Labourers’ International Union of North America v. 870528 Ontario Ltd., o/a Lido Construction Co.
3278-00-R Labourers’ International Union of North America, Applicant v. 870528 Ontario Ltd., o/a Lido Construction Co., Responding Party v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor.
3717-00-U Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. 870528 Ontario Ltd., o/a Lido Construction Co. and Labourers’ International Union of North America, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: Michael Klug and Frank Munno for Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America; John Moszynski, Henry Perreira and Tony Pinto for Labourers’ International Union of North America; Kevin Robinson and Danny Cristillo for Lido Construction Co.
DECISION OF THE BOARD; June 19, 2001
1These are two matters that were listed for hearing before me on Friday, June 15, 2001. Board File No. 3728-00-R is an application for certification by the Labourers’ International Union of North America (“LIUNA”) in respect of carpenters employed by 870528 Ontario Ltd. o/a Lido Construction Co. (“Lido”) who are represented by Carpenters and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America (“Local 27”). Board File No. 3717-00-U is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (the “Act”) filed by Local 27 alleging improprieties against both Lido and LIUNA. The Alternate Chair of the Board authorized me to sit alone to hear and determine this matter pursuant to section 110(14)(a) of the Act.
2During the course of the hearing on June 15, 2001, both LIUNA and Lido sought to have certain allegations made by Local 27 struck out. After receiving the parties’ submissions on the motion, I issued the following oral decision:
Lido and LIUNA seek to have two allegations made by Local 27 struck on various grounds, principally due to their timeliness and the failure by Local 27 to comply with Rule 38 of the Board’s Rules of Procedure and the Board’s (differently constituted) decisions of April 2 and May 10, 2001. Those allegations can be loosely characterized as allegations of employer support for LIUNA.
Local 27, in post vote submissions dated February 23, 2001 wrote:
Antonia Romanello and Guido Romanello were known to the responding party as long time supporters of the intervener. On or about February 5, 2001, the responding party removed the Romanellos from its residential job sites for the purpose of facilitating this application. It is submitted that this action was taken with the knowledge and approval of the applicant. (The applicant and responding party in OLRB File No. 3279-00-R are presently engaged in a similar strategy.)
The allegations, other than the one concerning the lay off or removal of the Romanellos, are mere bald allegations lacking in particulars. Some three weeks later, Local 27 filed an application under section 96 of the Act that again refers to the lay off but also pleaded:
In or about January 2001 and early February 2001, Lido routinely allowed representatives of Labourers' International Union of North America (L.I.U.N.A.) to attend at its construction sites and to talk to its employees on company time for the purpose of persuading those employees to terminate this applicant’s bargaining rights.
The Board, in its decision of April 2nd directed Local 27 to file particulars. Some further particulars were filed by Local 27 in a letter to the Board dated April 17, 2001, but the Board, in its May 10th decision wrote:
Whatever misapprehension the Carpenters might have been under as a result of the potentially confusing and conflicting decisions of the Board, we wish to be clear now. The Carpenters are expected to comply with the April 2, 2001 decision. Having regard to the information provided in Carpenters’ counsel’s April 17, 2001 [sic], the Carpenters have not complied. They have not provided the detailed statement of material facts required by Rule 38….
The Board wrote in that decision: “The Carpenters are directed to deliver and file that information no later than May 14, 2001”. Rather than provide particulars of the allegations it had already made, Local 27 submitted on May 11:
We have learned that prior to the vote Mr. Dany [sic] Montessano, owner of the Responding Party, had told a number of employees in the bargaining unit that the carpenters union was causing his company to be uncompetitive and that he preferred that the employees be represented by the applicant. This behaviour is consistent with the responding party removing the Romanellos from the bargaining unit prior to the vote.
The allegations made by Local 27 after February 23, 2001 for which relief is sought in respect of the application for certification are, in my view, untimely. They do not comply with the Board’s direction set out in its February 14, 2001 decision in which the Board wrote:
Any party or person who wishes to make representations to the Board about any issue relating to the application for certification which remains in dispute, other than status disputes, must file a detailed statement of representations and all material facts upon which they rely with the Board and deliver it to the other parties, so that it is received within five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken.
Local 27 submits that the Board can relieve against strict compliance with the Board’s Rules and it’s directions. There is, in my view, no basis for doing so in this case, however. Local 27 was given the opportunity more than once to provide the directed particulars but did not take up that opportunity.
Counsel for Local 27 also submitted that section 96(5) of the Act relieved it of the obligation to be more specific about particulars. While the reverse onus provisions of section 96(5) apply to the allegations with respect to the lay-off of the Romanellos, Local 27, as the party alleging that Lido provided and LIUNA accepted employer support contrary to section 70 of the Act, bears the burden of proving those allegations. The allegations of employer support made by Local 27 do not relate to a person being dealt with contrary to the Act with respect to that person’s “employment, opportunity for employment or conditions of employment” and therefore do not trigger the reverse onus under section 96(5) of the Act.
Under these circumstances, the Board strikes out the allegations relating to employer support of LIUNA. The hearing in this matter will proceed to deal with only the propriety of the lay-off of the Romanellos. The motion made by Lido and LIUNA is granted.
3Following the Board’s oral ruling the parties engaged in discussion concerning the conduct of the hearing into the issue of the removal or lay-off of the Romanellos. Counsel for Local 27 argued that documents held by Lido would be relevant to the issues and ought to be produced. In the course of discussions, Lido agreed to produce for inspection by Local 27 (and by LIUNA, I assume) its records relating to the period between January 1and February 28, 2001 (the “Relevant Period”) in the following categories:
a) spread sheets maintained by Lido showing the hours worked and the locations of work done during the Relevant Period by the individuals in the bargaining unit in these proceedings;
b) records created by the individuals in the bargaining unit and records created by their supervisors relating to the actual work they performed during the Relevant Period;
c) the last Employment Insurance Record of Employment issued by Lido prior to February 8, 2001 (the application date) in respect of each individual in the bargaining unit as well as the prior Employment Insurance Record of Employment in respect of any person that was laid off during the Relevant Period; and
d) the first spreadsheet showing when an individual for whom a Record of Employment was issued has resumed working with Lido after the date of that Record of Employment produced by Lido in paragraph (c) above.
4These two matters are referred to the Registrar to be listed for continuation of hearing before this panel of the Board on September 7 and October 29 and 31, 2001. This panel of the Board remains seized with these matters.
“Harry Freedman”
for the Board