United Brotherhood of Carpenters and Joiners of America v. Grand Shore Realty Corporation
1985-99-R United Brotherhood of Carpenters and Joiners of America, Applicant v. Grand Shore Realty Corporation, Responding Party v. Labourers’ International Union of North America, Ontario Provincial District Council, Intervenor.
1909-99-R Labourers’ International Union of North America, Ontario Provincial District Council, Applicant v. The Stratum Realty Development Corporation and Grand Shores Realty Development Corporation, Responding Parties.
2061-99-U Labourers’ International Union of North America, Ontario Provincial District Council, Applicant v. The Stratum Realty Development Corporation and/or Grand Shores Realty Development Corporation and Kenneth Michaud; The United Brotherhood of Carpenters and Joiners of America and James E. Smith and Walter Tracogna, Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; April 30, 2001
Decision
1These are two certification applications in the construction industry, and a complaint pursuant to section 96 of the Labour Relations Act, 1995.
2The employers submit that the new allegations contained in counsel for the applicant’s March 10, 2000 letter were filed too late, and the Board should not consider them.
3The unfair labour practice application was filed on October 19, 1999. It made allegations with respect to the conduct of the employers, and with respect to the intervenor. As set out in an earlier decision, the allegations with respect to the intervenor have been withdrawn, so there is no need to consider the employers’ motion with respect to those allegations. The responding parties have raised, as a preliminary issue, that the amendments the applicant seeks to make to its original complaint, set out in a letter dated March 10, 2000, ought not to be entertained by the Board because they are filed too late. Although the Board invited submissions from the applicant, the responding parties and the intervenor, the intervenor did not provide any.
4The applicant alleged at paragraph 7 in its initial application that:
- On or about September 28, 1999, [Kenneth] Michaud and Mike Martin (“Martin”), a bargaining unit employee, were in the site trailer together at the Grand Harbour site in Barrie, Ontario. Michaud told Martin that there would be a gymnasium in the new building currently under construction at that site and that the Responding parties would look after him and give him a job in the new gymnasium if he voted against the Union.
5The responding parties have denied that any such conversation had taken place.
6The applicant’s letter of March 10, 2000 said more with respect to Mr. Michaud’s relationship with Mr. Martin. It detailed, by way of background, how Mr. Martin came to be working on the Grand Shores site and that he was paid in cash. Paragraphs 3 and 4 allege conversations took place on September 30 and October 1, 1999 between Mr. Michaud and Mr. Martin in which Mr. Michaud is alleged to have asked Mr. Martin about whether he joined the union; questioned Mr. Martin’s loyalty; and promised that Mr. Martin would get a raise and be carried on the payroll if he voted against the union.
7Paragraph 5 relates a conversation between Mr. Martin and a union representative in which Mr., Martin allegedly repeats the conversation that led to the union’s allegations in its original application, set out above.
8In the Board’s view, the applicant’s letter of March 10, 2000 does not contain new allegations about Mr. Michaud’s conduct towards Mr. Martin, but provides more particulars with respect to the allegations made in the union’s initial application. Consequently, the Board will not be striking those paragraphs.
9However, in paragraphs 6, 8 and 9 of the March 2000 letter, the union does make new allegations:
On or about October 5, 1999, after the vote had been held, Mr. Graham Savage (“Savage”), the site superintendent, told Martin that he would get a big raise once the Union business was over.
In mid October 1999, Martin had car trouble and missed a day’s work. When Martin went to the site, Michaud asked him if he needed a tow and offered to drive Martin to pick up his car. While en route, Michaud told Martin that “Luis Torres [a union representative] has information about you working at the fitness centre” and asked Martin what he had said to Torres. Martin told Michaud that he had told Torres that Michaud had only mentioned this possibility over a year ago.
In response, Michaud told Martin that he wished Martin had told him about his conversation with Torres before “because the Union was saying that this promise was made just before the vote”. Martin [sic] stated that this could get him into trouble and that if it went further, “I might have to get you to lie for me.” Martin asked what Michaud meant. Michaud said “I could get in trouble here, I’ve tried to help you out and they are using it against me, but I can’t let them have anything on me. I might have to get you to sign an affidavit for me”.
10These allegations relate to events that occurred after the representation vote, and for the first time, implicate Mr. Savage, the site superintendent. The responding parties contend that the union has not complied with Rule 38 of the Rules of Procedure which requires:
- 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.
11On that basis, the responding parties request that the allegations be struck, relying on Rule 42:
- 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.
12The responding parties also rely on the Divisional Court’s decision in Sirch Holdings, (unreported January 19, 2000, court file 815/98). In the alternative, the responding parties submit that since these allegations occurred after the representation vote, they should not be relied on by the Board in its determination about whether the first representation vote disclosed the true wishes of the employees. The union responded that the post-vote allegations of misconduct with respect to Mr. Michaud are not being relied on, in themselves, to establish a violation of the Labour Relations Act, 1995, but are being relied on as an admission against interest and are relevant to the applicant’s original allegations.
13The Board accepts the union’s submission about the use it intends to make of the post-vote allegations about Mr. Michaud’s conduct in paragraphs 8 and 9 of letter, and on that basis, will permit the applicant to rely on them.
14The union made no comment about the use it intended to make of Mr. Savage’s alleged promises to Mr. Martin. In the Board’s view, unless the union had particularized them in a manner that tied them to the original allegations of misconduct made in its application of October 19, 2000, those allegations could not be relied on. Nowhere in the initial application is Mr. Savage mentioned nor are any allegations made against him. We note that the conversation the union seeks to rely on allegedly occurred before the date it filed its unfair labour practices complaint, and more than 5 months before the alleged misconduct was pleaded. The Board’s Rule requiring prompt disclosure of allegations of serious misconduct is intended to ensure a fair process. Responding parties must know the case they have to meet, and be given an opportunity to respond and perhaps, seek to remedy the problem, in a timely way. The union has offered no reasonable explanation for the delay. The allegation against Mr. Savage is serious. The Board will not permit the union to rely on this allegation in support of its unfair labour practice complaint.
15It is the Board’s understanding that there are no further preliminary issues and that at the next day of hearing, we will start to hear evidence with respect to the unfair labour practice complaints.
“Mary Ellen Cummings”
for the Board