Ontario Labour Relations Board
File No.: 2532-98-U Date: October 24, 2001
Applicants: Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers and the International Union of Bricklayers and Allied Craftworkers, Locals 1, 2, 4, 5, 10, 12, 20, 23, 28, 29, and 31, Jerry Coelho and Tom Oldham v. Responding Parties: International Union of Bricklayers and Allied Craftworkers, John T. Joyce, John J. Flynn, Frank Stupar, and James Bowland v. Intervenors: Terrazzo, Tile & Marble Guild of Ontario Inc., Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers on its own behalf and on behalf of all its affiliated Locals, and the International Union of Bricklayers and Allied Craftworkers, Locals 6, 7 and 25, Masonry Industry Employers’ Council of Ontario
Before: David A. McKee, Vice-Chair.
DECISION OF THE BOARD
1This decision deals with a request for reconsideration of a decision of the Board dated September 20, 2001 (the “Request”). The Request is denied. Nothing in the Request causes me to reconsider the decision, or to direct other parties to respond to it.
2Much of the Request consists of an attack on my motives in writing the decision, alleging essentially a dishonest purpose and a lack of good faith. I consider it inappropriate to become engaged in that sort of personalized debate and decline to do so, beyond denying the motives attributed to me in the Request. The decisions speak for themselves.
3There are however, three points to which I do wish to respond.
4There have been a number of decisions issued in this file. The final decision in Board File No. 2532-98-U was issued May 2, 2001 (the “May 2 Decision”). There were further decisions dated May 11, 2001 (in response to correspondence from the BACU/OPC), May 22, 2001 (in response to correspondence from the IUBAC) and, after seeking submissions from the BACU/OPC on the issues raised by the IUBAC another decision, on May 30, 2001(the “May 30 Decision”). On September 20, 2001, I issued another decision in response to the request by the BACU/OPC to make certain changes to the May 2 Decision (the September 20 Decision”). It is the September 20 Decision that the BACU/OPC seeks to have me reconsider.
5The first issue is the assertion by the applicant that it did not ask the Board to reconsider the May 2 Decision in its request which led to the September 20 Decision. Technically that is incorrect. The applicant did ask the Board to change a portion of the May 2 Decision, which can only be done pursuant to the reconsideration power under section 114. Perhaps it is more accurate to say that counsel asserts that in dealing with his more limited request for reconsideration I expanded the decision to “reconsider” more than the issues raised in his request.
6With all due respect, counsel has misread the May 2 Decision and the September 20 Decision. The only request made by the applicant on August 27, 2001 was that I amend the decision with respect to the date by which certain persons were to advise the IUBAC of their desire to join the union. I denied the request. The decision consists of the reasons why I denied the request. That is all the September 20 Decision does.
7It is apparent that counsel for the applicant has misread the May 2 Decision and the subsequent decisions. Contrary to what is asserted at paragraph 9 of the Request, the Board did not order all members of the IUBAC or a local thereof as at Oct 17, 1998 and all those who joined the BACU since that date to indicate whether they wish to be members of the IUBAC. The original Order, under the heading “Membership” is found at p. 48 of the decision and is quoted at paragraph 7 of the Request. It reads in part:
“The Board directs the IUBAC to accept, and record as members in good standing as of June 1, 2001, all persons who are members of the IUBAC or of an Ontario Local as at October 17, 1998 or who, between October 17, 1998 and the date of this decision, joined a local of the IUBAC or the BACU and who signifies his or her wish to be a member of the IUBAC in writing on or before August 31, 2001. No further or additional initiation fees or dues are to be paid by such persons beyond the dues payable by all members in Ontario on and after June 1, 2001.” (emphasis added)
The highlighted “or” is disjunctive. As should be obvious from the decision, I was concerned with two groups of people. Any person who was a member of the IUBAC before October 17, 1998 was to remain a member. These persons had once been members of the IUBAC. Indeed their representative, the OPC, had taken action on their behalf in filing this application against its parent union, the IUBAC. There was no conceptual difficulty in requiring the IUBAC to continue to treat those persons as members and to suspend any obligation to pay dues for a period of time.
8Persons who had joined the Union since October 17, 1998 were in a different category. They had never been members of the IUBAC (the evidentiary foundation for this statement is discussed below). The Board could hardly order them to join another union they had never shown a desire to join and it was therefore necessary to give them that opportunity. Since they had joined the union after October 17, 1998 the IUBAC would not have their names and addresses. Therefore it was necessary to require the OPC and the BACU to produce them.
9The applicant quotes from the third paragraph of the May 30 Decision. That paragraph refers to the second group – those who had joined the union since October 17, 1998. They were the ones who needed to be given the opportunity to signify whether or not they wished to become members of the IUBAC. The issue did not arise with respect to persons who were members of the IUBAC as at October 17, 1998 as the IUBAC had already been directed to treat them as members in good standing. Counsel for the applicant has misread paragraph 3 of the May 30 Decision as applying to both groups.
10The reason for requiring the OPC/BACU to provide the names and addresses of both groups was to ensure that the IU had a complete list of names and addresses in order that it could send out the Notice as required by the Board’s Orders in the May 2 Decision to “each member in Ontario (including persons who are entitled to become members)”. As indicated in the September 20 decision, it is likely that the IUBAC had most of the addresses of those who were members on October 17, 1998, but it is certain that some of them had changed their residence addresses since that time. It would have had none of the names and addresses of persons who had joined the union since that date.
11Second, counsel asserts that I violated section 8 of the Statutory Powers Procedure Act by making findings of fact about the BACU or the OPC without giving counsel notice of the possibility that I might do so. Again, I do not wish to become engaged in a debate with counsel about what is found in decisions which speak for themselves. My comments about the OPC and BACU found at paragraphs 9, 12, and 15 are my characterization of the actions of the BACU and the reasons for rejecting the request made by them. It would be improper to reject the request without giving reasons. Counsel may not agree, but those are the conclusions I drew based on the evidence I heard in this case and on the correspondence received from the parties since May 2, 2001 (except the letter from the IUBAC dated August 31, 2001, which I did not consider worth pursuing beyond noting that the IUBAC did not agree to the applicant’s proposal)).
12Finally, counsel asserts that I made findings of fact with no evidence. Specifically he objects to paragraph 16 of the September 20 Decision, which he claims was made without evidence. That paragraph in full states:
“The assertion made is that the Board's order is offensive in that it requires the BACU, an independent trade union, to provide a list of its members to the IUBAC. This is a superficial analysis. First, it is likely that the IUBAC has most of the addresses of members who were members before 1998. When lists of approximately 25 percent of the active membership (in 1998) of Local 1 (Hamilton) were produced by the OPC and the IUBAC in another application, (Kvaerner Jaddco Board File No. 2784-98-U where the Board delivered notices), there were only two of approximately 110 addresses which were different. Further, from the evidence I heard in these proceedings, there are members of the BACU who have joined since 1998 who were never members of the IUBAC. I heard no evidence about their reasons for joining or their perception of what they were joining. However, the BACU presented itself as "the Bricklayers Union" in the Province of Ontario. It was able to do so because the BACU was de facto in control of the Union, although its authority to do so may have been questionable at the time. Certainly there is no suggestion made that the new members were given any explanation about the distinction between the BACU and the IUBAC or any choice about which union they wished to join. They were simply issued cards in the BACU.”
13The finding made about persons being issued a card in the BACU came from numerous sources in the evidence. One example will suffice. Mr. Kerry Wilson, business manager of Local 1 of the BACU and Local 1 of the IUBAC was called as a witness by counsel for the applicant on February 22, 2001. He was cross-examined by counsel for the IUBAC in the normal course. He was cross-examined a second time, on agreement of the parties, after counsel for the BACU, in redirect, clarified an innocent misstatement that had been made in cross. The subject matter of this cross-examination was actually the propriety of certain persons voting at IUBAC Local 1 meetings.
14The reason this was of significance to the IUBAC was that, on the evidence of Mr. Wilson (and indeed of Mr. Haggis, another witness called earlier by the applicant) persons who had joined “the union” after October 17, 1998 joined as members of the BACU. The point was made numerous times in evidence that the IUBAC had purported to dissolve the old IUBAC locals and suspend their officers. The IUBAC was seeking in an action before the Superior Court of Justice to enjoin them from using names and trademarks associated with the IUBAC. It was, at least in theory, impossible for them to act as officers of the IUBAC or to issue any document bearing the name of the IUBAC. Therefore necessity and inclination converged, and persons were members only of the BACU.
15Although little was made of this in argument, the point the IUBAC seemed to be pursuing was that some 50 to 60 persons who had joined Local 1 since October 17, 1998 attended at, and cast ballots at, meetings of both IUBAC Local 1 and BACU Local 1. That is, if they had never been made members of IUBAC Local 1, the various constitutional amendments passed by IUBAC Local 1 might well be subject to challenge. There was initially some confusion about the number of persons in this category, or how many of them had actually attended which meetings. It is true, as I said in the decision that “I heard no evidence about their reasons for joining or their perception of what they were joining”. There was, however, no doubt that they were members of the BACU only.
16Indeed, it was because there were persons potentially affected by the Orders made in the May 2 Decision who were members of the BACU only, that it was necessary to draw a distinction between those who were members of the IUBAC as at October 17, 1998 and those who had joined only the BACU since that date.
17This application for reconsideration is dismissed.
“David A. McKee”
for the Board