Labourers’ International Union of North America, Local 491 v. Labourers’ International Union of North America, 2000 CanLII 10120

Labourers’ International Union of North America, Local 491 v. Labourers’ International Union of North America

Board File Nos.: 0672-00-M, 0673-00-U, 0810-00-U Date: October 10, 2000 Ontario Labour Relations Board

Between: Labourers’ International Union of North America, Local 491 and Labourers’ International Union of North America, Local 493, Applicants

And: Labourers’ International Union of North America, and Labourers’ International Union of North America, Ontario Provincial District Council, and Labourers’ International Union of North America, Local 607, and Joseph S. Mancinelli, Responding Parties

Before: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.

Appearances: Brian Shell, Barry Woodsworth and Art Adams for Labourers’ International Union of North America, Local 493 A. M. Minsky and Joseph Mancinelli for Labourers’ International Union of North America Harold Bartlett for Labourers’ International Union of North America, Ontario Provincial District Council S. B. D. Wahl and P. Little for Labourers’ International Union of North America, Local 607

Decision of the Board

1These are applications for relief under sections 96 and 98 of the Labour Relations Act, 1995, S. O. 1995, c. 1 (the "Act") arising out of the decision of the Labourers’ International Union of North America (the "International") to transfer a part of the geographic jurisdiction that was held by the Labourers’ International Union of North America, Local 491 ("Local 491") as of May 1, 1992 to the Labourers’ International Union of North America, Local 607 ("Local 607") and the International’s failure to approve the merger between Local 491 and the Labourers’ International Union of North America, Local 493 ("Local 493") that had been premised on the geographic jurisdiction of Local 491 remaining intact. Board File No. 0672-00-M is an application for an interim order under section 98 of the Act and Board File Nos. 0673-00-U and 0810-00-U are applications under section 96 of the Act alleging violations of sections 147(1) and 149(1).

2The Board, differently constituted, by decision in these matters dated September 15, 2000 discussed various approaches that the Board might take in having the issues raised in these matters dealt with expeditiously. These matters came before this panel of the Board as a consultation pursuant to section 110(18) 4 of the Act and Rules 76 and 77 of the Board’s Rules of Procedure. Nevertheless, it was left to this panel of the Board to determine what process to use in resolving the issues in these matters. When the consultation convened, the Board noted that counsel for the applicants, by letter to the Board dated June 26, 2000 sought leave of the Board to withdraw the applications in Board File Nos. 0672-00-M and 0810-00-U and to amend the application in Board File No. 0673-00-U by deleting all of the named responding parties except the International. Counsel for Local 607 asked the Board to note that in his letter to the Board dated June 27, 2000 he had objected to the withdrawal of the application against Local 607 and had sought payment of Local 607’s costs as a condition of granting leave to withdraw. Counsel also sought to be added as an intervenor in this proceeding in the event the Board permitted the withdrawal of the application against Local 607 and also wished to renew his request for costs.

3It is not at all clear that the Board has the power to refuse to permit an applicant to withdraw an application under section 96 of the Act that does not allege a violation of sections 74 or 75. The Act does give the Board power to impose conditions on a withdrawal of a complaint concerning a work assignment or concerning a trade union’s duty of fair representation and fair referral. Section 99(2) of the Act provides:

A complaint described in subsection (1) may be withdrawn by the complainant upon such conditions as the Board may determine.

(Section 99(1) refers to work assignment complaints and complaints alleging violations of sections 74 or 75 of the Act.) There is no similar provision elsewhere in the Act. Thus, it is not apparent to us that the applicants needed leave of the Board to withdraw their applications in Board File Nos. 0672-00-M and 0810-00-U as the withdrawal was sought before the hearing or consultation had been convened. See Marsand Contracting Inc., unreported decision dated September 15, 2000 in which the Board wrote:

In our view, an applicant in a section 133 proceeding does not require the Board’s permission to withdraw its application (which is what we assume counsel for the applicant meant when he said the applicant wanted leave to "withdraw the hearing") before the matter is heard. The consequence of the withdrawal in any subsequent proceeding in which the withdrawn allegations are raised is a matter for the Board in that subsequent proceeding.

The Board did not wish to receive any submissions from counsel for Local 607 with respect to his request for an order requiring the applicants to pay costs; rather counsel may renew his request at the conclusion of these matters, if he does wish to continue to press that issue.

4The applications in Board File Nos. 0672-00-M and 0810-00-U are hereby withdrawn at the request of the applicants.

5The Board, at the request of the applicants, amended the application in Board File No. 0673-00-U by deleting Local 607, Labourers’ International Union of North America, Ontario Provincial District Council (the "District Council") and Joseph S. Mancinelli as responding parties. Counsel for Local 607 sought to intervene after having had the application against it withdrawn. Counsel for the applicants objected to Local 607 being added as an intervenor. The Board determined that Local 607 had a sufficient interest in this proceeding that it ought to be permitted to intervene and therefore it was granted status as an intervenor in the application in Board File No. 0673-00-U. The District Council did not seek standing in the proceeding, but its representative remained as an observer.

6The Board received representations from the applicants, the International and Local 607 about how this matter should proceed. Counsel for the applicants contended that a full evidentiary hearing was necessary as there were many relevant and material facts in dispute and more importantly, the motivation of the International for the decision which, he submits, was at odds with the assurances the International had given the applicants for many months prior to the merger needed to be assessed by hearing the testimony of the decision makers and permitting the applicants to challenge their credibility. He also submitted that the International should proceed first with its evidence because the International had the burden of establishing just cause for its decision to change the territorial jurisdiction of Local 491. Both the International and Local 607 submitted that this matter should proceed by way of consultation with the Board receiving the factual and legal representations of counsel since the essential material facts are matters of record and are not in dispute.

7As the Board noted in its September 15, 2000 decision, the Act and the Board’s Rules permit a good deal of flexibility in how the Board is to deal with this kind of a proceeding. We were satisfied that, initially at least, we would proceed by receiving factual information by way of representations from counsel together with the documentary material supporting those representations. We also indicated that we were prepared, if absolutely necessary, to receive viva voce evidence if there were material facts in dispute and a resolution of those factual disputes was necessary for a proper determination of the issues. It seemed to us, however, from our review of the material filed by the parties that it was unlikely that we would need to receive viva voce evidence, but that it was open to any of the parties to seek leave of the Board to call evidence. We directed that this matter would proceed with the International going first to explain its decision and the reasons for its decision that this the subject of this application. The applicants would proceed next to outline their objections to the decision under attack and their reasons for asserting that the International did not have just cause. Local 607 would proceed next, with the applicants having the right to reply to Local 607 and finally the International would have the right to full reply.

8Counsel for the applicants, in the course of presenting the applicants’ position with respect to the process the Board should follow in this matter and in response to a question from the Board, submitted that in addition to the International’s decision to change the geographic jurisdiction of Local 491 (and as consequence of the steps taken by Local 491 and Local 493 to merge) and of Local 493 which was contrary to section 147(1) of the Act, the International, by refusing to approve their merger and by taking away a portion of their geographic jurisdiction, had adversely affected their economic viability and had thereby interfered with the autonomy of Locals 491 and 493 contrary to section 149(1). Counsel for Local 607 submitted that the Board should dismiss the application as it relates to an alleged violation of section 149 of the Act. The Board dismissed the motion by Local 607 and indicated that the merger issue is linked together with the issue of the transfer of geographic jurisdiction although the decision to transfer geographic jurisdiction was a discrete matter clearly subject to section 147 of the Act. The Board was not prepared at this stage to determine that the applicants’ theory of their case could not also rest on section 149 in respect of the refusal to approve the merger on the terms that had been understood by the applicants based on the representations the applicants allege they received from the International about maintaining their geographic jurisdiction.

9Counsel for Local 607 also sought to have the Board make an interim order removing the administration of the job referral system and the local union funds in respect of the geographic area in dispute from the applicants on the basis that the members (or former members) of the applicants who were supporting the transfer of geographic jurisdiction and the applicants were combatants in the litigation and therefore were subject to abuse and denial of work opportunities if the administration of those responsibilities were not moved to a neutral party, which in this case Local 607 submits is the District Council. Counsel argued that the order sought was in the nature of a procedural order within the meaning of section 98(1) of the Act and analogized it to preservation orders made to maintain the status quo in civil litigation proceedings.

10After hearing the submissions of counsel for Local 607, the Board dismissed the motion. We were not satisfied that we had the jurisdiction to make an interim order that would remove the administration of a hiring hall and certain union funds from Local 493. Section 98(1) of the Act permits the Board to "make interim orders concerning procedural matters". The Board’s limited power under section 98(1) of the Act was reviewed recently in McIntosh Limousine Service Ltd., [2000] OLRB Rep. Mar./Apr. 249. Although the party seeking the interim order in that case acknowledged that it was seeking a "substantive" and not merely a "procedural" order, the Board’s discussion about the legislative history of section 98 and its analysis of the Board’s decisions dealing with applications for interim orders are instructive. In our view, the scope of the interim remedy sought by Local 607 goes well beyond a "procedural matter" in this proceeding. Without trying to define the scope of "procedural", it seems to us that an order requiring a trade union to have its hiring hall and union funds administered by another entity is in the nature of a "substantive" rather than a procedural order. One can merely compare the order sought in McIntosh Limousine Service Ltd. which was acknowledged to be substantive with the order sought by Local 607. In McIntosh Limousine Service Ltd. the applicant sought an order preventing the responding party from transferring certain assets to a third party. In our view, the order sought by Local 607 goes well beyond that. Furthermore, while the Board understood the concerns expressed by counsel for Local 607 about the potential impact that the parties adverse in interest to the union members who support the transfer of jurisdiction can have on those members’ work opportunities, we were satisfied that if there was inappropriate conduct depriving some members of legitimate work opportunities, there were remedies available to those members under the Act, and in particular, under section 75 of the Act.

11Counsel for Local 607 made a further motion for a declaration that Local 491 had in fact ceased to exist by reason of having had all of its officers resign and its funds transferred to Local 493. He submitted that Local 493 was carrying out all of the obligations that Local 491 had without any proper authority to do so as the approval of the merger of the two locals had been halted by this application through the operation of section 147(5) of the Act. If, in fact, Local 491 had ceased to exist, not by reason of the merger but rather as a result of the resignation of its officers and the winding up of its affairs, then Local 493 could not continue to carry out the duties that were the responsibility of Local 491 as it had not been authorized by the International to do so. Those responsibilities and obligations reverted to the International. Under those circumstances, since no merger had been approved (and could not be approved because section 147(5) of the Act stopped the International’s decision approving the merger from going into effect) there was no proper basis for any application about the transfer of jurisdiction, since it had been the jurisdiction of Local 491 that was going to be transferred. That geographic jurisdiction had never been assigned to Local 493. Counsel for Local 607 once again expressed concern that the applicants were victimizing the members who supported the transfer of jurisdiction and that an immediate decision was necessary putting a stop to the applicants continuing to operate a hiring hall and administering union funds without any proper authority to do so.

12Counsel for the applicants expressed outrage at the assertion that the applicants had victimized anyone. He submitted that the applicants were maintaining the situation as it existed immediately before the impugned decision was made by the International. The applicants were challenging the International’s decision because the majority of the members of Locals 491 and 493 had voted for the merger on the basis that the geographic jurisdiction of the two locals before the merger would remain the same after the merger. That was the assurance the applicants had received from the International and had acted upon that assurance in going forward with the steps to implement the merger.

13The Board dismissed the motion made by Local 607 for a declaration that Local 491 had ceased to exist and therefore the administration of Local 491’s hiring hall and of its funds had to be taken over by the International. The Board was of the view that the steps taken by Locals 493 and 491 prior to May 15, including administering the distribution of work opportunities in the disputed geographic area, were taken in anticipation of the merger being formally approved by the International. The status quo maintained under section 147(5) is the situation as it existed on May 14, 2000, that is, the de facto administration of the Local 491 hiring hall by Local 493. Section 147(5) is, in our view, quite clear. It provides that alterations by a parent trade union shall be deemed not to be effective until the Board disposes of the matter. The change to the responsibility for the administration of the Local 491 hiring hall was effected by an arrangement between the two Locals with the acquiescence of the International pending formal approval by the International; it was not an alteration imposed by the International. The Board nevertheless notes again that any allegation of discriminatory or arbitrary conduct or bad faith actions on the part of those persons administering the hiring hall in respect of work opportunities in the disputed geographic area can be the subject of an unfair labour practice application before the Board. We also have little doubt that should such conduct or action occur, those allegations will be the subject of an immediate application under section 96 of the Act. Despite the understandable concerns express by counsel for Local 607 on behalf of those persons who rely on the hiring hall for work opportunities in the disputed geographic area who do support the transfer of that geographic jurisdiction to Local 607, there was no basis for the Board to make the interim declaration sought by Local 607 at this stage of the proceeding.

14Following further discussions among the parties, the Board, at the request of counsel for the applicants and with the consent of the International, adjourned November 10, 2000 as the applicants’ counsel was already scheduled to appear before the Board on the continuation of another matter. On agreement of the parties, the Board fixed the dates for the continuation of this proceeding before this panel of the Board.

15Counsel for the applicants requested that the Board convene in Timmins for the continuation of this matter. Counsel for the International opposed that request and indicated that there were no witnesses to be called and therefore there was no need to have the hearing move. Counsel for Local 607 agreed with the International. The Board advised the parties that in view of the impact that travelling to Timmins would have on the Board’s limited resources, the request to have the Board convene the continuation of this proceeding in Timmins (or elsewhere) on the next dates should be addressed to the Registrar who, together with the Chair, will ultimately determine whether the significant travel expense that would be incurred by having this panel travel to Timmins is justified in this proceeding.

15. This matter will continue before this panel of the Board on February 16, March 23, 26, 27 and 28, 2001. Unless the parties are notified to the contrary, the continuation of this matter will take place at the Board’s hearing room in Toronto commencing at 9:30 a.m. (local time).

"Harry Freedman"

for the Board