Walter Sladicli v. Labourers' International Union of North America, Local 1036
[1985] OLRB Rep. July 1167
2447-84-U Walter Sladicli, Complainant, v. Labourers' International Union of North America, Local 1036, Respondent
BEFORE: S. A. Tacon, Vice-Chairman.
APPEARANCES: Walter Sladich and Leo Berlin guette for the complainant; S.B.D. Wahl for the respondent.
DECISION OF THE BOARD; June 12, 1985
1This is a complaint alleging violation of section 69 of the Labour Relations Act. This decision deals only with the preliminary matters raised at the hearing.
2The Board hereby confirms its oral ruling deleting "Jimmie Lewis, Business Manager of Labourers' International Union of North America, Local 1036" named as a respondent, from the style of cause and as a party to these proceedings.
3Neither the complainant nor his representative were legally trained. Moreover, while the complaint itself was filed on December 5, 1984, there was further interaction between the parties, including an exchange of correspondence which went beyond the statements in the original complaint. Consequently, the Board considered it appropriate to clarify the complainant's allegations before proceeding to hear viva voce testimony.
4The complainant's allegations may be summarized as follows.
(1) Denial of Information
The respondent violated section 69 of the Act by refusing to provide requested information or information in a form acceptable to the complainant. Specifically:
(i) the replies to the complainant's letters of August 21, 1984 and September 13, 1984 were not over the signature of an authorized union official or on union stationery;
(ii) there was no reply to the complainant's letter of October 25, 1984 until the respondent's letter of March 19, 1985 and that letter did not deal with one individual (Equizi);
(iii) On February 6, 1985, the respondent refused the complainant's request to purchase the first four sheets of the out-of-work list, then agreed to that request later that day but on February 7th again insisted the entire list be purchased [the full list, a computer print out, was approximately 22-25 sheets at that time; the precise length depends on the number of union members out of work.]
The complainant conceded he had never informed J. Lewis, Business Manager, that the "reply" to the August 29th letter did not contain sufficient information, in the complainant's view.
(II) Qualifications as Cement Finisher:
The respondent violated section 69 of the Act in not classifying the complainant as cement finisher when he requested to be so listed in March, 1984. It was agreed that the complainant's qualifications as singnalman were not relevant to the disputed referrals since signalmen, if needed on a particular job, were always selected from the labourers already on site rather than specifically requested by employers.
(III) Referrals of G. Boyer and J. Suppa:
The respondent violated section 69 of the Act in returning both individuals to the same point in the out-of-work list, rather than the bottom of the list, when the company to which they had been referred refused to hire them. It was acknowledged that the refusal to hire was currently the subject of a grievance. Further, the complainant conceded that the qualifications for the referral were those of skilled form builder/setter and that the complainant did not possess such skills. Finally, Boyer and Suppa were below the complainant on the out-of work list when referred and were returned to that position below the complainant.
(IV) Other Referrals, particularly of Cement Finishers:
The respondent violated section 69 of the Act in referring the following individuals to jobs as cement finishers although their position on the out-of-work list was below that of the complainant. The complainant was not asserting that the listed individuals were not qualified as cement finishers but that he was also so qualified and, thus, was entitled to those referrals.
(Name) (Referral)
R. Dilollo Newman Bros. Construction D. Pedalino Samson Construction A. Posteraro Newman Bros. Construction I. Thrrugeu Arneks Construction L. Martin Arneks Construction M. Trunzo Bird Construction A. Quintinho R. M. Elliot Construction E. Ball Arneks Construction
The following referrals were also challenged:
D. Tegosh Referred as steward
J. Sayers Ontario Hydro, EPSCA
union security provision
E. Agawa Recalled to Bird Construction
I. Eguizi Referred to Bird Construction
With respect to Agawa, the complainant acknowledged that the position on the out-of-work list to which Agawa was returned had no effect on the complainant's entitlement to referrals.
5Counsel for the respondent made a number of preliminary objections in respect of the issues, as clarified at the hearing. Firstly, counsel submitted that the complainant should be restricted to the allegations in the complaint itself. Counsel argued that the complainant and his representative could not claim to be innocent of Board procedure, including the requirement for particulars, given their awareness of, if not direct involvement in, another case presently before the Board. Counsel contended that what the complainant and his representative were really seeking was the right, through section 69, to scrutinize all hiring hall referrals. This amounted to an abuse of the Board's process. Further, if the Board permitted the complainant to repeatedly expand and/or recast his allegations, counsel argued the cost of such litigation would bankrupt the respondent. Moreover, counsel stressed that the respondent had offered explanations for the referrals, explanations which the complainant simply refused to accept. Thus, counsel submitted that the complaint should be restricted to the alleged denial of information (item I). The issue of the complainant's qualifications as a cement finisher were not properly within the scope of the original complaint (item II). Item III was not properly before the Board because the complainant was not entitled to challenge referrals which had no effect on the complainant's entitlement to referral. With respect to item IV, counsel asserted those impugned referrals were also beyond the scope of the original complaint filed with the Board. With reference to. one referral, Tegosh, counsel informed the Board that the issue of referrals of stewards was presently before another panel and, at least, the Board should await that decision.
6The complainant's representative agreed that there was nothing unique about the Tegosh referral, i.e., that the issue was solely a referral of a steward. Beyond that, however, the complainant's representative opposed the positions taken by counsel for the respondent.
7Before the interim decision in this matter was released, the Board received the following letter from the complainant's representative.
An explanation is requested as to why the Council [sic] for the respondent did not comply with the information requested under the subpoena which was served to the respondent on December 27, 1984.
This question arose during the course of the hearing held in the city on April 23, 1985. We do realize, from the March 7, 1985 correspondence that an argument was brought forward for the respondent.
However, the requested information is by no means something which the respondent does not have or is incapable of providing.
We ask that this information now be ordered to be released and provided to the complainant.
We are reviewing information which was obtained under subpoena from the employers to determine if further violations of the complainant's rights to be referred by virtue of his position on the out of work list has taken place. Once this has been completed, we shall advise the Board.
There is no fact to the March 7, 1985 statement under schedule (A) by Counsil [sic] for the respondent that the information requested on August 21, September 13, September 26 and October 25 (two letters) was previously provided.
We note the enclosure forwarded with your letter of March 22, 1985 given under authoritative signature as therefore, being proper and acceptable.
8A copy of that letter was forwarded to the respondent and the following reply received:
We are in receipt of a letter dated May 2, 1985 from the Board Registrar
enclosing a letter dated April 29, 1985 from the Representative of the Complainant.
As acknowledged in the said letter, the Board dealt with the adequacy of the information provided to the Complainant and/or his Representative at the hearing held on April 23, 1985. At that hearing the Representative on behalf of the Complainant acknowledged that the information obtained in the letter from our offices dated March 19, 1985 satisfied all requests for information required by the Complainant. Further, the Board stated that its decision arising from the April 23, 1985 hearing would specifically rule upon the scope of the Complaint and in particular the issue dealing with a denial of information.
Accordingly, it is our position that the letter dated April 29, 1985 from the Representative of the Complainant is highly improper and attempts to influence the Board in the course of its decision-making process by renewing a request for information stated to be satisfied at the hearing and further to be the subject matter of the Board's pending decision.
Should the Board require further explanation in this regard, do not hesitate to contact the writer.
9The Board first intends to deal with the preliminary objections raised by counsel for the respondent and then with the above letters.
10There is no objection that the issue of the alleged denial of information is properly before the Board. The Board recognizes that some of the elements of this allegation may not have been particularly clear (e.g., the right to purchase the first four sheets of the computer list). However, this element is part of the interaction between the parties dealing with the requested information. The Board, then, shall hear evidence relevant to item I. At this point, it is also appropriate for the Board to note that, on review, the facts agreed upon the parties were so few and so integral to points about which there was still dispute that the Board considers that hearing viva voce testimony is the most expeditious manner of introducing the evidence.
11With respect to item II, the Board also considers that this matter was sufficiently raised by the date of the hearing that the Board should proceed to hear evidence as to the alleged qualifications of the complainant as a cement finisher and the alleged refusal of the respondent to recognize those qualifications. The Board's decision to hear the evidence dealing with this allegation, however, does not preclude the parties from addressing the question of the appropriate remedy, and any limitations thereon, if the allegations are substantiated.
12The Board, though, does not regard item III as a matter which the complainant can properly challenge. The positions to which Boyer and Suppa were referred required skills as a form builder/setter; the complainant is not so qualified. Moreover, both Boyer and Suppa were below the complainant on the out-of-work list and were returned to a position below him. The referrals of these men, then, did not affect the complainant's statutory rights. The duty owed by the respondent to the complainant under section 69 of the Act is not a springboard enabling the complainant to challenge referrals except those in which he has a legal interest. The complainant may well be dissatisfied with the respondent's executive, by-laws, procedures, etc. The Board, however, is not the forum for dealing with those dissatisfactions. In short, the complainant's entitlement to be referred to positions for which he was qualified is not affected by the return of Boyer and Suppa to the positions on the out-of-work list they had occupied before the company refused to hire them. The Board, then, will not deal further with these allegations.
13Item IV challenges a number of referrals. The Board finds that the reasoning in the preceding paragraph is applicable to the referral of Agawa. Accordingly, the Board will not deal further with that referral. With respect to the referral of Sayers, the complainant has not given sufficient particulars to indicate the basis of the challenge to the referral. The Board, then, is not prepared to hear evidence concerning this referral either. Equizi, however, was first on the out-of-work list, referred to a job and returned to the top of the list. The respondent's position is that Equizi refused the referral for health reasons. Because Equizi was returned to a position above the complainant, if the complainant does not accept the respondent's explanation, the complainant is entitled to challenge the respondent's placement of Equizi and the Board will hear evidence on this issue. The Board intends to defer consideration of the Tegosh referral until a similar issue is dealt with by another panel of the Board. At that point, the complainant may raise the matter before this panel; the appropriateness of this panel dealing with the Tegosh referral will be dealt with at that time. Finally, the Board intends to defer hearing evidence on all of the remaining referrals of cement finishers listed in item IV until the Board has decided the matters in item II. [These referrals include: Dilollo, Pedalino, Posteraro, Thrrugeu, Martin, Trunzo, Quintinho, Ball.] Specifically, if the Board finds no violation of the duty of fair referral in the refusal of the respondent to classify the complainant as a cement finisher, the impugned referrals are not properly before the Board, for the reasons set out earlier. Further, if the allegations in item II are upheld, the question of the appropriate remedy may well affect the Board's decision whether to hear evidence about the impugned referrals of cement finishers.
14The Board now turns to the letter from the complainant's representative dated April 29, 1985 and that of counsel for the respondent dated May 30, 1985. With reference to the subpoena duces tecum, the Board points out that it indicated at the hearing that the procedure outlined in Shaw-Almex Industries Limited, [1984] OLRB Rep. Apr. 659 was not appropriate in the circumstances and that the complainant could raise the issue at the appropriate point in the continuation of the hearing. Further, the Board reminds the complainant and his representative that the Board indicated at the hearing that it was not prepared to permit additional referrals (beyond those already listed and, of course, subject to the ruling on the respondent's objections) to be challenged in these proceedings. Finally, the Board would caution the complainant and his representative that the parties made their submissions on the preliminary objections at the hearing; the Board is not prepared to receive additional submissions outside the hearing unless the Board directs that written submissions are to be filed with the Board.
15To summarize, on continuation of the hearing, the Board will proceed to hear evidence relevant to:
(a) item I, the alleged denial of information;
(b) item II, the alleged qualifications of the complainant as cement finisher and the alleged refusal of the respondent to acknowledge that qualification on the complainant's request so that the complainant could be referred to positions as cement finisher to which he would be entitled by virtue of his position on the out-of-work list.
16The Board will defer consideration of item IV, as restricted to the referrals of Tegosh and those referred as cement finishers, pending the determinations noted in paragraph 13.
17For clarity and to avoid possible confusion and delay at the next hearing date, the Board herein sets out those matters on which it will not hear evidence:
(a) qualifications of the complainant other than his alleged qualification
as cement finishers;
(b) referrals of individuals other than those listed in item IV;
(c) referrals of those listed in items III and IV, except Tegosh and those referred as cement finishers (and the Board has deferred consideration of these noted referrals). The Board further finds that the complainant has waived his right to reassert a challenge to any referrals mentioned in the correspondence between the parties which have been filed as exhibits, except those individuals listed in item IV.
18For the record, it is appropriate to note the following undertakings by the complainant and his representative: to return any documents not introduced as evidence but given to the complainant and/or his representative by persons served with a subpoena duces tecum, at the conclusion of these proceedings before the Board; beyond these proceedings, not to disclose or make other use of such material; to deliver the material to the respondent so that the respondent may make a copy of such material, in the presence of the complainant and/or his representative, at the respondent's cost.
19This matter is hereby referred to the Registrar to schedule consecutive continuation dates.