[1998] OLRB REP. MAY/JUNE 489
3782-97-U United Brotherhood of Carpenters and Joiners of America, Local 1072, Joe Almeida, and Cathy Smith, Applicants v. United Brotherhood of Carpenters and Joiners of America on their own behalf and as Trustee of United Brotherhood of Carpenters and Joiners of America, Local 1072, Responding Party v. United Brotherhood of Carpenters and Joiners of America, Local 1072, Intervenor
BEFORE: Robert Herman, Alternate Chair.
APPEARANCES: L. A. Richmond and J. Almeida for the applicants; Harold F. Caley and F. Manoni for the responding party; Marisa Pollock and Tony Ornelas for the intervenor.
DECISION OF THE BOARD; May 14, 1998
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 alleging a breach of section 89 of the Act. The applicants seek to challenge the continued exercise of supervision or control over Local 1072 (they allege) after a trusteeship earlier imposed has expired.
In the decision provided orally at the conclusion of the hearing, the application was dismissed, for failing to disclose a prima facie case. The Board's written reasons for that decision follow.
Section 89 of the Act reads as follows:
(1) A provincial, national or international trade union that assumes supervision or control over a subordinate trade union, whereby the autonomy of such subordinate trade union, under the constitution or by-laws of the provincial, national or international trade union is suspended, shall, within 60 days after it has assumed supervision or control over the subordinate trade union, file with the Board a statement in the prescribed form, verified by the affidavit of its principal officers, setting out the terms under which supervision or control is to be exercised and it shall, upon the direction of the Board, file such additional information concerning such supervision and control as the Minister may from time to time require.
(2) Where a provincial, national or international trade union has assumed supervision or control over a subordinate trade union, such supervision or control shall not continue for more than 12 months from the date of such assumption, but such supervision or control may be continued for a further period of 12 months with the consent of the Board.
The application arises in the context of a dispute between the United Brotherhood of Carpenters and Joiners of America (the "International", or "United Brotherhood") and Local 1072 of the International, or at least, some individuals associated with Local 1072, Joe Almeida and Cathy Smith.
This application is not the first complaint made to the Board about the ongoing feud between these two unions, or some of their members. Local 1072 and Almeida (but not Smith) filed an earlier application with the Board, challenging a trusteeship imposed by the International, and alleging a breach of, amongst other sections, section 149 of the Act. In a decision issued October 29, 1997 ([1997] OLRB Rep. Sept./Oct. 942), the Board concluded that the "Bill 80" provisions of the Act (sections 145-150) were not available to Local 1072, as that Local did not qualify as a "trade union" within the meaning of section 126 of the Act, a prerequisite to the bringing of such an application. That application was ultimately dismissed.
The instant application was filed on January 15, 1998. In addition to naming as applicants Local 1072 and Joe Almeida, the same two applicants from the previous application, Cathy Smith was also named as an applicant.
The applicants assert that Local 1072 was placed under trusteeship effective December, 1996, by the General President of the United Brotherhood, and Frank Manoni was appointed to be the supervisor for Local 1072. At the time of the imposition of the trusteeship, Almeida was the Acting President and Business Manager of Local 1072, and Smith was the Vice-President.
The applicants submit that on December 4, 1997, a business representative of Local 1072, acting under the authority of Manoni, sent a Convention call to members of Local 1072, setting up a meeting for December 20, 1997, at which there would be an opportunity to nominate and elect officers of Local 1072. Almeida attended at that meeting and indicated that he would be seeking the nomination of Business Manager. Upon learning that Almeida intended to run for election, Manoni cancelled the elections and told Almeida that he was not eligible to run. Immediately after the meeting, it is asserted, Manoni purported to have appointed an Executive Board for Local 1072. Manoni did not indicate when elections might be held.
With respect to the trusteeship imposed on December 17th, 1996 (there may be some dispute as to whether the trusteeship was imposed on December 17th, or two days later, on December 19th, but nothing turns on this), no application for an extension of that trusteeship has been filed with the Board, whether prior to or after December 17, 1997. Nor is it asserted by any of the parties that the International has in any formal manner sought to extend its trusteeship of Local 1072 beyond one year from December 17, 1996. The applicants do assert that Manont and the United Brotherhood continue to exert "de facto" or actual control or supervision over Local 1072, even though more than one year has passed since the imposition of the trusteeship, and even though the Board has not given permission for an extension of that trusteeship beyond its initial one year period.
The applicants allege that the above described actions are in breach of section 89 of the Act. By way of relief, they seek a declaration that the trusteeship ended on December 17, 1997, and is of no force and effect thereafter, an order reinstating the Executive Board and Business Manager of Local 1072, as they existed on December 16, 1996, and an order that the International, and its agents, officers, employees and representatives cease and desist from exerting any supervision or control over Local 1072, and any other relief as may be appropriate.
At the commencement of the hearing, there was a dispute over Local 1072's position in this application, and who was entitled to speak on its behalf. Local 1072 is named as an applicant in the application form, and Mr. Richmond advised that he appeared on its behalf, and on behalf of the other two named applicants. Appearing on the instructions of the Acting President of Local 1072, Ms. Pollock asserted she represented Local 1072, and Local 1072 objected to being named as an applicant, and objected to Mr. Richmond purporting to speak on its behalf. For ease of reference, as two groups claim to speak for Local 1072 and take different positions, the style of cause and appearances set out above identify Local 1072 as an applicant, since it is named as such in the application, and as an intervenor, referring to it as represented by Ms. Pollock. There is no other significance to be attached to the fact that Ms. Pollock's client is noted as an intervenor.
As do the other parties, the intervenor agrees that the formal trusteeship has ended. It notes that the instant application was filed after the expiry of the trusteeship, but without the permission of Local 1072, and without its authorization or instructions to name it as an applicant. Since no trusteeship was in effect when this application was filed, the Acting President of Local 1072 is the officer entitled to speak on its behalf. He has not, it is asserted, authorized the filing of the instant application.
It was unnecessary for the Board to deal with this dispute over who was entitled to speak for Local 1072, and whether it was properly named as an applicant, since the Board was in any event able to deal with the preliminary issue of whether a prima facie case existed. Whoever was authorized to speak for Local 1072, Almeida and Smith were entitled to speak for themselves, and were themselves applicants. Therefore, the question as to whether a prima facie case existed would not be affected by the resolution of the issue over Local 1072's standing and who spoke for it.
The Board turns now to the question of whether a prima facie exists. In considering this issue, the Board accepted the facts as pleaded by the applicants.
The facts of particular relevance can be easily summarized. A trusteeship was imposed on December 16, 1996. The International took no formal or legal steps under its constitution or otherwise to extend that trusteeship beyond one year after it was imposed, nor did any party request of the Board that the trusteeship be extended beyond one year from its imposition. Notwithstanding this, the International (through the actions of Manoni and others) has in fact continued to act as if the trusteeship was still legally in effect.
Do these facts raise an arguable case that there has been a breach of section 89 of the Act? They do not.
The applicants argue that section 89 applies not only to "trusteeship" contexts, but to all scenarios where a trade union has "assumed supervision or control" over a subordinate trade union. Thus, the applicants assert, section 89(2) of the Act applies on its face to the de facto, but unlawful, supervision or control of Local 1072 that continues to be exerted by the International. Section 89 gives the Board an authority to inquire into complaints, they submit that a union is being supervised or controlled without a formal trusteeship or receivership (or any other form of supervision or control) having been imposed or exercised.
The language of sections 89(1) and (2) illustrates the limited role to be played by the Board in supervising internal union events in these contexts. There is nothing novel in this proposition.
The union initiating the supervision need not, and indeed cannot, ask the Board for permission or authority to impose the supervision. Section 89(1) does not give the Board authority to approve or disapprove of the trusteeship first imposed, nor any authority to monitor the trusteeship during its first twelve months. The very limited role of the Board when the trusteeship is first imposed is clear: the Board can ensure that the supervising union has filed the information required by section 89(1), or that further information, as the Minister may require, is also filed.
Under section 89(2), when or if the union that imposed the supervision or control requests of the Board an extension beyond the initial twelve month period of the supervision, the Board has a discretion to approve continuation of the supervision for a further period of twelve months. Without the Board's consent to extend, the effect of section 89(2) is that the supervision is automatically terminated twelve months after it was imposed. Section 89(2) is mandatory in this respect, and the supervision ends automatically, by operation of law, if consent is not granted by the Board. There is no requirement for a union, or anyone, to file an application with the Board to terminate a trusteeship at the expiry of twelve months after it was imposed. Such an application would be redundant, since the trusteeship terminates without Board intervention, through the operation of section 89(2).
With one recent exception, the Board's jurisprudence reflects this approach: see, for example, Local Union 1946 of the United Brotherhood of Carpenters and Joiners of America, [1976] OLRB Rep. Feb. 10; Operative Plasterers' and Cement Masons' International Association of the U.S.A. and Canada, [1978] OLRB Rep. Mar. 223; Canadian Chemical Workers Union, Local 28, [1978] OLRB Rep. June 499; United Brotherhood of Carpenters and Joiners of America, [1980] OLRB Rep. Oct. 1568; International Association of Bridge, Structural and Ornamental Iron Workers, [1992] OLRB Rep. May 584 and International Brotherhood of Electrical Workers, [1996] OLRB Rep. Apr. 244.
The single exception would appear to be the recent decision in Local 10 of the International Union of Bricklayers and Allied Craftworkers (Board File No. 2334-96-T dated October 7, 1997, unreported), where in a short decision the Board wrote as follows:
This is an application brought by International Union of Bricklayers and Allied Craftworkers ("International") requesting that the Board extend the receivership imposed on the International Union of Bricklayers and Allied Craftworkers, Local 10 pursuant to section 89(2) of the Labour Relations Act, 1995 ("Act").
A hearing was held on September 29, 1997 and at the end of the hearing the Board made the following oral decision which is reproduced below:
This is an application brought pursuant to section 89(2) of the Labour Relations Act, 1995, requesting that the supervision be continued until a decision is made in Board File No. 1689-96-U.
The receivership has for the past eight months concerned itself with periodic meetings between the International Union and the Local to review the financial situation of Local 10.
The International's request is made in the context of the fact that since at least August 1996 the Local has run its financial affairs in a proper manner.
The application arises in an unusual set of conditions in that the Bill 80 case in Board File No. 1689-96-U is ongoing. It is that case which will deal with all the issues that led to the supervision in the first place.
In light of all the circumstances in the case before me and in particular to allow vice-Chair Petryshen who is hearing the case in Board File No. 1689-96-U all the latitude to deal with any and all remedies if any in the case before him, I would limit the supervision to one meeting every two months to deal with financial issues only. These meetings may be cancelled on a consent basis between the parties.
This order is to run until the issuance of the decision by Vice-Chair Petryshen in Board File No. 1689-96-U.
Should the parties request an elaboration on the reasons above they may do so after the release of the decision in Board File No. 1689-96-U.
This decision is of little assistance, as it does not set out the factual context of the issue, nor does it offer any guidance as to the jurisdictional basis for the orders made therein.
By virtue of section 89(2), the trusteeship in question automatically ended twelve months after it was first imposed. The instant application was brought after the trusteeship was thus terminated. There can therefore be no arguable case for the application of sections 89(1) or (2). If the United Brotherhood continues to exert de facto control or supervision over Local 1072, it is doing so without the authority of a legally imposed trusteeship, supervision or control. The Board notes that the United Brotherhood has not asserted or claimed in this application any legal entitlement to exercise de facto supervision or control, beyond the expiry of the twelve month period after December 17, 1996.
For these reasons, the application was dismissed.