0560-01-U Luigi Crolla and Joseph Degan, Applicants v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Michael Yorke and Ucal Powell, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; May 29, 2001
This is an application under section 96 of the Labour Relations Act, 1995, S. O. 1995, c. 1, as amended, (the “Act”) in which the applicants allege that the responding parties have filed charges against them and initiated trial proceedings under the constitution of the United Brotherhood of Carpenters and Joiners of America (the “Carpenters”) because the applicants voted against Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America (“Local 27”) in an application for certification that Local 27 filed in respect of Vanbots Construction Corporation (“Vanbots”) in relation to all sectors of the construction industry except the industrial, commercial and institutional sector in Board Area 8.
The two applicants are members of Local 27 and of the Carpenters and were the only employees working for Vanbots in the bargaining unit on the date of that application for certification. When the two ballots cast in the representation vote were counted, both ballots were marked against Local 27. The ballots were counted in November, 2000. The Board, by decision dated January 15, 2001 dismissed the application for certification by Local 27. On February 27, Michael Yorke, the recording secretary of Local 27 advised Ucal Powell that the executive of Local 27 had charged the applicants with violating the constitution of the Carpenters by reason that they had both “…voted against the Union, thus causing the company to remain non union in the residential sector.”
Counsel for the applicants seeks an early hearing of this matter on the grounds that there are no facts in dispute. The Board notes that although the response denies all of the facts alleged in the application, it does not appear to take issue with the essential facts pleaded by the applicants. Indeed, the applicants attached the letter dated February 27, 2001 to their application and the respondents state in schedule A, paragraph 3 of their response:
The Applicants are Union members and are governed by the terms and conditions of the Union’s Constitution and By-laws. Membership in a trade union involves certain benefits and certain obligations and the members of a trade union agree to follow the rules and regulations of the trade union. The Applicants in this case exercised their right to vote in the certification application free of any undue influence from the trade union. Members are expected to advance the institutional interest of the trade union and as the primary function of a trade union is to represent its members in a collective bargaining regime, the members have an obligation to advance this goal. Where this goal is thwarted by the actions of the members, the trade union is entitled to address this matter through its internal mechanisms.
Thus it appears that the responding parties acknowledge that they are taking action against the applicants because the applicants voted against Local 27 in a representation vote ordered by the Board. The responding parties’ submissions assert that taking action against the applicants under the constitution of the Carpenters for that reason is not contrary to the Act.
The applicants assert in a letter to the Registrar dated May 28, 2001 that a trial of the charges is to be held June 4, 2001. A notice of the trial was attached to that letter. They also assert that the responding parties are seeking to have the applicants expelled from membership in Local 27, thereby displacing them from their current employment. They request that the Board schedule a hearing of this matter immediately, or by June 4, 2001 at the latest, or in the alternative, issue an order (presumably on an interim basis) to cease and desist from taking action against the applicants.
The Board has not had power to issue the kind of interim relief or to make the orders sought by the applicants prior to a hearing of this matter since the amendments to the Act contained in Bill 31 that were effective at the end of June, 1998.
The Board accepts that the applicants will be seriously affected should the responding parties proceed with the trial, find the applicants guilty of the charges and impose penalties upon them that would deprive them of their membership in Local 27. The applicants allege that the conduct of the responding parties is contrary to sections 74, 76 and 87(2) of the Act. Should the applicants be expelled from membership and thereby lose their employment because the responding parties have required the applicants’ employers to discharge them, section 50(2) of the Act may have a bearing on the matter as well.
The responding parties assert that the application has failed to make out a prima facie case. In my view, it is not “plain and obvious” (see Corporation of the County of Brant, [2000] OLRB Rep. Nov/Dec. 1106) that charging a union member under the union’s constitution which could result in expulsion or some other penalty because that union member voted against the union in a representation vote is not imposing a penalty on that person because he or she has participated in a proceeding under the Act or is not seeking by intimidation to have a person refrain from exercising a right under the Act. Thus, given the heavy burden a responding party must meet before the Board will dismiss an application for failing to disclose a prima facie case, I am not satisfied that the responding parties have discharged that burden.
The Board cannot order the responding parties not to proceed with the trial scheduled for 6:00 p.m. June 4, 2001 at this time. The Board, can however, deal with the consequences of that trial should those consequences be a violation of the Act and affect the applicants’ employment. The Registrar has advised me that the earliest that this matter can be scheduled for hearing is Tuesday, June 5, 2001. Therefore, this matter is referred to the Registrar to be listed for hearing on Tuesday, June 5, 2001, commencing at 9:30 a.m. local time at the Board’s hearing room, 505 University Ave., 2nd Floor, Toronto.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board