Ontario Labour Relations Board

[1984] OLRB Rep. November 1597

1399-84-U Kazik Pawlak, Complainant, v. Tom Cope, Local Union 1151, Millwrights, United Brotherhood of Carpenters and Joiners of America and Millwright District Council of Ontario, Respondents

BEFORE: Harry Freedman, Vice-Chairman.

APPEARANCES: Kazik Pawlak and Owen F. Lindsay for the complainant; J. D. Watson, Tom Cope and Gary Robinson for the respondents.

DECISION OF THE BOARD; November 8, 1984

1. The names of the respondents appearing in the style of cause in this matter are amended to read: "Tom Cope, Local Union 1151, Millwrights of the United Brotherhood of Carpenters and Joiners of America and Millwright District Council of Ontario".

2. Kazik Pawlak filed a complaint under section 69 of the Labour Relations Act alleging that the respondents had discriminated against him by not referring him to a job with EKT Industries Inc. at Terrace Bay on July 27, 1984, and by referring Mike Nephin, another member of Local 1151, United Brotherhood of Carpenters and Joiners of America, hereafter referred to as the "Union", to that job when he was lower than Mr. Pawlak on the hiring hall list. Mr. Pawlak relies on an alleged violation of the Union's by-laws by the respondent Tom Cope, the Business Representative of the Union to support his allegations.

3. Mr. Pawlak submitted that this complaint was filed because he believed that the respondents Cope and the Union had applied the hiring hall rules contained in the Union's by-laws in an inconsistent manner. He referred to an incident in January 1984 where both he and Owen Lindsay, another member of the Union had been recalled by name, that is by name re-hire, to work at a job for Moore Industrial Installations. At that time, Mr. Cope wanted to refer a union steward to work at that Moore Industrial Installations job in place of one of the persons named by Moore for re-hire. As a result of Mr. Cope's attempt to refer a steward to that job, Mr. Pawlak and Mr. Lindsay wrote to the President of the Union (see Exhibit #2) and asked that charges be laid against Mr. Cope under the Union's by-laws.

4. The President of the Union, Gary Robinson, replied to the complaint of Messrs Pawlak and Lindsay by letter dated March 8, 1984. That letter, Exhibit #5, stated in part as follows:

Your letter was discussed at some length between myself and the other Executive members, excluding Brother Tom Cope, at the Executive meeting on March 7.

The general consensus of the Executive was that Brother Tom Cope's actions did not warrant any charges being laid. This should not deter you from proceeding with the laying of charges by yourself and/or Brother Owen Lindsay if you so desire and see fit.

The Executive felt that the following reasons supported this resolve:

(i) Section 43.07 (c) establishes that THE MEMBER may return to work for a contractor he has been employed with if 30 days have not elapsed. The employer HAS NO RIGHT to recall the persons he wishes to. The Business Agent must call the members laid off from that job before he calls anyone else (providing they haven't worked).

(ii) Upon lay-off the Steward naturally assumes the highest seniority. Upon recall he is the person who should have been recalled first. If the Business Agent erred it was probably by allowing someone other than the Steward to return to the job before the Steward.

(iii) The by-laws form an integral part of our Union's administration —they are, however, not for use outside our Brotherhood and cannot be binding upon us by a Contractor.

(iv) Section 36 refers to discrimination vs. any member. If any person was discriminated vs. it would have to be T. Morden since he should have been the first to return.

If Brother T. Cope deserves to be reprimanded for any action, I feel it would have to be for not informing Mr. Stoppa that the Company has not the right of recall and that Brother Tom Morden should have been the first member dispatched from the hall.

Should you wish to change or alter the by-law in respect to who should be recalled first or if you wish to establish an order in which they should be recalled you should bring your proposal to the meeting next Wednesday, March 14.

There may indeed be times when the previous steward is of no benefit to either the Union or the Company on a project. Management should contact the Local Union office and discuss the problem in the event of a recall to work but in any case, the final decision must lie in the hands of the Business Agent.

5. Section 43 of the Union's by-laws (Exhibit #3) sets out in some detail the hiring hall rules of the Union. Section 43 provides in part as follows:

SECTION 43 — MILLWRIGHT HIRING PROCEDURE:

43.01

In order to promote equal opportunity for employment among the Millwright members of Local 1151, a list of unemployed members registering for employment is to be kept up to date at the Union Office. Reference in this hiring procedure to Millwright shall include Foreman, Millwright, Millwright Apprentice and Welders employed in the Millwright trade and they shall register as such but this shall in no way prevent a member, except an apprentice, from accepting employment as a journeyman Millwright.

43.02

A list of unemployed members registering for Millwright employment is to be kept up to date in the office, starting with the longest unemployed at the top of the list, if tie date, member holding longest continuous membership in accord with the seniority list shall qualify as first out.

43.04

All members must register within four (4) calendar days of termination of employment. The termination date to be entered on the list. Members failing to register within four calendar days will have the date of registration entered on the list.

43.07

A member called for Millwright employment to perform work under the current Provincial Agreement or Millwrights registered as Welders refusing three calls for a job shall go to the bottom of the list and shall not be eligible for Supplementary Unemployment Benefits.

(a) No member having refused a specific job will be called for calendar days unless he requests a further call.

(b) No member will be penalized for refusing to go back to a job where he was fired.

(c) In the event of a layoff for any reason, the members laid off will be given the opportunity to go back to that job if the contractor rehires within thirty (30) calendar days, providing that members laid off have not been employed by another contractor within this thirty (30) calendar day period.

[emphasis added]

(d) All members registered as Millwright Welders must hold a valid Canadian Welding Bureau Certificate.

43.10

A member called for employment shall be advised of all orders for Millwright employment known to the Union at the time such call is made. The Millwright called shall have a choice of referrals available and if no referral is accepted, then a refusal of each job shall be registered against him.

43.11

Contractors may name hire the first Millwright Employee as Foreman for each project.

43.15

A Millwright referred to a job lasting 36 working hours or less may retain his position on the hiring list providing he does not quit his job.

6. The Board received evidence that the Union, in applying these hiring hall rules, has permitted an employer to request specific Union members for re-hire to a job if that member has worked for that employer on that job within the 30 days prior to the request. The Union has generally complied with an employer's request, provided the person requested has not worked elsewhere. That was the practice of the Union since it was chartered in 1982. When the Union was chartered, the millwright members of the Union's sister local, Local 1669, United Brotherhood of Carpenters and Joiners of America became members of the Union. That practice was also followed in dispatching millwrights to jobs from at least 1970 when the millwrights were members of Local 1669. The by-laws of the Union were drafted by a by-law committee of that Union which borrowed extensively from the by-laws of Local 1669. The Board is satisfied that it was the normal practice of the Union to permit the name re-hire of millwrights under section 43.07(c) and that that practice had been in place since the creation of the Union and since at least 1970 in respect of millwrights referred to jobs by Local 1669.

7. After Mr. Pawlak received the letter of March 8 from Mr. Robinson, he thought that the Union's practice with respect to name re-hire had changed.

8. At the regular membership meeting of the Union on March 14, 1984, the issue of an employer's right to name hire was raised. Mr. Lindsay testified that at the meeting, he spoke in favour of permitting employers to name hire, but did not recall whether the issue of name re-hire was discussed. Mr. Robinson, who chaired the March 14, 1984 meeting, testified that he recalled that Mr. Pawlak attempted to put the issue of name re-hire before the membership along with the motion dealing with name hire. However, the specific issue of name re-hire raised by Mr. Pawlak was not put to the membership. The attempt by those at the meeting in favour of permitting name hire to amend the Union's by-laws was defeated. Mr. Robinson testified that the result of the March 14, 1984 membership meeting was to maintain the current practice when referring members from the hiring hall.

9. Mr. Pawlak filed this complaint because Mr. Cope, in response to a request from EKT Industries Inc. for millwrights to work at the Terrace Bay job referred Mr. Nephin to that job instead of Mr. Pawlak. Mr. Nephin was lower than Mr. Pawlak on the hiring hall list. (See Exhibit #1). Mr. Cope referred Mr. Nephin to that job because Dennis Magne, the Manager of EKT Industries Inc. had specifically requested for name re-hire for July 27, 1984 the millwrights who had previously worked on a specific machine, the slasher, at the Terrace Bay job and had been laid off on July 3, 1984. Mr. Nephin had worked on the slasher at the time of his lay-off on July 3, 1984 and was specifically requested for name re-hire by Mr. Magne. Approximately 44 millwrights had been employed by EKT Industries Inc. on the Terrace Bay job and approximately 40 had been laid off that job on July 3,1984. Mr. Pawlak, who had also worked at the Terrace Bay job but did not work on the slasher which required millwrights on July 27, 1984, was also laid off on July 3,1984.

10. Mr. Pawlak, who does not dispute the evidence of the Union's normal hiring hall practice, argues that he should have been referred to the Terrace Bay job on July 27, 1984 because he was ahead of Mr. Nephin on the list. As both he and Mr. Nephin had been laid off from the same job at the same time, Mr. Pawlak, being more senior to Mr. Nephin and therefore higher on the hiring hall list, should have been referred to the EKT Industries Inc. job at Terrace Bay ahead of Mr. Nephin pursuant to section 43.02 of the Union's by-laws. Mr. Pawlak relies on Mr. Robinson's letter of March 8, 1984 as further support for his position that employers could no longer name re-hire.

11. The parties agreed that the collective agreement binding on the Union and EKT Industries Inc. does not contain a provision giving employers the right to name re-hire. Mr. Robinson explained that his letter meant that an employer did not have the enforceable right under the agreement to demand name re-hire, and whether the Union complied with an employer's request for name re-hire was a matter within the union's discretion.

12. In my opinion, while Mr. Pawlak's interpretation of the Union's by-laws is not unreasonable, the Union's hiring hall practice relating to name re-hire has generally been the same since the creation of the Union and had generally been followed by its predecessor sister Local for many years. A member's place on the list does not affect whether that member is referred to a job through name re-hire. Both Mr. Pawlak and Mr. Lindsay agreed that Mr. Nephin's referral was consistent with the Union's general normal practice prior to March 8, 1984. I view the union's general practice with respect to name re-hire as understood by Messrs. Pawlak and Lindsay to be a reasonable application of the by-laws.

13. The Union's hiring hall practices are well known to all of its members and are set out in the by-laws. The hiring hall lists and job referral records are open for inspection by the Union's members. Any members questioning a referral can and have taken up their concerns with Mr. Cope. In my view, the hiring hall practices of the Union as administered by Mr. Cope is the antithesis of a hiring hall that is operated arbitrarily, discriminatorily or in bad faith.

14. The Board's jurisdiction in this type of complaint, which alleges a violation of section 69 of the Labour Relations Act, is to determine whether a union that selects or refers persons to employment pursuant to a collective agreement has acted in bad faith, or in an arbitrary or discriminatory manner. Whether Mr. Pawlak's interpretation of the by-laws or the Union's interpretation of the by-laws is correct, both are reasonable. Furthermore, I am satisfied that the Union's hiring hall practices had not changed in March of 1984, and that Mr. Nephin was referred to the EKT Industries Inc. job instead of Mr. Pawlak because Mr. Cope was following the Union's normal hiring hall practice in relation to name re-hires. Mr. Robinson's letter did not change that practice. The motion to amend the by-laws at the Union's membership meeting of March 14, 1984 was defeated. I find that the union membership meeting did not change the previous practice of name re-hire with which Mr. Pawlak and the other members of the union were familiar. Thus, I am satisfied that none of the respondents have acted in bad faith towards Mr. Pawlak, and were neither arbitrary or discriminatory in their treatment of him when the Union referred Mr. Nephin to the EKT Industries Inc. job at Terrace Bay on July 27, 1984 instead of Mr. Pawlak.

15. The complaint is dismissed.