his new employer. After a pause Mr. Manoni stated that he would run in a new election if his new employer would permit him to do so, on the basis that he would take the job in Local 527 if he won.
In viewing the merits of the complaint, the bulk of the facts particularized by the complainant were hotly contested, and the evidence was characterized by witnesses highly conflicting in their testimony. In resolving the many issues of credibility necessary to a finding of the facts in this case, the Board has had regard to the interest at stake of the witnesses in question, their apparent relationship to the major protagonists, and to the overall manner in which they gave their evidence. Apart from the various members of this Local who testified, it might be noted that the respondent summonsed two representatives of the International as well, but the Board did not find their evidence to be of assistance. Based on its assessment of the witnesses, the Board makes the following findings of fact with respect to the various events referred to in the complaint.
Beginning with the critical event first, the evidence establishes that the watchers present on the day of the election, June 13, 1981, were not permitted to actually "watch" the counting of the ballots. Having regard in particular to the testimony of Mr. Stephano Paoletti and Mr. Arthur Cossette, being the two watchers who appeared to have the least direct interest in the proceedings, we find that the watchers were directed by the judges during the counting to remain seated in their chairs, which were some 8 to 10 feet distant from the table at which the judges were working. There were, it would appear, times at which various of the watchers stood by the table while the judges were counting, but according to Mr. Cossette, this invariably led to arguments and the watchers being told to leave the judges alone and return to their chairs. The judges stated that it was their job and not the watchers' to do the counting, and the watchers were not to interfere. Mr. Cossette did not purport to understand all of the arguments that went on, because they were largely in Italian (which he does not speak), but he testified that at one point, when all of the watchers were gathered around the judges' table, arguing and shouting, one of the judges said that if the watchers did not quiet down and return to their chairs, they would stop the counting right there. Mr. Cossette testified that all the watchers then returned to their chairs, and did not protest further. The evidence of watcher Avio Manoni, the brother of Frank Manoni, was that he was told by the judges if he did not like the way that the counting was being done, he could go home.
A further issue in the complaint is whether this instruction to the watchers to remain back from the judges'table was made pursuant to a direction issued to the judges by Bernardino Carrozzi. The evidence does establish that, during the voting, some of the watchers were accosting voters as they left the room, asking them how they voted, and that Mr. Carrozzi came into the room and told the judges to have the watchers keep away from the voters. Mr. Carrozzi's only contribution after the counting began, however, appears to have been to enter the room where the judges and watchers were sitting and offer to get any of them a coffee. The only watcher testifying that Mr. Carrozzi issued any instructions to the judges after the point when the polls had closed was Avio Manoni, and in light of the evidence of other less interested watchers, the Board does not accept his evidence.
The fact remains, however, that under the procedure adopted by the judges, the judges took upon themselves the sole task of counting the individual ballots, and the "watchers" of the candidates were not extended the opportunity to participate in and otherwise verify the actual counting of the ballots. This, as the complainant maintains, would appear to be inconsistent with the procedure contemplated by the Local Union's constitution, which provides:
Section 3. ELECTION.
(a) The voting area shall be located in a hall or room where all of the functions of the election process will be open and visible at all times, to the Watchers and the election officials charged with the proper conduct of the election.
(b) Each candidate may, at his own expense, designate in writing, a Watcher, who must be a member of the Local Union and who must, no later than the day of election, deposit such written appointment with the Judges of Election.
(i) When the closing time as prescribed has arrived and all voters present have voted, the Secretary-Treasurer, having fulfilled his duties during the election, shall leave the voting area. The Judges of Election shall take possession of the ballot box, in the case where paper ballots are used, or open the voting machine, if machines are used, and proceed to count and tally the vote for each office or elective position, in the presence of the Watchers...
But even if the procedure was "irregular", do the actions complained of constitute "intimidation" or "coercion" within the meaning of section 70 of the Labour Relations Act? To make them so, the complainant relies upon the cumulative effect of the other events particularized in his complaint.
The first of these occurred on September 2, 1980. The allegation is that at the Executive Board meeting of this date, Mr. Scipioni attempted to physically assault the complainant, and threatened his life. The Board would not, however, put that interpretation on the evidence that it heard. That was a meeting chaired by Mr. Forgie, sent by the International immediately following the purported ouster of Mr. Manoni at the hands of the Trial Board on August 28th. The meeting was obviously highly contentious and agitated, and we find that Mr. Scipioni did in the course of the argument "jump across the table" at Mr. Manoni on at least one occasion. The table across which the two men were seated was some 5 to 6 feet across, however, and we find the actions of Mr. Scipioni in "jumping across the table" were reflective of the intense volatility of the meeting, rather than a real attempt to lay his hands on Mr. Manoni. The main topic of discussion was, as well, Mr. Manoni's insistence that, in spite of the Trial Board's purported ouster, Mr. Manoni still held the reigns of power. At one point Mr. Scipioni looked at the complainant and said: "Franco, se morto" (Frank, you're dead"). The complainant asked Mr. Scipioni what he meant, and Mr. Scipioni smiled and drew a large question mark in the air. The Board views Mr. Scipioni's comment entirely in the context of the issue being discussed; that is, as a comment by Mr. Scipioni that Mr. Manoni's career as Business Manager in charge of the Local was over.
The next occasion referred to in the complaint was a November 21st encounter on the stairs outside the union hall. This was the day after another of the Local's stormy membership meetings, in which once again the major topic had been the conviction of Mr. Manoni by the August 28th Trial Board, and the insistence by Mr. Manoni that the charges and conviction were without foundation. An issue arose as well over Mr. Manoni's exclusive use of his secretary. Mr. Manoni on the day after the meeting attended at the union hall and delivered some material upstairs to Percy Kent, the Secretary-Treasurer of the Local. Mr. Scipioni and Mr. Carrozzi were present as well. The latter two indicated to Mr. Manoni that he had caused a great deal of trouble the night before, and, had the two of them not intervened, the members would have killed him. The Board does not find on the evidence that this could in any way be interpreted as a threat on behalf of Messrs. Scipioni and Carrozzi themselves. Mr. Manoni then left his material with Mr. Kent and proceeded down the stairs inside the union hall on his way out of the hall to the parking lot. Mr. Scipioni suddenly came bounding down the stairs after him, and cornered Mr. Manoni on the verandah outside the hall. Mr. Scipioni, in a very agitated manner, held two fingers in front of Mr. Manoni's eyes, and said in Italian: "I'm going to strangle you". Mr. Carrozzi was also on the verandah at this point, behind Mr. Scipioni. Mr. Scipioni neither said nor did any more, and Mr. Manoni was permitted to withdraw to the parking lot. The Board does not know what it was that so enraged Mr. Scipioni on this occasion, but the incident, in any event, ended without physical contact, and Mr. Scipioni made no effort to carry out his angry threat.
It was also on this day following the November 20th meeting that the presence of the wrench in a desk drawer at the union hall came to Mr. Manoni's attention. Mr. Manoni telephoned Mr. Kent that day and, without Mr. Kent's knowledge, proceeded to tape the conversation. Mr. Kent had been a co-accused with Mr. Manoni in the Trial Board proceedings, and Mr. Manoni in this telephone call persistently prodded Mr. Kent to tell him what he knew about the insurgents' capacity for violence. Mr. Kent confided to Mr. Manoni that while on stage at the meeting the night before, he had noticed a wrench in the desk drawer beside the chairman, Mr. Scipioni. He said he later saw Mr. Scipioni remove the wrench and put it in his car. Mr. Kent then went on to express a general concern for Mr. Manoni's safety. Mr. Kent did not, however, provide in that conversation any specific basis for his concern, although repeatedly pressed by Mr. Manoni to do so. As a witness, Mr. Kent clearly was not pleased with Mr. Manoni having taped him in this manner, and, after seeking legal counsel, went no further than to acknowledge that the taped conversation had taken place.
The evidence is that the two rival factions took up opposite sides of the room at membership meetings during this period, and generally hooted and hollered when the other side was trying to speak. While the chairman, be it Mr. Scipioni or the President, Mr. St. Croix, may have ruled in a less than even-handed manner on these Occasions, the evidence of Mr. Batiste, a steadfast supporter of Mr. Manoni, indicates that it was more the interference from the members on the opposite side of the hall which prevented people from speaking than the rulings from the chair. The evidence establishes, in fact, that the interference was occurring from both sides, but was becoming more effective from the "Scipioni" side because, as the complainant himself acknowledges, whatever the reason, the number of members choosing to sit on the "Manoni" side of the hall was gradually shrinking.
The next specific event occurred at the general membership meeting of December 1980. As usual, the continuing status of Mr. Manoni as Business Manager was the overriding issue at the meeting, and one of Mr. Manoni's Portuguese supporters, Jean-Louis Botelho, stood up and called: "Who is for Manoni"? This, predictably, provoked total disorder throughout the audience. One member in particular, seated opposite Mr. Botelho on the "Scipioni" side, told him to sit down and shut up. Mr. Botelho glared at this man, and the man pulled open the side of his jacket and pointed to the inside pocket. This, we were advised by the Portuguese interpreter, is a threatening gesture meant to suggest the presence of a knife or similar object. Mr. Botelho, it would appear, was unimpressed by the other man's action, and told the man in Portuguese to (translated literally) "put it under his tail". From the interpreter's embarrassment, it would appear that the English equivalent to this expression is not very different.
A further incident occurred at the general membership meeting of March 17, 1981. Mr. Andre Roy, Mr. Manoni's brother-in-law, had been a business representative in the Local until he and Mr. Manoni had a permanent falling-out in 1978. Mr. Roy was approached by Mr. Scipioni in March of 1981 and invited to re-enter the affairs of the union. Subsequently, Mr. Roy says he received anonymously in a brown envelope a package of invoices designed to show that Mr. Kent as Secretary-Treasurer had been abusing his Local Union credit card for personal use. Mr. Roy presented this material and accused Mr. Kent in front of the membership at its meeting of March 17th. Mr. Manoni at that point was sitting on the stage beside Mr. Kent, but as Mr. Roy began to explain his charge, Mr. Manoni moved off the stage and took a seat in the front row of the audience. As the discussion began to heat up, Mr. Manoni turned and began to exit up the aisle-way of the hall. Mr. Kent called Mr. Manoni to come back and face the charge with him and then ran up the aisle after Mr. Manoni, dragging him by the collar to the front of the stage. At this point the meeting fell into total disorder, and the members crowded forward to separate Mr. Kent and Mr. Manoni Mr Kent accused Mr. Manoni of supplying his brother-in-law, Mr. Roy, with the invoices. Mr. Manoni denied that he was responsible, and, pointing to Messrs. Scipioni and Carrozzi, said: "Ask them". Mr. Scipioni had been seated at the far ~nd of the stage next to Mr. Carrozzi, and the evidence of Germaine Picard is that Mr. Scipioni came running at Mr. Manoni with his hand raised to strike Mr. Manoni, when Mr. Picard interceded to restrain him. Mr. Picard is another longtime follower of Mr. Manoni, but the Board nevertheless finds his evidence more credible than that of anyone else who testified on this point. The Board accordingly finds that this attempted attack by Mr. Scipioni did take place.
The final incident in the complaint took place at a meeting in Hull approximately two weeks prior to the election. It was a meeting called by Mr. Roy to promote the candidacy of Mr. Scipioni. Mr. Drolet, at that time a supporter of Mr. Manoni, decided to attend the meeting on the basis that Mr. Batiste would too. When Mr. Drolet arrived, however, Mr. Batiste was not there. The meeting was discussing charges and certain reports alleged to show mismanagement on the part of Mr. Manoni. Mr. Drolet testified that when he entered the room, everyone ceased talking, and looked at him. He says that he did not feel welcome, but that he was allowed to view the material, and ask any question that he wanted. Mr. Drolet by the date of his testimony appeared to have changed sides, and the Board specifically ruled that it could place no weight on his evidence. It suffices to say that his evidence did not make out the complainant's allegation that Mr. Scipioni threatened Mr. Drolet with the loss of his membership and job, and the complainant called no other evidence on the point. Mr. Drolet says that what Mr. Scipioni said was that anyone who makes trouble for the Local (meaning Mr. Manoni) was subject to being charged under the constitution.
These are the facts upon which the complainant relies. There were also allegations of anonymous and threatening phone calls made to Mr. Manoni and his family during this unfortunate period. The Board ruled, however, that there was no evidence to connect these unsavoury acts to any of the respondents, and that they therefore lacked probative value for the purpose of the present inquiry.
In the Board's view, the facts in this case do not make out a pattern of conduct which would support a finding that any of the named respondents interfered with the June 13th election through "intimidation" or "coercion". The Labour Relations Act exists primarily for the purpose of regulating collective bargaining between organizations of employees and employers; the Board's supervision of wholly internal affairs of a trade union (i.e., alleged misconduct falling even outside the representational parameters of sections 68 and 69 of the Act) arises no more than tangentially to this main purpose. In our view, for the purposes of the Board's jurisdiction to oversee such internal trade union affairs, the words "intimidation" or "coercion" require an actual threat of physical or economic harm. Compare and contrast, e.g., the S. A. Greco case, [1976] OLRB Rep. June 323, referred to by the Board in its interim decision in this matter. The actions of the judges at the election, standing alone, clearly do not meet that criterion. Nor has there been a pattern of conduct established which would cause the judges' actions to be perceived by the "watchers" as a threat of physical or economic harm. Whatever may have been the perceived connection between the judges and Messrs. Scipioni and Carrozzi, there simply is no pattern of conduct made out which make it a reasonable likelihood that the watchers feared physical or economic harm if they disobeyed the directives of the judges. The conduct of Mr. Scipioni, such as it was, at the Executive Board meeting of September 2nd and on the verandah on November 21st, was not done in the face of any of the general membership or subsequent "watchers". Similarly, the presence of the wrench in the drawer, for whatever purpose, was known only to Mr. Kent and, after the fact, to Mr. Manoni. The incident between Mr. Botelho and the man who gestured to his pocket was, on the evidence, witnessed by very few, and Mr. Botelho himself clearly did not find it to be intimidating. In addition, that incident bore more the stamp of the inter-member "fights" the Board heard occurred with considerable frequency during these meetings, than it did of anything attributable to the instigation of Mr. Scipioni or Mr. Carrozzi. The attempted attack by Mr. Scipioni on Mr. Manoni at the March 17th meeting occurred when the meeting was already in a tumult, at a time when the main attraction was taking place in a scuffle between Mr. Manoni and Mr. Kent, and the reaction of Mr. Scipioni does not appear from the evidence to have been a significant event to the members present at the time.
The complainant was cautioned (twice) in the Board's interim decision that the Board's jurisdiction in internal trade union matters was a limited one. The Board expressly rejected the complainant's argument of a broad supervisory jurisdiction based on such decisions of the Courts as Howard v. Parrinton, [1971] 30.R. 659 (S.C.O.). Yet the complainant again in his closing submission made reference to the broad supervisory authority of the Courts, specifically citing Howard v. Parrinton once again.
The Board does not have an inherent kind of supervisory jurisdiction such as that discussed in Howard v. Parrinton, supra. It has, as it has said, a jurisdiction limited to “intimidation” and “coercion” when it comes to wholly internal affairs of a trade union. Matters of irregularity or improper conduct beyond that fall to be dealt with either politically or through the internal procedures provided by the organization's governing laws, or, failing that, through resort to a Court of competent jurisdiction. While proceedings before the Labour Board may have an appeal as to cost and (sometimes) speed, the offsetting limitations on the Board's own jurisdiction must be considered as well.
On the facts found by the Board in this case, the complaint must be dismissed.