Ontario Labour Relations Board
3279-00-R Labourers’ International Union of North America, Applicant v. O & P Carpentry Limited, Responding Party v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor.
3341-00-U Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. O & P Carpentry Limited and Labourers’ International Union of North America, Responding Parties.
BEFORE: Christopher J. Albertyn, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
APPEARANCES: John Moszynski and Henry Pereira for Labourers’ International Union of North America; Bill Anderson and Paul Pierobon for O & P Carpentry Limited; Michael Klug and Frank Munno for Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America.
DECISION OF THE BOARD; June 12, 2001
1Board File No. 3279-00-R is a certification application in the residential sector of the construction industry brought by the Labourers’ International Union of North America (“the Labourers”). It wants to displace the Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America (“the Carpenters”) which holds bargaining rights for employees of O & P Carpentry Limited (“the employer”/ “the company”).
2Board File No. 3341-00-U is an unfair labour practice complaint. It is brought by the Carpenters against the company and the Labourers. The Carpenters claim the company has colluded with the Labourers to facilitate their certification application in a manner which is contrary to the Labour Relations Act, 1995, R.S.O. 1995, c.1, as amended (“the Act”).
3A representation vote in the Labourers’ certification application was held on February 16, 2001. Employees were asked whether they wish to be represented by the Labourers or by the Carpenters for the purposes of collective bargaining with the company. There is a dispute between the parties as to the eligibility of the voters. The ballot box is sealed.
4This decision deals with a Rule 46 request by the company and the Labourers. They ask that the Carpenters’ unfair labour practice be dismissed for failing to disclose a prima facie case. If their request is successful, the Carpenters’ challenges to the voters’ list will fall away and the votes of the individuals whom the company and the Labourers say were entitled to vote should then be counted to determine the certification application.
5The Labourers and the company say that if we assume the factual allegations pled by the Carpenters to be true, they do not make out a case for any violation of the Act.
6The Carpenters have pled their case in stages. The unfair labour practice complaint, dated February 13, 2001, has some allegations. Further particulars were provided by letter on February 14, 2001. The Labourers and the company requested better particulars. In a decision of the Board dated April 2, 2001, the Board directed the Carpenters to deliver particulars to certain allegations in the unfair labour practice complaint. The particulars were to be provided by April 13, 2001. The Carpenters did not comply in a timely manner with the direction. The particulars were provided on April 16, 2001. Lastly, in a letter of May 25, 2001, the Carpenters made some additional factual allegations. The Labourers and the company say the allegations in the May 25, 2001 letter should be struck as being untimely.
7We grant the Labourers’ and the company’s request to strike the allegations contained in the Carpenters’ counsel’s letter of May 25, 2001. Those allegations are too late for the Board’s consideration. A party should make out its case in its original application. In this instance that was not done. The Board allowed additional allegations to be made on February 14, 2001. The Board also accepts that the allegations of April 16, 2001, although late, will be treated as part of the complaint. But the last attempt is simply too late. Parties should be entitled to know what case they have to meet at an early stage in the proceedings. There must be a cut off point when the pleadings close, particularly following a direction by the Board that a party produce particulars of its claim. In our view, that point was reached by the Carpenters on April 16, 2001.
8The factual allegations pled by the Carpenters are paraphrased as follows:
The Carpenters and the company are bound by a collective agreement covering carpenters and carpenters’ apprentices employed by the company in the Province of Ontario in the residential sector of the construction industry;
Representatives of the Labourers (Henry Pereira and Carlos Dinisio) attended at the company’s workplace on February 1 and 8, 2001 and, in the presence of Ovidio Pierobon, one of the company’s owners, approached employees and asked them to sign membership cards;
The company employed Fortunato Esposito and Dominic Vono for at least 5 years in the bargaining unit. They were the only carpenters in the bargaining unit on February 7, 2001.
On February 8, 2001 Esposito and Vono were removed from the bargaining unit for the sole and express purpose of facilitating an application for certification by the Labourers on that day.
The company called three employees into work on February 8, 2001 to replace Esposito and Vono. One was Luigi Bove. He was called in while receiving unemployment insurance even although there was not enough work available at the job site for three employees.
When Bove completed all work assigned to him for the day, while preparing to leave, he was told by George Viera, a lead hand, to wait for another 10-15 minutes. During that time an organizer for the Labourers, Henry Pereira, arrived at the job site.
In the presence of, and with the acquiescence of Ovidio Pierobon, Viera instructed Bove to sign the Labourers’ membership card presented to him by Pereira.
On February 12, 2001 Paul Pierobon, the other owner of the company, called a meeting of the employees to distribute a letter from the solicitor of the employer association to which the company belongs. The letter expresses concerns regarding the operation of the Carpenters’ pension and welfare plans. The Carpenters allege the company distributed the letter in order to undermine employee support for the Carpenters and to encourage support for the Labourers.
The Carpenters say that, in acting as it did, the company violated sections 70, 72 and 76 of the Act.
9The Labourers and the company say these allegations do not make out a prima facie case.
10In our view the Carpenters’ allegations narrowly make out a prima facie case, particularly having regard to the reverse onus contained in section 96(5) of the Act. The core allegation – that Esposito and Vono were deliberately removed from the bargaining unit to bring three other employees to work so that they could vote to displace the Carpenters’ bargaining rights – is sufficient to put the company to its defence. That allegation, if proved, could constitute a violation of sections 70 and 72 of the Act.
11In the circumstances, the Carpenters’ unfair labour practice complaint will proceed to hearing, on the basis of the above allegations.
12Given this conclusion, the Carpenters’ production request must be addressed. The company should make its best efforts to produce the time sheets in its possession for the five employees (Esposito, Vono, Bove, Viera and DeCastro) for the period between November 2000 and the date of the certification application (February 8, 2001). To the extent the company no longer possesses time sheets for that period, it should produce payroll records which show the hours worked by the five employees. The company should also produce a list of the jobs on which the five employees worked in the period for which there are no time sheets available, between November 2000 and February 8, 2001.
13This panel is seized. The matter is referred to the Registrar to schedule three hearing days.
“Christopher J. Albertyn”
for the Board