3682-00-R Labourers’ International Union of North America, Applicant v. Sherwood Trim & Doors Inc., Responding Party v. Carpenters and Allied Workers, Local 27 United Brotherhood of Carpenters and Joiners of America, Intervenor.
3826-00-U Labourers’ International Union of North America, Applicant v. Jack Da Silva, Pinevalley Trim & Doors Ltd., Sherwood Trim & Doors Inc., and Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; August 14, 2001
This is an application for certification in the construction industry and a complaint pursuant to section 96 of the Labour Relations Act. An oral hearing was convened on June 18, 2001, at which point, based on the agreement of the parties, the Board determined which of the segregated ballots would be counted and set out a process for dealing with the preliminary issues. Those determinations are set out in a decision dated June 20, 2001. The Labourers’ International Union of North America (the Labourers) did not receive more than 50 percent of the ballots cast in the representation vote. However, because of the related unfair labour practice complaint the certification application is not dismissed at this time.
I directed the parties to make submissions in writing in respect of the motions brought by a number of the responding parties to dismiss the unfair labour practices complaint for failure to make out a prima facie case for the relief sought. Those submissions were filed. By letter dated July 30, 2001, counsel for the Labourers sought leave to withdraw the allegations in respect of Nice Trim Finishing Carpentry Ltd., Northend Construction Ltd., Wyecroft Lumber and Trim Limited and Mattamy Homes Limited. The Board grants leave and the style of cause will be amended accordingly.
The remaining responding parties, then, are Sherwood Trim & Doors Inc.(Sherwood), Carpenters and Allied Workers , Local 27, United Brotherhood of Carpenters and Joiners of America (the Carpenters), Pinevalley Trim & Doors Ltd. (Pinevalley) and Jack Da Silva.
The Labourers are seeking to displace the Carpenters as the bargaining agent for the trim carpenters employed at Sherwood. The Labourers assert that Da Silva, who is described “as a businessman engaged in the wholesale manufacturing, distribution and supply of interior finishes to trim carpentry contractors in the residential construction industry in the Greater Toronto area” is President of Pinevalley which obtains contracts from builders to supply trim carpentry materials in new residential subdivisions. Trim carpentry contractors and their pieceworkers install materials supplied, it is said, by Pinevalley. The Labourers allege that Da Silva phoned Sherwood employees at home. Da Silva is alleged to have told the workers that:
if they supported LIUNA, they would not be able to work for any other lumber yards and that Sherwood would not be getting any further work. Da Silva also told the workers that a meeting would be held at Carpenters’ Local 27 and that they should attend if they wanted to know what they would be asking for if they supported LIUNA.
A meeting was held at Carpenters’ Local 27 on Friday, March 16, 2001. Da Silva was introduced as a successful businessman and permitted to address the meting. Da Silva told the assembled workers that he was in a position to assure them that any contractor whose employees chose LIUNA would be squeezed out of the industry.
Although not specifically pleaded, it is common knowledge that Mr. Da Silva is a former business manager of the Carpenters. The Labourers allege that in his capacity as an employer, although not an employer of the employees of Sherwood, Da Silva breached the express prohibition against interfering in the employees’ decision about which trade union would represent them. The Labourers further allege that the Carpenters use of Da Silva in its campaign to defeat the Labourers’ displacement application “…itself constitutes unlawful conduct prohibited by the Act”. The Labourers allege that the responding parties have breached sections 70, 72 and 76 of the Act.
In considering whether an applicant has made out a prima facie or arguable case that the Act has been breached and an entitlement to the remedies sought, the Board considers all of the allegations to be proved and provable.
Rule 46 of the Board’s Rules of Practice permits the Board to dismiss an application when it does not make out an arguable case for the remedies sought:
Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
In International Union of Bricklayers and Allied Craftsmen, [1999] O.L.R.D., the Board described the considerations it applies in determining whether or not the applicant has made out a prima facie case for the remedies sought:
The test that a responding party must meet in order to persuade the Board that an application should be dismissed on the basis that there is no prima facie case established in the application is, in my view, a strict one. An applicant should not be deprived of the opportunity to have a hearing on the merits of his or her application simply because the argument is novel or the circumstances giving rise to the application are unusual. In Caravelle Foods [1983] OLRB Rep. June 875 the Board characterized the test a responding party must meet in seeking to have an application dismissed on a prima facie motion in the following terms at page 881:
The words prima facie case in section 71 (now Rule 46) 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.
In J. Paiva Foods, [(1985) OLRB Rep. May 690], the Board set out the test at page 691 as follows:
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 as alleged.
Where, however, the Board is satisfied that the responding party bringing the prima facie motion has met the burden imposed, it is incumbent on the Board to dismiss the application, thereby conserving the limited resources of the Board for matters that do require a hearing. As Mr. Justice Grange said in Shaw v. McLeod, 1982 CanLII 2140 (ON HCJ), 35 O.R. (2d) 641:
I concede that on this motion if, after a careful review of the law, the Court determines that he [the Plaintiff] cannot possibly succeed, then his action should be mercifully dispatched.
The provisions of the Act that the responding parties are said to have breached are 70, 72 and 76:
No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
I will start with Sherwood. Put simply, the applicant has made absolutely no allegations of wrongdoing against Sherwood. I suppose it could be argued to be the beneficiary of Da Silva and the Carpenters’ activities, but there is no basis on which the Board could find that Sherwood had engaged in any unlawful activity or that Da Silva acted on behalf of Sherwood. The unfair labour practice complaint, as against Sherwood, is dismissed.
Turning to the allegations against Da Silva and Pine Valley, I reject the Labourers’ submission that the status of employer, albeit of employees other than Sherwood’s, is enough to make Da Silva an “employer” within the meaning of section 72. The purpose of section 72 is to prohibit the entity that controls employees’ jobs, and access to a livelihood from using that power to improperly influence the employees’ decision about whether or not to join a trade union. It is not the status of being an employer, per se, that creates the mischief; it is the dynamics of the power relationship between a particular employer and his or her employees that creates the opportunity for harm. Consequently, because Da Silva and Pinevalley are not the employer of the employees of Sherwood, they are not “employers” for the purposes of section 72. If however, Da Silva and Pinevalley had been alleged to have acted on behalf of Sherwood, then any unlawful conduct engaged in would be prohibited by section 72 in any event. In that way, the Act prevents employers from using a “third party” from indirectly delivering what would be unlawful coercion or intimidation if it came directly from the employer.
But in this case, the Labourers have not alleged that Da Silva and Pinevalley were acting on behalf of Sherwood. I conclude then that the Labourers have not made out a prima facie case that Da Silva and Pinevalley breached section 72. For the same reason, that is, no allegation that Da Silva and Pinevalley were acting on behalf of Sherwood, I conclude that the Labourers have not made out a prima facie case that Da Silva and Pinevalley have breached section 72. However, I find that a prima facie case has been pleaded that Da Silva breached section 76. At this point, without further argument, I am not prepared to completely dismiss the application against Pinevalley.
Turning finally to the allegations with respect to the Carpenters, it is only section 76 that is relevant; sections 70 and 72 do not speak to the actions of trade unions. The Board is satisfied that the Labourers have made out a prima facie case that the Carpenters have breached section 76. The Board might well be satisfied that permitting Da Silva, a former Carpenters’ business agent, to speak at a Carpenters sponsored meeting, in a Carpenters hall, and say that he had the ability to ensure that “…any contractor whose employees chose LIUNA would be squeezed out of the industry” constituted intimidation or coercion to compel the employees not to freely exercise their right to vote as they wished in the representations vote, within the meaning of section 76.
But what remedy would the Board order in the event it concluded that Da Silva, Pinevalley or the Carpenters had violated the Act? In addition to declarations of violations of the Act; damages; and a posting, the principal remedy sought is a finding that the Carpenters have received employer support, contrary to the Act, and a conclusion that the representation vote held does not reflect the true wishes of the employees. In other words, the Labourers want the Board to order a further representation vote. Section 11 of the Act provides as follows:
(1) Upon the application of a trade union, the Board may order another representation vote in the following circumstances:
An employer, employers' organization or person acting on behalf of an employer or employers' organization has contravened the Act.
The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.
Repealed: 1998, c. 8, s. 5 (3).
The trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board to be appropriate for collective bargaining.
(2) Upon the application of an interested person, the Board may order another representation vote in the following circumstances:
A trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions has contravened the Act.
The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.
(3) The Board may consider the results of a prior representation vote when making a decision under this section.
(4) Subsections 10 (1) and (2) do not apply with respect to a prior representation vote if a new representation vote is ordered under this section.
(5) Without restricting its powers under section 96, the Board may do anything to ensure that a new representation vote ordered under this section reflects the true wishes of the employees in the bargaining unit.
Having concluded that the Labourers have not made out a prima facie case, or in fact made any allegations, that Sherwood has breached the Act, section 11(1) is not applicable. However, section 11(2) is relevant to the allegations made against the Carpenters, Pinevalley and Da Silva. The Board has accepted that a fair degree of electioneering is to be expected between rival trade unions, and the Board will not closely supervise those activities. However, where the Board is satisfied that the critical faculties of employees to decide for themselves were overwhelmed by intimidation or coercion [see for example Atlas Specialty Steels, [1991] OLRB Rep. June 728] the Board has concluded that the true wishes of employees are not reflected in the results of the vote.
In a letter dated March 27, 2001, the Carpenters had made allegations that the Labourers received support from Sherwood, with the result that the displacement application should be dismissed. However, since the Labourers were found to have lost the representation vote, the Carpenters are now content to rely on the result, but did not want to abandon their allegations against Sherwood. The Board highlighted this apparent contradiction and directed the Carpenters to file particulars of the allegations set out in paragraph 3 of the March 27, 2001 letter if they intended to pursue the issue. Since the Carpenters did not file any particulars, the Board concludes that the complaints against Sherwood are not being pursued.
The Board will convene a hearing to enquire into the allegations made with respect to the Carpenters’, Pinevalley’s and Da Silva’s activities. However, first, the Board directs the remaining parties to meet again with a Labour Relations Officer with a view to organizing the litigation and/or resolving the issues among them. This matter is referred to the Manager, Field Services to assign an Officer.
This panel is not seized but the Registrar is directed to place any further issues before this panel if convenient.
“Mary Ellen Cummings”
for the Board