[1984] OLRB Rep. November 1533
1659-84-U Ralph Albrecht, Complainant, v. Labourers International Union, Local 607, Respondent
BEFORE: S. A. Tacon, Vice-Chairman.
APPEARANCES: Ralph Albrecht for the complainant; David Strang, Pat Little and Phil Harris for the respondent.
DECISION OF THE BOARD; November 23, 1984
I
This is a complaint alleging violation of section 69 of the Labour Relations Act.
At the hearing, the respondent moved for dismissal of the complaint for failure to particularize the allegations. The Board explained Rule 72 of the Rules of Practice to the complainant who was not represented by counsel. The complainant asserted that he had been treated unfairly by the union with respect to employment referrals. In particular, on one occasion when he had attempted to review the out-of-work list and write down the names of individuals ahead of him he had been prevented from doing so. The complainant also alleged that a Mr. St. Onge had been referred to a three-month job in Quebec and then almost immediately thereafter was referred to a position on a pipeline project. The complainant questioned this referral while he was not referred to jobs during this period. The respondent indicated the union was prepared to deal with the complaint as particularized without delay and the hearing proceeded.
II
There was no dispute that the respondent operated a hiring hall with respect to several collective agreements in force at the time of the alleged violations of section 69 of the Act and that the complainant was a member of the respondent union.
The complainant testified on his own behalf. P. Little, the business manager, B. Belanger, the secretary/bookkeeper, and P. Harris, testified on behalf of the union. The Board has considered the usual factors in assessing the credibility of witnesses, including the consistency of their evidence, the firmness of their memory, their demeanour while testifying, their responses in cross-examination, their apparent ability to resist the influence of interest to modify their recollections and what appears to the Board to be reasonably probable when the circumstances and the testimony of the witnesses are considered. In view of those assessments, the Board makes the following findings of fact.
The union operates a hiring hall whereby members are referred to work according to their seniority on the out-of-work list, i.e., the length of time they have been unemployed, subject to possessing the appropriate qualifications for the job order. There are over seventy classifications or skills listed on the registration card. Members check-off those qualification or skills which they possess. The referrals are generally made by the office staff, including Davis and Belanger; Little seldom refers members to jobs and is not normally consulted on referrals. When a member is laid off, he registers for work at the union office, in person or by telephone. His registration record is inserted, qualifications side up, in the bottom spot in the out-of-work list. The "list" is actually a ring binder filled with the registration cards of out-of-work members. The binder is subdivided into months for easy reference and, in periods of high unemployment, may consist of two or three binders. A separate section of the binder is maintained for members outside the union's jurisdiction but who pay dues. These members are not called until all members within the jurisdiction have been contacted or are employed or do not have the necessary skills. Another section consists of members on compensation or other forms of leave or who are unable to work but are not receiving benefits. These members "work their way through the list" but if they reach the top but are still unable to work, their position is maintained in a special section until medically fit once more. The individual's dues card is cross-referenced at the time he signs in with the date of registration for easy cross-reference to the binder. In this way, an individual, by phone or in person, can readily be informed of his position on the out-of-work list. When an individual is referred to a job, the registration card remains in the same position for ten days and, if the individual is still employed, the card is removed from the binder and reinserted at the bottom when the member again registers as laid off. The union maintains a telephone log and work order booklet as well. The hiring hall rules were entered as an exhibit; the complainant acknowledged he had a copy at home.
For every phone call, the call is recorded in the telephone log; the time, caller, subject matter and brief details, if it is a job request, are noted. Work orders are also noted, more fully, in the work order sheet, a copy of which is retained by the union. The union staff then start at the front of the out-of-work list and contact the first person having the appropriate qualifications. The member is given the details of the job and offered the position. A member is entitled to refuse a position, without penalty, for a legitimate reason, e.g., medical problem. Otherwise, a refusal is charged against the individual. Two unanswered telephone calls on the same day for the same position are counted as one refusal. After three refusals, the person's card is removed from its position and placed at the bottom of the list. Members commonly obtain non-union work on their own and are not penalized for doing so although a refusal to accept a union referral would be counted in the usual way. Union records would not indicate non-union employment, nor would the union know in any "official" way if a member was working outside the local's jurisdiction. This system of referrals was implemented roughly two years ago.
During the past two years, the numbers of unemployed union members has been extremely high: the out-of-work list filled three binders. Conditions improved significantly in the Summer 1984 season (primarily because of the Hemlo site but also because of increased construction generally in the western area) to the point where all members had been offered positions for which they were qualified. The current out-of-work list dated from August 1984 and the level of unemployment has gradually increased to the point where a second binder has been started. New members have been initiated throughout this period but particularly in connection with the organizing at the Hemlo site. Initiation fees are reported separately on the union's monthly financial statement and read out at the membership meetings. Members in attendance can query the reason for the initiations (e.g., organizing, new members with special skills in particular demand like diamond drillers etc.).
The complainant has been a member of the respondent union for thirteen years. Each time he was laid-off, either he or his wife would sign in at the union office. Over the past four or five years, the complainant has worked approximately five or six months per year and in the past two years has only been referred through the hiring hall to positions lasting roughly six weeks. After a job with Ontario Hydro in January 1984, the complainant worked in Snow Lake, on a non-union job, for approximately five weeks until a medical problem prevented him from working underground. The complainant collected weekly indemnity from July to mid-September 1984. In September, he was again able to work underground. He obtained a job with Mclsaac September 18th and, thus, refused the referrals from the union in September and October. The complainant is still employed at Mclsaac.
The complainant's registration card showed the following work record through the
union:
registered as out-of-work as of November 19, 1982;
worked for Cliffside in October 1983 but for less than 10 days and, thus, his place on the list was not affected;
worked for Ontario Hydro in January 1984;
re-registered on the out-of-work list as of March 26, 1984;
called on August 9, 1984 re: a position as a driller, position declined as still on weekly indemnity and, thus, not counted as a refusal;
called on September 27th but already working elsewhere and declined job; counted as a first refusal;
called on October 1st, still working elsewhere; counted as a second refusal;
called on October 3rd on two occasions re: the same job but no answer; counted as third refusal.
registration record moved from placement on out-of-work list as of March 26, 1984 to October 3, 1984.
The complainant has had several conversations with Little. The complainant's recollection of events was rather vague as to details and generally the disparity between the complainant's version and that of Little may be attributed to the differing ability of individuals to recall events occurring several months ago. Where there is conflict, however, the testimony of Little is preferred.
The first conversation dealt with the complainant's assertion that he had been out of work for some time and felt, as a long-time union member, he should be referred to jobs before others who had more recently joined the union. Little explained that the hiring hall rules calculated seniority in referrals according to the time on the out-of-work list (subject to qualifications), rather than length of time in the union. Other conversations also dealt with the length of time the complainant had been out of work. Little's response, essentially, was that most of the members were in a similar position because of the recession. Little also told the complainant that, although he may be 100th overall on the list, he should actually count his position in terms of those classified as "driller", for example. "Driller" was one of the classifications for which the complainant was qualified. The Board does not find the complainant's allegation that Little maintained a separate drillers' list to be substantiated. The Board also does not accept the complainant's assertion that Little said he [Little] could "pick and choose" who went on what jobs, meaning an arbitrary or discriminatory selection without regard to seniority on the out-of-work list and qualifications.
The complainant made arrangements with Belanger to see the out-of-work list on a particular Friday in Spring 1984. The complainant was accompanied by a Peter Collins, another union member. Belanger brought out the binder opened to the complainant's card. The complainant commenced writing the names and telephone numbers of those members ahead of the complainant in the binder. The dispatchers and Belanger had been instructed to permit members to examine the out-of-work list but not to leave anyone alone with the binder to prevent the list from being altered by simply rearranging the cards. Such alteration of the list would not likely be detected. The union's policy is to permit ready access to the out-of-work list by members without special arrangements or procedures provided, of course, one of the office staff is free to monitor the review. Belanger informed Little that the complainant was writing out the names and telephone numbers of all individuals ahead of him in the binder. This would take a considerable period during which time she could not perform her other duties. At this point the "list" comprised three binders.
Little then told the complainant that he was entitled to see the list provided the request was reasonable and offered to help with any specific problem. The complainant replied that he just wanted to know where he was on the list. Little reiterated his offer of assistance but stated the complainant could not monopolize the out-of-work list as the binder was needed for referrals. The complainant did not reply and continued writing. Finally, Little removed the binder but again stated that the complainant could examine the book in a reasonable fashion at any time. The complainant then left the union office. Collins remained to examine the binder for some time before also leaving.
After this Friday incident in the Spring of 1984, the complainant did not try to examine the list again or make other inquiries about the referral system. Further, the complainant did not attend union meetings and raise the matter there.
The registration card of St. Onge indicated the following:
unemployed since November 21, 1983;
called by the union on August 2, 1984 but had no experience on wire and sort; not counted as a refusal;
called by the union on August 9th but working elsewhere; counted as a first refusal;
called by the union on August 14th, but not available; counted as second refusal;
called by the union on August 20th, but not available; counted as third refusal;
card moved from registration on out-of-work list as November 21, 1983 to August 20, 1984;
called by the union (Harris) on September 12, 1984 and offered job as a powderman with Hamlyn, a subcontractor on the pipeline job.
With respect to the Hamlyn job, the normal procedure for referral was followed, i.e., the out-of-work list was reviewed in order of seniority on the out-of-work list and St. Onge was the first on the list qualified as a powderman. As to the Quebec job, the evidence indicated that St. Onge held a supervisory position (which would have been outside the bargaining unit in any event). Further, the job was not the result of a union referral.
III
The complainant stated he felt he had been treated unfairly, that he had been out of work for so long and that others had been referred more often and/or to better jobs. The complainant acknowledged that he hadn't realized that the Quebec job held by St. Onge was outside the respondent's jurisdiction. He conceded he was wrong in this allegation of unfairness and admitted he knew of no other individual who had been referred to jobs to which he felt he was entitled. The complainant requested that the Board order easier access to the list or some arrangement, such as a cage, to allow longer review of the cards.
The respondent sympathized with the complainant's frustration at being unemployed for so long but stated that large numbers of members were in similar circumstances. The respondent understood the complainant's desire to review the out-of-work list and even file a complaint with the Board to ensure he was being fairly referred to jobs. However, the complainant should also have pursued internal routes such as raising the matter at union meetings. In any event, no violation of section 69 had been made out.
Counsel for the respondent urged the Board to go on to consider the general question of access by members to out-of-work lists. It was submitted that the respondent, Local 607, a relatively small local servicing a large geographic area, had established a fair system to refer members to jobs covering a wide range of skills. Union policy was to provide access by members to the out-of-work list on a drop-in basis subject to one of the office staff being available to monitor the review of the binder. Such monitoring was necessary to prevent alteration of the list and yet placed an additional burden on an already busy office. The individual member's right to access should, however, be balanced against the union's legitimate concern with avoiding a financial drain on its resources (through a need for extra staff to monitor and/or provided copies of the list) and its institutional concerns with preventing duplication of the list, including telephone numbers, which may be used as the basis for raids by other unions. In this case, counsel asserted the limits placed on access by the local were reasonable. This concern with balancing right of access with reasonable limits imposed by the union was heightened where the union was presented with vague allegations of wrongdoing lacking sufficient particulars to enable the union to prepare a response efficiently. The Board certainly has wide remedial authority to order access where a violation of the Act had been found. Further, the Board possessed authority to subpoena documents where a complaint had been filed and revealed a prima facie breach of the Act. However, it was submitted the Board should be wary of adding to a member's contractual rights (beyond the union's constitution, by-laws, hiring hall, rules, etc.) to establish broader rights of access to hiring hall lists because of the serious impact of such unfettered rights on the functioning of the hiring hall, the union's constitutional concerns and financial resources. If the Board's jurisprudence (Joe Portiss, [1983] OLRB Rep. July 11 60; Luciano D'Alessandro, [1983] OLRB Rep. Oct. 1699 and Maurice Berlinguette, [1984] OLRB Rep. Apr. 568 were cited) established such an unfettered right, counsel submitted the Board had gone too far.
IV
- Section 69 of the Act reads:
Where, pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith.
The hiring hall was usefully reviewed in the following passage from Joe Portiss, supra:
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 Constitutionally 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.
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 poo1 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.
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.
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.
Unfortunately Canada 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 the 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 Longshoreman's Association, Local 269, 83 CLLC ¶ 14,022 (S.C.C.)).
In this case, however, the Board finds there has not been abuse of the hiring hall with respect to the complainant's allegations. The respondent has established an apparently efficient system of matching members' skills with work orders in order of seniority on the out-of-work list. On the evidence, the respondent has established, published hiring hall rules to refer individuals to jobs. The system appears to work well despite the difficulties of covering a wide geographic area (with preference for members within a certain radius of job sites) and dealing with a complex classification system (i.e., over seventy qualifications or skills are categorized). The complainant could not cite a single instance (except St. Onge) where another member had been referred to a job which he felt he should have received (either by naming an individual on a job site). With respect to St. Onge, the complainant acknowledged at the end of the hearing, and the Board concurs, there was no violation of section 69.
The complainant was not denied access to the out-of-work list at any time. He was denied the right to monopolize the list for an extended period of time in order to manually copy the names and telephone numbers of all individuals ahead of him on the list. In the circumstances, the Board does not find this to be an unreasonable denial of access. Specifically, the respondent was properly concerned with monitoring the binder so as to prevent a virtually undetectable alteration of the out-of-work list. This monitoring — if access was permitted for extended periods of time — would place an unreasonable burden on the union's resources. That is, either additional staff would be needed or the present staff would be prevented from attending to their other responsibilities. And, most importantly, members could not be dispatched to jobs while the list was being reviewed. The Board also notes that the complainant did not seek to review the list after the "Friday" incident nor did he raise the question of access at membership meetings. Moreover, it must be stressed that the complainant did not approach the respondent with a specific problem or example of allegedly unfair referral (either in terms of a named individual who was referred or a job site). Rather, the complainant merely sought to review the list in a manner which would result in considerable strain on the union's resourses (as detailed above) without disclosing any reason for the review and without responding to offers of assistance to resolve any particular difficulty.
The Board is very sympathetic to the complainant's position. He has been out of work except for a brief period through no fault of his own for two years. His frustration and sense of unfairness is understandable. That he should wish to review the out-of-work list to ensure the union was fulfilling its statutory duty of fair referral is not only understandable, it is his right. However, the union's response to the manner in which he sought access was not unreasonable. Beyond this incident, the complainant did not substantiate his vague allegations of unfair referrals. The Board hereby finds that the union has not violated its obligations under section 69 of the Act with respect to the complainant.
V
While this finding is sufficient to dispose of the complaint, the Board is prepared to offer some further comments in view of the respondent's submissions and request for guidance. It was not disputed that the Board has wide remedial authority to respond to violations of the Act. With respect to violations of the duty of fair refusal, an appropriate remedy may detail the type of access to which a complainant — and other members — are entitled. It may also be appropriate to order that copies of out-of-work lists be available,that hiring hall rules be reviewed, etc. But it is critical to remember that these remedies are fashioned to deal with the particular circumstances founding a violation of the Act. The remedies in Portiss, supra, described by that Board as far reaching", were intended to respond to the established wrongdoing in that case and not to set the Board's standard for compliance with the duty under section 69 of the Act.
The respondent's general concerns about access are probably best focussed in the Board's comments in Berlinguette, supra, at paragraph 16:
At the hearing of February 23, 1984, the Board indicated it was not prepared to rule that a refusal of information could not be a breach of section 69. On further reflection, the Board is now satisfied that a refusal of information will be a violation of section 69 if the refusal is arbitrary, discriminatory or in bad faith. This is so whether or not the information sought would have revealed some other violation of section 69. This does not mean that a union must comply with any and every request for information, regardless of the scope of the request, the sensitivity of the information sought, or its relevance to the interests of the person making the request. That person's interests must be balanced against the individual and collective interests of the other persons for whom the union seeks employment opportunities. Prima facie, however, such individuals have a legitimate interest in knowing both the results of referral decisions and the information taken into account in making those decisions. The strength of that interest, and of any competing interests, will depend on the facts. It is for the trade union to strike the necessary balance. The Board's approach to a complaint that the result is improper will be the same as in other cases under sections 68 and 69: the onus will be on the complainant to show that the trade union's action is arbitrary, discriminatory or in bad faith.
The above passage in Berlin guette does not create an absolute "right to information" for each union member so that a refusal of information must be justified by the union as not arbitrary, discriminatory or in bad faith. The same passage speaks of the need to balance the interests of the individual seeking information against the individual and collective interests of other members. Further, the paragraph reaffirms that the complainant bears the onus in section 69 (and 68) complaints.
The passage is couched in terms suggesting a right to information, namely, "a refusal of information will be a violation of section 69 if the refusal is arbitrary, discriminatory or in bad faith". However, what the Board was responding to in Berlin guette was the respondent's argument in that case that a refusal of information, specifically, a denial of access to hiring hall records, is not a violation of section 69. It cannot be seriously asserted that the Board should permit section 69 to be emasculated by acknowledging, in effect, a broad right of a union to cloak its activities in secrecy. The focus, in Berlinguette, then, was on preventing a union from insulating itself from section 69 complaints through a denial of access to hiring hall records, rather than on "creating" a new right.
As stated above, this complaint is hereby dismissed.