Ontario Labour Relations Board
0628-01-U Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America, Applicant v. Universal Workers Union, Labourers’ International Union of North America, Local 183, Claudio Mazzotta and Roman Conde, and Arista Homes Limited, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; June 15, 2001
1This is an application brought under section 96 of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”). It is an allegation that the responding parties have violated various sections of the Act by committing certain acts at the time an application for certification was filed by the applicant (“Carpenters Local 1030”). More generally, it arises out of the competition between various locals or alleged allies of the Labourers’ International Union of North America, and in particular the Universal Workers’ Union, Labourers’ International Union of North America, Local 183 (“Labourers Local 183”) and the United Brotherhood of Carpenters and Joiners of America (in this case the applicant (“Carpenters Local 1030”)).
2Labourers Local 183 asks that the application be dismissed for failing to disclose a prima facie case. The Board declines to do so, except as noted below. There is an arguable case pleaded. Carpenters Local 1030 claims that, for reasons which it alludes to (or perhaps speculates on) in paragraph 5 of Schedule “A”, Arista Homes and Labourers Local 183 took certain actions alleged to be a violation of the Act in order to defeat the application for certification brought by Carpenters Local 1030. The real relief is sought in paragraph 7 of the schedule of relief: that is, that if Carpenters Local 1030 is not successful in the representation vote, and if it persuades the Board that it was not successful because employees were unable to freely express their wishes in casting a ballot, then it requests the Board to hold a second representation vote.
3However, the application also asks for a number of other different types of relief. Most of these are similar to, if not identical to, the types of relief sought by Labourers Local 183, Labourers Local 506, Carpenters Local 27 and Carpenters Local 1030 in other applications. They do not appear to be at all related to the case as pleaded. As this panel of the Board said in another decision:
… To the extent that parties file pleadings which more closely resemble schoolyard taunts than proper legal proceedings, such applications will obscure what may be a legitimate complaint and tend to cause the reader to dismiss the entire matter as frivolous.
These comments apply to most of the types of relief sought in this application. Indeed, the Board’s jurisdiction to grant most of these types of relief is questionable. However, the appropriate relief is something to be determined at the end of the day and the Board does not propose to “strike” or otherwise modify relief that is sought at this stage.
4The particulars of the complaint are fortunately relatively free of this standard of pleading. Labourers Local 183 and Arista Homes have each requested the Board to strike certain portions of the pleadings as not disclosing a prima facie case. Except as potentially noted below, the Board declines to do so.
5The allegations respecting Claudio Mazzotta and Roman Conde are properly pleaded. The allegation is essentially that Labourers Local 183 received employer support from Arista Homes to such an extent that it impaired the ability of employees to freely express their wishes in a representation vote. (Both sides to this inter-union dispute appear to have lost sight of section 53 of the Act, see Board File 3800-00-U, Maplecrete Construction Company Limited, unreported, at paragraph 11).
6To the extent that support is received by Labourers Local 183, it must be received by an individual person. In this case, those persons are alleged to be Messrs. Mazzotta and Conde. The pleadings do not suggest that either was acting as a “person acting on behalf of an employer” (as required by section 70 or 72). It may be that they are alleged to be acting on behalf of Labourers Local 183 for the purposes of section 73(2). However, the real allegation is that there was a longstanding relationship or agreement between Arista Homes and Labourers Local 183, not that one was negotiated immediately upon the filing of an application for certification by Carpenters Local 1030. In any event, if there was such an arrangement (which of course cannot be determined at this point), it is not pleaded that Messrs. Mazzotta and Conde were in any way central to the arrangement. As the pleadings stand, it appears simply that they are alleged to be the two individuals who were receiving the employer support on behalf of Labourers Local 183. The allegations, to the extent that they can be said to support a violation of sections 76 and 87 are, if true, acts of Labourers Local 183 through their duly-appointed representatives rather than by Messrs. Mazzotta or Conde in any individual capacity.
7It would appear therefore that, while pleadings naming Mr. Mazzotta and Mr. Conde are appropriate, neither of them is appropriately named as a responding party. This, and one other matter, will be dealt with below.
8Labourers Local 183 asserts, without reference to the caselaw, that the facts pleaded do not constitute a violation of the Act. Suffice it to say that paragraph 9 of Schedule “A” of the response filed by Labourers Local 183 sets forth a proposition of law which is, to say the least, not this panel’s understanding of the Board’s jurisprudence. In any event, the test for the dismissal of an application for failure to plead a “no prima facie” case is set out in such cases as Caravelle Foods, [1983] OLRB Rep. June 875:
The words “prima facie case” in section 71 are meant to allow the dismissal of a case without a hearing where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached. (Page 881)
Similarly, in J. Paiva Ltd., [1985] OLRB Rep. May 690, the Board said:
The Board’s discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts alleged. (Page 691)
It cannot be said that either of these comments apply to this application.
9Paragraph 13 of Schedule “A” of the application states:
“The day after the vote was held, April 7, 2001, Arista terminated the employment of Bekir Erdogan without cause”.
It is not apparent that it is a violation of the Act, and certainly not of the sections pleaded, simply to terminate an employee without cause. Subject to what follows, it would appear that this paragraph should be struck from the pleadings.
10The Board has considered the prima facie motion of Labourers Local 183 and Arista Homes without the benefit of submissions from Carpenters Local 1030. While the two issues appear to be relatively straightforward, submissions from the applicant might well raise issues that have not been considered by the Board. Accordingly, if the applicant desires to do so, it may make written submissions on the issue of the naming of Messrs. Mazzotta and Conde as responding parties and the issue of whether or not paragraph 13 of the application should be struck. Such submissions, if they are made, must be filed with the Board no later than 5 days after the date of this decision. If no submissions are filed, Messrs. Mazzotta and Conde will be struck as responding parties and paragraph 13 will be struck in its entirety.
11The responding parties also request certain particulars. In some cases, these are appropriate. The purpose of particulars is to enable the party who is alleged to have violated the Act to prepare to meet the case against it. It is not for the purpose of ascertaining the evidence that will be proved or the witnesses who will be called. The Board directs the applicant to provide to the responding parties and the Board, the following particulars to the pleadings set forth in Schedule “A” to the application:
(1) In paragraph 8, the applicant is directed to identify the jobsites where these statements are alleged to have been made.
(2) In paragraph 9, the applicant is directed to provide the name of the employee who made the call to the office of Arista Homes. Further, the applicant is directed to provide the name of the “management representative” to whom he or she spoke.
(3) In paragraph 10, the applicant is directed to provide the name(s) of the representative(s) of Arista Homes who told employees that they must attend a meeting at Poll # 3.
These particulars are to be filed with the Board and provided to the other parties not later than 5 days from the date of this decision.
12It seems obvious that this complaint cannot be dealt with until all or most of the issues in the application for certification, being Board File No. 3890-00-R, are disposed of. However, in order that this may be argued fully by the parties, this file will be set down for hearing on the same dates as Board File No. 3890-00-R.
13I remain seized of this application for the purposes of dealing with any written submissions by Carpenters Local 1030, or any disputes arising out of the provision of particulars. I am not seized with respect to the merits of this application, nor with respect to Board File No. 3890-00-R.
“David A. McKee”
for the Board