Ontario Labour Relations Board

[1983] OLRB Rep. February 298

2407-81-U William Egan, Complainant, v. Trial Board of the International Brotherhood of Painters and Allied Trades, Local 1783, Respondent

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. D. Bell and W. F. Rutherford.

APPEARANCES: William Egan for the complainant; A. M. Minsky for the respondent.

DECISION OF THE BOARD; February 7, 1983

[ 1 ] This complaint, which alleges violation of section 80(2)(b) of the Labour Relations Act, was made simultaneously with two other complaints; Board File No. 2406-81-U alleging violation of section 82(1); and Board File No. 2408-81-U alleging violation of section 82(2)(a) of the Act. The three complaints were listed for hearing together with the complaint contained in Board File No. 0681-81-M, a complaint made under section 85(2) of the Act alleging that an audited financial statement supplied to the complainant by Local 1783 pursuant to its duty under section 85(1) was inadequate. That complaint had been heard by the Board, differently constituted some five months previously and the complainant had requested that the matter be brought back on for hearing on the grounds that the financial statement supplied remained inadequate. The Board herein consented to the adjournment of that complaint sine die on the agreement of the parties and a decision to that effect has issued.

[ 3 ] The solicitors for the respondents in the three remaining complaints had served due notice on the Board and the complainant that motions would be made at the hearing seeking dismissal of each complaint without a hearing on various grounds, including the contention that they failed to disclose any violation of the sections of the Act which the complaints allege to have been violated. Accordingly, counsel for the respondents asked the Board at the outset of hearing to dismiss all three complaints without a hearing. The Board heard and considered the full submissions of the parties on these motions and ruled at the hearing, for reasons given in decisions which have since issued, that it would not hear the complaints in Board File Nos. 2406-81-U and 2408-81-U and dismissed those complaints.

[ 4 ] With respect to the complaint at hand, counsel's motion to dismiss it without a hearing was based on the additional grounds that:

(a) the allegations were unsupported by particulars, notwithstanding a duly made request for further particulars, thus all allegations should be stricken from the complaint and the Board should dismiss it pursuant to section 72(3) of the Board's Rules of Procedure; and,

(b) the respondent named in the complaint is not a person, a trade union or an agent acting for a trade union, therefore, there is no eligible party against which a cause of action can be made out under section 80(2)(b) of the Act.

Section 80(2)(b) provides as follows:

80.-(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

(a)

(b) intimidate or coerce or impose a pecuniary or other penalty on a person.

[ 5 ] The Board ruled that there was sufficient substance to the complaint to warrant hearing it on its merits, but before proceeding to do so, adjourned the hearing until the following day and granted the complainant leave to amend the name of the respondent to the complaint in order to clarify whether it was a complaint against:

(a) Local 1783 alone;

(b) any one or more named members of the trial board; or,

(c) Local 1783 and any one or more named members of the trial board.

All of these parties were present in the hearing. The Board also advised the complainant, William Egan, that if he failed to file further particulars with counsel for the respondent, the Board would limit him to calling evidence on those allegations in the complaint which were supported by particulars.

[ 6 ] At the commencement of the hearing on the following day, Egan asked leave of the Board to amend the name of respondent in the complaint to read "Trial Board of the International Brotherhood of Painters and Allied Trades, Local 1783". The Board amended the style of cause of the complaint accordingly. Egan advised the Board that he had supplied further particulars to counsel for the respondent following the adjournment of the hearing the previous day.

[ 7 ] Counsel for the respondent protested that naming the Trial Board was tantamount to naming individually the persons who comprise it. Counsel reiterated his motion to dismiss the complaint without a hearing because the respondent, as amended, is not a trade union or a person acting on behalf of a trade union. The Board ruled that it was at least arguable that the Trial Board members were persons within the meaning of section 80(2) of the Act when acting in their duties as a trial board pursuant to their appointment under the constitution of the International Brotherhood of Painters and Allied Trades ("the Brotherhood"). Therefore, the Board would reserve its ruling on whether they were persons acting on behalf of a trade union until it had heard all of the evidence and argument of the parties on the merits of the complaint including any further representations on this issue, and decide the question of whether the Trial Board members were persons acting on behalf of a trade union. If the Board found they were not, that would dispose of the complaint. If it found the contrary, the Board would decide the complaint on its merits.

[ 8 ] There were six days of hearings held over a four month period during which the Board heard the evidence of eight witnesses including Egan; William Davis, John Kolju, Neil Gallacher and Patrick PD. O'Reilly who comprised the Trial Board; Peter Van de Wetering and Edward S. Bates, members of Local 1783; and Ronald J. Last, business representative for the Local. Along with the oral evidence of these witnesses, the Board received a substantial volume of documentary evidence and, while the Board has reviewed and considered all of the oral and documentary evidence in making the findings of fact herein, it is unnecessary to set the evidence out in detail. The findings of fact have been made after taking into account, as well, the consistency of each witness' evidence, their ability to recall the event about which they were testifying, the firmness of their memory, their ability to resist the influence of self-interest to modify their recollections, their ability to express their recollections clearly and their demeanor.

[ 9 ] The thrust of Egan's complaint is that separate charges were filed against him by Bates and Van de Wetering under the Brotherhood's constitution because Egan had filed the financial statement complaint referred to above and that the Trial Board was influenced against his interest in hearing those charges because he had filed the financial statement complaint. He contends that the Trial Board found him guilty as charged in both instances because he had filed the financial statement complaint. For this reason he had refused to pay the fines levied for each charge and, as a result of his refusal to pay the fines, he would cease to be a member in good standing of Local 1783. He further contends that, lacking membership in good standing, he would lose his employment with Ontario Hydro and his right to be referred to work by Local 1783.

[ 10 ] In April 1981, the executive board of Local 1783 entered into an agreement with the executive board of the Ontario Provincial Council of the Brotherhood to take steps to merge the Local with Sarnia Local 1590 of the Brotherhood. It was part of that agreement that Last, who was business representative of Local 1590, would become business representative of Local 1783 and was authorized to appoint an assistant business representative for Local 1783 to act under his direct control. The executive board of Local 1783 resigned following this agreement and trustees were elected in their places, Egan being one of the trustees.

[ 11 ] He subsequently laid seventeen charges under the Brotherhood's constitution against the former members of Local 1783's executive board, officials of the Brotherhood, including David Cairns it's senior officer in Canada and Last. Two of these charges were made against Van de Wetering alleging him of misconduct in the discharge of his former office of secretary-treasurer with respect to the aforementioned agreement to merge with Local 1590.

[ 12 ] Egan's charges against the former executive board members were heard by the Trial Board which is named in the style of cause herein on September 1st, 2nd and 3rd, 1981. Egan appeared for the proceedings on September 1st but left before those proceedings were adjourned after what might be described politely as a rather heated exchange between him, the chairman of the Trial Board, some of its members and other persons present. For reasons of his own, he did so without calling evidence on his charges and he chose not to return for the continuation of those proceedings on September 2nd and 3rd. The Trial Board heard and considered the evidence of the persons charged and dismissed Egan's charges as not being proven.

[ 13 ] The make-up of the Trial Board was a matter of contention with Egan when the hearing into his charges against the executive board members began on September 1st and remained in contention at the hearing into this complaint. At the Trial Board hearing on September 1st, Egan referred to its members as a "bunch of Turkeys who were running a Kangaroo Court . . ." and charged that O'Reilly, who was acting as chairman of the Trial Board and Last, who was presenting the defense for the persons charged, were biased against him.

[ 14 ] Last, who was responsible for the administration of all of Local 1783's affairs pursuant to the aforementioned agreement, had appointed O'Reilly as the assistant business representative for the Local pursuant to that agreement. It was Last who appointed O'Reilly as Trial Board Chairman. O'Reilly in turn appointed the three other members. Last was asked by the former executive board members who had been charged by Egan to represent them at the Trial Board hearing. Since Last was also charged and those charges were being heard, he also represented himself.

[ 15 ] When Egan cross-examined Last in the instant proceedings about his reasons for appointing O'Reilly as chairman of the Trial Board, Last stated that he had done so because there were no executive board members of the Local and O'Reilly was assistant financial secretary of Local 1783 as well as its assistant business representative. Egan also cross-examined O'Reilly about his own appointment and about his choice of the Trial Board members. O'Reilly admitted that, as assistant business representative, he might not be eligible to be on the Trial Board, but he thought that he was eligible as assistant financial secretary of the Local. He stated also that he selected Davis and Gallacher as members of the Trial Board because they were trustees of the Local and Kolju because the remaining trustees were parties interested in the Trial Board proceedings thus ineligible to be on it.

[ 16 ] This same trial board was later to hear the charges against Egan which form the basis of this complaint. Egan had made a request in writing to Local 1783 that Bates' competency to hold membership in the Brotherhood be examined. As a result of this request, Bates charged Egan under a section of the constitution which deals with libel, slander or any manner of abusing, inter alia, fellow members of local unions. Van de Wetering also filed charges against Egan under the constitution to the effect that Egan's two charges against him were not made in good faith. Both of these charges subsequently came to hearing before the Trial Board.

[ 17 ] Egan's request that Bates' competency to hold membership in the Local be examined was not pursued by the local on advice of its solicitors that the union would be acting without constitutional jurisdiction or authority if it did and would be at the risk of exposure to legal liability should Mr. Bates sue as a result of this action. Bates' charges against Egan were heard by the Trial Board on September 23rd, 1981. Egan attended and presented some evidence in his defense but left before the proceedings were completed. The Trial Board continued with the proceedings after Egan's departure and heard the evidence and representations in support of Bates' charges. These were made by Last who was acting for Bates at his request. The hearing was concluded in one sitting and, immediately following the hearing, the Trial Board met, reviewed the evidence which it had received and found Egan guilty as charged. It determined that he should be fined the sum of $500.00 which was to be paid within 30 days from the 23rd day of October, 1981.

[ 18 ] Van de Wetering's charges against Egan were heard on October 6th, 1981. Egan had not appeared by 7:00 P.M., the scheduled time for the hearing so the Trial Board satisfied itself that proper notices had been sent to him by registered mail and being satisfied commenced the proceedings at 7:30 P.M., at which time Egan was not in attendance. Van de Wetering had requested that Last act for him at the hearing and Last introduced evidence in support of Van de Wetering's charges. The main thrust of his case was that Egan had waged a campaign of harassment against Van de Wetering, the other former executive board members and the Local union as a body. He presented evidence which included some 28 pieces of correspondence between Egan and the Local relating to his charges against the former executive board members, with general officers of the Brotherhood and with various government agencies, including this Board. The correspondence with respect to this Board related to his financial statement complaint and included the complaint itself. Oral evidence was also presented at the Trial Board hearing with respect to the financial statement complaint filed by Egan against Local 1783. After the hearing was concluded, the Trial Board met and reviewed the evidence and representations that had been made at the hearing in support of Van de Wetering's charges and found Egan guilty as charged. The members of the Trial Board decided that he should be barred from attending any meetings of Local 1783 for a period of five years and not be allowed any voice or vote in its affairs. It decided that he also should be fined the sum of $1,000.00 to be payable within 90 days from the 19th day of October, 1981. The oral and documentary evidence which the Trial Board considered is also before the Board herein. It reveals that the financial statement complaint was part of the Trial Board's considerations in convicting Egan and imposing the fine and other penalty.

[ 19 ] Egan refused to pay the fines and, at the time the hearings into this complaint were concluded, he still had not paid them. He appealed to the Brotherhood the Trial Board's findings with respect to the charges against him in each of those two cases. His appeal was not allowed on the grounds that he had not paid his fines.

[ 20 ] Egan argued that the manner in which the Trial Board was constituted violated the Brotherhood's constitution. He did not specify how the constitution had been violated. Nor did he call evidence of any assistance to the Board in determining whether there is a violation of the constitution. In these circumstances, and in view of the Board's oft expressed natural reluctance to intervene in the internal affairs of a trade union unless the need to do so is essential to a determination under the Act, the Board is not prepared to conduct its own enquiry into the constitution to determine whether it was followed with respect to the appointment of the Trial Board. In any event, that is not the question before the Board. The question is whether section 80(2)(b) of the Act has been violated because Bates' and Van de Wetering's charges were filed against him in response to his financial statement complaint to the Board and because the Trial Board was improperly influenced by his complaint when it decided those charges. Therefore, a finding that the constitution had not been followed, by itself, would not be determinative of the complaint, although it might be a factor to be weighed by the Board in deciding what inferences to draw from all of the evidence.

[ 21 ] The Board is of the view that Last, being responsible for the running of the affairs of the union absent any elected officers, found himself severely limited in the choice of persons eligible to be chairman of the Trial Board and selected O'Reilly as the only person in a position of responsibility who could fulfill that role. For similar reasons, O'Reilly had a limited choice of persons qualified to sit as members of a trial board because most of the elected trustees were persons interested in or affected by the proceedings, particularly those with respect to the charges filed by Egan. While, with the benefit of hindsight, it might be said that Last and O'Reilly did not give sufficient consideration to their respective appointments, the evidence falls short of convincing the Board that their selections were made with a view to having a trial board to which either of them could dictate, assuming, as Egan obviously suspected, that they wished to have him expelled from Local 1783. The Board had the benefit of assessing each member of the Trial Board as a witness in these proceedings and it is satisfied that they would not tolerate any attempt to use them in that manner.

[ 22 ] All of this is not to say that Last could not have shown greater appreciation for the perception which Egan would have for a trial board appointed in the manner of this one, whether hearing his own charges or those made against him. While the Trial Board composition and proceedings may not have deserved the mixed metaphor which Egan used to describe them, having regard for the fact that O'Reilly owed to Last his own appointment as assistant business representative and for the fact that Last appeared at the Trial Board hearings to defend those persons whom Egan had charged, it is not surprising that Egan viewed the Trial Board and its proceedings with suspicion. In the interest of having its members perceive the union's internal procedures as being fair, it seems to the Board that Last and O'Reilly might have sought a different solution to the problem of finding suitable appointments to the Trial Board.

[ 23 ] The Board must now consider the contention of counsel for the respondent that the complaint fails to name a party against which a cause of action can be made out under section 80(2)(b) of the Act because the respondent is neither a trade union nor a person acting on behalf of a trade union. Counsel argues that naming the Trial Board is tantamount to naming the individuals of whom it is comprised and, whether acting collectively as the Trial Board or individually as private ordinary members of Local 1783, they are not acting on its behalf. He does not deny that it is a constitutional element of the union process and an instrument of the union. Counsel contends, however, that an agency relationship between the Trial Board and Local 1783 does not exist because the Trial Board is made up of members who are pledged to make a decision on the evidence before it independent of any control over its decision by Local 1783. Counsel acknowledges that a local trial board is usually made up of executive board members of the local union but in this case was not because of the peculiar circumstances existing, but he asserts that the executive board members are pledged also to make decisions independent of any control by its local.

[ 24 ] While the Board agrees that a local trial board is usually made up of the executive board members of the local union and naming the Trial Board as respondent is tantamount to naming the individuals who sat on it that is as far as the Board can agree with counsel. Section 247, clauses (a) and (c) of the union's constitution set out how a local trial board is to be appointed. They establish the members of a local's executive board as the trial board except inter alia, where any of them are disqualified as being interested parties. In such case, the President, or if he is unable to act, another responsible officer, will appoint a disinterested member. Sections 248 through 262 of the constitution sets out the procedures for the conduct of trials, for making decisions and setting penalties. If the penalty includes a fine against a member, clause (a) of section 256 provides for it to be assessed by and paid to the local union. The charges must relate to violations of the constitution or to prohibited acts for which specific penalties are applicable and the Trial Board must receive and consider the substantial evidence relative to the constitutional provision under which the charge has been laid.

[ 25 ] In view of the foregoing conditions under which a trial board functions, the Board is impressed to conclude that the Trial Board of the International Brotherhood of Painters and Allied Trades, Local 1783, collectively acts on behalf of Local 1783 when it is fulfilling its mandate under the constitution. There is no evidence that it was not acting under the constitution in these matters. Therefore, the Trial Board and its individual members were acting on behalf of Local 1783 when they were processing and determining the charges against Egan and in laying the fines upon finding him guilty as charged. The Board finds therefore, that each member of the Trial Board is a person acting on behalf of Local 1783 and is a party against which a cause of action can be made out under section 80(2)(b) of the Act.

[ 26 ] Accordingly, the Board must determine the complaint on its merits.

[ 27 ] If this complaint of violation of section 80(2)(b) is to succeed on these facts, it must be on the second of the two prohibitions, that is the prohibition against intimidation, coercion or imposition of a pecuniary or other penalty. While Egan's concern is with the possible loss of his employment with Hydro and his disbarment from the Local 1783 employment referral system as a result of his refusal to pay the alleged improper fines, the facts would not support a finding of discrimination against him in regard to his employment or a term or condition of his employment. Its success depends as well on whether the Trial Board was influenced improperly against Egan because of the financial statement complaint which he had filed against Local 1783.

[ 28 ] There was no direct evidence that Egan's financial statement complaint formed part of the Trial Board's decision with respect to Bates' charges and the Board is not prepared to draw that inference from the evidence before it. Egan asks the Board, however, to find a link between Bates' and Van de Wetering's charges on the grounds that they colluded with O'Reilly to bring those charges and, therefore, that the Trial Board's findings on Bates' charges were tainted with the same improper consideration of his financial statement complaint to the Board that he alleges was the case with the Trial Board's decision on Van de Wetering's charges. The evidence simply does not substantiate his claim of collusion or any other link between the two sets of charges other than they share in common the fact that they were against Egan and heard by a trial board in each case constituted by the same persons.

[ 29 ] Counsel for the respondent argues, in part, that the Board must be able to find that Egan's financial statement complaint triggered either or both sets of charges laid and formed part of the trial process and the convictions in order to find any violation of section 80(2)(b). He asserts that it is incontrovertible that the financial statement complaint played no part whatsoever with the initiation or processing of Bates' charges. The Board concurs with counsel on that point and, therefore, this complaint is dismissed insofar as it relates to those charges and Egan's conviction by the Trial Board as charged.

[ 30 ] The Board does not agree with counsel that the Board would have to find that Egan's financial statement complaint was both the trigger for the charges against him and formed part of the trial process and his conviction by the Trial Board in order for these to be a violation of section 80(2)(b). The laying of charges clearly is something which a member does in his own right and is quite distinct from the processing of his charges beyond that point, a process which falls to the responsible officers of the local union and the duly appointed trial board to carry out. Therefore, in the Board's view, if Egan's exercise of rights under this Act formed part of the processing of Van de Wetering's charges or the Trial Board's consideration of those charges, it would be unnecessary for the Board to find that Van de Wetering was influenced in filing the charges by Egan's exercise of a right under the Act.

[ 31 ] There can be no doubt from the oral and documentary evidence before this Board that Egan's financial statement complaint was part of the evidence against him in his trial on Van de Wetering's charges, was considered by the Trial Board and formed part of its reason for finding him guilty as charged. Counsel for the respondent argues that the correspondence between Egan and the Board about that complaint was just part of the packet of 28 documents which were essential to the proof that Egan had acted in bad faith against Van de Wetering when Egan made his earlier charges against Van de Wetering, that it was necessary for Last who was representing Van de Wetering at the trial to put the complete case in but that there was substantial evidence to support Van de Wetering's charges without the complaint documents and, counsel states, all that the constitution requires of the Trial Board is that it hear and consider the substantial evidence with respect to the charges before it. Counsel argues also that the Trial Board's use of that packet of documentary evidence was to balance the charges which Egan had made against Van de Wetering and other former Executive Board members with Van de Wetering's charges that Egan had charged him in bad faith and, in so doing, the Trial Board did not place particular significance on the evidence about Egan's financial statement complaint.

[ 32 ] The evidence before the Board does not show that the Trial Board placed particular significance on the evidence of Egan's complaint in convicting him of Van de Wetering's charges, to that extent we agree with counsel. The question is, however, by giving the consideration which it did to his exercise of a right under the Act, has the Trial Board, as agent of Local 1783, violated section 80(2)(b) of the Act?

[ 33 ] In deciding this type of question where there is an alleged violation of those unfair labour practice sections which protect employees or persons in the exercise of their rights under the Act, the Board is concerned with the motivation for the impugned action and if the action was only partly motivated by the fact the person had exercised a right under the Act the Board would find a violation. For example, in the context of section 80(1) of the Act if an employer was alleged to have imposed a pecuniary penalty on an employee for reasons which included a valid or proper reason and the reason that the employee had exercised a right under the Act, the Board would find the employer to have violated the Act because part of the motivation for imposing the penalty was the employees exercise of a protected right. This approach has become known as "the taint theory". The Board applied that theory in a recent decision, International Association of Bridge, Structural and Ornamental Ironworkers Union and Norman Wilson and James Phair, [1982] OLRB Rep. Oct. 1487, in the process of finding that the respondent trade union had violated section 80(2) of the Act. The Board in that case reviews thoroughly the legal rationale underlying the taint theory at paragraphs 67 through 72 of the decision. The Board then goes on to apply that legal framework to the facts. It is clear from its analysis of the law and the facts that the presence of an improper motive does not have to form a dominant or substantial part of the whole motivation in order to trigger a violation of the Act, in that case section 80(2)(b), the same section of the Act with which the Board herein is concerned.

[ 34 ] The facts in this case reveal clearly that the Trial Board took into consideration Egan's exercise of an important right under this Act in finding him guilty of Van de Wetering's charges, for which the Trial Board imposed a five-year ban on Egan having any voice in the affairs of Local 1783 and a $1,000 fine. For this reason, the Board finds that the Trial Board, an agent of Local 1783 has violated section 80(2)(b) of the Labour Relations Act.

[ 35 ] In the result, the complainant, William Egan, has been upheld with respect to that branch of his complaint relating to Peter Van de Wetering's charges against him and not on the branch relating to Edward Bates' charges. Having regard for that result and with respect to his conviction by the Trial Board on Bates' charges, if Egan has not paid the $500.00 fine imposed on him and fails to do so within a reasonable period of time after the date of this decision, he may be subject to further sanctions by Local 1783 under the constitution of its International Brotherhood of Painters and Allied Trades.

[ 36 ] With respect to the Board's findings that there has been a violation of section 80(2)(b) of the Labour Relations Act as a result of William Egan's conviction by the Trial Board of the International Brotherhood of Painters and Allied Trades, Local 1783, as charged by Peter Van de Wetering, the Board orders that the said conviction be rescinded together with the five-year ban on voice or vote participation in the affairs of Local 1783 and the $1,000 fine and any record of it removed from the records of the Brotherhood and Local 1783.

[ 37 ] The Board is constrained to not leave this matter without commenting about the evidence which it heard relating to the conduct of the complainant William Egan towards the former and present officials of Local 1783 and some of its members. There is little room for doubt that his conduct exceeded the bounds of reasonable dissent and, to say the least, bordered on harassment In the Board's view, Egan has been the author of his own misfortune. In other circumstances, similar conduct by him towards his union might be unprotected by the Act.