H. John Barnes v. Labourers' International Union of North America, Local 527, 1992 CanLII 6352

[1992] OLRB Rep. June 668

1222-91-U; 2010-91-U H. John Barnes, Complainant v. Labourers' International Union of North America, Local 527; Bernardino Carrozzi, Respondents

BEFORE: Brain Herlich, Vice-Chair, and Board Members R. W. Pirrie and D. A. Patterson.

APPEARANCES: L. E. Leblanc, H. John Barnes, Manuel Martins, Jos 2i Martins and Anthony Maiheiro for the complainant; A. M. Minsky and B. Carrozzi for the respondent.

DECISION OF BRAM HERLICH, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON; June 2, 1992

1. The style of cause in this matter is hereby amended to reflect the correct name of the respondent union as: Labourer's International Union of North America, Local 527 (hereinafter referred to as the "union").

2. This is a complaint under section 91 [formerly section 89] of the Labour Relations Act alleging violation of sections 69, 70 and 71 [formerly sections 68, 69 and 70] of the Act.

3. It is common ground that this complaint is identical to a prior complaint between the same parties filed under the same provisions of the Act (Board File 1222-91-U, July 25, 1991). That complaint was withdrawn by leave of the Board in circumstances which the respondents sub­mit amounted to a final settlement of the dispute between the parties. It was not disputed that a settlement of the prior complaint would be a bar to the current proceedings. The complainant dis­putes that the events culminating in the withdrawal of the prior complaint constitute a settlement of that complaint.

4. In addition to a number of documents filed as exhibits the Board heard the evidence of Daniel Randazzo, counsel to the respondent union; Manuel Martins, a former president of the union who testified on behalf of the complainant; and of H. John Barnes, the complainant. Each of these individuals gave evidence regarding the meeting they all attended which had been con­vened by the Labour Relations Officer and which culminated in the withdrawal of the prior com­plaint. In coming to its findings of fact the Board has carefully considered all of the evidence before it and taken into account such factors as: the demeanour of the witnesses when giving their evidence, the clarity and consistency of that evidence when tested in cross-examination, the wit­nesses' ability to recall events and resist the tug of self-interest in shaping their answers, and what seems most probable in all the circumstances. Having said that, however, it is useful to point out that while there were some inconsistencies between the evidence of the complainant and the respondents (indeed, there were certain inconsistencies between the evidence of the two witnesses who testified on behalf of the complainant), we are not of the view that there were major or signifi­cant disparities in the various recountings of the events observed by the witnesses. There are, how­ever, differences in the characterizations the parties urge us to draw of the events in question and of the complainant's subjective state of mind in withdrawing the complaint.

5. The material allegations included in the prior complaint were as follows:

APPENDIX I

ON OR ABOUT MID-NOVEMBER 1990 THE GRIVOR [sic] WAS DEALT WITH BY LABOURERS INTERNATIONAL UNION, LOCAL 527; B. CARROZZI (SECRETARY-TREASURER/BUSINESS MANAGER) OF THE RESPONDENT CON­TRARY TO THE PROVISIONS OF SECTION(S) 68, 69 AND 70 OF THE LABOUR RELATIONS ACT IN THAT HE DID ON HIS OWN BEHALF OR ON BEHALF OF THE RESPONDENT:

(In reference to my complaint under section(s) 68 and 69 of the Labour Relations Act:)

Did knowingly and with intent choose to advance one Paul LeBlanc on the "Out Of Work List" ahead of myself (H. John Barnes). This advancement on the list enabled Paul LeBlanc to pro­cure gainful employment to the detriment of the Complainant.

Mr. Paul Leblanc, had been employed with BRILOCK CONSTRUCTION CO. for a period of approx. five (5) years and was terminated on or about mid-November 1990. Upon termination his name was placed on the "Out of Work List". He was on this list until approx. mid-December 1990 whereupon he was offered gainful employment as a labourer, with V. K. MASON CONST. CO. To the best of my knowledge he continues to be employed as a lab­ourer with the aforementioned company.

My complaint centers around the fact that I have been on the aforementioned "Out of Work List" since mid-July 1990 and was not offered the position with V. K. MASON CONST. CO.

(In reference to my complaint under section 70 of the Labour Relations Act;)

Did knowingly and with intent, through the use of threats of internal union charges against the complainant seek to intimidate the complainant who has been a member for seven (7) years.

These charges have never been made available to the complainant in a written format and are therefore difficult to address. The constitution of the Labourers International Union Local 527 clearly states that any member charged internally under the Union constitution has a right to due process, which includes a copy of any charges filed against him (within thirty (30) days) and a hearing.

The implication has been that should I be found guilty on any of the implied charges my mem­bership within local 527 Labourers Union would be terminated.

The insinuation on the part of the respondent that these charges are or would be forthcoming constitutes coercion and intimidation on the part of the respondent against the complainant.

The Respondents actions both in terms of his implied manipulation of the "Out of Work List" coupled with the implication that internal charges may be pending would certainly lead me to believe that some effort is being made to ensure my compliance through the use of intimidation and coercion.

6. The Labour Relations Officer authorized by the Board to inquire into the complaint and to endeavour to effect a settlement pursuant to section 91(2) Iformerly section 89(2)] of the Act convened a meeting of the parties on July 25, 1991 in Ottawa. Daniel Randazzo, union coun­sel; Bernardino Carrozzi, respondent and business manager/secretary treasurer of the union; and Gerry Mullin, recording secretary and field representative of the union were in attendance at the meeting on behalf of the respondents. Attending on behalf of the complainant were the complain­ant, Manuel Martins and Jim Krocko, a friend of the complainant. Also in attendance at the com­mencement but not for the duration of the meeting were representatives of V. K. Mason Construc­tion Co. as well as a representative of the Ottawa Construction Association.

7. The entire meeting lasted approximately 75 to 90 minutes. The complainant began out­lining his concerns with a reference to an allegation that persons were being improperly admitted to membership in the union. Mr. Randazzo objected saying that allegation was not contained in the complaint before the Board and that the union had come prepared only to deal with the con­tents of that complaint. Mr. Barnes then went on to raise matters related to the impugned referral of Paul Leblanc and also complained that he had been unable to contact Mr. Carrozzi to discuss matters. The complainant went on to refer to the internal union charges filed against him. Mr. Randazzo explained why the union felt there was no impropriety in the referral of Mr. Leblanc and provided some documentation (although it is not clear from the evidence whether these were actual documents related to the referral or simply the union's formal written reply to the com­plaint) and assured the complainant that the out of work list was not a secret inaccessible docu­ment. Mr. Randazzo further explained that the union has an "open door" policy and assured Mr. Barnes that if he made a phone call to the office an appointment could be made to meet with Mr. Carrozzi. With respect to the internal union charges, Mr. Randazzo addressed what he felt was Mr. Barnes' significant, if not primary, concern at not having received a copy of any charges. Ref­erence was made to section 2 of Article XII of the Uniform Local Union Constitution of the Lab­ourers' International Union of North America and Mr. Barnes was assured that he was entitled to and would receive a copy of any internal charges prior to any hearing and trial of those charges but that no hearing and trial had yet been scheduled.

8. After this discussion the parties were separated and the Labour Relations Officer spent 20 to 30 minutes in discussion with the complainant. When the parties subsequently reconvened Mr. Barnes indicated that he believed he was in the wrong forum. The parties subsequently exe­cuted a document jointly requesting leave of the Board to withdraw the complaint. That request resulted in the decision of the Board already referred to in which the complaint was withdrawn by leave of the Board.

9. Three days later the complainant prepared a covering letter which stated, in part:

Enclosed you will find a complaint that I am resubmitting to the Labour Relations Board. I am not satisfied that the information I was given at my initial hearing of July 25, 1991, was in fact accurate. With this in mind I have decided to ask for a new officer to look into the charges herein enclosed. These charges relate to sections 68, 69, and 70 of the Labour Relations Code [sic].

10. The complainant attached what the parties agree is a complaint identical to the prior complaint to his covering letter and filed these documents with the Board. Although the Board might have treated this as a request for reconsideration in the prior complaint, it was processed as a new matter.

11. Returning briefly to the events at the July 25th meeting, the complainant gave evidence regarding his state of mind and intention in agreeing to the withdrawal of the prior complaint. While that evidence may not all be logically consistent it is clear that he was unhappy with what he perceived to be the unwarranted lack of enthusiastic support he received from the Labour Rela­tions Officer regarding the merits of his complaint. And although he appeared to acknowledge that he could have asked that the complaint be advanced to a hearing before the Board, he also testi­fied he believed, based, at least in part, on his discussions with the Labour Relations Officer, that the only way he could have his complaint heard by the Board was to withdraw and subsequently refile it. There was, however, no evidence that he in any way expressed this view to the respon­dents and it is not surprising that at the end of the day they, as Mr. Randazzo testified, were of the view that the matter had been resolved.

12. The respondents urged us to conclude that the prior complaint had been settled and that the current matter should therefore not be permitted to proceed. They pointed to the deci­sions of the Board in Crown Electric, [1978] O.L.R.B. Rep. April 344; Bot Construction (Canada) Limited, [1982] O.L.R.B. Rep. Dec. 1811 and Madeleine Cloutier, [1988] O.L.R.B. Rep. April 375 as authorities supporting their position. The complainant did not dispute the consequences of a Board finding that the prior complaint had been settled~ but urged us not to conclude that the prior matter had been settled.

13. Having considered the evidence and the representations of the parties the Board con­cluded and ruled orally at the hearing in this matter that the prior complaint had been settled, that the preliminary objection of the respondents was upheld and that the present complaint was conse­quently dismissed.

14. This was not a case where a unilateral withdrawal is filed by a complainant prior to any formal settlement discussions. Rather, the withdrawal follows, or perhaps more accurately, is the immediate culmination of settlement discussions conducted under the auspices of a Labour Rela­tions Officer. Where a signed joint request for the withdrawal of a complaint is the immediate result of an officer's meeting, a signatory to such a request may have difficulty persuading the Board that the next step contemplated by the parties, or by any one of them, is a hearing before the Board.

15. In any event, we were unable to accept the complainant's evidence and submissions that at the conclusion of the meeting he intended to pursue the matter and that he genuinely, if mistak­enly, believed that the only manner of achieving that end was to withdraw and refile his complaint. We found that conclusion to be improbable for a number of reasons. First of all the complainant, a past president of the union, is no stranger to labour relations proceedings and the conclusion urged upon us is inconsistent with his acknowledgement that he could, on the day of the meeting, have asked that his complaint be listed for hearing before the Board. The conclusion urged upon us is also difficult to reconcile with the information provided to the complainant in advance of the July 25th meeting. The Registrar's letter advising the complainant of the appointment of a Labour Relations Officer makes it quite clear that (unless the matter is settled) a hearing will be scheduled after the meeting with the Labour Relations Officer. Finally, and perhaps most significantly, there was simply no evidence that the complainant's representative was able to point to of anything the complainant did or said during the course of the meeting that was in any way inconsistent with the conclusion that the matter had been resolved.

16. While explicit written executed settlement documents are undoubtedly a preferred set­tlement vehicle (see for example the provisions of section 91(7)), cases such as Bot and Cloutier (both cited above) make it clear that the Board may find that a complaint or a grievance has been settled even in the absence of a formal settlement document. Having reviewed the evidence before it, the Board was satisfied in this case that, at the end of the meeting between the parties on July 25th, there were no issues arising out of the prior complaint which remained to be litigated before the Board. Neither is it our primary function, in the context of this case, to inquire into the suffi­ciency of the settlement. Rather, we were satisfied that on the basis of some explanations, informa­tion, and undertakings regarding further meetings between the parties the complainant (not unlike the complainant in Cloutier) agreed to withdraw his complaint. It was for these reasons that we ruled orally that the prior complaint had been settled and consequently dismissed the present com­plaint which the parties had agreed was identical to the complaint which we found had been set­tled.

17. While not strictly necessary as the basis of our ruling an additional comment is in order. It is not in the least clear that the complainant in this case would have fared any better had the Board been convinced, as the complainant's covering letter suggests, that the prior complaint was deliberately withdrawn and refiled so as to gain access to a Labour Relations Officer perceived to be more sympathetic to the complaint's position. It is less than likely that the Board would look favourably upon a party who deliberately manipulates or arguably abuses the Board's processes in order to select or reject a Labour Relations Officer or, indeed, a panel of the Board assigned to deal with or hear a case.

18. Finally, and in fairness to the complainant, we should note that our decision in this mat­ter of course deals only with instant complaint (which the parties agreed was identical to the prior complaint) and not with any other or subsequent matters between the parties.

DECISION OF BOARD MEMBER R. W. PIRRIE; June 2, 1992

1. As indicated when the Board gave its oral ruling at the April 14, 1992 hearing, I dissent from this decision.

2. There are two aspects of the July 25, 1991 meeting which led me to the conclusion that the Board should have heard Mr. Barnes complaint.

3. First, my interpretation of the evidence we heard concerning the July 25, 1991 meeting led me to the conclusion that the initial complaint had not been settled. At that meeting Mr. Ran­dazzo, of behalf of the union, explained to the Complainant the union's procedure in using the "out of work list", and the union's interpretation of Article XII of the Uniform Local Union Con­stitution and more particularly Section II of Article 12.

4. These two areas dealt with the issues raised by the Complainant. Having done so Mr. Randazzo assumed Mr. Barnes agreed. Not the case according to Mr. Barnes, and I must agree. For example what Mr. Randazzo did concerning the second issue was explain to Mr. Barnes that in accordance with the constitution he would receive a copy of the union's charges against him when the executive board set a date for his hearing and trial. That explanation in no way addresses Mr. Barnes complaint under Section 71 (formerly Section 70), i.e. that the union was using the threat of the charges and the possibility that they could lead to the termination of his membership in the union to coerce and intimidate him.

5. In this regard, I do not take the majority's decision at paragraph 8 to prevent Mr. Barnes from filing a future Section 91 complaint against the union if the union files charges against Mr. Barnes subsequent to those extant at July 25, 1991, and Mr. Barnes feels and can demonstrate on a prima facie basis that those charges are intended to coerce and intimidate him contrary to the provisions of Section 71 of the Act.

6. Secondly, in my view there is sufficient reason to believe that Mr. Barnes genuinely misunderstood the context of the Labour Relations Officer's comments concerning "withdraw and refile" as being the appropriate course for him to follow.

7. I am satisfied there was sufficient doubt concerning the events of the July 25, 1991 meeting that I would not have upheld the union's preliminary objection.