Ontario Labour Relations Board
[1980] OLRB Rep. July 1039
2246-79-U Mario Moreira, Complainant, v. Labourers' International Union of North America, Local 506 and Labourers International Union of North America, Respondents, v. Ontario Hydro, Intervener.
BEFORE: N. B. Satterfield, Vice-Chairman.
APPEARANCES: W. Baerg for the complainant, Chris Paliare, Michele Gargaro, S. Gilbert Cragg and K. Green for the respondent; Win. O'Neill, J. G. Knight and E. Eshpeter for the Intervener.
DECISION OF THE BOARD; July 7, 1980
Ontario Hydro appeared at the hearing and was made a party to the proceedings. At the request of the respondent Ontario Hydro Nuclear Project, with the consent of the complainant and absent any opposition from the two other respondents, Ontario Hydro Nuclear Project was deleted as a respondent to the complaint and accordingly is deleted from the style of cause in this matter.
The complainant alleges that he has been dealt with by the respondents contrary to the provisions of sections 60, 60a and 61 of The Labour Relations Act.
At the hearing into this matter, the complaint was not pursued in respect of section 61 of the Act and insofar as that section is concerned the complaint is dismissed. Counsel for the respondents raised a preliminary issue as to the Board's jurisdiction to entertain the section 60 complaint and further requested that the Board dismiss the complaint in respect of section 60a (and for section 60 should the Board seize jurisdiction) on the grounds that the complainant had not exhausted the remedies available under the constitutions of the Labourers International Union of North America ("the international union") and its Local 506.
Counsel's challenge in respect of the section 60 complaint is founded in the fact that, at the times material to the complaint, the complainant was not "an employee in the bargaining unit" within the meaning of section 60. Counsel referred to the Board's decision in Arthur Joseph Roberts, [1974] OLRB Rep. Mar. 169. In that case, the Board was also dealing with a complaint that a trade union had acted in a manner that was arbitrary, discriminatory or in bad faith in the administration of a hiring hall provision of a collective agreement in respect of one of its unemployed members. The Board found that a trade union s section 60 duty of fair representation did not extend to members in good standing who are not employees in a bargaining unit and declined jurisdiction to proceed. That decision was made prior to the coming into force of the present section 60a of the Act. While the situations in the two cases are analogous, the instant complaint is based on allegations which related primarily to the complainant's eligibility for referral by the respondent Local 506 to available work, a situation falling squarely within section 60a of the Act. For this reason the Board chose to proceed under section 60a. The proceedings in respect of section 60 are terminated, therefore.
The Board denied the request of counsel for the respondents to dismiss the complaint because the complainant had not exhausted the constitutional remedies available to him and as well the Board declined to defer to the unions' constitutional process. Although the Board did not state its reasons at the hearing they were as follows. Even if the Board had chosen to give way to the respondents' constitutional process, it would not have dismissed the complaint but would have retained jurisdiction to assure that the outcome of that process was an adequate resolution of the complaint. In this respect, see the Board's decision in Imperial Tobacco Products (Ontario) Limited, [1974] OLRB Rep. July 418 at paragraph 34, wherein the Board decided to defer to arbitration in dealing with an alleged violation of section 60 of the Act, but retained its jurisdiction and awaited the outcome of the arbitration. Moreover, having regard to the content of the complaint and the fact that the complainant's livelihood in his trade was at issue, the Board was not satisfied that the respondent's constitutional process would have been as equally expeditious as the Board's nor could the Board be satisfied that adequate relief would be available under the respondents' constitution; the intervener does not have access to the process and it does not entitle the complainant to adduce evidence under oath. In these circumstances, the Board deemed it advisable to proceed under the Act to hear the complaint.
The complainant was the only witness to testify in support of the complaint. At the end of his examination by both counsel, counsel for the respondents asked that the complaint be dismissed because it had not been filed in a timely fashion and that his delay could not be excused on grounds of lack of knowledge of the Board's procedures since this was the third complaint filed by the complainant against the respondents since May 1978. The Board heard the representations of both counsel on the request, reserved its decision and heard the case on its merits. Counsel for the respondents' argued that the complainant's failure to file his complaint in a timely fashion prejudiced the respondents' ability to organize and prepare its evidence. Counsel was particularly concerned about the lapse of time since early January 1980 when an officer of Local 506 is alleged to have made statements to the complainant in front of other members on which the complainant is relying to establish his claim. Counsel contends that this delay has diminished the ability of the respondents' witnesses to recall accurately this event. The Board's practice in dealing with delay in section 60 complaints is stated in the following terms in Concrete Construction Supplies, [1979] OLRB Rep. Aug. 739, wherein the Board was dealing with a minimum delay of eight months from the time when the complainant may have realized that he had cause for a complaint.
"It is not the practice of this Board to bar complaints under section 79 unless there has been extreme delay. In the case of complaints involving alleged violations of section 60, the Board's practice has usually been to hear the complaint and consider delay, if it is unreasonable, when considering the relief to be given."
The Board concluded that the delay was not extreme in that case and that it would not bar the complaint from being heard. In the instant case, the complaint was filed March 3, 1980, barely two months after the event with which counsel for the respondents expressed concern and little more than two weeks after the last event in the complainant's allegations. Having regard for these circumstances and the Board's practice as stated in Concrete Construction, supra, the Board denies the request to dismiss the complaint. The hearings into the instant complaint were held on April 1st and May 2, 1980.
The Board heard evidence from two witnesses for the respondents in addition to that of the complainant. They were John Cardoza and Kenneth Green. Cardoza is dispatcher for Local 506 and responsible for dispatching members from its hiring hall to the available jobs as new requests from employers are received. Green is secretary-treasurer of the local. The evidence of the three witnesses contained some significant differences and contradictions. Having assessed all of that evidence, the realiability of the witnesses' recall of events, their demeanor and relative credibility, where the respondents' evidence is in conflict with that of the complainant, the Board relies on the respondents' evidence with one exception explained later in this decision.
The complainant works in the construction industry as a construction labourer and has been a member of Local 506 since 1973. He was laid off from an Ontario Hydro construction project July 12, 1979 and the next day registered on the Local's out-of-work list. He was assigned a number in accordance with the union's customary practice. Between that date and the end of 1979, while the complainant only worked another two days (not for Ontario Hydro), I am satisfied that the evidence as to the events during that time and as to the conduct of the complainant and the respondents' officials does not support a complaint that the respondents have, or either one of them has violated section 60a of the Act.
On or about January 7, 1980, the complainant went to the Local's hiring hall to pay his monthly dues. Cardoza, acting on prior instructions from Michele Gargaro who is business manager of Local 506, refused to accept payment of dues from the complainant and, according to the complainant, refused to put him back on the out-of-work list. Cardoza maintains the complainant sought only to be put on the "back list", a special list for out-of-work members that operates in conjunction with the out-of-work list to give members on the back list preference for available jobs over those on the other list. The back list exists primarily to take care of members who accept work referrals of very short duration or who, while on the out-of-work list, were unable to accept a referral for special reasons such as illness. The Board prefers the complainant's evidence on this issue because the Board finds it to be more consistent with the whole of the evidence on the events at issue than the respondents' evidence. Green, whose office adjoins Cardoza's with an open doorway between them, intervened and explained to the complainant that the refusal was a temporary decision until a ruling was obtained from the general secretary-treasurer of the international union. There is no evidence that the complainant was told why his dues were being refused. That official's ultimate ruling was that no member's dues could be refused unless the member was properly charged, tried and found guilty of an offence under the union's constitutions and by-laws, whereupon Local 506 again accepted dues from the conplainant.
Gargaro's decision to refuse the complainant's dues in the first instance was triggered by a newspaper report two or three weeks before the January 7th event that the complainant had been convicted of fraud against a welfare trust fund of the respondents. It is undisputed that there was a conviction and that it was appealed immediately. Officers of Local 506 had nothing to do with instigating the charges leading to the conviction. Green was concerned that this action might not be in accordance with the constitution and asked for a ruling from the general secretary-treasurer. This was the basis for Green's intervention when Cardoza told the complainant that his dues were being refused and for the explanation that the refusal of the dues was a temporary decision.
On or about January 11, 1980, Gargaro filed charges against the complainant alleging violation of the constitutions of the international union and Local 506 on grounds of alleged misconduct in April 1979 wholly unrelated to his conviction for defrauding the trust fund. Specifically, Gargaro charged that the complainant had slandered him on April 3, 1979 in front of the members by calling him a crook, "Mafia" and accusing Gargaro of selling to another member a job referral to which the complainant believed he was entitled and that he had repeated the insults and accusation in a telephone call to Gargaro on April 5th. These were alleged to be a violation of Article 3, Section 3 of the Uniform Local Constitution of Local 506. Gargaro charged that the complainant had violated also Article XVI, Section 2 of the International Constitution by filing with this Board two separate complaints on April 30, 1979 and July 23, 1979 alleging violation of section 60 of the Act. While some eight months had elapsed between the alleged slander and filing of the charges, the unions' constitutions impose no time limit for the filing of charges. The complainant was duly notified of the charges by registered letter dated January 17, 1980 and of the hearing into them which was held on January 28, 1980. He chose not to attend, was found guilty of the charges and fines were levied against him. A copy of the minutes of the hearing, including the findings and the penalty imposed, was sent to him with a transmittal letter dated February 14, 1980. These minutes record that the Trial Board of Local 506 found the complainant to be guilty as charged and levied fines of $500.00 each on the two charges of slander (i.e. April 3rd and April 5th) and directed that he compensate Local 506 for its legal costs for its defense of the two complaints which had been dismissed by the Board after hearing.
Meanwhile, on January 15th, an office employee of Local 506 had issued a transfer slip to the complainant. The next day he went to Local 183 of the international union to transfer into that local. In the meantime, Green had learned of the issuance of the transfer slip and notified an official of Local 183 that charges were outstanding against the complainant. In these circumstances, under the constitution of the international union the complainant was not eligible for transfer and Local 183 refused to accept his transfer slip.
Prior to the hearing of this matter the Trial Board took advice from legal counsel, reconsidered its decision and decided:
(a) not to impose on the complainant the legal costs incurred by Local 506 on the two dismissed section 60 complaints; and
(b) to reduce the fines levied in respect of the other violations to a combined total of $100.00.
The complainant and the Board were notified of this change on March 24, 1980, by letters of the same date. The effect of the fines remains the same, however, and that is to cause the loss of his "good star ding" status as a member of Local 506 and the international union until such time as he pass them. Without good standing he is ineligible to go on the out-of-work list of Local 506 for referral to available work and he continues to be ineligible for transfer to any other local of the international union. This has the effect of excluding him from being employed in his trade in a major segment of the construction industry. There is no evidence before the Board that the complainant was on the out-of-work list of Local 506 after his last referral to work or that he applied to be put on the list and was denied that right between his last work referral and having his dues refused on January 7th.
- Section 60a of the Act provides as follows:
"Where pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment, it shall not act in a manner that is arbitrary, to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith."
The purpose of the section is evident from its wording; that is, to protect persons from arbitrary, discriminatory or bad faith acts of a trade union which, under the terms of a collective agreement, is involved with referring those persons for employment. It is an important protection, particularly in the construction industry where various employment referral systems, popularly called "hiring halls", have prevailed for many years. Persons employed in construction trades in the unionized segment of the construction industry depend substantially on these hiring halls for sharing equitably in the work available for their trade, the degree of dependency varying with the extent of unionization of the trade. To the extent also that employers can obtain manpower on short notice from hiring halls to meet their fluctuating requirements, they also benefit from hiring hall operations. Concern over the operation of hiring halls is with the potential for abuse which exists when a union official decides whether a member is entitled under the hiring hall rules to be referred to available work. Statutory protection of the sort expressed in section 60a of the Act comes into play in those infrequent cases where union officials, by means of acts which are discriminatory, arbitrary or in bad faith, remove, restrict or tamper with the rights of persons to be referred to employment through the hiring hall system.
- In the case at hand the Board is not dealing with a question of improper referral, including failure to refer, to employment from the Local 506 hiring hall, rather it is dealing with the removal of the complainant's eligibility to be on the out-of-work list. The removal of his eligibility has resulted from internal procedures under the respondents' constitutions. While this Board has no specific authority under the Act to undertake any sort of watch-dog role over a union's internal processes under its constitution and by-laws, the Act clearly gives it authority to determine whether a union had breached its section 60a duty. This in turn may require the Board to examine the union's conduct under its constitution and by-laws. While the Board is reluctant to invade the internal procedures of a trade union, it does so when it becomes essential to the exercise of the Board's authority and responsibility under the Act. See for example, the Board's decision in George Zebrowski, [1977] OLRB Rep. Mar. 143, in which the Board reviewed the procedures followed by the trade union under its "Constitution and Laws" in expelling the complainant from membership in the union, as a consequence of which the complainant was discharged from his employment. Another example of the Board finding it necessary to review a trade union's internal procedures is found in the Board's decision in Rupert S. Martin, [1977] OLRB Rep. Oct. 671. The Board in that case, in order to determine whether section 60a of the Act had been breached, reviewed the internal decision-making process by which the respondent trade union decided not to refer the complainant to any employers who were seeking to employ members of the respondent through its hiring hall. In that same decision the Board dealt also with a question of whether one officer of the trade union had authority to make the decision not to refer the complainant to employment. In dealing with that issue, the Board acknowledged that it "..., does not have the authority to police union constitutions and by-laws." and then stated:
"This is not to say, however, that where a union's constitution or by-laws have been deliberately flouted or where certain steps have been taken notwithstanding a challenge that they might be in violation of the consituation or by-laws, that those actions might not be a relevant factor in determining whether or not a breach of section 60a has occurred.".
In a like manner, the Board finds it essential in the circumstances of the instant case to review how the complainant was dealt with by Local 506 under its constitution and by-laws in order to determine whether there has been a breach of section 60a of the Act.
The facts in this case as outlined above reveal that officers of Local 506 refused to accept the complainant's dues and to put him on the out-of-work list without advising him of the reasons for these actions. (It was only when the complaint triggered by the actions led to the hearing into this matter that the complainant learned of them.) Then Gargaro, upon learning that his actions were contrary to the constitution, filed the aforementioned charges against the complainant on grounds wholly unrelated to the reason advanced at the Board's hearing for the initial refusal to accept his dues and to put him on the out-of-work list. The charges were filed and proper notice of them and of the hearing into them was given to the complainant, all in accordance with the constitutions. The complainant declined the opportunity to attend the hearing and be heard.
While the officers of Local 506 may have had good reason for not filing charges against the complainant under its constitution as a result of the fraud issue and for waiting eight months after his alleged misconduct for which he was charged, none were given to the Board. In the absence of any reasons or explanation for these circumstances, the Board is left to conclude that the two actions were related and had the single purpose of removing the complainant's right to be referred to employment through the Local 506 hiring hall. In other words, when Ciargaro could not make the dues refusal stick, he looked around for some other way to achieve the same end and filed the charges referred to above. Had the Local 506 Trial Board not decided to rescind its decision with respect to the complainant's two earlier section 60 complaint!; before this Board, that decision would have been the basis for finding a violation of section 71(2) of the Act. With that element of the charges against the complainant removed, there remains only the two "slander" charges. At the time the insults and accusations were directed at Gargaro by the complainant they could well be viewed as a proper cause of action under the constitution. With the passage of time, however, it seems to the Board that the injurious effect of the complainant's actions are lessened and eight months later one wonders what injury remains; in the Board's view it would be little and strengthens the conclusion that the real reason for the charges was to remove the complainant's good standing status. The Board therefore finds the filing of the charges after an eight months delay to be an arbitrary and a bad faith exercise of the respondent's powers under their constitutions. Consequently, the Board finds that the respondents have acted arbitrarily and in bad faith in removing the complainant's eligibility for referral from the Local 506 hiring hall and therefore have acted in a manner that is contrary to the provisions of section 60a of the Act.
The Board, therefore orders and directs the respondents to forthwith rescind the remaining fines and restore the complainant's "good standing" status as a member of Local 506 and the international union and with it the same rights, duties and privileges which apply to any other member in good standing of Local 506 and the international union. Reinstatement is to be effective from the date when the complainant's good standing status was withdrawn.
The Board further orders and directs that the respondents compensate the complainant for lost earnings opportunities since January 7, 1980, when he was first denied access to the out-of-work list of Local 506 and that the complainant and respondents meet and attempt to agree on the appropriate compensation. The Board will remain seized with this matter in the event that the parties are unable to reach agreement on compensation.