Calogero Mattina v. Labourers' International Union of North America, Ontario Provincial District Council, 1990 CanLII 5629

Ontario Labour Relations Board

[1990] OLRB Rep. December 1293

0248-90-R Calogero Mattina, Applicant v. Labourers' International Union of North America, Ontario Provincial District Council on behalf of its affiliated Local Unions 183, 247, 491, 493, 506, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089, Respondents v. Inzola Construction (1976) Limited, Intervener

BEFORE: Owen V. Gray, Vice-Chair, and Board Members, R. W. Pirrie and P. V. Grasso.

APPEARANCES: Michael Horan and Calogero Mattina for the applicant; Elizabeth Mitchell, Peter Treacy and Bob Maskey for the respondents; Joseph Tascona and Sam Cutrazzola for the inter­vener.

DECISION OF THE BOARD; December 13, 1990

1. On April 25, 1990, Labourers' International Union of North America, Ontario Provin­cial District Council ("the Labourers' OPDC") applied for certification as exclusive bargaining agent of labourers employed by Inzola Construction (1976) Limited ("Inzola"). One of those employees, Calogero Mattina, opposed that application. The Board found his evidence unreliable and refused to give weight to the petition he filed. On January 18, 1990, the Board granted two certificates pursuant to subsection 144(1) of the Labour Relations Act ("the Act"): one to the Labourers' OPDC and all of its affiliated bargaining agents for a province-wide unit of labourers employed by Inzola in the industrial, commercial and institutional ("ICI") sector of the construc­tion industry and one to the Labourers' OPDC for a unit of labourers employed by Inzola in all other sectors of the construction industry in Board Area 8. On April 25, 1990, Mr. Mattina filed this application under section 57 of the Act for a declaration terminating the bargaining rights granted in those certificates. The application was adjourned sine die for a time on consent of the parties and was recently listed for hearing at the applicant's request.

2. The respondent says that it has made no collective agreement with the employer with respect to the non-ICI bargaining unit and submits that this application is therefore untimely with respect to that unit, having been made less than 6 months after certification was granted: ss. 57, 123(1) of the Act. The applicant does not dispute either the assertion or the submission. Accord­ingly, this application is dismissed with respect to the respondent's non-ICI bargaining rights.

3. Although the application only named the Labourers' OPDC as respondent, all of the affiliated bargaining agents of the Labourers' OPDC holding bargaining rights in the ICI sector were given notice of this application, and counsel appearing for the Labourers' OPDC confirmed that she represented all of the affiliated bargaining agents in this proceeding. The title of this pro­ceeding has been amended to name as respondents all of the trade unions whose bargaining rights in the ICI sector are affected by this application.

4. This application was filed within the last two months of the term of the ICI sector prov­ince-wide collective agreement by which Inzola and its employees in the ICI sector became bound when the Labourers' OPDC and its affiliated bargaining agents were certified. Insofar as it affects the bargaining unit described in that agreement, the application satisfies the timeliness require­ments of subsection 57(2)(a) of the Act. The respondents say that we have a discretion to refuse to entertain this application, and should exercise the application in their favour because of the short period between the date of certification and the date on which this application was filed. Their counsel argued that we get this discretion under clause 103(2)(i) of the Act or, alternately, under "the sections which allow the Board to control its own process."

5. Section 103 of the Act provides, in part, as follows:

103.-(1) The Board shall exercise such powers and perform such duties as are conferred or imposed upon it by or under this Act.

(2) Without limiting the generality of subsection (1), the Board has the power

(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain an application by an unsuccessful applicant or by any employ­ees affected by an unsuccessful application or by any person or trade union representing such employees within any period not exceeding ten months from the date of this dismissal of the unsuccessful application;

The Board's discretion under clause 103(2)(i) to refuse to entertain an application arises only if the person bringing the application was an "unsuccessful applicant" or any of the employees affected by it were affected by an "unsuccessful application" within the previous 10 months. It is apparent from the language of the clause that an "unsuccessful application" means an application which was dismissed, and that "unsuccessful applicant" has a corresponding meaning.

6. The previous proceeding on which the respondents rely is their certification application. That application was not "unsuccessful" in the sense intended by clause 103(2)(i), because it was not dismissed. While the applicant here was a party to the previous application, he was not an applicant; he was an opponent of the trade union's application.

7. In Cara Operations Limited (Retail Stores Division) (Board File #2329-84-R, decision dated June 11, 1985, unreported), a trade union applied for certification for a unit for which it had just lost bargaining rights in a representation vote conducted in a termination application brought by one of the employees in the unit. Although it was suggested that the Board could and should refuse to entertain the trade union's application, the Board there concluded that clause 103(2)(i) did not give it a discretion to do so, because there, as here, the prior application was not "unsuc­cessful", nor had the trade union been the applicant in the prior application.

8. In R.L.D. Electric, [1986] OLRB Rep. Aug. 1145, the Board dealt with a termination application filed 9 days after the disposition of proceedings in which the respondent trade union's application for certification was granted and an employee association's application for certification by intervener was dismissed. The termination application was timely, because it had been filed in the open period of the applicable ICI provincial agreement. The Board exercised its discretion under clause 103(2)(i) to refuse to entertain the application, because it felt there had not been suf­ficient time for the trade union to develop a viable collective bargaining relationship. In the course of its analysis, it clearly noted (at paragraph 18) that "but for the Association's unsuccessful certifi­cation application, the Board would not have any power to refuse to entertain the termination application."

9. The Board's statutory powers to determine its practice and procedure do not give it the discretion to refuse to entertain an application which the Act requires it to entertain. Like its pro­visions for certification applications, the Act's provisions for termination applications are in man­datory terms. Subsection 57(3) says that "upon an application under subsection (1) or (2) the Board shall" make certain determinations. If it finds that not less than forty-five percent in the bar­gaining unit have voluntarily signified that they no longer wish to be represented by the trade union, the Board "shall" conduct a representation vote. If a majority of ballots cast are marked in opposition to representation by the trade union, subsection 57(4) provides that the Board "shall" declare that the trade union no longer represents the employees in the bargaining unit.

10. While other criteria might have been chosen and other verbal formulae might have been employed, the Legislature used very clear language in clause 103(2)(i) to describe the circum­stances in which it intended that the Board have a discretion to refuse to entertain an application which it would otherwise be obliged to entertain. That language does not apply here. There is no prior "unsuccessful application." Accordingly, we do not have the discretion to refuse to entertain this application.

11. There were three employees in the ICI bargaining unit on the application date. June 4,

1990 was the terminal date fixed for this application. That is the date which we determine, under clause 103(2)(j) of the Act, to be the time for ascertaining employee wishes under subsection 57(3) of the Act. As of that date, all three of the aforesaid employees had signed a document, hereafter referred to as "the petition", stating that they no longer wish to be represented by the respon­dents. If we find that this document represents a "voluntary" expression of the wishes of those employees, we must direct that a representation vote be conducted.

12. As we have already noted, the applicant relied on a petition during the proceedings which led to the certification of the respondents. Those proceedings took place before another panel of the Board ("the certification panel"). As appears from the certification panel's decision of January 18, 1990 (reported at [1990] OLRB Rep. Jan. 53), that panel was at first inclined to treat that petition as voluntary, and directed that a representation vote be conducted. Before the vote was conducted, however, the panel scheduled another hearing to hear evidence that Mr. Mattina had lied to the Board when he said the petition had been prepared by his daughter and had admit­ted his lie in a lengthy telephone conversation with a union business agent, Ed Ferreira, after the hearing at which the vote was ordered.

13. Paragraph 13 of the certification panel's decision records that at that hearing Mr. Mat­tina admitted that he had lied in earlier testimony. Because of the reliance the respondents placed on the earlier proceedings, we set out here everything the certification panel had to say about the lie, the telephone conversation and the petition:

14. At the hearing, the petitioner admitted to the Board that he had lied while giving testimony under oath at the earlier proceeding. Specifically, the petitioner admitted that he had lied when he stated that his daughter wrote the petition when, in fact, the petition was written by N. Fityani. N. Fityani was one of those initially challenged as managerial by the applicant, although that challenge was later withdrawn. The Board heard testimony from E. Ferreira, the appli­cant's business agent, as well as the petitioner. E. Ferreira testified as to the content of the tele­phone conversation with the petitioner on November 22, 1989. In addition, the Board heard a tape recording of that conversation made by E. Ferreira without the knowledge of the peti­tioner. The conversation lasted approximately one hour. A transcript of the tape was provided to the parties and the Board for ease of reference. Notwithstanding the petitioner's acknowl­edgement that he had lied to the Board and had admitted his lie to E. Ferreira in that telephone conversation and the petitioner's admission that it was his voice on the tape, the petitioner per­sisted in his position that some portions of the tape were omitted, that the tape was "fixed" that he was under the influence of alcohol at the time and that he had been "set up" by E. Ferreira. In this latter regard, it was also conceded by the petitioner that it was he who initiated the tele­phone contact with E. Ferreira.

15. Following the evidence and representations, the Board gave the following oral ruling:

The petitioner has admitted he lied to the Board when he testified under oath that his daughter wrote the petition. In fact, as the petitioner stated today and in the tele­phone conversation with E. Ferreira, N. Fityani wrote the petition. The Board further finds that E. Ferreira is a credible witness and his testimony is corroborated by the tape of the telephone conversation. Quite simply, the petitioner's assertions that the tape was "fixed" and that the initial portion of the conversation was omitted are entirely implausible. In the Board's view, the petitioner lied to the Board before (as he admitted) when he thought that was in his best interest and has not been truthful today in his attempt to explain E. Ferreira's account of the conversation and the tape. In the circumstances, the Board considers that the petitioner's explanation for the origination and circulation of the petition cannot be relied upon. As the Board noted in its oral ruling, the issue of credibility in a one-person petition is critical. At the time of the initial oral ruling, the evidence before the Board led to the conclusion that the petition was voluntary. Given the petitioner's admission that he lied and the Board's conclusions with respect to the petitioner's credibility in the proceedings today, the Board is faced with an absence of credible evidence from the petitioner. Accordingly, the Board considers that the petitioner has not satisfied the onus of establishing the petition is voluntary.

The Board, therefore, will give no weight to the petition and, given the level of mem­bership support enjoyed by the applicant, the Board certifies the applicant for the bargaining unit set out in its earlier decision.

14. Mr. Mattina testified before us with respect to the origination and circulation of the petition filed in support of this application. He said that he was mad after the certification panel made its decision, and sought legal advice about how to deal with it. He went to his real estate law­yer, who sent him to another lawyer. He was dissatisfied with that other lawyer after dealing with him for a while, so he asked another bargaining unit employee whether he knew of a lawyer. After a couple of days, the other employee gave him the name of his present counsel. His present coun­sel gave him advice about instituting these proceedings, and prepared the petition document. According to Mr. Mattina, he and the other two signatories signed the document during their cof­fee break in a coffee shop near their work place. Mr. Mattina said no members of management were present at that time and he did not discuss the application with any member of management at any point.

15. During cross-examination of the applicant, his counsel objected to questions about the petition in the certification application as irrelevant. We do not propose to record here the precise questions objected to or the specific rulings we made. We do wish to note that in dealing with those objections we were guided by a view of relevance which was expressed this way in Fram Canada Inc., [1989] OLRB Rep. Feb. 133:

16. We have no difficulty at all with the abstract proposition that the circumstances surrounding the prior circulation of a document opposing trade union representation are relevant to the Board's assessment of the "voluntariness" of a different and subsequent document filed with the Board in connection with a certification or termination proceeding. That is not to say that the "voluntariness" of signatures on the earlier document becomes a relevant question. The volun­tariness of the document filed with thee Board and relied upon by the objectors is still the issue. The circumstances surrounding the earlier document are relevant only to the extent they bear on the question whether the subsequent document is reliable evidence of the true wishes of those who signed it. It is unnecessary to elaborate all the sorts of situations in which that rele­vance might arise. To take but one generic example, the circumstances surrounding the circula­tion of the earlier document might have been such as to raise in the minds of employees a rea­sonable perception (whether true or not) that management was somehow involved in the exercise and would learn from those circulating it the identities of those who did or did not sign it. A similar perception might then arise with respect to a subsequent document filed with the Board if those who had circulated the earlier document were responsible for circulating the doc­ument put before the Board.

17. It is not enough, however, to shift the focus of attention to an earlier document, find that it would not have been treated as reliable evidence of the wishes of those who signed it and then, by reason of some connection between the two documents, pronounce the one before the Board to be "tainted" or "infected" with the infirmities of the earlier one. The use of these words, with their connotations of disease and decay, carries with it the danger that they will become substitutes for thought. The question is not simply whether there is a connection to an earlier document with an infirmity but, rather, whether the nature of the infirmity and the nature of the connection support a conclusion that the document filed and relied upon by the objectors is not itself reliable evidence of the wishes of those who signed it.

18. During cross-examination, Mr. Mattina once again acknowledged that he had lied dur­ing the certification proceedings when he told the Board that his daughter had prepared the peti­tion he relied upon then. He told us that he lied because he had promised Mr. Fityani not to say anything about his involvement. When it was put to him that Mr. Fityani had then been in charge of his work, Mr. Mattina said Mr. Fityani was in charge but did labourer's work too. When it was put to him that he had described Mr. Fityani as "management" and as his "super" during his tele­phone conversation of November 22, 1989 with Mr. Ferreira, Mr. Mattina denied calling Mr. Fityani "management", and said he could not recall calling him his "super."

19. Counsel for the respondent trade union asked for an adjournment to another day, so that it could summons Mr. Ferreira as a witness with respect to the telephone conversation of November 22, 1989. She said she had not expected that Mr. Mattina would challenge the accuracy of the transcript which had been before the certification panel and, so, had not arranged for the attendance of Mr. Ferreira who, she said, was no longer an official of the union. She acknowl­edged that nothing in the certification panel's decision gave any special evidentiary quality to the portion of the transcript on which she sought to rely.

20. We rejected the adjournment request. The question whether Mr. Fityani was perceived as managerial was not an unexpected or unforeseeable one which was thrust on the respondent and caught it by surprise. On the contrary, it is a question the respondent came to the Board planning to raise. It was a question with which the certification panel had not dealt. Nothing in that panel's decision could possibly have assured the respondent that the applicant would accept the accuracy of the transcript in that regard or, indeed, on any point other than the ones he conceded before that panel. Parties are expect to prepare for hearing on the assumption that they will have to for­mally prove every element of their case which has not already been conceded by the opposite party. The Board does not adjourn proceedings to allow a party to repair inadequate preparation, except on consent of the other participants in the hearing. That consent was not forthcoming here.

21. Although the respondent did not summons Mr. Ferreira it did summons the two other employees in the unit. It did not call them as witnesses.

22. The certification panel made no finding that any member of management or person who might have been perceived by employee signatories to be a member of management was involved in the origination or circulation of Mr. Mattina's earlier petition. There is no evidence before us that any member of management or person who might have been perceived by employee signato­ries to be a member of management was involved in the origination or circulation of the petition before us. If Mr. Mattina is believed, then the petition represents a voluntary expression of the wishes of those who signed it. If that represents a change of heart by any signatory other than Mr. Mattina (who volunteered that he signed a card originally), the change was not a "sudden" one.

23. The critical question here is whether Mr. Mattina should be believed. His previous will­ingness to lie to the Board deserves serious consideration in assessing that question, but it is not conclusive. It certainly leads us to give Mr. Mattina's evidence much closer and more critical scru­tiny that might otherwise have been the case. The legal burden on the applicant remains the same, however. The burden is the civil burden, not proof beyond a reasonable doubt. The fact that Mr. Mattina once lied in similar circumstances does not mean he lied this time. There is no evidence before us from which we can conclude that he had anything to conceal. His testimony is not at all implausible.

24. On balance, we find it more likely than not that the petition represents a voluntary expression of the wishes of those who signed it. Accordingly, we direct that a representation vote be conducted among those employed by Inzola in Ontario as labourers in the industrial, commer­cial and institutional sector of the construction industry. All those so employed on the date of this decision who are so employed on the day the vote is taken will be eligible to vote. Voters will be asked whether or not they wish to be represented by the respondents in collective bargaining with their employer.

25. The conduct of the vote is referred to the Registrar.