[1983] OLRB Rep. December 2116
2482-82-R United Brotherhood of Carpenters and Joiners of America, Applicant, v. T and F Construction Equipment Rental Limited, Respondent, v. Labourers' International Union of North America, Local 183, Intervener #1, v. The Form Work Council of Ontario, Intervener #2
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members I. M. Stamp and C. A. Ballentine.
DECISION OF THE BOARD; December 9, 1983
- There have been two earlier decisions issued with respect to this application for certification. It will be useful for the purposes of this decision to set out some of the chronology of some of the events since the making of the application. The application was filed with the Board March 4th, 1983 and it requested the Board to direct the holding of a prehearing representation vote. On March 15th, 1983, the Labourers' International Union of North America, Local 183 ("Local 183") filed a timely "Application for Certification by Intervener, Construction Industry" signed by its business agent, John Colacci.
Subsequently, on March 18th, two separate "Intervention, Construction Industry" forms were filed on behalf of Local 183 and intervener #2 by their solicitors. These two interventions were signed by counsel for the interveners and, for all material purposes, were identically worded. The interventions raised a number of issues, one of which was the allegation that the membership evidence should not be relied on by the Board because it was obtained by “… intimidation, coercion, fraud and misrepresentation contrary to the Act …”. The Board, differently constituted, issued a decision March 28th directing that a pre-hearing representation vote be held. It directed also that each ballot cast be segregated, the ballot box be sealed and the application be listed for hearing following the vote to deal with all matters arising out of and incidental to the application. Those matters include, inter alia, the interveners' allegations with respect to the reliability of the membership evidence. The vote was held as directed on April 14th, the ballot box sealed and on May 13th the matter came on for hearing. That hearing, by agreement of the parties, dealt only with the manner in which the Board would proceed to deal with the multiple issues raised by the application and the interventions. The Board's decision which issued July 25th, 1983, set out the order and manner of procedure. In general terms, the Board ruled that it would hear first the evidence and representations of the parties with respect to the reliability of the membership evidence and, if the determination of that issue did not dispose of the case, the Board would then proceed with the remaining issues in a particular order. These matters did not come before the Board again for hearing until November 3rd and 4th because, in part, another application involving several issues common to the instant one and the same trade union parties was also before the Board differently constituted. The parties in both cases have attempted to move in a manner which may ultimately enable them to consent to having the two cases heard together. In that respect, at the conclusion of hearing the evidence and argument concerning the membership evidence allegations, the parties requested the Board to adjourn the proceedings, determine that issue and, if the application was to require further hearing, the parties would attempt to reach an agreement which would enable the two applications to be consolidated with respect to the issues which are common to them.
- This decision, therefore, deals solely with the allegation that the Board should not rely on the membership evidence tendered by the applicant in support of the application. Both interventions submit that:
“… the Board can place no weight upon the membership evidence submitted by the applicant as it was obtained by intimidation, coercion, fraud and misrepresentation contrary to the Act and accordingly, the Application ought to be dismissed. In particular, the membership evidence was obtained by a business agent of the applicant, Tony lannuzzi ("Iannuzzi") on or about February 25, 1983 at approximately 7:30 am., when he arrived at the job and told the subject employees that he had been sent to the job site by Antonio Fontana, the principal of [TandF Construction Equipment Rental Limited], and in accordance with Fontana's instructions, all the employees must sign membership cards for the applicant.”.
The Board heard three witnesses, Cesidio Carnevale, Dante Rotondo and Tony Iannuzzi. Carnevale and Rotondo testified on behalf of the interveners. Carnevale was the respondent's working foreman on the construction site on which its employees were engaged at the time of this application. Rotondo was a layout man. They were examined prior to Lannuzzi and each was excluded from the hearing while the other testified. lannuzzi is a business representative for the applicant and is the person who signed to membership in the applicant the employees of the respondent whom the applicant seeks to represent. lannuzzi was the advisor to counsel for the applicant in the hearing and, consequently, was not excluded from the hearing when Carnevale and Rotondo testified.
It is uncontested that the respondent is a concrete forming contractor and was engaged in the construction of a nursing home in Toronto at the time this application was made.
The evidence of all three witnesses is in general agreement with respect to the fact that Lannuzzi visited the construction project on February 25th, at approximately 7:30 a.m. and spoke with the respondent's employees in its job shack prior to the start of their shift. He introduced himself as a business representative of the applicant and presented his business card indicating that that was his position. His evidence and Carnevale's agree also that Iannuzzi had in his possession a slip of paper on which was written the address of the site and Carnevale's name.
The testimony of the three witnesses is in significant disagreement with respect to what lannuzzi said to the employees when he was talking with them prior to signing them to membership in the applicant.
Carnevale testified that lannuzzi spoke to him in front of the rest of the employees, all of whom were in a position to hear everything which lannuzzi said. According to Carnevale, lannuzzi stated that he had spoken the previous evening with the owner, Fontana. Carnevale claims that lannuzzi then remarked that the men were working on a commercial job (in other words, a job in the industrial, commercial and institutional sector of the construction industry), that members of Local 183 could not work on commercial jobs and would have to join the applicant in order to remain on the job; if they did not, they could not work on it anymore. Carnevale believed that, if lannuzzi was correct about the job being a commercial one, he would not be able to work on it as a member of Local 183, 50 why not pay a $1.00 and join the applicant. Carnevale's reference to paying a $1.00 is with respect to the amount which the applicant will accept from new members during an organizing campaign in lieu of its normal initiation fee. Carnevale testified that Rocco Lotito, a business representative of Local 183, visited the job site the next day and when Lotito learned from the employees that they had signed membership