Luciano D'Alessandro et al. v. Labourers' International Union of North America, Local 1089, and Rocco D'Andrea
[1983] OLRB Rep. October 1699
1296-82-U; 0195-83-U; 0323-83-U Luciano D'Alessandro, Donato Marinaro and Robert J. S. Countryman, Complainant, v. Labourers' International Union of North America, Local 1089, and Rocco D'Andrea, Respondents.
BEFORE: R. D. Howe. Vice-Chairman, and Board Members F. W. Murray and W. F. Rutherford.
APPEARANCES: Mary Portis and Luciano D 'Alessandro for Luciano D 'Alessandro; Dianne L. Haskett and Donato Marinaro for Donato Marinaro; Robert J. S. Countryman appearing on his own behalf A. M. Minsky, R. D 'Andrea and D. D 'Andrea for the respondents.
DECISION OF THE BOARD; October 31, 1983
File No. 1296-82-U is a complaint under section 89 of the Labour Relations Act in which Luciano D'Alessandro alleges that the respondents have contravened sections 68 and 69 of the Act in respect of certain hiring hall referrals which allegedly occurred in September of 1982. No question of delay arises in respect of that complaint, which was filed on October 13, 1982.
File No. 0195-83-U is a section 89 complaint in which Donato Marinaro alleges that the respondents have contravened sections 69 and 70 of the Labour Relations Act in respect of 46 referrals which allegedly occurred between July of 1981 and September of 1982. That complaint was filed with the Board on April 28, 1983. By letter delivered to the Board on July 4, 1983, Brian Iler, who at that time was counsel for Mr. Marinaro, filed as an additional particular to that complaint an allegation pertaining to a referral which allegedly occurred on March 1, 1983. On October 11, 1983, Mr. Marinaro's present counsel filed further particulars with the Board. Those further particulars impugn seven referrals alleged to have occurred in March and April of 1983. It is also alleged (in paragraph 3(E) of those further particulars) that Mr. Marinaro was laid off by D. W. Rankin Limited on July 7, 1981, at the direction of the respondent Rocco D'Andrea, who is the business agent of Local 1089. Counsel for the respondents contends that Mr. Marinaro's entire complaint should be dismissed on the basis of undue delay, or that, in the alternative, the Board should decline to hear portions of his complaint on that basis. Counsel for Mr. Marinaro, on the other hand, submits that the Board ought to hear the entire complaint.
File No. 0323-83-U is a section 89 complaint in which Robert J. S. Countryman alleges that he has been dealt with by the respondents contrary to sections 68 and 69 of the Act. In particular, he alleges that Mr. D'Andrea took his name off the "persons available for work list" in March of 1982. Counsel for the respondents also contends that Mr. Countryman's complaint, which was not filed with the Board until May 12, 1983, should be dismissed on the basis of unreasonable delay.
These three complaints were consolidated by the Board on August 18, 1983 (along with three other section 89 complaints which have since been withdrawn). On the agreement of the parties, on October 17, 18, and 19, 1983, the Board heard as a preliminary matter the evidence and submissions of the parties concerning the issue of delay (in relation to File Nos. 0195-83-U and 0323-83-U) and reserved its ruling on that matter.
The Board has had occasion to consider the effect of delay in filing a section 89 complaint in a number of recent cases. In the Corporation of the City of Mississauga, [1982] OLRB Rep. March 420, at paragraph 22, the Board wrote as follows:
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 reasons 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 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.
In Sheller-Globe Canada Limited, the Ontario Divisional Court, in a unanimous judgment dated June 28, 1983, dismissed an application for judicial review of a Board decision (reported in [1982] OLRB Rep. Jan. 113) in which the Board, after entertaining evidence and submissions with respect to delay in filing a section 89 complaint alleging a breach of section 68 of the Labour Relations Act, declined to inquire into the merits of the complaint in the exercise of its discretion under section 89 of the Act and, accordingly, dismissed the complaint. (See also Chrysler Canada Limited, [1983] OLRB Rep. Apr. 490; Chrysler Canada Limited, [1982] OLRB Rep. Oct. 1417; Concrete Construction Supplies, [1982] OLRB Rep. Oct. 1446; and CCH Canadian Limited, [1977] OLRB Rep. June 351.)
As noted above, some of the referrals which form the subject matter of Mr. Marinaro's complaint occurred almost two years before he filed his complaint with the Board, and the layoff referred to in paragraph 3(E) of the further particulars filed on October 11, 1983 occurred twenty-seven months earlier. Thus, in view of the substantial period of time which has elapsed between the occurrence of some of the events in question and the filing of the complaint (and further particulars), this is an appropriate case in which to consider the matter of delay as a threshold issue.
Mr. Marinaro gave extensive testimony before the Board concerning the timing of the filing of his complaint and further particulars. Although he had. some difficulty recalling dates and was inclined at times during cross-examination to digress from the specific questions put to him by counsel for the respondents, we are satisfied that he was sincerely attempting, within the scope of his somewhat limited command of the English language, to truthfully and accurately answer the questions put to him. Thus, with due allowance for those factors and for the tendency of self-interest to somewhat modify (subconsciously) the recollections of a witness concerning contentious matters, we are prepared to rely upon his testimony, which was uncontradicted by any other evidence, the respondents having elected to call no evidence concerning this aspect of the case.
As early as 1981, Mr. Marinaro was dissatisfied with the way in which Local 1089's hiring hall was being operated by the respondents. However, although he had heard rumours about improper referrals, he "couldn't prove anything" because the respondents would not permit him to examine the hiring hall records. Mr. Marinaro asked to see those records in November or December of 1981 but was refused access to them by Mr. D'Andrea. Although counsel for the respondents suggested to Mr. Marinaro in cross-examination that he was denied access to the hiring hall records because he wished to look at them on behalf of his son rather than on his own behalf, Mr. Marinaro steadfastly maintained that he wished to see them for his son and for himself. He further testified that he did not advise Mr. D'Andrea on whose behalf he wanted to examine the records. (In any event, it is far from apparent to the Board that a request by a member of a local to view the local's hiring hall records on behalf of another member of the local, who is his son, can legitimately be denied.) Although Mr. D'Andrea was in attendance at the hearing, he was not called to testify. Under the circumstances, we accept without hesitation or reservation Mr. Marinaro's evidence concerning his denial of access to the hiring hall records. In this regard, his experience appears to have been similar to that of other members of the Local. See the Portiss decision, [1983] OLRB Rep. July 1160, in which the Board wrote as follows, at paragraph 60:
Members were reportedly denied access to the out of work list and work referral book. These documents were kept behind a caged window in the hiring hall and could be scrutinized only with the permission of Mr. D'Andrea. That permission appears seldom, if ever, to have been given.
See also paragraph 11 of that decision in which the Board wrote: "It is a matter of record that up to the first day of hearing of this complaint [File No. 1278-82-U] the union refused to permit Mr. Portiss or his counsel to see any of the hiring hail records."
Counsel for the respondent suggested that Mr. Marinaro should have investigated his suspicions by attending at job sites to see who was working and by attending at the Union hall to see who was being referred. However, assuming without deciding that such investigative efforts might legitimately be required in some circumstances, they would not have assisted Mr. Marinaro in the present case since he would not in any event have been able to determine whether such referrals were proper or improper without access to the hiring hall records. Mr. Minsky also contended that Mr. Marinaro should have filed a section 89 complaint based upon his suspicions and used such complaint to gain access to the hiring hall records. However, the Board does not find that contention to be meritorious. The use of the Board's processes as a means of discovery in respect of allegations based upon mere suspicion is not something which the Board would desire to encourage (although it may be necessary in some circumstances, such as in some cases to which the section 89(5) "reverse onus" applies). In any event, we are not satisfied that Mr. Marinaro knew or should have known prior to November of 1982 that effective access to the hiring hall records could be obtained in that manner. Furthermore, we are not inclined to give much weight to a protestation of delay in circumstances where, as in the present case, the inaccessibility of the information necessary to file a duly particularized complaint is created by improper conduct on the part of a party which seeks to raise the delay as a bar to hearing the complaint. (See paragraph 20 of the aforementioned Portiss decision in which the Board adopted a similar approach.)
In mid September of 1982 Mr. Marinaro became aware through personal observation that Mario Savo and Gino lacobelli had been referred to work ahead of him even though he had registered on the out of work list ahead of them (at a time when they were employed on other jobs). In early October, Mr. Marinaro wrote to Angelo Fosco, the General President of the Labourers' International Union (the "International") to complain about those referrals. By letter dated October 20, 1982, Mr. Fosco acknowledged receipt of Mr. Marinaro's letter and advised him that it had been referred to the International's Toronto Subregional Office. That complaint was subsequently investigated by International Representative Jerry Flook who assured Mr. Marinaro that he would talk to Mr. D'Andrea about the matter. On or about November 17, 1982, Mr. D'Andrea stated that he would not discuss the matter with Mr. Flook or Mr. Marinaro because of the section 89 complaint which had been filed with the Board by Mr. Portiss. (That complaint was scheduled for hearing that day but was recessed to afford Mr. Portiss and his counsel an opportunity to review the hiring hall records.) As Mr. Flook was about to leave, Mr. Marinaro asked him what the next procedure should be in view of Mr. D'Andrea's refusal to discuss the matter. In particular, he asked Mr. Flook if he should complain again to the International or should complain to the Ontario Labour Relations Board. Mr. Flook told Mr. Marinaro that such action would not be necessary and that he would "let [him] know in a couple of days". When Mr. Flook did not contact Mr. Marinaro within that time, the latter telephoned him several times and was ultimately told to "do whatever he wanted" with respect to writing to the International or the Board. Mr. Flook also told Mr. Marinaro that the Union constitution (the "Constitution") did not cover the hiring hall. Since he was desirous of exhausting any possibility of obtaining relief through internal Union procedures before complaining to the Board, Mr. Marinaro wrote again to the General President of the International on or about December 20, 1982. (That letter included a complaint about a referral of Tony Belak, the circumstances of which had recently come to Mr. Marinaro's attention.) In late December, Mr. Marinaro received another letter from Mr. Fosco acknowledging receipt of his communication and advising him that it had been referred to the Toronto Subregional Office. Mr. Flook subsequently telephoned Mr. Marinaro's residence and left a message with Mr. Marinaro's son as Mr. Marinaro was not home at the time. Thereafter, Mr. Marinaro attempted to "phone collect" to Mr. Flook in Toronto, but did not speak with Mr. Flook as the charges for the call were refused. Ultimately, Mr. Marinaro spoke with Mr. Flook again in March and was asked repeatedly by the latter, "How much money do you want?" When Mr. Marinaro replied that he was looking for his back pay but also wanted "some justice", Mr. Flook reiterated that the International had no right to control the Local 1089 hiring hall.
Mr. Marinaro had become friends with Joe Portiss as a result of their common dissatisfaction with the June 1981 Local 1089 election in which they had both been unsuccessful in their bid for positions on the Local 1089 Executive Board. Together they unsuccessfully appealed that result to the International's General Executive Board. Mr. Marinaro also attempted to assist Mr. Portiss with a section 89 complaint filed with the Board by Mr. Portiss in October of 1981, which complaint was later withdrawn following discussions with a Board Officer. On October 8, 1982, following "protracted applications and appeals through the legal aid system at both the local and provincial level as well as appeals for assistance to members of the Legislature" (see paragraph 18 of the aforementioned Portiss decision), Mr. Portiss filed another section 89 complaint with the Board on October 8, 1982. When that complaint came on for hearing before another panel of the Board, the respondents, at the suggestion of the Board, provided Mr. Portiss and his counsel with access to the hiring hall records. However, when Mr. Marinaro attempted to scrutinize those records at that time, he was told by officials of Local 1089 to "stay away". The point in time at which Mr. Marinaro finally gained access to those records is unclear from the evidence. However, it is clear that he did not gain such access until late November of 1982 at the earliest, and may not in fact have seen those records until December of 1982 or later. When he examined copies of those records at the home of Mr. Portiss, Mr. Marinaro for the first time became aware of the 43 referrals which, in addition to the aforementioned referrals of Messrs. Savo, lacobelli and Belak, form the subject matter of his complaint as originally filed.
With respect to Mr. Marinaro's letters to the General President concerning his complaints about the Savo, lacobelli, and Belak referrals, we are of the view that he cannot be criticized for initially attempting to resolve his concerns in that fashion. Counsel for the respondents noted that Mr. Marinaro was unable to point to any language in the Constitution expressly providing for such procedure. (Neither Mr. Marinaro nor the respondents filed a copy of the Constitution with the Board.) However, we are satisfied that the presence or absence of such language is not determinative in the present case; what is important is the fact that each time Mr. Marinaro sent a letter of complaint to the General President, he received an acknowledgment of his communication and, far from being advised that the International had no constitutional jurisdiction to consider his complaints, was advised that his complaints had been referred to the International's Toronto Subregional Office. Moreover, International Representative Jerry Flook thereafter followed up on each of Mr. Marinaro's complaints and attempted to resolve them. Thus, we agree with counsel for Mr. Marinaro that her client cannot be faulted for seeking to obtain redress through internal Union procedures before filing a complaint with the Board. Nevertheless, we are also of the view that it should have been apparent to Mr. Marinaro by the end of January of 1983 at the latest that he was not going to be able to obtain effective relief through internal Union procedures. Moreover, he has not satisfied us that he acted with due diligence in his efforts to contact Mr. Flook concerning the disposition of his complaints to the International. Having regard to all the evidence and the submissions of the parties, we are satisfied that if Mr. Marinaro had proceeded with due diligence after the hiring hall records became accessible to him, he would have filed his section 89 complaint (concerning the aforementioned 46 referrals) by the end of February of 1983, if not before. However, his delay in filing has not been so extreme as to make it appropriate for the Board, in the circumstances of this case, to decline to hear his complaint on the merits.
Although the pertinent hiring hall documents have not been destroyed, and there is no evidence that material witnesses have become unavailable due to the passage of time, there is, nevertheless, some merit in Mr. Minsky's submission that delay in respect of a section 69 complaint can be even more prejudicial to a union than delay in respect of a section 68 complaint. Unions, such as Local 1089, are required to make hundreds of referrals each year in the administration of their hiring halls. Although a union's hiring hall records can certainly record the actual referrals which have been made, the Board has recognized that a business agent needs "latitude for discretion in day-to-day decisions ... for the administration of a fractious body of members in a hiring hall" (see the Board's decision in the Portiss case, supra, at paragraph 65). It may not be practicable for a business agent to record in such documents full details of all of the factors which he considered in exercising such discretion in regard to individual referrals, and his recollection of such details may well fade with the passage of time. However, we are satisfied that any prejudice to the respondents which Mr. Marinaro's delay may have occasioned can be adequately dealt with by the Board in the exercise of its remedial discretion under section 89 of the Act in determining the amount of compensation, if any, to be paid to Mr. Marinaro by the respondents. Similar considerations apply to the delay by Mr. Marinaro (or by Mr. Iler, who was then his legal counsel) in filing, by letter dated July 4, 1983, the additional particular to the complaint in respect of a referral which allegedly occurred on March 1, 1983.
While there has been several months of undue delay on the part of Mr. Marinaro (or his agent, Mr. Iler) in failing to file or cause to be filed, prior to October 11, 1983, the allegations contained in paragraph 3(D) of his "further particulars", which allegations pertain to seven referrals that allegedly occurred in March and April of 1983, we are satisfied that any prejudice to the respondents which may have been caused by such delay can also be adequately dealt with by the Board in assessing any compensation which might be awarded in respect of those referrals.
Paragraph 3(E) of the "further particulars" filed on October 11, 1983 alleges that Mr. Marinaro was laid of from work at D. W. Rankin Limited on July 7, 1981, without justification, at the direction of Mr. D'Andrea. Although that subparagraph pertains to an event which allegedly occurred 27 months prior to the filing of that allegation with the Board, we are satisfied that the information which led to its filing first came to the attention of Mr. Marinaro in late July or early August of 1983 when Clemente Cicchini, a member of the Executive Board of Local 1089, revealed to Mr. Marinaro that Mr. D'Andrea had stated, in the presence of Mr. Cicchini and some other Executive Board members, that after the aforementioned Executive Board election, Mr. Marinaro and the others who were opposing them in the election would have to be laid off any job that they came to. (It is unnecessary at this stage in the proceedings to make any finding as to whether or not Mr. D'Andrea actually made that statement. It is sufficient to find that Mr. Cicchini told Mr. Marinaro that Mr. D'Andrea did so, and that Mr. Marinaro, in reliance upon that information, instructed his counsel to add to the complaint the allegation which ultimately became paragraph 3(E) of the further particulars.) Nor can it be said that Mr. Marinaro should have been aware of the information which gave rise to that allegation prior to late July or early August of 1983. Although Mr. Marinaro had earlier approached Mr. Cicchini in an attempt to obtain information which might assist him in his quest for hiring hall justice, Mr. Cicchini did not divulge that information at that time. We find no merit in Mr. Minsky's submission that Mr. Marinaro should have filed a section 89 complaint at that time on the basis of unconfirmed suspicions which he harboured (but, not unreasonably, felt incapable of proving). Moreover, we note that unlike Mr. Marinaro' s other allegations, his paragraph 3(E) allegation does not pertain to one of many referrals, but rather to an extraordinary event which, if it occurred, would almost certainly be within Mr. D'Andrea's recollection. Thus, while there has been some undue delay on the part of Mr. Marinaro (or his agent, Mr. Iler) in failing to file the allegation contained in paragraph 3(E) prior to October 11, 1983, that period of delay (between August and October of 1983) is not so extreme as to prompt the Board to decline to hear that serious allegation. Therefore, having regard to all the circumstances, we are satisfied that any prejudice which that delay may cause to the respondents can be adequately dealt with by the Board in the exercise of our remedial discretion under section 89 in determining the amount of compensation, if any, to be awarded to Mr. Marinaro in the event that he succeeds in proving that allegation.
The complaint of Robert J. S. Countryman (in File No. 0323-83-U) is that in March of 1982 Mr. D'Andrea took Mr. Countryman's name off the "persons available for work list". Mr. Countryman registered at the Local 1089 hiring hall on December 15, 1981 and was given #301 on that list. On March 8, 1982, the Union called Mr. Countryman's residence for the purpose of referring him to a job. However, Mr. Countryman was not home at the time of the call as he was working for National Construction as a welder at Union Carbide. Since Mr. Countryman was unavailable for work, his name and number were struck from the list that day. Mr. Countryman told the Board that he "presumed" that his name would immediately be placed at the bottom of the list, but offered no credible explanation for the basis of that presumption. In actual fact, in accordance with what the Board described in paragraphs 14 and 15 of the aforementioned Portiss decision as the "accepted procedures of the hiring hall", Mr. Countryman's name was removed from the list and, because he did not request that his name be returned to the list, Mr. Countryman's name was not placed on the bottom of the list at that time, or at any other time prior to April of 1983 when he approached the secretary at the Union hall, asked what his number was, and was told that he was not on the list. Although Mr. Countryman initially told the Board that he checked the numbers on the referrals board from time to time when he went to the Union hall to pay his dues every two or three months between March of 1982 and April of 1983, after being confronted with the fact that he could not have meaningfully checked the board as he had not inquired what his new number was, he ultimately conceded, after considerable evasion, that he had not checked the board during that period. Having regard to all the circumstances, including Mr. Countryman's demeanour while testifying before the Board and the contradictions and inconsistencies in his evidence, the Board finds that Mr. Countryman has not established that he exercised due diligence in filing his complaint with the Board. Moreover, we find that he made no effort whatsoever between March of 1982 and April of 1983 to determine whether he had in fact been placed on the bottom of the list on March 8, 1982, and was not concerned whether or not he was on the list during that period, having obtained employment through Plumbers' Local 663 as a "permit" holder, which relatively long term employment he found to be more satisfactory than the shorter term jobs to which he had previously been referred by Local 1089. If he had been at all concerned about whether or not his name was on the list, he would undoubtedly have telephoned or attended at the Local 1089 hall long before April of 1983 to confirm that he was on the list by ascertaining what his new number was. In the absence of any such inquiry, which is certainly not unduly onerous in the circumstances, we find that he has not established any exceptional circumstances, overriding public policy considerations, or other considerations which would prompt the Board to hear his complaint on the merits notwithstanding the extensive delay which occurred between the time when he should have known that his name was not on the list, and the time he filed his complaint with the Board. Moreover, if we were to hear the complaint and Mr. Countryman established that the respondents' failure to place his name at the bottom of the list on March 8, 1982 was a contravention of the Act, under the circumstances we would not, in the exercise of our remedial discretion under section 89 of the Act, be prepared to award him any compensation in respect of that breach. Thus, no useful purpose would be served in hearing the merits of Mr. Countryman's complaint. Accordingly, the Board, in the exercise of its discretion under section 89 of the Labour Relations Act, hereby dismisses Mr. Countryman's complaint.
For the foregoing reasons, the complaint in File No. 0323-83-U is dismissed. File Nos. 1296-82-U and 0195-83-U are hereby referred to the Registrar to be listed for continuation of hearing.