Ontario Labour Relations Board

[1983]OLRB Rep. July 1160

1278-82-U Joe Portiss, Complainant, v. Labourers' International Union of North America, Local 1089, and Rocco D'Andrea, Respondents.

BEFORE: Michel G. Picher, Vice-Chairman. and Board Members I. M. Stamp and W. Rutherford.

APPEARANCES: Brian Iler; Patricia Wells and Joe Portiss for the complainant: A. M. Minskv and R. D’Andrea for the respondents.

DECISION OF THE BOARD; July 11, 1983

1. Joe Portiss is a labourer. He brings this complaint under section 89 of the Labour Relations Act alleging that his union and its officers have violated his rights in the administration of the union's hiring hall in Sarnia. He maintains that work assignments have been distributed from the hiring hall in a way that is arbitrary, discriminatory and in bad faith contrary to section 69 of the Labour Relations Act. He also alleges that the union and its officers have brought intimidation and coercion to bear against him contrary to section 70 of the Act.

2. The relevant sections of the Act as are follows:

3. 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.

4. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

5. The hearing in this matter extended over some twelve days and involved a detailed review of the constitution and practices of the respondent local as well as the actions of its officers in respect of a number of impugned referrals of work. Before dealing with the referrals which Mr. Portiss alleges were wrongful it is necessary to briefly set out the background and context in which they occurred.

6. The union holds bargaining rights for labourers under a number of collective agreements, including the Provincial Agreement governing the industrial, commercial and institutional sector of the construction industry, as well as individual agreements in other sectors including the sewer and water mains sector, the road sector, the pipeline sector and the electrical power systems sector. Under virtually all of its agreements its members obtain work by referral from the union's hiring hall. Local 1089 is the Sarnia branch of the Labourers' International Union of North America, one of the largest of the construction unions, whose headquarters are in Washington, D.C.

7. Local 1089 is, subject to the constitution of the international union, autonomous in its local affairs. While the association is ultimately governed by the will of its members, the day-to-day affairs of the local are under the direction of an executive board elected from among the membership. Also elected is the local's full-time business agent, the respondent Rocco D'Andrea. While Mr. D'Andrea is accountable to the executive board, and ultimately to the general membership, the evidence establishes plainly that it is under his authority that day-to-day decisions are made respecting the administration of virtually all of the affairs of the local. The operations of the local's hiring hall are entirely under Mr. D'Andrea's direction.

8. The hiring hall is a significant component in the administration of employment in the construction industry. Before the advent of unionism employment in the construction industry was not methodical, often being governed at the whim of employers and their personnel agents. Without the hiring hall employees, notably in the construction industry and the maritime industries, were too frequently the victims of abuse and arbitrary treatment at the hands of employers. (See, generally Hearings On Hiring Halls In The Maritime Industry, Sub-Committee On Labour Management Relations Of Senate Committee On Labour And Public Welfare, 81st Cong. (2d) ses. 100-01 (1950) and Bastress, Application of a Constitutional Based Duty of Fair Representation to Union Hiring Halls [1982[ West Virginia Law Review 31). If they are operated fairly hiring halls provide an equitable and efficient means to distribute jobs, particularly in industries where jobs are temporary and manpower needs fluctuate. In these situations the union is well suited to act as an employment agency.

9. The hiring hall offers advantages to both employees and employers. It saves the employee from the need to canvas numbers of employers in an often fruitless search for work, acting as a clearing house in which available jobs and available workers can be matched. Particularly in periods of high unemployment it also provides the worker with a rational and objective system for the more equitable distribution of work among all employees rather than to the privileged few. The employer gains to the extent that the hiring hall relieves him of the need to screen and recruit employees with adequate qualifications for short term jobs. The employer avoids the administrative cost he would otherwise bear as well as incidental costs which he might have to incur to retain a crew of workers through slow periods to insure available manpower in busier times. A well run hiring hall will give the employer a ready pool of labour from which he can draw on short notice with little or no administrative cost. Moreover, to the extent that the hiring hall dispatches the same members to different kinds of jobs for different employers, as is notably the case for labourers, it may engender a work force with greater experience and sophistication, which will also benefit the employer.

10. To the extent that the hiring hall functions as an employment agency it vests considerable power in the hands of union officers in charge of its management. Through the administration of hiring hall rules, including the determination of qualifications and classifications of employees, the union officer in charge of a hiring hall has a substantial degree of control over the employment opportunities of union members. The hiring hall system effectively vests in those union officers powers and prerogatives which were previously associated with an employer. Control over the employment opportunities of hundreds, and sometimes thousands, of union members involves the exercise of a considerable amount of power over their lives. By the enactment of section 69 of the Act the Legislature introduced certain minimal safeguards against abuse of that power.

11. The advantages of the hiring hall system and the potential for their abuse were well summarized by Professor Bastress in the following passage at page 31:

The union hiring hall has been one of the major developments in twentieth century labor relations. It has provided many industries with a means of efficiently matching unemployed workers with job vacancies and has replaced a system of haphazard, unjust, and corrupt employment practices. Yet it has also developed substantial problems of its own. A hiring hall is fraught with potential for abuse, and, indeed, that potential is all too frequently realized. The largely unreviewable discretion of union business agents and inadequate protection for workers can combine to make hiring halls a mixture of whim, nepotism, prejudice and irrationality.

10. Unfortunately Canadian labour relations have not been without some degree of abuse, albeit exceptional, in the hiring hall system. (See, Robert Cliche, Brian Mulroney, Guy Chevrette, Report of Commission on the Exercise of Union Freedom in the Construction Industry, Quebec, ( 1975); Waisberg, Report of the Royal Commission on Certain Sectors of the Building Industry, ("The Waisberg Report") Ontario, (1974) at pp. 326-28; see also the recent decision of the Supreme Court of Canada in Nauss v. Halifax.v Longshoreman’s Association, Local 269, 83 CLLC ¶14,022 (S.C.C.)).

11. The hiring hall practices of Local 1089 disclosed in this case give the Board great concern. The evidence establishes that there were no hiring hall rules posted or provided to the members, copies of collective agreements were not provided, and members who requested copies of the union's constitution were told that none were available. Apparently the membership was told that constitutions could only be obtained if a sufficient number of members signed a list and paid for copies, which would apparently come from Washington only if there was a sufficient number of requests.

12. Notwithstanding the substantial evidence of questionable practices adduced in the case of the complainant the respondents Rocco D'Andrea and Local 1089 called no evidence. There is therefore no direct evidence of union hiring hall rules before the Board. A document, purporting to be rules adopted as of August 16, 1978 was filed by the respondents during the cross-examination of union member Ronald Neathway. While Mr. Neathway and other witnesses acknowledged that it seemed to generally outline what they understood to be the hiring hall rules, there is no direct evidence to establish whether these rules were ever formally adopted.

13. During the testimony of union member William Willis, the recording secretary of the local from 1977 to 1981 who testified on behalf of Mr. Portiss, the respondents filed an entry in the minute book of the executive board of the union in respect of a meeting purportedly held on September 11, 1978. Mr. Willis was not present at that meeting and the minutes were recorded by Mr. D'Andrea as acting secretary. The last paragraph of the minutes appears to record an adoption of the written rules of August 16, 1978 filed with the Board. It would also appear that at a subsequent general meeting on November 9, 1978, by way of a motion to accept the minutes of the prior executive meeting, the general membership purportedly adopted the hiring hall rules. Mr. Willis, however, had no direct recollection of any discussion of the rules at the general meeting. He was firm in his evidence that he had never before seen the rules filed by the respondents in any written form. We accept Mr. Willis' evidence and are therefore left with no direct evidence from any union officer or union member satisfactorily explaining the adoption of the purported hiring hall rules. No union member who testified stated that he ever saw the rules in any written form.

14. The document filed by the respondents is as follows:

1. It is each members [sic] responsibility to keep himself informed as to the availability of work through the Union Office.

2. It is each member [sic] responsibility to see to it that the union has accurate and up to date records of his address and phone number for job referrals.

3. Upon receiving a job order from the employer, the union will attempt to contact the member for a maximum of 2 (two) hours at an interval of 15 (fifteen) minutes between phone calls.

4. If the union was not able to contact that member after 2 (two) hours, he will be considered "Not Available".

5. Members who are not available for job referrals will be placed on the bottom of the out of work list upon their request.

6. Members who refuse a job upon notice will wait 7 (seven) regular days before being allowed to resume a position on the bottom of the Out of Work List.

7. In both instances in which a member is either not available or refuses, the union will not place that member's name on the bottom of the list until instructed to do so, by the member.

8. Jobs placed by employers on the basis of classifications as per our various collective agreements will be treated specially by the Business Manager, in that he will call on members or prospective members with the specific classifications or skills in which the Employer requires, to the best of his abilities.

9. It is each member's responsibility to see to it that his special skills or classifications are registered next to his name at the time of placing his name on the Out of Work List.

10. The Business Manager may disallow any member's claim to certain classifications or skills if he finds through proper investigation that the members does not truly hold such skills or classifications. Each individual case will be based on its own merit.

11. Any member who is referred to a job and is not allied [sic[ the opportunity to work 24 (twenty-four) accumulative hours from more than 1 (one) employer will be placed back on the top of the list upon proof of termination due to shortage of work.

12. Any member who cannot work when notified by the Local Union due to illness or injury must supply the union office with a certificate from his/her physician, verifying the reasons why he cannot work.

13. Before a member is able to resume normal work assignments or referrals, that member must furnish the Local Union Office with a doctor's certificate verifying that he is now willing and able to go back to work. After waiting 7 (seven) regular days upon presentation of the doctor's certificate the member will then be so referred to by the Local Union or as soon as work becomes available.

14. Members accepting a job referral slip and then failing to report to work as directed without a just cause will be considered as having quit that job.

15. Member who quit, ask for lay-off, or are fired for no just cause will be subject to a 7 (seven) regular day wait before they can notify the union to place their name on the bottom of the Out of Work List.

16. Members abusing the referral system by giving or selling their referral slips to another member or person will be disqualified from further job referrals for a period of at least 3 (three) months and may be subject to further disciplinary action as/and if recommended by the Executive Board.

17. The Business Manager, after consideration and study of a particular case or situation and when he believes it necessary to fully accomplish an object of purpose of the Local Union and members, may grant variances, tolerances or exceptions from these specific provisions.

18. Members who obtain a job referral slip by falsifying employment information will be removed from the job referred to and further will be disqualified from receiving a job referral slip for a period of 3 (three) months and will be subject to disciplinary action as/and if recommended by the Executive Board.

19. Unemployed elected officers of the Local Union may have preference for job referrals falling within their skills and classifications.

20. Unemployed member who are out of work for a period of at least twelve months have exhausted their employment insurance benefits may receive special consideration.

21. Employers recalling specific members shall be treated as per their Collective Agreement.

15. While no one could identify the rules advanced by the respondents there was a consensus among the witnesses called by the complainant that the above document generally reflected some of the accepted procedures in the hiring hall for a number of years. The evidence does not, however, confirm that there was any clear knowledge or agreement among the union's members as to the skills or classifications which could be used for registration purposes on the out of work list. Nor did any member who testified have knowledge of the provision giving the business manager absolute discretion to depart from the rules in specific cases. Mr. Willis, who had been an officer for some years, also testified that he was never aware of any provision whereby unemployed elected officers had preference for job referrals. The Board is in substantial doubt as to whether the written rules filed by the respondents were ever adopted as suggested in August of 1978. More importantly, if they were, it is beyond dispute that they were never posted or otherwise communicated to the union members whose access to a livelihood was regulated by them.

16. The evidence shows substantial confusion in the minds of the general membership regarding special classifications of members for the purposes of job referrals. It appears to have been generally understood that certain skills merited a classification on the out of work list which would give the qualified individuals preference in work referrals to employers who requested employees with the skills in question. It appears to be common ground that foremen, working foremen, tool crib tenders, acetylene burners and cement finishers were all positions for which employees, if qualified, could register in the out of work book. Other positions fall into a grey area where it appears that some members believed that they constituted a recognized qualification while others did not. These would appear to include, among others, carpenter or carpenter's helper, vibrator man. pipe layer, and fork lift operator.

17. As with the hiring hall rules, no breakdown of specialized classifications was ever provided to the general membership. It appears that no qualification committee or process was ever established to determine which jobs or skills merited special classification. Nor was anything done to regulate the qualification or registration of employees for them. The lack of any clarity in the classification system and the use of that system as disclosed in the evidence by the union's officers generated enormous suspicion and discontent among the membership of Local 1089. A segment of the membership have become convinced that the hiring hall classification rules have been deliberately manipulated by the respondent Rocco D'Andrea and other union officers for the advantage of some members and to the detriment of others in ways that have been arbitrary, discriminatory and in bad faith. The evidence before the Board gives ample ground for those suspicions.

18. Counsel for the respondents raised a preliminary objection to the complaint on the basis of timeliness. He maintains that the allegations, the earliest of which date to the spring of 1981, should not be entertained because of undue delay. The complaint was filed on October 8, 1982. The evidence of Mr. Portiss establishes that for a number of months prior to the filing of his complaint he had attempted, without success, to obtain legal aid to support the preparation and litigation of his case. His efforts in that regard involved protracted applications and appeals through the legal aid system at both the local and provincial level as well as appeals for assistance to members of the Legislature. The evidence of Mr. Andrew King, a solicitor employed in the office counsel for Mr. Portiss, establishes that a legal aid certificate was finally issued in respect of Mr. Portiss' complaint on July 16, 1982. Thereafter, under the direction of Mr. Iler, Mr. King began a fairly extensive factual investigation the progress of which was somewhat delayed by the hospitalization of Mr. Portiss in Toronto in August of 1982. After a final investigatory trip to Sarnia on September 18, 1982 Mr. King proceeded to draft the complaint. A first draft was completed on October 1, 1982 and the complaint now before the Board was filed on October 8th, some seven days later.

19. In these circumstances the Board sees no reason to dismiss the complaint on the basis of undue delay. The evidence establishes that Mr. Portiss has pursued his rights with diligence and determination. Having filed prior complaints against the respondents before the Board Mr. Portiss was aware that success in the litigation of complex facts and law would in all likelihood depend on the assistance of qualified legal counsel. Earlier complaints which he had filed with the Board were withdrawn in part because of his perceived difficulty in proceeding on his own. The length and complexity of the hearing confirmed the accuracy of Mr. Portiss' perception. In these circumstances the Board cannot fault him nor should it circumscribe his right to have this complaint heard. He did everything possible to bring this matter to a full and meaningful hearing, at the expenditure of considerable time and effort. There is, moreover, no substantial prejudice to the respondents. The allegations which have been particularized in respect of job referrals which Mr. Portiss alleges were contrary to section 69 of the Act are all matters of record within the documents of the union. This is not a situation where the evidence has become stale or the preparation of the respondent's case would be seriously hampered by fading memories.

20. Counsel for the respondents also complained about the filing of additional particulars after the commencement of the hearing, raising in essence the same grounds of delay. It is difficult to sustain the respondents position on that issue. It is a matter of record that up to) the first day of hearing in this complaint the union refused to permit Mr. Portiss or his counsel to see any of the hiring hall records. The additional allegations emerged only after those records were made available to the complainant on the first day of hearing at the suggestion of the Board. In these circumstances we are not inclined to give much weight to the protestations of counsel for the respondents that the complaints were unduly delayed or that, as he argued at the end of the day, were hurriedly prepared without adequate particularity. We are satisfied that the complainant has acted with reasonable diligence throughout in the pursuit of this complaint. It should be determined on its merits.

21. The complainant Joe Portiss is a thirty-one year old labourer with a Grade 11 education. He joined Local 1089 in 1974 and since 1975 has worked as a labourer through the hiring hall of the local in the Sarnia area. His first conflict with the administration of the hiring hall arose over a dispute as to his qualifications to register under the classification of foreman. Beginning in 1976 he was employed on a long term basis, for some three years, with Douglas Chalmers Construction in Sarnia. Mr. Portiss was the union steward on the job and was eventually assigned the duties of foreman which he performed on and off over the three years of employment with Chalmers. The Board accepts Mr. Portiss' evidence that the assistant business agent and president of the union, Mr. Orfeo Iacobelli, was aware that Mr. Portiss worked as a foremen for Chalmers. On June 4, 1979 Mr. Portiss was laid off because of a work shortage. When he registered in the out of work book at the hiring hall of Local 1089 he asked the secretary to be registered as a foreman. She advised him that he must speak with either Mr. lacobelli or the business manager, Rocco D'Andrea. Upon speaking with Mr. lacobelli, Portiss was advised that he would need a letter of reference from Chalmers confirming that he had acted as a foreman. Portiss then requested a letter be sent from Chalmers and was told by Mr. Dawkins, assistant manager for the company that a letter had been forwarded to the union. Mr. lacobelli later took the position that no such letter had been received. Nothing was in fact done to establish Mr. Portiss' status as a foreman and he took the view that the classification had been wrongfully denied to him by D'Andrea and lacobelli, both of whom he maintains were aware of his experience as a foreman. Mr. Portiss believed from that time on that D'Andrea and lacobelli were deliberately keeping him from entry to the foreman's classification.

22. On November 24, 1980 Mr. Portiss was again laid off from employment and registered in the out of work book, indicating at that time that he was qualified as a "burner", the designation for a labourer with skill and experience in the use of a cutting torch. The out of work book, filed in evidence, reveals that the classification "burner" was inserted next to his name at that time. He remained out of work until the following spring when he was referred to J. Joose Construction on April 28, 1981.

23. The material before the Board indicates that the complainant should have been referred work several days before April 28th. The evidence establishes that on approximately April 21st four new employees were dispatched to a construction site for Mortell, Cove, Lumley Ltd. Prior to the assignment of those men Mr. Portiss stood number six on the work referral list. When he checked the list again, after their referral, he was advised that he still stood number 6. In other words four employees were referred for work but the list had not moved. The Board accepts the evidence of Mr. Portiss that the work at Mortell. Cove, Lumley Ltd. was pipeline work which he had previously performed and for which he was qualified. It appears that in that case the employer had not been satisfied with the employees who were first referred from the hiring hall and that in selecting substitutes Orfeo lacobelli, the person responsible for the day-to-day supervision of the hiring hall procedures. chose four other members without regard to the list. There is no evidence before the Board to rebut the testimony of Mr. Portiss, supported by the evidence of Ronald Neathway, one of the employees who had worked on the project for a day that the work involved was within Mr. Portiss' experience and abilities and that it could, in any event, be learned by any labourer within an hour. That incident caused Mr. Portiss to inquire about his rights. He called the solicitor's office of this Board. On June 7. 1981 he filed a complaint under section 69 of the Act.

24. Mr. Portiss subsequently withdrew his complaint when it was later explained to him by Mr. D'Andrea that the Mortell, Cove, Lumley Ltd. project was under the ICI collective agreement and that in those circumstances the business agent had the discretion to bring in employees from out of town, as was done in that case. Mr. Portiss accepted that explanation and ended his complaint. Subsequently, however, and in the evidence in this case, it became clear that there was no such discretion.

25. The Board is satisfied that in this instance the hiring hall procedures were disregarded to the prejudice of Mr. Portiss. He then held No. 383 on the hiring hall list and had been out of work since November 24, 1980. Two of the employees referred ahead of Mr. Portiss were Alistair Putt and Fred Gillan, both of whom had been out of work since December 8, 1980 and were registered as numbers 456 and 455 respectively. The respondent union called no evidence to establish any reason for the preferential referral of those two members, nor did it establish that the work in question was beyond the abilities of Mr. Portiss of any of the five members who preceded him on the list. Absent any explanation. and in the light of other evidence canvassed below, we conclude that the assignment was made arbitrarily by the officers responsible for the hiring hall, specifically Orfeo lacobelli and Rocco D'Andrea.

26. By further way of background, it should be noted that at or about the same time as his dispute over the Mortell, Cove, Lumley Ltd. referral Mr. Portiss got involved politically inside Local 1089. He ran unsuccessfully for executive office in the local along with a number of other members who became candidates in opposition to Mr. D'Andrea and the officers who were associated with him.

27. The second allegation concerns the referral of member Cliff Fletcher to Collavino Construction on or about July 2, 1981. Mr. Fletcher was registered in the out of work book as number 143 on June 30, 1981. He was qualified as a general foreman, as was Mr. Bill Willis who had registered before him as number 140. The evidence establishes that Mr. Fletcher was able to move through two job referrals in the space of a few days. Mr. Fletcher's evidence and his work card establish that he quit Insco Construction on June 18, 1981. Under the hiring hall rules he would then have been required to wait seven days before resuming a position at the bottom of the out of work list. In fact, at that time, Mr. Fletcher was not put on the out of work list at all. He was referred immediately to a job at Collavino Construction, apparently as a vibrator man with the possibility of working as a foreman in the future. By Mr. Fletchei"s account he didn't place his name on the out of work list because the list was short and moving quickly at that time and he was under the understanding that there were no foremen out of work. When it appeared to Mr. Fletcher that he was not going to like working at Collavino Construction because he could not get along with the superintendent he asked for and was given a "lay-off" after one day. He was immediately referred out again to Combustion Engineering Limited on July 2, 1981 as a general foreman. Mr. Fletcher's work card reveals that he was referred to Combustion Engineering on that date and that he was laid off from that job on August 7, 1981. The hiring hall out of work book, however, shows something quite different. It records Mr. Fletcher as having been referred to Combustion Engineering on August 10, 1981, a date which would not indicate that he had been given preferential treatment. No evidence was adduced by the union to explain why Mr. Fletcher was referred ahead of other qualified foremen, including Mr. Willis, or to explain the apparent falsehood in the referral date recorded in the out of work book.

28. The Board concludes that Mr. Fletcher, for reasons undisclosed, was given preferential treatment in his job referrals. The apparent and unexplained falsification of the date of his referral to Combustion Engineering in the hiring hall out of work book raises an unanswered inference that the records were structured to conceal the fact that he was referred to a general foreman's job some six weeks in advance of other qualified members whose stood ahead of him on the out of work list. Nor does Mr. Fletcher's suggestion that the list was current offer a satisfactory explanation. The out of work list shows that some seventeen members registered as out of work on June 26, 1981 were not referred until on or after August 7, 1981. Two of them were registered as foremen with earlier registry numbers than Mr. Fletcher.

29. It appears that Mr. Portiss was also referred to the Combustion Engineering job as a foreman on July 2. 1981. Mr. Portiss registered as number 74 in the out of work book on June 23, 1981. He had been up to that point unsuccessful in obtaining any referrals as a foreman since June of 1979. Portiss was apparently then registered as both a burner and a foreman on the out of work list. He did not, however, receive the referral to Collavino Construction which had been given to Fletcher during the time Portiss' complaint before the Labour Board was outstanding even though he preceded him on the list. On July 2, 1981 when Portiss gave Mr. D'Andrea a written withdrawal of the section 69 complaint he was immediately referred to Combustion Engineering as a foreman along with Mr. Fletcher. While counsel for the union argued that the referral to Collavino Construction was based on Fletcher's ability as a vibrator man, and the Board accepts the evidence of Mr. Fletcher that some individuals are more skilled than others in vibrating cement, there is no direct evidence to establish that that was the union's motive or that its officers believed in good faith that Mr. Portiss was unable to do that job. The only evidence before the Board is the unrebutted statement of Mr. Portiss that he could.

30. When the Combustion Engineering job got under way the complement of foremen was reduced and Mr. Portiss was reduced to the status of a general labourer. As Fletcher had done at Collavino, Portiss then asked for and obtained a "lay-off" on July 13, 1981. In contrast to Mr. Fletcher, however, he re-entered at the bottom of the out of work list on that date as number 228. He again registered as a burner and foreman with the additional designation of carpenter's helper. He was next referred to Rankin Construction on August 19, 1981.

31. It is plain from these facts that Mr. Portiss was no less willing than others to bend the hiring hall rules to his own advantage when he could. He plainly quit Combustion Engineering and should have been forced to wait seven days before registering in the out of work list, as the list was not then current with outstanding referrals. The fact that Mr. Portiss voluntarily left his job at Combustion Engineering must, therefore, be weighed both in respect of any compensation that might issue if a violation of the Act is established. It may also have a bearing on the merits of any complaint that he was subsequently prejudiced and his treatment on the out of work list.

32. The complaint also alleges that new members were referred to work without registering on the out of work list and waiting their turn. On July 2, 1981 when Mr. Portiss attended at the hiring hall he noticed three women speaking with business agent D'Andrea. One of women, Ms. Trudy Seabrook, told Mr. Portiss that they were there to pay their union dues. A second, Ms. Cathy Downie told him that Mr. D'Andrea had advised her to come to the hiring hall and that he would get her a job. The work card for Ms. Downie establishes that she was referred to Rankin Construction on July 2, 1981, although the same card indicates that she joined the union on July 30, 1981. That is the same date indicated for the entry into membership of another woman, Gieseppa Di Bona who was also referred to Rankin Construction on July 2, 1981. The evidence establishes that while Di Bona and Downie were dispatched to jobs on July 2, 1981 they were never entered on the out of work list and were apparently assigned work in preference to numbers of members on the list some of whom, for example, went on the list in the last week of June and were not referred out until the last week of July. If the referral of these women was intended as affirmative action to redress the apparent absence of women in the union previously, it appears to have been done in disregard of the hiring hall rules and, most importantly, apparently without the knowledge or approval of the general membership.

33. A similar occurrence took place later in July. The evidence establishes that on July 28, 1981 Ms. Debbie Smith and Ms. Kathryn Reid, who had not previously been members of Local 1089 and who were not on the out of work list, were dispatched to Bravo Construction which was engaged in pouring concrete for the new Eaton's Centre. The Board is satisfied on the evidence that Mr. D'Andrea used Ms. Smith and Ms. Reid, neither of whom had any prior experience in construction work, as a ploy to force the hiring of labourers on a more sustained basis at the Eaton's Centre project. It appears that Bravo was pouring concrete only one day a week, thereby releasing its labourers only after a few hours of work.

34. While the two women who were dispatched apparently did a creditable job raking cement in extremely hot and difficult working conditions, their referral was not so much affirmative action as a means for Mr. D'Andrea to force the contractor at the Eaton's Centre into patterns of work scheduling more favorable to Local 1089. It is a fair inference that none of the members of Local 1089 would have wanted the referrals to Bravo because they involved only one day's work each week in the peak of the construction season. No evidence was adduced, however, to establish that new members or any other class of members could be singled out for such assignments or that those who were at the head of the out of work list could be passed over for members who were not on the list at all. While we accept that on occasion flexibility and discretion are necessary to respond to the give and take of events in the construction industry, we must register concern that no acceptable proof was made of a hiring hall rule giving such discretion to the business agent and, just as significantly, no attempt was made to explain these or any other irregular referrals to the general membership.

35. The allegations made by Mr. Portiss are to a great extent tied to the hiring hall's job classification scheme. The haphazard nature of the local's job classifications are illustrated in the next event in evidence. While working at Rankin Construction in August of 1981 Mr. Portiss met fellow member Cam Gordon. They discussed the classifications affecting the hiring hall procedures and in the course of their talk Gordon indicated to Portiss that he had once driven a fork lift. Portiss then suggested to him that he should list "fork lift operator" as a special skill when he next registered in the out of work book.

36. On July 14, then out of work, Gordon registered a number 248 on the hiring hall list, requesting that the designation "fork lift" be put next to his name, which was done. Portiss, who also had fork lift driving experience, was then registered ahead of Gordon as number 228 but without that designation. It is common ground that his ability with the fork lift was not known to the union. On August 6, 1981 the union received a request for a fork lift driver from Collavino Construction and Mr. Gordon was then referred out for work. Mr. Portiss did not obtain a referral until August 19, 1981.

37. We agree with counsel for the respondents that Mr. Portiss should not be heard to complain on the merits of that incident when he did not advise Local 1089 of his own special skills with a fork lift. The incident, however, raises concern in that it illustrates the amorphous nature of the classification system employed in the hiring hall. Prior to Mr. Gordon's entry on July 14, 1981 there appears to have been little, if any, general knowledge among the membership that "fork lift" was a classification which could result in a preferential referral. His referral out of turn to a fork lift operator's job had more to do with chance than with the operation of an informed and rational system.

38. The next incident, involving Mr. Oreste Gagliardi, illustrates perhaps better than any the importance of a rational and fair referral system and the anger and frustration which can arise when members feel they have been victimized by disregard of the hiring hall rules. Mr. Gagliardi is a middle-aged man with many years experience as a labourer. He joined Local 1089 in 1968. His son, Salvatore Gagliardi, is also a member.

39. Like most members of the local, Mr. Gagliardi values job referrals to long term assignments and projects. In 1974 and 1975 he had an assignment which lasted one year. Later, he held a position with Foster Wheeler Construction which apparently lasted for some two and a half years between 1976 and 1979. On February 2, 1981 he registered in the out of work book as number 647. On May 8, 1981 he was referred to Tileman Construction at the Petrosar project. While he registered, among other things, as a cement finisher and carpenter, by Mr. Gagliardi's own evidence he was not dispatched pursuant to any special classification. His work at Tileman consisted of mixing mortar for bricklayers. On the material before the Board it appears that Mr. Gagliardi was referred substantially out of turn to the Tileman job. The dozen or so members immediately before and after him on the out of work list were not given job referrals until June 4 and June 5, 1981, almost a month later. More importantly, by his job referral on May 8, 1981 Mr. Gagliardi passed ahead of more than 100 members on the out of work list, some of whom had been jobless since early December of 1981.

40. According to Mr. Gagliardi's testimony because of a shortage of brick he was laid off after a few weeks with Tileman. He registered on the out of work list as number 144 on June 30, 1981. He then indicated the classifications cement finisher and pipelayer, as did Mike Gabriele, who registered immediately after him as number 145. According to the hiring hall rules, therefore, Mr. Gagliardi could expect to be referred ahead of Mr. Gabriele. On July 14, 1981 both Gagliardi and Gabriele were referred to new jobs. Gabriele was referred to) Alvaro Construction at the M.H.G. project, to a job which was expected to last a long time. Gagliardi was dispatched to Instarek Construction on the same project to a job that only lasted some four days. Gagliardi was extremely angry because he believed that a person below him on the list, Gabriele, had been wrongfully given the referral to the better job with Alvaro Construction.

41. According to the hiring hall rules Mr. Gagliardi should have returned to the bottom of the list after working four days at Instarek Construction. It appears, however, that his work was terminated because of a jurisdictional dispute with the local of the Operative Plasterers and Cement Finishers union. Mr. D'Andrea told him that because he had lost his position as a result of a jurisdictional dispute he would be kept on the top of the hiring hall list.

42. Mr. Gagliardi, however, remained bitter about the failure to refer him to Alvaro Construction. He was referred again to the Tileman project between July 23 and August 28, 1981. When that job ended Mr. Gagliardi felt that he was owed a long term job and registered his displeasure with Mr. lacobelli and Mr. D'Andrea. Apparently at one point he went to the hiring hall and, being unable to get a satisfactory explanation as to why he had not been referred in correct order to the Alvaro job, he threatened something drastic and, by his own account, feigned going to his car to get a gun. When he returned to the hiring hall he was physically restrained by Orfeo Lacobelli and fortunately nothing more serious occurred. Thereafter, however, Mr. Gagliardi was referred to a long term job with Collavino Construction on September 3, 1981. He took that job after refusing another short term job at Canadian Asbestos Covering Limited on August 31, 1981. No evidence was called by the respondent to explain why Mr. Gagliardi was initially referred substantially out of the hiring hall list order to Tileman on May 8, 1981 nor to account for how the assignment to Alvaro Construction was given to Mr. Gabrieli and not to him. Nor was there any explanation of the basis upon which Mr. Gagliardi was virtually kept in the position of being at the top of the hiring hall list until a long term job was found for him at Collavino Construction on September 3, 1981. The Gagliardi episode illustrates perhaps better than any other the power which Mr. D'Andrea and Mr. lacobelli hold over the lives of members whose livelihood depends on the movement of the hiring hall list. It also reveals the passionate reactions which can well up when members have reason to believe they have been cheated.

43. Much of the concern underlying this complaint is the feeling of Mr. Portiss and others among the general membership that the families of those who hold union office are given preferential treatment in the administration of the hiring hall. The evidence establishes that the family ties of Mr. D'Andrea and Mr. lacobelli extend throughout the union's administration and its general membership. The evidence concerning the treatment of Cecilio lacobelli confirms Mr. Portiss' suspicions. Mr. lacobelli is a student, although he has been a member of Local 1089 for some three years. According to his own testimony he has no skills in cement finishing, has never been referred out from the hiring hall as a cement finisher, never registered as a cement finisher and has never done cement finishing work. Cecilio lacobelli is related by marriage to Orfeo lacobelli, the president of the local and its assistant business manager. It should also be noted that the hiring hall books are kept principally by Anna lacobelli, the daughter of Orfeo lacobelli who is employed as a secretary. When members register on the out of work list, all entries including special classifications, are made exclusively by the secretary.

44. The evidence establishes that on January 14, 1981 Cecilio lacobelli registered in the out of work list as number 597. On April 3, 1981 he was referred to a job at Rankin Construction. He therefore passed in excess of 250 members on the out of work list who had registered before him, many of whom did not get job referrals until later in May or June of 1981. No explanation was forthcoming from the respondents to account for the preferential treatment of Cecilio lacobelli nor to explain why the notation "cement finisher" appears next to his name in the out of work book when he has no such qualification. In the face of that evidence the Board concludes that he was referred out of turn without justification; we cannot resist the inference that his special treatment was based on his relationship to Orfeo lacobelli, the president of Local 1089 and that the designation "cement finisher" was inserted deliberately to conceal the blatant favoritism shown to him. In the face of that evidence, we see no reason to strain to rely on any of the notations of classifications in the hiring hall books to explain other referrals out of turn.

45. A substantial number of other referrals which are out of keeping with the generally accepted hiring hall rules was established in evidence. They may be referred to briefly. On November 6, 1981 George lacobelli registered on the out of work list as number 57. Four days later, on November 10, 1981 he was referred to Lummus Construction as a foreman. The referral of Mr. lacobelli disregarded the precedent place on the out of work list of Mr. Portiss, who was then registered as a foreman out of work since October 26, 1981. Five other foremen in addition to Mr. Portiss were also passed over in favour of George lacobelli. No explanation was given by the officers of Local 1089 for the preferential treatment of George lacobelli.

46. Gino lacobelli also found employment with Lummus Construction. The evidence establishes that he registered in the out of work list as number 345 on June 30, 1982. He was referred to Lummus Construction on September 10, 1982. Gino lacobelli was also referred out of turn, passing members who stood as much as 320 positions ahead of him on the out of work list. No special classification was registered next to Gino lacobelli's name nor was there any explanation given by the union for his preferential treatment. While there is evidence to suggest that lacobelli did some foreman's work on the job at Lummus Construction, the evidence establishes that some 9 foremen, including Mr. Portiss, preceded Gino lacobelli on the out of work list.

47. On September 10,1982 Mario Savo was laid off from Rankin Construction. The same day, without registering in the out of work book, he was referred as a foreman to the Chemstand project at Imperial Oil. The referral of Mr. Savo passed over some 18 members, including Mr. Portiss, who were then registered in the out of work list as foremen. The preferential referral of Mr. Savo could not have been detected because he was not entered on the out of work list. His referral out of order only came to light through scrutiny of his individual work card. No evidence was called to explain why Mr. Savo was assigned a foreman's job in preference to 18 others who would have stood ahead of him on the list, many of whom had to) wait considerably longer for their work assignment.

48. One member particularly troubled by the referral of Savo was Donato Marinaro. Mr. Marinaro, who had unsuccessfully opposed Mr. D'Andrea in the election for business agent, had been on the out of work list since May 9. 1982 when he was referred to) Chemstand also on September 10, 1982. He had registered as both a foreman and cement finisher. Mr. Marinaro's evidence establishes that he was terminated from a job on May 7, 1982 as a result of a jurisdictional dispute. He was not as fortunate, however, as Mr. Gagliardi. When he asked Mr. D'Andrea what would happen to him he was told that there was nothing that could be done and that he must go to the bottom of the list. Having waited on the list for several months, Mr. Marinaro was understandably upset that he was given a referral to Chemstand with Savo who had no waiting period whatever. Moreover, it was not clear to Marinaro why Savo was referred as a foreman while he was dispatched as a cement finisher at a lower wage rate. When Mr. Marinaro approached Orfeo lacobelli at the time to ask why he did not get the same treatment as Savo, lacobelli answered that he had not been aware that Marinaro could do the job and said, "maybe next time we will give you a chance". The Board cannot reconcile that cavalier answer with the union's own records, including the hiring hall list, which specifically records Mr. Marinaro as both a foreman and cement finisher.

49. The Board is satisfied on the evidence that complainant Joe Portiss, as well as Mr. Marinaro did not stand in good favour with the respondent Rocco D'Andrea nor with the President of Local 1089, Orfeo lacobelli. Both had run for office, Marinaro directly against D'Andrea. Nor can we accept the submission of counsel for the respondents that there is no evidence of ill will towards Mr. Portiss. The evidence of Ms. Debbie Smith establishes that on one occasion, when she had been sitting at the same table as Mr. Portiss on a job site during the lunch break, Orfeo lacobelli approached her after Portiss had left and told her that she should not sit at the same table as Portiss, "because he is trouble". There can be no doubt, on the evidence before the Board, that at all material times the respondent Rocco D'Andrea and officers of Local 1089 saw both Mr. Portiss, and Mr. Marinaro and members associated with them as political enemies.

50. There are a number of other instances where Mr. Portiss was passed over by members who were below him on the list, without any apparent reason or explanation. Camille DePaepe, who registered as a burner in the out of work book as number 411 on November 28, 1980 was referred to Greenspoon Construction on March 25, 1981 even though Mr. Portiss, who then stood as number 383 and was also registered as a burner, was available and stood ahead of him on the out of work list. Onorio Cicchini was dispatched as a foreman to Rankin Construction on February 9, 1981 although he was below Mr. Portiss on the out of work list. While Mr. Portiss was not then registered as a foreman the evidence establishes that the union's executive knew, or should have known, that he was so qualified, as they eventually recognized by his referral as a foreman on July 2, 1981. Salvatore Gagliardi, also registered as a burner as number 446, was referred to Diamond Construction on January 19, 1981, substantially ahead of Mr. Portiss who preceded him by a wide margin on the out of work list.

51. The testimony of Mr. Salvatore Gagliardi raises still more questions about the classification system employed by Local 1089. In his own evidence that he has no skills in cement finishing but that he was once referred as a cement finisher, being dispatched to Collavino Construction on July 15, 1981. His cement finishing consisted of intermittent work as a vibrator man. It appears that a number of employees were being tried for that position and another was finally recruited to do it permanently. Mr. Gagliardi was, nevertheless, dispatched to do that work and was paid the extra 50¢ per hour as a vibrator man for the entire five months of his employment on that job.

52. The evidence establishes that when Mr. Portiss registered on the out of work list on November 24, 1980 he ultimately was referred to employment on April 28, 1981. His referral, however, only occurred after a number of other members who were lower on the hiring hall list than himself were given referrals, some as early as January and February of 1981. On that occasion about 20 members were referred ahead of Mr. Portiss. A number, but not all, of them have the designation of cement finisher in the out of work book. Since one of those is Cecilio lacobelli, whose classification in that regard was plainly fraudulent, the Board cannot, absent any evidence beyond the bare documents, accept the union's records as proof that any of the referrals made in advance of Mr. Portiss were justified on the basis of specialized requests.

53. The same was true when Mr. Portiss again registered on the out of work list on July 13, 1981. Before he was referred out for work on August 19, 1981 at least six employees below him on the list were sent out ahead of him between July 17, 1981 and August 19, 1981. Only one of those bore the designation "cement finisher" on the out of work list and, for the reasons canvassed, the Board can place no weight on that notation.

54. The complainant also placed his name on the out of work list on October 26, 1981 and was referred for employment on November 20, 1981. The evidence establishes that in the interim at least two employees with inferior positions on the out of work list were referred for work ahead of him.

55. The evidence also discloses substantial inconsistency in the administration of the rule stipulating that members who refuse a job must wait seven days and return to the bottom of the work list. On June 4, 1982 Mr. Portiss registered on the out of work list after having been on workmen's compensation. He advised the hiring hall staff that he was still partially disabled and receiving compensation benefits, a condition which continued down to the hearing. On that basis he requested referrals to work as either a foreman or a tool crib tender as he could not perform heavy labour work. On September 30, 1982 Mr. Portiss indicated on the telephone, through his wife, that he was not available for a referral for any job other than foreman or tool crib tender. The union then treated him as having refused a referral and moved him from the top to the bottom of the hiring hall list seven days later on October 7, 1982.

56. The work card of Kenneth Wedemire indicates that on September 9, 1981 he refused a referral. It is plain from the hiring hall records that the list was not then current. Mr. Wedemire was nevertheless returned to the list on the same day, September 9, 1981. Subsequently on December 8, 1981 a refusal is again noted on his work card. On that occasion he was apparently held off the list for seven days and reinstated on December 15, 1981. The same occurred again on June 17, 1982 when his refusal apparently caused his suspension for seven days until June 24, 1982. The work record of Salvatore Palelli indicates that he refused a job on September 22, 1980 but was returned to the list on the same day. The out of work book also indicates that the hiring hall list was not current on June 15, 1981. The records indicate, however, that on that date union member Jake Feenstra refused a job referral and was reinstated to the list on the same day. On June 16th it would appear from the records that the same was done for union member Jose Bastos. Neither Feenstra nor Bastos have any special classification next to their names in the out of work book for the period in question. Absent any explanation from the union's officers the Board is without any basis to understand what criteria, if any, were then used or are used generally in the administration of the hiring hall rule in relation to the refusal of job referrals. We are, more particularly, unable to see how Mr. Portiss merited removal to the bottom of the list, a sanction which was bound to cause him many weeks of unemployment at a time when the list was moving slowly, when in similar circumstances other members apparently did not receive the same treatment. While the Board is prepared to accept that some latitude may be necessary in the administration of a hiring hall's rules, just as discretion is necessary to some extent in the administration of any trade union, we are compelled to draw adverse inferences when the documentary evidence filed shows a plainly inconsistent pattern and no explanation is forthcoming. The effect of the strict adherence to the rule in the case of Mr. Portiss on September 30, 1982 meant that he was deprived of a further referral at least until January of 1983. The list was then extremely long and his co-members at the top of the list obtained job referrals generally in September and October of 1982. The effect for the complainant was at least four months more of unemployment.

57. The Board also has concern with the evidence as it relates to other disabled members. There appears to be no allowance in the union's hiring hall rules for members who are partially disabled or, due to age, are unable to perform all tasks for which they might be referred. The example of Mr. Portiss, confirmed in the further evidence of Mr. Lou D'Allessandro, establishes that the administration of the hiring hall makes no rational distinctions for injured workers. In effect it imposes on them referral rules which arbitrarily force them to either accept a referral for a job which they cannot perform or to surrender their position at the top of the 1st and line up again at the bottom for what may be an extended period of unemployment. There appears to have been no attempt in Local 1089 to establish a bona fide list of partially disabled employees nor to channel referrals for lighter jobs such as flagman or tool crib tender to those whose physical disabilities would disqualify them from other work. We see no basis to sustain a hiring hall practice which is prima facie arbitrary, no thought being given to the merits of an injured worker's case, and which amounts to de frincto discrimination against disabled workers. That is particularly so when, as in this case, it has not been established that the rule on refusals is uniformly enforced. We must therefore conclude that Mr. Portiss was wrongfully deprived of the opportunity of job referrals in the period following September 30, 1982.

58. Some evidence was adduced and much argument directed to allegations by Mr. Portiss and his counsel that during the course of the hearing the union's hiring hall list and work referral book were tampered with. The evidence of Mr. 11cr and Mr. Portiss is to the effect that they saw changes in these union records between November 16, 1982 when they were first shown the documents at the initial Board hearing, and subsequent hearings of the Board in January of 1983. As a result of these allegations the actual books, rather than mere photocopies, were taken in evidence by the Board on February 2, 1983. If it were necessary to comment on this part of the case we would. Given the overwhelming nature of the evidence brought in support of Mr. Portiss' claim, however, we do not feel that it is appropriate to do so. On the whole, the evidence in support of those allegations is not of the rigorous quality that should be required to substantiate such serious charges. While he might have done so, Mr. Portiss adduced no forensic evidence to establish that these records were altered of falsified. Rather, he relied on his own recollection and that of Mr. Iler, together with such notes as they had, from their review of the hiring hall books, some three months before the allegations were made. On this aspect of the case we therefore do not deem it appropriate to make any finding. We have an ample basis on which to make a determination on the merits of the section 69 complaint. In this case whether there has been deliberate forgery or a conspiracy to defraud is a serious issue best proved before a criminal tribunal applying criminal standards of proof based on expert testimony.

59. The Board is satisfied that on the merits of the section 69 complaint Mr. Portiss must succeed. A number of aspects of this case cause the Board serious concern. On the whole the evidence establishes that the hiring hall of Local 1089 is administered in the absolute discretion of the respondent Rocco D'Andrea. The hiring hall of Local 1089 was administered in a way that made abuses of the rights of its members under section 69 of the Act virtually inevitable. No clear list of hiring hall rules was circulated, posted or otherwise made known to the members. Such rules as there were existed only by undefined tradition. The Board is not satisfied on the evidence that any set of written rules was ever adopted by the executive committee of the union or approved by the general membership. The weight of the evidence is to the contrary.

60. Members were reportedly denied access to the out of work list and work referral book. These documents were kept behind a caged window in the hiring hall and could be scrutinized only with the permission of Mr. D'Andrea. That permission appears seldom, if ever, to have been given.

61. The hiring hall itself is plainly tainted by nepotism. The members of the families of Mr. D'Andrea and Mr. lacobelli appear and re-appear in all facets of the affairs of Local 1089 from positions of executive authority to union steward to hiring hall secretary, and extending to the rank and file membership. The evidence concerning the discriminatory referral practices exercised in favour of Mr. Cecilio lacobelli is but the most obvious example of the abuse of power for the benefit of their families exercised by the officers of Local 1089. A union and its hiring hall are not a private business. They exist pursuant to statutory rights of exclusive bargaining agency established under the Labour Relations Act. The exercise of those rights is a trust to be administered fairly and objectively for the benefit of all members. Favoritism shown to members of the families of union officers at the expense of other members is the plainest form of arbitrary and discriminatory treatment contrary to section 69 of the Act.

62. If the members of the local had unequal access to jobs, they had equal access to the laws of their union. We find it impossible to believe that the constitution and by laws of a union can be so unavailable to its members as was the case in Local 1089. The existence of a constitution and by-laws are a precondition to union status under the Labour Relations Act. A union which, by indifference or design, keeps its members from access to its internal laws risks raising fundamental questions about its continuing status as a union. A constitution and by-laws are obviously of little' value if they cannot be used. While the Board does not necessarily accept the suggestion of some witnesses that each member of a trade union should be given a copy of its constitution and by-laws when he joins, we do not feel it would be unreasonable to expect any union to keep a sufficient number of copies of its constitution and by laws for distribution, at no cost, to that predictably limited number of members who might be sufficiently interested to have a copy. The suggestion advanced by counsel for the respondents, and apparently made on a number of occasions by Mr. D'Andrea, that those who wanted to read the constitution could obtain the loan of a copy from the hiring hall, is not acceptable. In the highly politicized environment of the union many members might understandably decline that invitation out of a concern, be it justified or not, that if they ask to borrow or see a copy of the constitution they will be perceived as questioning, if not undermining, the authority of Mr. D'Andrea. In this case the failure or refusal of Local 1089 to provide its members copies of its constitution and by-laws clearly frustrated the ability of a concerned minority of members to seek redress inside the International Union for perceived injustices in the hiring hall's practices. That deficiency is therefore intrinsically related to the section 69 complaint. It also explains why Portiss did not pursue avenues of redress internally, a point not strenuously argued by the respondents.

63. Counsel for the respondents moved for a non-suit on the basis that the evidence establishes no prima facie under section 69 of the Act. We cannot agree. The evidence overwhelmingly supports the inference that the job referrals out of order to the prejudice of Mr. Portiss were arbitrary and discriminatory. No evidence was adduced to explain any of them. While much argument was addressed to the need for referrals by job classification, the Board can place no reliance on the submission of counsel for the respondents that we should view the referrals out of order as justifiable on that basis. The fraudulent referral of Cecilio lacobelli as a cement finisher months ahead of other unemployed members removes all credibility from that submission. On the whole of the evidence the Board is forced to conclude that the classification scheme has been left deliberately vague by Mr. D'Andrea and the union executive to facilitate the practice of favoritism and discriminatory job referrals. The evidence confirms that the hiring hall has been used by the officers of Local 1089, and especially Mr. D'Andrea, as an instrument of patronage. Nepotism and patronage have no place in the hiring hall contemplated under the Labour Relations Act.

64. The motion for a non-suit respecting charges of intimidation and coercion must, on the other hand, be sustained. The Board cannot find, on the evidence before it, any violation of section 70 of the Act. While there is ample evidence to establish arbitrary and discriminatory job referrals there is nothing to establish that the respondent Rocco D'Andrea or Local 1089 have attempted to intimidate or coerce any member in the exercise of their rights under the Act. The only direct evidence of concern in this regard is a threatening telephone call received at night by Mrs. Portiss when her husband was at work. There is nothing before us to establish that that call was made by the respondents or that it was made with their knowledge or approval. We therefore make no finding against either Mr. D'Andrea or Local 1089 in respect of the allegation that they engaged in intimidation or coercion.

65. The finding of a violation of section 69 is made against Local 1089. as it is the duty of the union under that section to refer and designate members to jobs in a manner that is not arbitrary, discriminatory or in bad faith. A trade union, however, can only act through its officers. We have no hesitation concluding that these violations of the Act found against Local 1089 are ultimately the responsibility of its business agent, the respondent Rocco D'Andrea. Mr. D'Andrea is shown by the evidence to be a strong and skillful business manager. As a representative of the least skilled of trades in a sector of the economy not noted for gentle manners, he has obviously done much to consolidate the position of his local and advance its members' interests. The Board is under no illusion that the rough and tumble of labour relations in the construction industry requires tough and decisive leadership. A business agent needs latitude for discretion in day-to-day decisions. That is especially true for the administration of a fractious body of members in a hiring hall, particularly in times of high unemployment. A firm hand and day-to-day discretion cannot, however, justify the abuse of the important trust that vests in the administrators of a hiring hall. It cannot, in light of the dictates of fairness in section 69 of the Labour Relations Act, extend to the distribution of benefits to family and friends or to the suppression of those who have fallen from favour with the union executive.

66. We turn to consider the remedy appropriate in this case. We should emphasize that in doing so we view the record as establishing a widespread disregard of the most fundamental rights of the members of Local 1089 in the administration of its hiring hall. Given the extent of the abuse disclosed, with particular regard to the suppression of the unions constitution, the Board has had cause to reflect on whether the status of Local 1089 as a union should be re-examined. Given the central role of Mr. D'Andrea, we have also considered whether our jurisdiction under section 89 of the Act would extend to the possibility of his suspension or removal from office. Those remedies were not, however, argued before us and we are satisfied that a strong remedial order implemented in good faith will make such extreme measures unnecessary. The Board will in any event remain seized of this matter in the event that the remedies which we now order should prove inadequate. We have every confidence, however, that the far-reaching remedies which we are ordering will redress the arbitrary and discriminatory practices which have in the past tainted the administration of the union's hiring hall. We have every reason to expect that the officers of Local 1089 and Mr. D'Andrea will co-operate in the implementation of the Board's orders to establish and maintain an open and rational hiring hall system with full accountability to the general membership.

67. The Board's remedy begins with the premise that a union is its members. It is the general membership, and not the elected or appointed officers of a union, which give it life and purpose. It is the intent of the constitutions of unions generally that responsibility and accountability for administrative acts ultimately rest with the general membership. Accountability is meaningful, however, only to the extent that union members can be aware of the actions of their officers and can weigh those actions against the mandates of the union's constitution, by-laws and, in this case, its hiring hall rules. In the construction trades hiring hall rules are the instrument by which fairness and objectivity can be maintained in job referrals, one of the most critical functions of a union in the construction industry. The constitution and by-laws are the framework through which the general membership can adopt and, from time to time, amend the hiring hall rules to better serve their legitimate needs.

68. The facts in this case disclose that a screen has been raised between the general membership of Local 1089 and the day-to-day actions of its officers. Mr. D'Andrea and Mr. lacobelli have wielded authority and discretion apparently without guidelines. They have, without any felt obligation to account to the membership made decisions in obvious disregard of the hiring hall rules as they are generally understood. In understanding those rules and the rules in relation to specialized classifications the members of Local 1089 have been left with no clear direction or map. When hiring hall rules are not clearly known and are administered from day-to-day without regard to consistency or any guiding principle, arbitrary and discriminatory treatment of the general membership is inevitable. The Board's remedy, therefore, is fashioned to remove the barrier between the union's officers and its general membership and to ensure, insofar as possible, that accountability is restored.

69. That can only be accomplished by opening decisions in relation to the administration of the hiring hall to regular scrutiny by the membership. This can in large measure be achieved by an order requiring the immediate discussion and adoption of hiring hall rules by the general membership and the permanent posting of those rules in the hiring hall, with copies to be provided to each member. Because the evidence establishes that the vagueness of the existing classification system has been the cause of much arbitrariness, the Board is satisfied that any remedial order must also address the establishment of a permanent system for the designation of classifications and standards governing the experience or ability of individuals to qualify within them. Provision should also be made for the fair treatment of members who, because of age or disability, are limited in the work they can perform. We are not impressed with suggestions that such refinements would be unduly onerous in the administration of the hiring hall. The existing registry system in the hiring hall is plainly inadequate for the proper classification and referral of the hundreds labourers within Local 1089. Given the thousands of referrals, many of them with specialized qualifications, which the hiring hall is required to make, it may be that a computerized recording and recall system for the out of work list will be the most viable alternative to ensure a fair administration of job referrals. While we do not see that as something which the Board should order, we feel it is a measure which the officers of Local 1089 should consider.

70. The evidence discloses a climate of fear among the general membership of Local 1089. Without commenting on whether that fear is justified, we are satisfied that the Board's remedial order should include some provision to allow the members of Local 1089 to obtain information on the day-to-day administration of the hiring hall without the necessity of a confrontation with Mr. D'Andrea. A transcript of the proceedings of a general membership meeting was adduced in evidence, having been covertly recorded by Mr. Portiss under the direction of the Ontario Provincial Police. It reveals, to say the least, a unique way of conducting a meeting. We are prepared to give considerable allowance for the less than parliamentary style to be expected in any meeting of rank and file labourers. Having said that, however, the Board must agree with the testimony of a number of witnesses that Mr. D'Andrea's method of conducting a meeting does not lend itself to a free flow of questions, much less to objections, from individual members. We are therefore satisfied that for a period of time the general membership should have the benefit of a third party retained to audit periodically the day-to-day administration of the hiring hall's records and procedures, and to report at regular monthly meetings to the general membership. The out of work list, including notations of all job referrals, as well as a parallel list of employers' requests for labourers should also be permanently posted and kept current in the hiring hall. If the hiring hall list is to be administered in good faith the referral out of order of employees should be readily identifiable by the general membership and members should be entitled to an explanation for such referrals. The permanent posting of the list and the appointment for two years of an auditor to scrutinize its administration, with regular reports to the membership, should begin the process of fuller information to members and alleviate their reticence to make inquiries.

71. We are also satisfied that Mr. Portiss should be compensated for any income which he lost as a result of the violations of section 69 of the Act established above. The determination of precise figures may require an element of speculation, since it cannot be precisely determined in all cases which job referrals he would have obtained if the out of work list had not been administered in an arbitrary fashion. It will nevertheless be possible to arrive at a justifiable figure which will reasonably redress the wrong done to him. It may also be that in some cases, as apparently occurred in the referral of Ms. Debbie Smith to Bravo Construction, that the job assignment out of turn had no economic impact on Mr. Portiss because he was then at work. We are confident that the parties will be able to make a reasonable determination of the appropriate amount of compensation on the basis of the Board's findings. We shall remain seized of this further aspect of the matter in the event that they are unable to do so.

72. Lastly. given the broad nature of the relief ordered and the obvious interest of all members of Local 1089 in the Board's determination of the violations of section 69 o)f the Act, we deem this an appropriate case for a posting order. A notice summarizing the Board's findings and the remedies ordered should therefore be posted in the hiring hall of the respondent Local 1089, in both English and Italian for a period of not less than 90 days.

73. For all of the foregoing reasons the Board finds and orders as follows:

(I) There has been no violation of section 70 of the Act established against either the respondent Rocco D'Andrea or Local 1089 of the Labourers' International Union of North America.

(2) Local 1089 of the Labourers' International Union of North America has engaged in arbitrary and discriminatory referrals to employment and designations to employment in the administration of its hiring hall contrary to section 69 of the Labour Relations Act.

(3) Local 1089 and its officers shall cease forthwith from the administration of the hiring hall's out of work list in any way that is arbitrary, discriminatory or in bad faith.

(4) The executive committee of Local 1089 shall forthwith prepare a written list of hiring hall rules. Such list of rules shall be presented for explanation, discussion and adoption, with or without amendment, by the general membership of Local 1089 within 90 days of the date of this order.

(5) A copy of the hiring hall rules so adopted, as amended from time to time, shall be permanently posted in the hiring hall and a copy of the rules, as amended from time to time, shall be provided to each member within 10 days of their approval by the general membership.

(6) At the next general meeting of the Local a committee on classifications, comprising no less than five members elected from the general membership, shall be established. It shall, within ninety days thereafter, recommend to the general membership a list of specialized job classifications as well as rules governing the determination of qualifications for registration on the out of work list under such classifications. It shall also recommend procedures for applications by members for admission to the classifications established. The classifications, standards and procedures 50 recommended shall be adopted, with or without amendment, by the general membership. The classifications, standards and procedures so approved shall be permanently posted in the hiring hall and copies, as amended from time to time, shall be provided to each member of Local 1089.

(7) The respondent Local 1089 and the complainant shall, within 30 days of this order, meet and agree upon the selection of a person or firm licensed under the Public Accountancy Act or a firm whose partners are licensed under the Act. The person or firm agreed upon shall not be from Sarnia and shall not have any other contractual relation with Local 1089 or any other local of the Labourers International Union of North America. The auditor 50 selected shall, at the expense of Local 1089, be retained for a period of two years to audit, on a periodic basis, the administration of the hiring hall rules and procedures, including job referrals. The auditor shall be given full access to all hiring hall documents maintained by Local 1089. as well as to such other sources of information as may be necessary for the purposes of the audit. The auditor shall report to each regularly scheduled meeting of the general membership, and be available to answer the questions of members respecting any matter relating to the administration of the hiring hall list and job referrals. In the event that the parties are unable to agree on the selection of an auditor they shall, within 45 days of the date of this order, each submit three names proposed by them to this Board and the Board shall then select an auditor from among the names submitted.

(8) Copies of the out of work list, with entries of all referrals, shall be posted in the hiring hall in a clear and legible manner. A companion list of employer requests for referrals shall also be posted, including entries of members who are referred under each request. The two lists shall be so maintained and revised from time to time as to allow all members to know their place and the place of others in the order of the list and to be aware of all referrals, including the dates of referrals, the employer to whom a member is referred and, where applicable, any special classification of employee requested or dispatched.

(9) Within 90 days of the date of this order, the executive committee of Local 1089 shall make recommendations to the general membership for the establishment of a list of injured or partially disabled members with a view to devising a system for the referral of such members, without penalty or discrimination, to jobs which they are reasonably able to perform. Any rules adopted in relation to those recommendations shall be posted in the hiring hall and copies of the rules, as amended from time to time, shall be provided to each member of Local 1089.

10 The respondent Local 1089 of the Labourers' International Union of North America shall post forthwith copies, in English and Italian, of the attached notice marked "Appendix". duly signed by its business agent. in conspicuous places at its hiring hall in Sarnia, including all places where notices to members are customarily posted. and shall keep these notices posted for 90 consecutive working days. Reasonable steps shall be taken by the respondent to insure that the said notices are not altered, defaced or covered by any other material.

11 Copies of the Constitution and By-Laws of Local 1089 and of the Labourers' International Union of North America shall be made available, at no cost, to) all members requesting copies of same at the union's hiring hall. Copies of the Constitution and By-Laws shall be kept at the hiring hall in sufficient numbers to satisfy such reasonable requests for copies as are made by members from time to time.

(12) The respondent shall forthwith compensate the complainant, Joe Portiss, for all wages and benefits lost as a result of its violation of section 69 of the Labour Relations Act.

74. The Board remains seized of this matter in the event of any dispute between the parties respecting the application or interpretation of its decision.