0370-01-R Jerry Pepin, on his own behalf and on behalf of a group of employees of J.C. Sulpher Construction Ltd., Applicant v. United Brotherhood of Carpenters and Joiners of America, Local 93 and The Carpenters’ District Council of Ontario, Responding Party v. J.C. Sulpher Construction Ltd., Intervenor.
BEFORE: Inge M. Stamp, Vice-Chair.
APPEARANCES: Bruce Sevigny and Jerry Pepin for the applicant; Dan Greco for United Brotherhood of Carpenters and Joiners of America, Local 93; Victor Quintal for United Brotherhood of Carpenters and Joiners of America, Local 2041; Michael S. Ruddy, Francis Sulpher and James Sulpher for the intervenor.
DECISION OF THE BOARD; November 16, 2001
1This is an application for termination of bargaining rights in the construction industry pursuant to section 63 of the Labour Relations Act, 1995 (the “Act”). This matter came on for hearing on November 14, 2001 and is scheduled to continue on November 20, 2001.
2Counsel for the applicant wrote to the Board on May 16, 2001 submitting the responding party’s defence under section 63(16) of the Act should be dismissed for failure to comply with Rule 42. The applicant and the intervenor claimed that the responding party had not alleged facts which could support their objections and asked that the application be granted and the responding party’s bargaining rights terminated without a hearing. The vote in this application had been held and the ballot counted.
3The Board (differently constituted) by decision dated July 4, 2001 decided it was not appropriate to dismiss this application without a hearing. On the day of the hearing counsel for the applicant and counsel for the intervenor renewed their request to dismiss the responding party’s request to dismiss this application under section 63(16).
4At the outset the parties agreed there were two issues remaining:
whether or not the applicant was performing bargaining unit work on the date of application, April 27, 2001;
the adequacy of the pleadings in paragraph 12 of the response filed by the responding party.
5The Board ruled it would hear the evidence with respect to both remaining issues. The responding party agreed to go first with its witness. After the Board heard the evidence of Victor Quintal, Business Representative of Carpenters Local 2041, counsel for the applicant and counsel for the intervenor renewed their request to dismiss the section 63(16) application and the pleadings set out in paragraph 12 of the response.
6Counsel for the applicant submits there are two grounds for dismissing the 63(16) request to dismiss this application. The first ground is the inadequacy of the pleadings pursuant to the Rules. The pleadings did not meet the requirement of Rule 38. Secondly, having heard the evidence, and having regard to the fact that the responding party bears the onus on the 63(16) issue, the Board should dismiss at this stage as a partial non-suit.
7Counsel referred to Elirpa Construction and Materials Limited, [1996] OLRB Rep. Jan. 4 and Power-Tek electrical Services Inc., [1999] O.L.R.D. No. 1347 which adopted Elirpa, supra and Royalguard Vinyl Co., [1994] OLRB Rep. Aug. 1057. Counsel for the applicant submits there was nothing out of the ordinary or improper about the evidence called by the responding party with respect to the conduct of the employer. There was no evidence called to support the allegations that were made. There is no evidence of any conduct that would support a dismissal under section 63(16).
8Counsel for the intervenor also took the position that the pleadings were inadequate and the evidence does not support the responding party’s request to dismiss under section 63(16).
9Counsel for the responding party referred to Tenaquip Limited, [1997] OLRB Rep. July/August 743 and Bancroft I.G.A., [1998] OLRB Rep. July/August 543 in his submissions. Counsel for the responding party referred to paragraph 22 of Tenaquip, supra, where the Board states:
- Where such a hearing is held and although the Board clearly has a discretion to direct otherwise, the union, in view of the onus it now bears, will typically be expected to call its evidence first. By its very nature, (the hopefully rare instances of) covert employer initiation of a termination application is unlikely to be an easy matter for a union to affirmatively and directly establish. And while the onus is clearly upon the union, the Board does recognize that circumstantial evidence may be sufficient to lead to an inference of improper employer involvement. An employer who chooses to call no evidence in the face of such circumstantial evidence obviously does so at its peril.
10Counsel for the responding party submits that Board should look at the circumstantial evidence in this case and find that there was employer involvement bringing this application. Counsel also referred to paragraph 116 of the Bancroft I.G.A., supra, which states:
- In the jurisprudence outlined earlier the Board has considered the concept of “initiation” as including gradations of employer conduct in relation to a termination application, and in particular, whether the employer’s conduct amounted to a significant or influential involvement giving rise to the application. We had indicated at the outset of this decision that the Bancroft IGA was a strike-bound store. As the board has noted in Tenaquip (cited above), it may not be an easy matter for a union to affirmatively and directly establish improper employer conduct. However, the Board has been prepared to accept circumstantial evidence which leads to an inference of improper employer involvement. On the balance of probabilities the majority of the Board is satisfied that the union has met the onus of proving that there has been improper employer involvement in this application and that there is a violation of section 63(16) of the Act. On all of the evidence outlined above, we find that the conduct of the management of the Bancroft IGA amounted to significant and influential involvement. We have drawn a negative inference from the failure of either the employer or the applicants to call Messrs. Howarth Sr. and Jerry Michael Howarth to testify. In the absence of any evidence from Mr. Jerry Michael Howarth, and because we are satisfied that Mr. Boomhouer’s evidence is credible, we have before us testimony that Mr. Howarth Sr. may have been planning to get rid of the union and had hired a lawyer from Ottawa. The facts are that the employer’s counsel is from Toronto, the applicants’ counsel is from Ottawa, but there is no evidence that the applicants have retained that counsel.
Decision
11Paragraph 12 of the response (Form A-78) states if the responding party is seeking dismissal of the application under section 63(16) of the Act it must “include all of the material facts on which you rely including the circumstances, what happened, where and when it happened, and the names of any persons said to have acted improperly.”
12Section 63(16) of the Act provides as follows:
- (16) Despite subsections (5) and (14), the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.
13Rules 38 and 42 of the Board’s Rules of Procedure state:
Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.
No person will be allowed to present evidence or make any representations at any hearing or consultation about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable.
14The responding party takes the position that the employer’s conduct amounts to “initiating the application”.
15It is useful to set out the pleadings in support of this request to dismiss the application under section 63(16). They are:
The applicant, Jerry Pepin, is a long-standing non-union employee, of J.C. Sulpher Construction Ltd. (the “company”).
The company has recently been involved in two grievance applications at the Board with this responding party (“Local 93”). The first of the two proceedings, being Board file no. 3003-99-G, resulted in a Board Order being issued pursuant to a Memorandum of Agreement and required the company to pay damages to Local 93. The other proceeding, being Board file no. 3446-00-G, is ongoing at this time.
On or about April 6, 2001 the company made arrangements with the United Brotherhood of Carpenters and Joiners of America, Local 2041 (“Local 2041”) to accept Jerry Pepin as a member. Local 2041 is an affiliate of the Carpenters’ District Council of Ontario and has jurisdiction with respect to the Acoustic and Drywall Appendix of the Provincial Collective Agreement for the Ottawa area.
The company is a general contractor and has traditionally subcontracted all acoustic and drywall work. The company has not, in the past, hired members of Local 2041.
It is the submission of Local 93 that, given the company’s recent difficulties with Local 93, the company made arrangements for its long-standing non-union employee, Jerry Pepin, to become a member of Local 2041 during the “open period” for the sole purpose of initiating the present application for termination of bargaining rights.
Given the brief duration that Jerry Pepin has been a member of Local 2041, it is not feasible that he had enough time to formulate the opinion that he no longer wished to be represented by the union, while at the same time initiating the subject application.
It is alleged that the company counseled, advised the assisted Jerry Pepin with respect to joining Local 2041 as a member and with respect to originating the subject application. It is further alleged that said counsel, advice and assistance is ongoing.
It is further submitted that, given Jerry Pepin’s long standing relationship with the company and his brief exposure to the union, it could not have been possible for Jerry Pepin to bring forth an application for termination of bargaining rights that is not tainted by management involvement.
16Mr. Victor Quintal testified on behalf of the responding party. Mr. Quintal is an organizer for the Carpenters Union and a business representative for Carpenters Local 2041, the Drywall and Lathers Local for the Ottawa area. Mr. Quintal was candid in giving his evidence and the Board found him to be a credible witness.
17The pleadings in paragraph 12 of the response are theories and bald allegations in most instances. The pleadings in the last four paragraphs do not meet the requirements under Rule 38 of the Board’s Rules of Procedure.
18There were conversations between Mr. Sulpher and Mr. Quintal with respect to Jerry Pepin joining the union. Mr. Pepin delivered a letter addressed “To Whom It May Concern” outlining his experience in working in drywall stud installation to Mr. Quintal at the union in support of his application to become a member of the union. That letter was signed by Mr. Francis Sulphur and dated April 2, 2001. That is the extend of the direct evidence of any employer conduct.
19This case is distinguishable from Tenaquip Limited, supra, where the employees signed a petition on company premises. The Board found in that case that the employer permitted the petitioner’s activities and thereby contributed resources which were significant to facilitating the termination application. The Board found that the employer’s contribution was significant and influential and amounted to “initiation” of the application within the meaning of section 63(16) of the Act and dismissed the application.
20Similarly the facts in Bancroft I.G.A., supra, are quite different from what took place in the instant application.
21The Board in Elirpa, supra, in paragraph 17 made the following comments about section 63(16):
- As a practical matter, the circumstances described by section 63(16) of the Act appear to warrant reference to the old adage that "he who asserts must prove". In my view, the Board should only convene a hearing to deal with the possibility of employer initiation or employer threats, coercion or intimidation in connection with the application should the responding party or an intervenor make allegations of such conduct. The allegations of misconduct should be pleaded in such a manner as to establish a prima facie violation of section 63(16) of the Act. This level of particularity of pleading may be, as was pointed out by counsel for Local 793, difficult in some circumstances, and it may well be that enquiries will have to be made by trade union representatives in receipt of termination applications to satisfy themselves that no employer wrongdoing has occurred. This is not meaningfully different from the type of investigation trade unions regularly engage in when ascertaining whether other sections of the Act have been violated by an employer. However, it is insufficient, in my view, to merely plead in response to an application for termination of bargaining rights that the employer initiated the application, or engaged in threats, coercion or intimidation in connection with the application, and then require the applicant to disprove those bald allegations at a hearing. If the trade union wishes to assert that section 63(16) of the Act applies to the application, it must particularize those allegations with some degree of specificity, and it must be prepared to attend at the hearing and call evidence to support its allegations.
22In the instant application the allegations of “misconduct” for the most part fall far short of establishing a prima facie violation of section 63(16) of the Act. The responding party provided no further particulars after being put on notice in May that the applicant took the position that the pleadings did not satisfy Rule 42. The viva voce evidence on the first day of hearing did not support the global allegations of employer misconduct. While there may well be situations where the circumstantial evidence would be sufficient to make the inference that there was employer involvement amounting to “initiating” the termination application, this is not the case in these circumstances. The evidence does not support the responding party’s assertions of a violation of section 63(16) of the Act.
23Having regard to the above that portion of the proceeding dealing with the section 63(16) application is hereby dismissed.
24This matter will continue as scheduled on Tuesday, November 20, 2001 commencing at 9:30 a.m. in the "Board Room", 2nd Floor, 505 University Avenue, Toronto, Ontario.
“Inge M. Stamp”
for the Board