Joseph Neblett v. United Association of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, 1980 CanLII 881

Ontario Labour Relations Board

[1980] OLRB Rep. May 808

1555-79-U Joseph Neblett, Complainant, v United Association of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Respondent.

Panel and Appearances

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.

APPEARANCES: Charles Roach and Joseph Neblett for the complainant; L. C. Arnold and W. Howard for the respondent.

Decision of the Board

DECISION OF THE BOARD; May 9, 1980

1. This is a complaint under section 79 of The Labour Relations Act alleging a viola­tion of sections 60 and 60a of the Act. Those sections provide as follows:

"60. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the repre­sentation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

60a. 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, discriminatory or in bad faith."

The essence of the complaint, as outlined at the outset by counsel for the complainant, is that the respondent trade union, the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, has two sections in its membership and has a practice of recommending members in its "commer­cial" section in priority over members in its "residential" section to commercial jobs. While the evidence placed before the Board was extensive, the fact is that the respondent trade union readily admits to the practice complained of, and indeed refers to its Constitution as the foundation for the practice. The simple question for the Board, therefore, is whether or not such a practice can be said to be in violation of either section 60 or section 60a of The La­bour Relations Act, as alleged.

2. The evidence establishes that the residential section of Local 46 had its origins in the construction boom of the mid-1960s. In Metropolitan Toronto in particular, that period witnessed a tremendous increase in the number of high-rise residential units being con­structed, which in turn brought onto the scene a significant number of previously unorgan­ized tradesmen to serve this residential sector. The officers of the respondent Local 46 there­fore began to consider how organization of this new sector could best be accomplished. The said officers first had regard to the eligibility requirements for membership in the respon­dent, which, according to its Constitution, provided as follows:

"Sec. 158. Every applicant for membership as a journeyman in a Building and Construction Trades Local Union or a Combination Local Union (Building and Construction Trades Branch) must be a skilled craftsman and his application must contain information as to his experi­ence and/or training. These qualifications must include:

1. that he has had a minimum of at least five (5) years actual, practical working experience in the plumbing and pipe fitting industry.

2. That he is of good moral character.

3. That he passes a satisfactory examination as to his skill and ability as a Building and Construction Trades journeyman, conducted by the Examining Committee of the Building and Construction Trades Local Union or the Building and Construction Trades Branch of a Combina­tion Local Union.”

4. There was, at the time, no provincial certification in effect for plumbers and steam fitters — only municipal licensing requirements. Local 46, however, had, at least since 1956, set its own examination pursuant to section 158 of the Constitution. When, at a later date, provincial certification came into force, the only effect given to it by Local 46 was to accept it as proof of an applicant's working experience, as required by paragraph 1 of section 158, SO that he qualified to write the Local's examination. Because working in the high-rise residen­tial sector tended to be of a repetitive and accordingly less-complicated nature than that which might be encountered in the institutional, commercial and industrial sector, Local 46 found that a number of the tradesmen in the "new" sector were not qualified to pass the Local's entrance examination.

5. A second problem of concern to the officers of Local 46 was that they felt it would be necessary to be able to offer contractors in the high-rise residential sector a collective agreement with rates somewhat lower than those established for the institutional, commer­cial and industrial sector, in order to make voluntary recognition more attractive to such contractors.

6. Accordingly, Local 46 applied for and received approval from the General Presi­dent to set up an Organizing Division for the residential sector with special dispensation in regard to the entrance examination and initiation fee. The normal initiation fee, then $51.00, was reduced to $26.00 for the purposes of this Division. More importantly, appli­cants who could prove at least some field experience in the trade would be accepted into membership but only in the Organizing Division. The authority for this special arrangement was set out in the union's constitution, which, as of 1966, read as follows:

"Sec. 91. The General Officers are empowered to institute in existing Building and Construction Trades Local Unions or Combination Local Unions divisions for organizing in the Refrigeration or Speculative Housing and Residential branches of the plumbing and pipe fitting in­dustry. They are also empowered to set up any and all rules and regula­tions, including initiation fees and dues necessary for membership re­quirements. Building and Construction Trades Local Unions or Combination Local Unions may set up such divisions upon application to, and approval by, the General Officers."

6. The original concept was that commercial members of the union would be as­signed by the union's hiring hall to commercial work, and the residential (or organizing) members to residential work. However, under its commercial collective agreements, the union normally had 72 hours to fill an employer's request for a tradesman, before the em­ployer was entitled to fill his needs on his own. Rather than have the employer hiring from off the street, therefore, the practice of Local 46, when the demand for commercial workers was such that no commercial members were available to fill all of the employers' requests, was to assign a residential member to the project.

7. During the period 1965 to 1970, from 1,000 to 1,100 persons were admitted to Local 46 as "residential" members. Any of those subsequently wishing to transfer into "commercial" (or regular) membership could do so at any time, provided only that they paid the difference in the initiation fee, and successfully sat the examination set by the Exam­ining Committee. To date some 75% of those 1,000 to 1,100 originally admitted as residen­tial members have transferred into the commercial division. None have done so without passing the entrance examination, except for those, in accordance with the U.A.'s constitu­tion, who have completed the government's apprenticeship program.

8. The evidence further establishes that negotiations for the commercial and resi­dential sectors are carried on separately by Local 46, with the union deliberately settling the commercial contract first, since that is the sector in which it has the greatest bargaining strength. Through the years the differentials in the two collective agreements which origi­nally existed respecting wage rates and overtime have been eliminated, so that the residen­tial sector has now achieved parity with the commercial. When it comes to ratification of tentative settlements, Local 46 gives notice of the meeting, for a commercial contract, to all its commercial members, and, for residential contracts, to all its residential members. In ad­dition, members of one sector who happen at the time to be working in the other sector, ac­cording to the records maintained by the Local's dispatch office, are also given notice when the contract in that other sector is being ratified.

9. With respect to job assignment, there is in the dispatch office for Local 46 a board on which is posted the names of commercial members only. The names go on the board, and are referred out, strictly in the order in which members notify the office that they are looking for work. Referrals for residential work are handled in the same way, except that there is no posting of names on a board, the reason being, it was explained, that so few requests for men are received in the residential sector. It would appear that contractor's needs for men in that sector are filled almost exclusively by direct solicitation. The vast majority of requests for contractors occur in the commercial sector, and, as indicated at the outset, the respondent does not dispute that clear priority on such requests is given to its commercial members. In­deed, until recently, when a residential member was referred to a commercial job because of the unavailability of any commercial members of the Local, he was required to sign a "tem­porary transfer" card, acknowledging that he could be bumped from that job by a commer­cial member on one day's notice.

10. The complainant, Mr. Joseph Neblett, joined the respondent trade union in Oc­tober 1966, through the Residential or Organizing Division. It appears that from the time he joined Local 46 until sometime in 1970 he was referred by the union exclusively to jobs in the commercial sector. After 1970, Mr. Neblett failed to receive any further referrals from Local 46, and was forced to find work outside of the Toronto area. He did so until sometime in 1976. He has since returned to Toronto, and registered for work with the union's dispatch office. To date, however, he has not been referred to any jobs by the union. On one occasion in particular, he had spoken to Mr. Bill Howard, the respondent's Business Manager, about upcoming work on Gulf Oil project in Port Credit. However, unlike in the sixties, there was insufficient commercial work in the Toronto area to provide full employment for all of the Local's commercial members. Accordingly, when Mr. Howard discovered that Mr. Neblett was only a residential member, he made it clear to Mr. Neblett that he would not be refer­ring him to the Gulf Oil job. Although not germane to the present complaint, this refusal caused Mr. Neblett (who is black) to file with the Human Rights Commission a separate complaint which was investigated and dismissed.

11. Mr. Neblett acknowledged in his evidence that he knew at the time of joining the respondent trade union that he was entering the Organizing Division only, and that there would be a preference on commercial jobs for those members who were in the commercial section of the union. As he stated: "That's what it was set up for". Mr. Neblett took a re­fresher course at Central Tech, under the sponsorship of the respondent trade union, in 1970, and appears to have qualified for the provincial certification in 1973. He testified that when he joined the respondent, he was told that his entrance into the Organizing Division was a "temporary thing", and that he could go on to the commercial section after he wrote the examination. His position, both in the various discussions preceding the filing of his complaint, as well as in his testimony before the Board, appears to have been that, having received his provincial certification; he had "taken the examination". When asked on cross-examination to explain exactly what it was about the union's system that he felt was unfair, Mr. Neblett responded simply that the union "didn't call me — any individual would blame the authorities".

12. In addition to the referral problem, counsel for the complainant took the position that the manner of negotiating for the two sections as well as the criteria used for giving no­tice of ratification meetings, were in themselves violations of section 60 of the Act. It should be noted, however, that section 60 refers to employees in a bargaining unit, and this require­ment has been decided by the Board to be mandatory for the section to apply (see the Arthur Joseph Roberts case, [1979] OLRB Rep. March 169. This complaint was filed on November 7, 1979, and while the Board ruled that the complaint, because of its continuing nature, could be proceeded with, such a ruling does not give to the complaint an indefinite degree of retroactivity. There was no evidence whatever to suggest that the complainant had been an employee in a bargaining unit covered by a collective agreement at any time in the recent past, and accordingly any allegations of a violation of section 60 of the Act must be dis­missed. The Board would note in passing, however, there was no evidence before it to sug­gest that the ratification procedure was being applied in a manner that was arbitrary, dis­criminatory or in bad faith. As for the method of negotiating the two contracts, the respondent's success in achieving for the residential section parity with the commercial sec­tion, in the Board's view, speaks for itself.

13. The primary thrust of the complaint, however, pertains to the practice of the re­spondent of granting priority to commercial over residential members in the selection or re­ferral of men to commercial jobs. The respondent submitted that this branch of the com­plaint must fall as well, on the technical basis that the complainant had failed to prove that such selection or referral was "pursuant to a collective agreement". Again, section 60a pro­vides:

"60a. 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, discriminatory or in bad faith."

The respondent is correct that the application of this section depends upon the selection or referral being done pursuant to a collective agreement (see the Menacho case, [1979] OLRB Rep. July 675). It is also true that the complainant did not file a copy of any collective agree­ments in this matter. The respondent, however, referred at various points in its evidence to the need to supply men within 72 hours of a contractor's request pursuant to the terms of the collective agreement. Accordingly, the Board finds that the respondent has admitted the fact which is a condition precedent to the application of this section.

14. The complainant maintains that the mere existence of two classes of employees within Local 46's membership, and in particular the preferential treatment of one class over the other in its referral practices, must necessarily create a conflict of interest which can only be resolved by acting towards one group in a manner which is arbitrary, discriminatory or in bad faith. In the Board's view, however, whether that ultimate conclusion is justified de­pends on the basis upon which the respondent distinguishes between the two classes. Here the distinction is simply between those who have passed the respondent's internal entrance examination, and those who have not.

15. Counsel for the complainant argues that the examination is itself arbitrary, in that residential members who have never passed the examination are nonetheless assigned to commercial projects when the need arises. He argues further that the examination is no more than a device initiated by the respondent to protect the preferential status of those per­sons who joined as members prior to 1966— the "old boys", as counsel referred to them. In response to all of this, the Board notes that the respondent's practice of requiring persons whom it is prepared to admit as members to pass an examination of its own pre-dates the birth of the Organizing or Residential Division by at least ten years. There is no evidence before the Board to suggest that the examination has subsequently been amended to make it purely arbitrary in nature. Certainly an organization such as the respondent is entitled to promote the highest possible standard of quality amongst its membership by developing and applying in a uniform manner its own set of qualifying examinations, quite apart from the level of competence demanded by provincial authorities. This laudable desire on the part of the respondent is not inconsistent with its practice of referring to commercial work residen­tial members when the demand for tradesmen exceeds the number of commercial members available. At such times, the respondent is, from the respondent's point of view, simply pro­viding "the best man available".

16. At the same time, the opportunity for these less-qualified individuals to join and have the protection of the respondent, as well as to be referred to commercial work when a surplus of such work existed, has clearly been of benefit to such individuals, including the complainant Mr. Neblett. Having applied for and been granted membership in the respon­dent with full knowledge of the restrictions on its terms, and having enjoyed the additional benefits during the times that the volume of commercial work made them available, it is not now open to Mr. Neblett to complain about the arrangement. Neither is it open to Mr. Neb­lett to decide for himself what he must do to prove his qualifications as a "full" or commer­cial member. He is governed by the rules of his Association like any other member who chooses to join, and those rules, as embodied in the Constitution, define the examination which Mr. Neblett must pass in order to qualify as a commercial member. If Mr. Neblett still wishes to become a commercial member of his union, he need only follow the path of all those who have gone before him.

17. This complaint is hereby dismissed.