0090-01-M William Nixon, Applicant v. Labourers’ International Union of North America Local 1089, Robert Leone, Business Manager/Secretary Treasurer of Local 1089, Rick Vani, President of Local 1089, Responding Party.

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members G. Pickell and A. Haward.

DECISION OF THE BOARD; September 25, 2001

1. This is an application pursuant to section 92(2) of the Labour Relations Act (the “Act”) alleging the audited financial statements furnished by the responding party are inadequate. The applicant requests the responding party provide certain additional details for the audited financial statements for the LIUNA Local 1089 General Fund for the fiscal years ending December 31, 1992, 1993, 1994, 1995, 1996, 1997, 1998 and 1999.

2. The applicant takes the position that the financial statements are inadequate and requests a long list of detailed information with respect to expenditures listed in the statements. For example the applicant wants detailed information on items described as “Conventions, conferences and council meetings”. The sort of information the applicant requests are: the amount paid to each individual or entity, the names and the reasons for the payment. Another example is an item called “Rents and Administrations”. The applicant wants a breakdown of the amounts, names and the reason for the payments.

3. The applicant also seeks signatures of Trustees on each of the Local 1089 Financial Statements.

4. The responding party submits the request as it relates to the years 1992 to 1998 should be dismissed. Counsel takes the position that Section 92(1) of the Act only requires the production of statements to the end of the last fiscal year and does not require production of Statements from previous years. The responding party cited Edward Miller, [1983] OLRB Rep. Nov. 1864 in support of its submission.

5. The responding party further submits that the Statements that have been provided to the applicant satisfy the obligations imposed by sections 92 and 93 of the Act. Counsel further submits the applicant’s “belief that fraudulent activity may be occurring” are not material facts or evidence.

6. The responding party refers to Board decisions in Murray G. Strong, [1981] OLRB Rep. July 601 and Irene Bovay, [1985] OLRB Rep. Jan. 22 where the Board commented on the kind of information that is found in financial statements. The Board in Murray G. Strong made the following comments:

“… A financial statement is a statement of net assets and a summary of income and expenses of a particular operating entity and does not set forth the minutiae of details of the source and origin of every cent which is received and disbursed. This minutiae of details is to be found in the vouchers and bank statements of an operating entity…”

7. The responding party submits in the circumstances this application should be dismissed without a hearing.

Decision

8. Sections 92(1) and (2) and Sections 93(2) and (3) of the Act provide as follows:

9. (1) Every trade union shall upon the request of any member furnish the member, without charge, with a copy of the audited financial statement of its affairs to the end of its last fiscal year certified by its treasurer or other officer responsible for the handling and administration of its funds to be a true copy, and, upon the complaint of any member that the trade union has failed to furnish such a statement, the Board may direct the trade union to file with the Registrar of the Board, within such time as the Board may determine, a copy of the audited financial statement of its affairs to the end of its last fiscal year verified by the affidavit of its treasurer or other officer responsible for the handling and administration of its funds and to furnish a copy of the statement to the members of the trade union that the Board in its discretion may direct, and the trade union shall comply with the direction according to its terms.

(2) Where a member of a trade union complains that an audited financial statement is inadequate, the Board may inquire into the complaint and the Board may order the trade union to prepare another audited financial statement in a form and containing the particulars that the Board considers appropriate and the Board may further order that the audited financial statement, as rectified, be certified by a person licensed under the Public Accountancy Act or a firm whose partners are licensed under that Act.

93. (2) Every administrator shall file annually with the Minister not later than June 1 in each year or at such other time or times as the Minister may direct, a copy of the audited financial statement certified by a person licensed under the Public Accountancy Act or a firm whose partners are licensed under that Act of a vacation pay fund, or a welfare benefit or pension plan or fund setting out its financial condition for the preceding fiscal year and disclosing,

(a) a description of the coverage provided by the fund or plan;

(b) the amount contributed by each employer;

(c) the amounts contributed by the members and the trade union, if any;

(d) a statement of the assets, specifying the total amount of each type of asset;

(e) a statement of liabilities, receipts and disbursements;

(f) a statement of salaries, fees and commissions charged to the fund or plan, to whom paid, in what amount and for what purposes; and

(g) such further information as the Minister may require.

(3) The administrator, upon the request in writing of any member of the trade union whose employer has made payments or contributions into the fund or plan, shall furnish to the member without charge a copy of the audited financial statement required to be filed by subsection (2).

9. It is not disputed that the applicant, Mr. William Nixon, received copies of the Labourers’ Local 1089 Financial Statements, the Labourers’ Local 1089 (1985) Training and Rehabilitation Trust Fund Financial Statement and the Labourers’ Local 1089 (Sarnia) Benefit Trust Fund Financial Statement as of December 31, 1999.

10. These Audited Financial Statements were prepared by Chartered Accountants, BDO Dunwoody LLP. There are no allegations that these statements were not prepared in accordance with generally accepted auditing standards and generally accepted accounting principles. What the applicant requests is a breakdown of headings such as “professional services”, “transportation”, “wages and benefits” and “contingencies”. It is the applicant’s position that the Audited Financial Statements are inadequate under Section 92(2) of the Act. The applicant requests this information going back to 1992.

11. Section 92(1) of the Act requires a union to furnish a copy of an audited financial statement, upon the request of a member, of its affairs to the end of its last fiscal year certified by its treasurer or other officer responsible for the handling and administration of its funds to be a true copy.

12. There is no obligation under the Act to provide copies of audited financial statements, or any other financial information, beyond the last fiscal year’s audited financial statement. From the materials filed with the Board the last audited financial statement is for the year ending December 31, 1999.

13. The kind of detailed information the applicant is seeking is not information generally included in financial statements. Sections 92 or 93 of the Act do not oblige a union to provide a financial statement containing the breakdown of expenditures requested by the application. The responding party’s statements were prepared by a Chartered Accounting firm. The applicant is not alleging that the chartered accountants are in breach of their duty to prepare statements in accordance with generally accepted accounting principles and auditing requirements or the provisions of the Public Accountancy Act.

14. The applicant asserts the members of Local 1089 have aright to reasonable accountability and the financial statements do not provide enough detail for such accountability. The applicant submits there are numerous discrepancies which lead him to believe fraudulent activity may be occurring within LIUNA Local 1089. The applicant states he requires this information to ensure legitimate financial practices within LIUNA Local 1089.

15. There are no examples of “discrepancies” cited. There are no allegations other than the applicant’s “belief”.

16. The applicant also requests copies of minutes of the Local’s membership meetings and executive board meetings in order to cross reference the amounts of monies approved by the membership and executive board versus the actual amounts of monies paid out.

17. The applicant in paragraph 6 states that he has been unsuccessful in obtaining financial statements. The Board assumes given that the applicant has filed this application under section 92(2) that he is referring to what he considers “adequate financial statements”. The responding party filed a document which appears to be signed by the applicant where he acknowledges receipt of three financial statements for the year ending December 31, 1999.

18. The applicant has not set out any material facts or particulars that the financial statements are inadequate under section 92 or 93. A belief that fraudulent activity may be occurring is not a material fact. Any fraudulent activity involving union funds would seem to be a criminal matter and not something over which this Board has any jurisdiction. Alleged breaches of the criminal law are a matter for the police and the criminal courts.

19. The three financial statements were prepared by BDO Dunwoody, Chartered Accountants and Consultants. Each statements was accompanies by the standard auditor’s opinion letter stating that that the audits were performed following generally accepted auditing standards and that the financial statements were prepared in accordance with generally accepted accounting principles.

20. From the materials filed with the Board it appears that the responding party, LIUNA Local 1089, has not complied with section 92(1) as it relates to supplying to the applicant a certified copy of the audited financial statement of the Local.

21. The Board hereby directs the responding party, if it has not already done so, to provide the applicant with a certified copy of the Labourers” International Union Local 1089 Financial Statements for the year ended December 31, 1999, certified by Local 1089’s treasurer or other officer responsible for the administration of the union’s general fund, to be a true copy as required under section 92(1).

22. Section 93(2) requires an administrator of trust funds to file a copy with the Ministry of Labour a copy of an audited financial statement certified by a person licensed under the Public Accountancy Act or a firm whose partners are licensed under that Act. Article 93(2) (a) through (g) sets out the items that must be disclosed. The applicant is not alleging that BDO Dunwoody is not a firm whose partners are licenced under the Public Accountancy Act or that the items required in 93(2) (a) through (g) were not disclosed.

23. With respect to the applicant’s request for production of minutes of membership meetings and executive board meetings the Board makes the following comments. It would appear that members attending membership meetings would certainly know what was discussed. The by-laws of the union would govern the keeping and distribution of minutes both for the general membership meeting and for the executive board minutes. Unless there is a compelling reason to do so the Board does not involve itself in the internal workings of a trade union. If the applicant is unhappy with the way the union is run, he can seek to influence its affairs through its internal process and procedures.

24. With respect to the applicant’s allegations in paragraph 7 of his application, the applicant does not provide any particulars other than a general statement that he was laid off without notice from his employment because he was requesting adequate financial statements from the union. If the applicant wishes to pursue these types of allegations he can do so by filing a section 96 complaint setting out in detail who had made the statements, when and where and any other relevant information. Section 87 of the Act makes it unlawful for individuals to be discriminated against, or intimidated, because of launching proceedings before the Board.

25. The application does not make out a case for the orders or remedies requested pursuant to Rule 46 of the Board’s Rules of Procedure.

26. Having regard to the above this application is dismissed.

“Inge M. Stamp”

for the Board