[1982] OLRB Rep. July 981
2085-81-U Melvin Haukaas, Complainant, V. Local #1744. (Fort Frances) International Brotherhood of Electrical Workers, Respondent, v. Boise Cascade Canada Ltd., Intervener.
BEFORE: Ian Springate, Vice-Chairman, and Board Members W. H. Wightman and B. K. Lee.
APPEARANCES: Allan T Bedard and others for the complainant; Roy Lagarie and others for the respondent, D. I. Wakely and others for the intervener.
DECISION OF THE BOARD; July 20, 1982
- This is a complaint under section 89 of the Labour Relations Act alleging that Local 1744, International Brotherhood of Electrical Workers (the "IBEW") has violated section 68 and 69 of the Act. At the hearing in this matter, the complainant abandoned his claim that the IBEW had violated section 69 and relied strictly on the alleged violation of section 68. Section 68 provides as follows:
"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."
The complainant has been employed by Boise Cascade Canada Ltd. ("the company") in Fort Frances for approximately twenty years. For most of this time he has worked exclusively within the jurisdiction of Local 92 of the United Paperworkers International Union (the "U PIU"). In December of 1979, however, the grievor bid on and was awarded the position of spare power house operator, a job within the jurisdiction of the IBEW. It was accepted either explicitly or implicitly by all of the parties that while employed as a spare power house operator, the complainant was covered by the terms of a collective agreement between the company and the IBEW. The spare power house operator fills in whenever one of the company's four regular operators is away from his job. Because of the intermittent nature of the work, the complainant continued to work primarily within the jurisdiction of the UPIU, and spent only part of his time within the jurisdiction of the IBEW.
In any month where the complainant worked in excess of 40 hours within the jurisdiction of the IBEW, $17.50 was deducted from his pay for forwarding to the union. In November of 1981 the complainant indicated to the IBEW that he desired to become a member of the union. The response on the part of the IBEW was that in line with past practice, the complainant would only be given an IBEW application card once he obtained the position of permanent power house operator. Notwithstanding the fact that the complainant never became a member of the union, section 68 of the Act makes it clear that the IBEW was under a duty to represent the complainant in good faith and not act in a manner that was arbitrary, discriminatory or in bad faith.
On November 10, 1981 the company posted a notice advertising a vacancy for a permanent power house operator. The posting form stated that the qualifications for the job were as follows:
"Applicants should possess the following qualifications:
Grade 12 — list post graduate
Studies — mechanical aptitude testing (all qualifications equal to apprenticeship — including interviews)."
These qualifications were not required when the complainant applied for the relief power house operator's job in 1979. The complainant does not have a grade 12 education.
- The grievor was the most senior applicant for the permanent power house operator's job. The relevant provisions of the IBEW collective agreement relating to the selection of a person to fill a vacancy are as follows:
"1102 All vacancies in jobs or positions coming under the jurisdiction of any of the AFL-CIO (CLC) unions with the which the Company has an agreement, shall be filled in the following manner:
(a) Members of the Union having jurisdiction over the vacant job or position, whether employed by the Company or laid off, shall have priority over any other person for the job or position to be filled.
(b) In the event members, either employed or laid off, of the Union having jurisdiction over the vacant job or position are not available, then members in good standing of other AFL-CIO (CLC) Unions with which the Company has an agreement, who have been in active service for the Company for at least one year and who are qualified (or equally as qualified as any other applicant) for the job or position to be filled, shall be given preference.
(d) The oldest employee in point of service shall be given preference provided he has the necessary qualifications to perform the work."
Although the point is not clear, it appears that none of the applicants applying for the position were actual members of the IBEW. Accordingly, it would appear that the grievor, being the oldest employee in point of service, should have been awarded the job provided he had the necessary qualifications to perform the work. The grievor, of course, had already been performing the same job on a part-time basis.
The complainant took a mechanical aptitude test along with the other applicants for the vacancy. No direct evidence was led concerning the complainant's performance on the test. The complainant testified that the company official who administered the test advised him that he was "in there" with the others, whereas Mr. Doug Langtry, the president of the IBEW, advised him that his information from the company was that the complainant had achieved a low score on the test.
The complainant was not awarded the job of permanent power house operator. Instead, on or about November 10, 1981, the job was awarded to an employee with less seniority than he. On November 30, 1981 the complainant wrote the following letter to Mr. M. O'Brien, the company's mill manager:
"Dear Marty,
I wish to inform you that I feel I have been totally discriminated against in the selection of a full time (permanent) power house operator.
I would like to know in writing and by registered mail the reasons for not selecting me as a power house operator (full time).
I feel your response is greatly important, as I have every intention to go to the Human Rights Commission and if necessary the Labour Board to air my grievance against BOTH management and Union (I.B.E.W.) if this matter is not resolved to my satisfaction."
On November 30, 1981 the complainant also wrote the following letter to Mr. Langtry, the IBEW president:
"Dear Pres. Langtry:
I am informing the membership of the I.B.E.W. that I will be at the next regular meeting of the I.B.E.W. for the sole purpose and intent on becoming a full member of the I.B.E.W. As you are aware I have been paying ½ dues going on 2 years. I also paid the $140.00 full assessment after last negotiations. I feel I have more than enough of my qualifying time in to become a full member.
I also wish to inform the local that I feel I am being discriminated against in the selection of a power house operator on a full time basis. As a result I request the local union clear this matter up with management immediately.
If the local union will not accept me as a full member or assist me in securing the POWERHOUSE OPERATOR job, I would like you to respond to me by registered mail giving the reason.”
- On December 8, 1981, Mr. O'Brien responded to the complainant on behalf of the company, and in so doing denied any wrongdoing on the part of the company. On the same date, the complainant forwarded the following letter to Mr. O'Brien:
"Dear Sir:
I wish to inform you of my intent to grieve the Power House Operators job — full time. Under the provisions of the collective agreement I feel I have been improperly treated, and as requested earlier I would like an official response to my original letter of November 30, 1981.
A letter has been sent to the Minister of Labour by me requesting assistance in my endeavours to become a permanent power house operator.
I find it difficult and awkward trying to get satisfaction on my grievance from both union and management.
Your response to my letter of November 30, 1981 and of this letter of my intent to grieve would be appreciated."
Notwithstanding the complainant's letter to the IBEW requesting the union's assistance in securing the permanent power house operator's position, the IBEW declined to intervene with the company on his behalf. The complainant testified that he was orally advised by Mr. Langtry that the IBEW would not be assisting him, and that the only document which the union sent to him was a copy of a letter from the company to the union indicating that it would be altering the qualifications with respect to jobs in the powerhouse. As noted above the complainant did not possess the newly set qualifications. According to the complainant, representatives of the IBEW attended meetings called by the UPIU to discuss the complainant's situation, but that at these meetings the IBEW did not support his claim to the job. The IBEW led no evidence to explain why or how it reached its decision not to support the complainant.
The instant complaint was filed on January 5, 1982 with the support of Mr. Allan Bedard, the President of the UPIU Local. On January26, 1982, the company called a meeting of the complainant and, among others, the presidents of the two union locals. At this meeting the complainant was advised that the company would be removing him from his job as spare power house operator. At the meeting, Mr. C. Noonan, the company's maintenance manager made the following statement:
"We might as well get right to the point. We want to rectify a mistake that the Company made some time ago. Doug, you as the President of the IBEW — the Union which has jurisdiction over the job in question and you, Al, as an interested party, are here to hear what we have decided.
Melvin, we are going to remove you from the power house spare job. I know that this has been handled improperly but this improper handling was not intentional. The superintendent at the time you got this job did not communicate to me or the Company any of the concerns that I understand were relayed to him. Your past record when you were given this job was not properly investigated. Nothing was done until Mr. Gartstore brought it to my attention. We have discussed this on many occasions and upper management has been involved and agrees with what we have decided. We are not questioning your intelligence, character or ability. I don't want you to leave here thinking that. It is your past record that indicates that you use poor judgment and this is also apparent in things you have been involved in your power house job — plus the discomfort of your fellow workers. In dealing with the things you are involved with in your other job and things on your present spare power house job it doesn't make sense to leave you as a spare if your judgment is in question. This is not retaliation for your action in taking us to the Labour Board. I want you to know that. In fact, we told the Labour Board that it was our intent to remove you from this job when they were up here."
- On January 27, 1982 Mr. Noonan wrote the following letter to the complainant:
"Dear Mr. Haukaas:
To confirm our meeting of January 26, 1982, attended by yourself, Mr. Bedard, Mr. Ossachuk, Mr. Langtry, Mr. Hampton, Mr. Murray, Mr. Hall, Mr. Gartshore and myself, you are, as of that date, relieved of your duties as a spare power operator and will revert back to your job in wood storage.
Your history as an employee both with wood storage and in the recent past as a spare powerhouse operator indicates a great degree of poor judgment on your part in dealing with Company rules and equipment.
As you are well aware, the powerhouse is largely unsupervised and its safe operation depends on the operator's good judgment. Poor decisions and disregard for the immense consequences of not following strict operating procedures are representative of potential loss of life and equipment.
In light of your record in wood storage it is questionable whether you should have been awarded the power house job in the first place. In light of your record as a spare power house operator, the Company is not in a position to continue to allow you to be responsible for the safe operation of this power generating equipment and the associated transmission of that power.
This is in no way an act of retaliation on the part of the Company due to your appeal to the Ontario Labour Relations Board.
A copy of the minutes of the above-mentioned meeting is attached for your records."
It is to be noted that the propriety of the company's action in removing the grievor from the spare power house operator's job does not form part of this complaint.
On cross-examination the complainant was asked a number of questions relating to his work habits and conduct in certain specified situations. By and large the complainant denied any wrong doing on his part, and neither the company nor the IBEW called any evidence to rebut the complainant's testimony. Company counsel did, however, have the complainant identify a number of maintenance shift reports which he himself had completed as the spare power house operator. On the basis of these reports, as well as the complainants own testimony, we are led to conclude that on a number of occasions the complainant when acting as the spare power house operator did not follow proper safety procedures. For example, on one occasion he failed to notify Ontario Hydro about a power line being down so as to ensure there would be no power on the line while it was being repaired. On another occasion, the complainant on spotting a fire immediately called the fire department as opposed to contacting a company official responsible for coordinating the company's response to a fire. In that the complainant's estimate as to the location of the fire was in error, the fire department ended up receiving conflicting information as to the whereabouts of the fire. The evidence also establishes that the complainant had a sense of humor which was not appreciated by management or by many other employees. An example of this sense of humor was a suggestion on a maintenance shift report that a power line which had fallen down due to heavy icing may have fallen due to "heavy birds".
The evidence before us, particularly insofar as it relates to the complainant's performance of the spare power house operator's job, suggests that the company likely had justifiable cause not to award him the permanent position in the power house. The complainant did not possess the new qualifications for the position, and the company was concerned about his judgment and past performance. The instant complaint, however, is not against the company but against the union. The complainant asked the IBEW for assistance in obtaining the full time power house operators job, but failed to receive it. Can it be said in the circumstances that the IBEW failed to properly represent the complainant?
It is now well established that section 68 of the Act does not require that a trade union champion every employee grievance or complaint. What the section does require is that the union put its mind to the issues involved and make a good faith decision as to whether or not a matter is worthy of pursuing. The evidence demonstrates that the complainant's position was put before the IBEW. The IBEW was aware that the complainant lacked the qualifications set by the company for the permanent power house operator's job. From its communications with the complainant and its attendance at various meetings concerning his complaint, the IBEW would also have been aware of the company's concerns about the complainant's job performance. What is lacking is any direct evidence as to the quality of the IBEW's consideration of the complainant's case, and any positive evidence that it did not take into account any improper considerations when it decided not to help him. In the absence of this evidence, are we to infer on the balance of probabilities that the IBEW failed to meet the requirements of section 68?
The final onus of proving a violation of the Act rests with the complainant. The complainant led no positive evidence to establish that the IBEW acted in a manner that was arbitrary, discriminatory or in bad faith. The complainant established only that he asked the IBEW for assistance and that such assistance was not forthcoming. In our view, the testimony of a complainant to the effect that he asked his union for assistance and the union refused, may in certain circumstances be sufficient to establish a prima facie case of a breach of section 68 such as to place an evidentiary onus on the trade union to establish that its decision making process did not violate section 68. An example of this might be a situation where an employee requested the union's assistance with what appeared to be a meritorious grievance of some importance and yet the union failed to take any action. In such a situation, lacking any evidence from the trade union as to why it failed to act, one might reasonably infer that the trade union either acted arbitrarily by failing to properly put its mind to the matter, or if it did do so its decision was motivated by bad faith or discriminatory considerations. We do not believe, however, that the complainant's case fits within this category. The facts before us, and in particular the evidence relating to the complainant's performance of the spare power house operator's job, indicates that the grievor had a relatively weak claim to the permanent position. Further, it is evident that the IBEW was aware of the problems related to the complainant's performance of the spare power house operator's job. The IBEW attended at meetings with the company called by the UPIU to discuss the complainant's case. When all of these considerations are taken into account we cannot conclude on the balance of probabilities that the IBEW's decision not to help the complainant was due to improper considerations, or an arbitrary failure to consider the matter at all, as opposed to the union considering the matter and concluding that the complainant's claim to the permanent power house operator's job was lacking in merit. This being the case, we are of the view that an evidentiary onus never did shift to the IBEW so as to require that it come forward to demonstrate that it did not violate section 68 of the Act.
Given our reasoning set out above, we are of the view that the complainant has not demonstrated that the IBEW violated section 68 of the Act. The complaint is accordingly dismissed.