Ontario Labour Relations Board
File No.: 0416-01-U Date: July 23, 2001
Between: Universal Workers Union, Labourers’ International Union of North America, Local 183, Applicant v. Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America; United Brotherhood of Carpenters and Joiners of America and Leslie Hanecak, Responding Parties.
Before: David A. McKee, Vice-Chair.
Decision of the Board
1This is an application brought pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995 ch. 1 ("the Act"). In this application the Universal Workers Union, Labourers’ International Union of North America, Local 183 (“Local 183”) alleges that the United Brotherhood of Carpenters and Joiners of America and its local, Allied Construction Employees Local 1030 (“Local 1030”) and Leslie Hanecak have done certain things which constitute a violation of sections 5 and 76 of the Act. While disagreeing with the factual assertions of the application, the responding parties argue that the facts in the application, even if found to be true, do not entitle the applicant to the relief sought.
2The complaint alleges that Hanecak, as organizer for Local 1030, commenced an organizing campaign among employees of Saddlebrook Construction. At the time, Local 183 had a collective agreement with Saddlebrook Construction. Any application for certification would therefore have been a displacement application. The complaint alleges that Hanecak made certain statements during the course of the organizing campaign which violated the Act. These allegations are set out in paragraphs 10-16 of Schedule “B” of the application.
3Section 5 is a general declaratory section. It is not possible for a party to “violate” section 5: Povoa Carpentry Ltd., [1988] OLRB Rep. Nov. 1174, at paragraph 6.
4Paragraphs 12, 13 and 14 of Schedule “B” allege that Hanecak made statements of a type which the Board has characterized as “salesmanship” rather than unlawful behaviour. The Board is not given a statutory mandate, nor is one necessary, to supervise the accuracy, reliability, or fairness of the kinds of representations made to employees during an organizing campaign: see Madawaska Hardwood Flooring Inc., [1994] OLRB Rep. Mar. 267.
5Paragraphs 10, 11, 15 and 16 are more troubling. If Hanecak did make these statements (and he denies that he did), he ought not to have done so. Any suggestion that the organizer can and will affect the employment security of a bargaining unit employee may violate section 76. Not all such statements do. Generally, the Board has found a violation of section 76 in circumstances where a union organizer has made statements which:
(a) constitute a threat to the employment security of an employee; and
(b) are, because of the circumstances in which the statements are made, threats which the union has a practical ability to carry out.
6The Board has never dealt conclusively with whether or not a mere assertion by an organizer that he or she has the “ear of the employer” (without any confirming act on the part of the employer) could constitute a violation of section 76. The Board has found a violation of section 76 where there is some objective evidence that the union could follow through with the threat. Examples include situations where the union appeared to have demonstrated a previous ability to do so (Intermodal Marine Surveys Ltd., [1979] OLRB Rep. Apr. 3201); where arguably the union had the ability to do so because of the configuration of bargaining rights across sectors in the construction industry (T & F Construction Equipment Rental Limited, [1983] OLRB Rep. Dec. 2116); or because of the ability of the union itself to deprive existing members of a union of future employment opportunities by excluding that member from access to the hiring hall (Centro Mechanical Inc., [1996] OLRB Rep. Sept. 763). No such circumstances exist on the facts as alleged in this application.
7It is possible that the statements attributed to Mr. Hanecak might be found to be a violation of the Act. However, this result is at best arguable.
8On this basis, the Board would not dismiss the application under Rule 46. However, there is a second and more significant consideration. Section 96 is a discretionary section. The Board always retains the discretion not to inquire into a complaint if there is no labour relations purpose in doing so: see, for example, William A. Curtis, [1993] OLRB Rep. Dec. at paragraph 30 and Dev Jebodh, [1997] OLRB Rep. April 236 at p. 239.
9The facts in the circumstances of this application are as follows. Local 183 alleges that Hanecak made statements to one employee and, on the basis of those statements, obtained a card from him. The statements may have been a breach of section 76. If the statements did intimidate the one employee to the extent of signing a membership card, they did not intimidate him from revealing that fact to Local 183. It is not alleged that Hanecak made these statements to any other employees. Indeed, it is alleged that he did not obtain any other membership cards from among the employees of Saddlebrook Homes. In any event, no application for certification was made. The cases referred to above were all cases where the Board looked at a violation of section 76 and its impact on membership evidence submitted in an application for certification. Here, the act alleged is isolated, and is not alleged to have led to any tangible result.
10The relief sought by Local 183 is also instructive. As amended, it now seeks, aside from a declaration that the responding parties have violated the Act, and an order requiring a notice of this violation to be distributed among employees of Saddlebrook (who will be represented by Local 183 for the next three years), the following:
An order that the responding parties take out paid advertisements in the appropriate sections of the Saturday editions of the Toronto Star and the Toronto Sun, including but not limited to any New Homes section, on four consecutive Saturdays, indicating their violations of the Act and the Board orders which have been issued against them;
An order that representatives of the responding parties appear before the membership of Local 183, and two consecutive regular monthly membership meetings, and read out the above-noted notices concerning their violations of the Act.
An order that the responding parties read the Board’s orders and notices out loud to the members of Local 1030 at two consecutive membership meetings in such manner that all members of Local 1030 in attendance can hear.
An order directing Local 1030 to provide a copy of the notice to all of its members.
This relief appears to be little more than a request for a modern version of the eighteenth century punishment of a public flogging. Neither the hearing of this application nor the granting of such relief would serve any labour relations purpose.
11Accordingly, the Board declines to inquire into this complaint and dismisses the application.
“David A. McKee”
for the Board