{1984] OLRB Rep. April 568
1490-83-U Maurice Berlinguette, Pat Proulx, Lionel Trudel, Paul Pilon, Complainants, v. Labourers' International Union of North America, Local 1036, Respondents.
BEFORE: Owen V. Gray, Vice-Chairman.
APPEARANCES: A. Bradley, Maurice Berlinguette, Pat Proulx, Lionel Thudel and Paul Pilon for the complainants; S. B. D. Wahl and J. Lewis for the respondents.
DECISION OF THE BOARD; April 2, 1984
In this complaint filed October 3, 1983, the complainants named the respondent trade union and "Jimmie Lewis, Business Manager and Secretary-Treasurer" as respondents, and alleged that the respondents had dealt with them contrary to the provisions of section 69 of the Labour Relations Act. The complaint came on for hearing before the Board on February 23, 1984, when certain preliminary matters were argued by counsel for the respondent and by the complainants' representative and fellow trade union member, Anthony Bradley. The Board ruled on those matters orally at the hearing, which was then adjourned. This decision will serve to confirm those rulings, set out the circumstances in which they were made and elaborate the reasons for them.
In their complaint of October 3, 1983, the complainants described the respondents' alleged offence as follows:
On or about Sept. 6/83 and Sept. 9/83 the grievors were dealt with by Jimmie Lewis, Bus. Manager and Sect. Treasurer, Local 1036 of the Labourer's International Union of North America of the respondent contrary to the provisions of section Sixty-Nine (69) of the Labour Relations Act in that he did on his own behalf or on behalf of the respondent: His refusal to provide us with copies of "out of work" list and job referrals list dating back from January 1983 to September 1983. We made this request to Jimmie Lewis (Bus. Manager), in the presence of the Office Secretary, on Sept. 6/83 at 4.30 p.m. until 5.30 p.m. and again on Sept. 9/83 at 11.30 a.m. We insisted on our rights. His answer was he didn't know our rights, and wasn't prepared to provide this information.
The complainants requested that the Labour Relations Board:
(1) Hear and Resolute [sic] the complaint filed — 83
(2) Deal with the members charges;
(3) And the complainants be recompensed for any loss of wages, benefits, and costs for representation.
Under "other relevant statements", the complainants made the following allegation:
We allege that Jimmie Lewis has violated Article 69 of the Labours Isici Relations Act. by using his office as an Instrument of Favoritism and patronage, due to his hiring hall practice.
The respondent's Reply raised most of the preliminary matters ultimately dealt with at the Board's hearing. It alleged that the Complaint did not make out a prima facie case for the remedy requested and, apart from the bald allegation under "other relevant statements", did not disclose any conduct which could be construed to violate section 69 of the Labour Relations Act. In the alternative, it submitted that the complainants' allegations were insufficiently particular, and should be fully particularized in accordance with Rule 72 of the Board's Rules of Procedure. In any event, it submitted, Mr. Lewis was not properly named as a respondent, and his name should be struck out. Without prejudice to those positions, the respondents denied the complainants' allegations and specifically alleged that documentation was available to the complainants for examination at the trade union's office during office hours.
The complaint was first scheduled for hearing on November 3, 1983, but was adjourned sine die on consent of the parties. By letter dated November 23, 1983, counsel for the respondents advised the Board that the complainants had delivered no further particulars. The letter reiterated the position taken in the respondent's Reply. That letter was circulated to the complainants, whose representative, Anthony Bradley, responded by letter dated December 16, 1983. In his letter, Mr. Bradley alleged that certain of the complainants had made further visits to the union office December 2, 5, 12 and 14, 1983, for the purpose of obtaining further information with respect to the operation of the respondent's hiring hall. He alleged that the complainants submitted a "list of names to be checked by Mr. Lewis". He then set out the following:
RE: Information Seeking Effort
DANZ, Ed Laid off June 29, 1983 Lumus construction and he was #626 on out of work list. Worked for Laurentian Masonry. Rehired September 21st, 1983 to September 28th, 1983. #548 on out of work list on October 2nd, 1983. Laid off October 10th, 1983. The complainants asked to see the work card and Mr. Lewis answered with an emphatic “NO”.
BERT, Jack Was #169 on out of work list – worked February 19th, 1982. Hired September 7th, 1983 to September 20th, 1983 for Sampson Construction. He had no recall rights. The complainants asked to see his work card – once again an emphatic “NO” by Mr. Lewis.
BASTOS, A. Was #342 on out of work list. He was hired by Van Bots Company on September 22nd, 1983. The complainants asked to see the work card once again – again an emphatic “NO” by Mr. Lewis.
WAITO, Percy #293 on out of work list. Hired November 9th, 1983 for Sampson Construction. He had no recall rights.
MANCINI, Lou Mr. Lewis would not give any information and became very aggrevated [sic].
FOLZ, Richard Mr. Lewis would not give any information.
LACELLE, Pat Mr. Lewis would not give information.
CHILELLI, Vincent Mr. Lewis would not give any information. We believe Mr. Chilelli worked for Wardette Company.
The letter went on:
We have provided new names to be checked but as you can see we cannot obtain the exact information we want because Mr. Lewis will not give it to us, although his representative stated he would in your letter dated November 24th, 1983. We also have several other names that should be checked.
We are not going to Local 1036 again for information. We ask you to schedule a hearing as soon as possible and invoke your power according to Article 103.
By letter dated January 23, 1984, counsel for the respondent took the position that the Board should entertain no allegations other than allegations relating to the eight names mentioned in the passage quoted above. In particular, it asked that the Board not entertain any allegations with respect to the "new names to be checked" and "several other names that should be checked" which are referred to in Mr. Bradley's letter. The respondent repeated its allegation that documentation is available to the complainants:
We wish to emphasize that the Complainants have had unrestricted access to the computerized hiring hall out-of-work lists and consequently are fully able to give full and complete particulars of any referral alleged to be contrary to Section 69 of the Act.
That letter was circulated to the complainants and their representative, whose response was simply that the matter ought to proceed to hearing.
At the beginning of the Board's hearing on February 23, 1984, the Board asked Mr. Bradley to outline the issues of fact with which the complainants wanted the Board to deal, and the nature of the remedies which the complainants would be asking the Board to provide. In his response, Mr. Bradley told the Board that the complainants want to get a set of rules with respect to the operation of the union's hiring hall. They are all union members, and have all been officers of the union at one time or another. They feel that a detailed accounting of hiring hall operations is needed. They are not happy with the documentation available to them. They want documentation which would tell them who worked where on any particular occasion. They want to know what the classifications are which determine referrals. To this end, he said, the complainants want a directive from the Board just like the directive in the Portiss case ([19831 OLRB Rep. June 1160). Mr. Bradley explained that the rules and regulations governing the operation of the respondent's hiring hall have been under consideration by a committee of members and by the Executive Board of the respondent union. One of the complainants is a member of both the committee and the Executive Board. In the circumstances, the complainants feel that the Board's decision in this complaint would and should have a bearing on the question of what rules and regulations the Local Union should have in place. Asked what had prompted the request for documentation which is referred to in the complaint, Mr. Bradley said the complainants had become aware of work referrals which they thought were in violation of certain motions of the Local Union. Mr. Bradley was initially reluctant to say much more about these suspicions, because he had subpoenaed certain witnesses and did not wish them to hear the allegations. Asked who the witnesses were, he replied that they were the President and Recording Secretary of the Local Union. The Board explained to Mr. Bradley that the union would have to be told what the allegations against it were, if the Board was to deal with those allegations. Mr. Bradley then said the complainants think that Mr. Reynolds, the Local's President, and Mr. Soupa, the Local's Recording Secretary, were referred out to work for a particular employer in August of 1983, when others ahead of them on the out-of-work list remained unemployed. The complainants feel these referrals constituted the granting of a preference to members of the Local Union executive, something which they claim is contrary to a motion passed by the membership in 1979. Mr. Bradley confirmed that the complainants wish the Board to review those referrals, and the referrals of the 8 members named in the above-quoted passage from his letter of December 16, 1983, and the referrals of other members as well. In response to the union's position that out-of-work lists were available for inspection by the complainants, Mr. Bradley argued that those lists are of little use in assessing referral practices. The absence of a name from those lists, he said, would not mean that that person was at work. The refusal of the trade union to produce a referral book or the work history cards of members left the complainants without the means to assess the propriety of work referrals made apparently out of order relative to the out-of-work list. Employers, he said, were entitled to specify members by name when requesting referrals, if the members had worked for that employer within the previous year. Thus, the complainants would need to have the details of each referral and the work history of the previous year of the member referred, in order to assess the operation of the hiring hall. This information, he said, had been refused by Mr. Lewis.
The respondent's computerized record-keeping system was described in the respondent's filings, and the description was elaborated in the representations of its counsel at hearing. The "out-of-work list" is said to be maintained by computer and updated each week. The current and previous out-of-work lists are kept in the union office and are said to be available for inspection by any member during union office hours. These lists vary in length from 20 to 30 pages. Copies of lists will be provided upon payment of photocopying charges of 25C per page. The "job referrals book" is no longer maintained. When a referral is made, the computer prints a job referral slip in duplicate. One copy goes to the employer; the other is provided to the employee. No copy is maintained by the union; there is no "hard copy" document which members can consult to determine what referrals were made on any particular day. Hiring halls typically maintain work history cards with respect to each member, setting out dates of referral to named employers, along with other information. Data of this sort is maintained in the respondent's computer. Hard copy of this data can be obtained by the business manager but is not, apparently, kept on hand at the union's office. While the out-of-work lists are made available for inspection by any member, the union takes the position that it will not and should not provide one member's work history information to another. The union will, counsel says, respond to a request for information with respect to a specific referral by providing any information from the work history which is relevant to that referral. From the comments of counsel, however, it appears there is at least one caveat to that position. The union has refused, and apparently considers itself justified in refusing, information with respect to the referral of a particular member when that member stood higher on the out-of-work list at the time of referral than did the member requesting the information. However, counsel advised the Board that the respondent trade union is prepared to make available for inspection all documents in its possession relevant to any identified referral about which a complaint is made. He was prepared to have this regarded as an undertaking to the Board and, by way of clarification, made it clear that the documentation it is prepared to produce includes not only the documentation maintained at its office in hard copy form but also documentation, like an individual employee work record, which is not normally maintained in "hard copy" but can be produced by the computer on request.
As was explained to the parties at the hearing, the representations summarized here and the other representations made at the hearing were not received as a substitute for evidence under oath, but as an elaboration of the parties' respective positions in this case.
As part of his representations, counsel for the respondent argued the preliminary matters raised in his filings with the Board, respecting the absence of a prima facie case and lack of particularity in the complaint. He also asserted an argument not previously raised in those filings: that the Board ought to dismiss the complaint in deference to the alleged availability to the complainants of procedures under the applicable Local Union, District Council and International Union constitutions.
In support of his position that the complaint fails to disclose a prima facie case for relief, counsel for the respondent argued that a denial of access to hiring hall records is not a violation of section 69 of the Labour Relations Act, and cannot be a violation of that section even if the denial or refusal is itself arbitrary, discriminatory, or in bad faith. Section 69 of the Labour Relations Act reads as follows:
Where, pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of perons to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith.
Counsel argued that section 69 addresses only the acts or omissions of a trade union in the actual selecting, referring, assigning, designating or scheduling of persons to employment. While possibly relevant to an assessment of the propriety of referral conduct, in the respondent's submission an arbitrary, discriminatory or bad faith refusal by a union to give a member information about its referral conduct can not itself be a violation of the Act. Therefore, a complaint under section 69 must, in the respondent's submission, address referrals. The respondent also took the position that on such a complaint the Board should consider only those referrals which the complainants are able to identify with particularity.
These arguments may be usefully contrasted with the arguments of counsel for the trade union in Donato Marinaro, [19831 OLRB Rep. Oct. 1699. Mr. Marinaro alleged breach of section 69, basing his complaint on 46 referrals which had occurred between July 1981 and September 1982. That complaint had been filed April 28, 1983. Counsel for the respondent trade union (Labourers' International Union of North America, Local 1089) argued that Mr. Marinaro's delay in complaining of those matters should lead the Board to dismiss the complaint. The Board noted that:
As early as 1981, Mr. Marinaro was dissatisfied with the way in which Local 1089's hiring hall was being operated by the respondents. However, although he had heard rumours about improper referrals, he "couldn't prove anything" because the respondents would not permit him to examine the hiring hall records. Mr. Marinaro asked to see those records in November or December of 1981 but was refused access to them by Mr. D'Andrea. Although counsel for the respondents suggested to Mr. Marinaro in cross-examination that he was denied access to the hiring hall records because he wished to look at them on behalf of his son rather than on his own behalf, Mr. Marinaro steadfastly maintained that he wished to see them for his son and for himself. He further testified that he did not advise Mr. D'Andrea on whose behalf he wanted to examine the records. (In any event, it is far from apparent to the Board that a request by a member of a local to view the local 's hiring hall records on behalf of another member of the local, who is his son, can legitimately be denied.) Although Mr. D'Andrea was in attendance at the hearing, he was not called to testify. Under the circumstances, we accept without hesitation or reservation Mr. Marinaro's evidence concerning his denial of access to the hiring hall records. In this regard, his experience appears to have been similar to that of other members of the Local...
Counsel for the respondent suggested that Mr. Marinaro should have investigated his suspicions by attending at job sites to see who was working and by attending at the Union hall to see who was being referred. However, assuming without deciding that such investigative efforts might legitimately be required in some circumstances, they would not have assisted Mr. Marinaro in the present case since he would not in any event have been able to determine whether such referrals were proper or improper without access to the hiring hall records. Mr. Minsky also contended that Mr. Marinaro should have filed a section 89 complaint based upon his suspicions and used such complaint to gain access to the hiring hall records. However, the Board does not find that contention to be meritorious. The use of the Board's processes as a means of discovery in respect of allegations based upon mere suspicion is not something which the Board would desire to encourage (although it may be necessary in some circumstances, such as in some cases to which the section 89(5) "reverse onus" applies). In any event, we are not satisfied that Mr. Marinaro knew or should have known prior to November of 1982 that effective access to the hiring hall records could be obtained in that manner. Furthermore, we are not inclined to give much weight to a protestation of delay in circumstances where, as in the present case, the inaccessibility of the information necessary to file a duly particularized complaint is created by improper conduct on the part of a party which seeks to raise the delay as a bar to hearing the complaint. (See paragraph 20 of the aforementioned Portiss decision in which the Board adopted a similar approach.)
(emphasis added)
In paragraph 15 of that decision, the Board also said:
We find no merit in Mr. Minsky's submission that Mr. Marinaro should have filed a section 89 complaint at that time on the basis of unconfirmed suspicions which he harboured (but, not unreasonably, felt incapable of proving).
It is noteworthy that the Board did not reject Mr. Minsky's contention that section 89 complaints could be used as a device to obtain the records necessary to investigate a suspected violation or pattern of violations of section 69. The Board merely ruled that it would not encourage that practice or, by ruling in Mr. Minsky's favour on the delay argument, effectively make that approach mandatory.
The question Mr. Wahl's argument begs is whether Mr. Marinaro, had he behaved as Mr. Minsky argued he should, would have been met by a demand from Mr. Wahl that his suspicions be fully particularized before the "discovery" could proceed, and that the discovery be limited to the matters particularized. In fairness to Mr. Wahl, he has not argued in this case that his clients can deny the complainants any records whatsoever and, at the same time, demand of them a high standard of particularity in formulating their complaint. Nevertheless, the assertion that section 69 affords the complainants no right to inspect hiring hall documents must seem to the complainants rather like "Catch-22". They read the Portiss case. It dictated standards of record keeping and continuous disclosure expressly intended to prevent continued violation of section 69. Like Marinaro, the complainants in this case have unconfirmed suspicions of unfairness, fueled by a negative reaction to their request to inspect records. The message may seem to them to be that the Board will impose a set of rules giving them access to their union's records only after they prove wrongdoing which they feel cannot be confirmed or even discovered without first having the desired access to documents. Access to information is a means to an end. Are complainants entitled to the means only after they otherwise achieve the end?
It might be said that this is not the chicken and egg problem it appears to be. Record keeping obligations and inspection rights were imposed in the Portiss case in response to a demonstrated pattern of abuses and favouritism which had been able to flourish in a climate of secrecy maintained by the union's officers:
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.
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.
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 hail'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.
It is important to note that in Portiss the Board did not prescribe the rules by which referral decisions were to be made. It directed only that the union properly establish, and then follow, such rules. The Board's requirement that various lists be maintained and kept available for inspection by members was in response to what the reader will understand was an unusual situation. The remedies imposed by the Board in the Portiss case do not represent a standard with which every trade union must in every case comply in order to satisfy its duty under section 69. The language of the Board in the Portiss case makes that clear; the Board would not otherwise have described its remedies as "far-reaching". The Board is not in the business of imposing hiring hall rules or dictating improvements to hiring hall administration, as appears from the following passage from the Board's decision in John Cooper, [1984] OLRB Rep. Jan. 6:
This is not to say that we are entirely happy about the way in which the hiring hall is operated. The union's record-keeping procedures leave something to be desired and the heavy reliance on the [business manager's] memory creates a real potential for error. There may be up to 100 unemployed members on the list at any one time, and it will obviously be difficult for [the business manager] to remember the qualifications, preferences and circumstances of each one of them. An honest error may not be illegal but the union should still make every effort to reduce the potential for error and the possibility that members may think thay have been dealt with unfairly. Unless the union's hiring hail rules and the factors which [the business manager] takes into account are reduced to writing and regularly explained to the membership so that there can be no excuse for misunderstanding, suspicions are bound to arise fueling dissention in the Local and potentially costly and unnecessary litigation. Equally important, if members are not fully aware of the criteria which might support their claim for a job referral, they may fail to communicate their situation to [the business manager] and, in consequence, remain out of work longer than might otherwise be the case. However, it is one thing to suggest that the system could be improved or that more effort should be made to educate the membership. It is quite another to suggest that the existing system, endorsed by the membership, is illegal, or that [the business manager] himself has acted improperly and in contravention of section 69 of the Labour Relations Act. We do not think that the evidence supports either proposition.
All of this establishes only that behaviour might not violate section 69 even if that behaviour creates the suspicion that violations have occurred; it does not answer the question whether a refusal of information can be a violation of section 69. In the context outlined earlier, the view that members have no right to any information has unsatisfactory consequences for those who wish to be satisfied that they are being treated fairly. It obliges them to publicly accuse their own officials of wrongdoing before they can determine for themselves whether wrongdoing has occurred. However, the interpretation contended for by the respondent is not grammatically compelled by the language of section 69. The phrase "engaged in the selection, referral, assignment, designation or scheduling of persons to employment" describes the sort of trade union to which section 69 applies. The section says that that sort of trade union "shall not act in a manner that is arbitrary, discriminatory or in bad faith". If the Legislature had meant "act" to refer only to the "selection, referral, assignment, designation or scheduling of persons to employment", it could have employed the words "so act" or "do so" in place of "act", or otherwise made the limitation clear. To what acts does the duty apply, then? It might be argued that a failure to connect the word "act" with the actions enumerated in identifying the actor will cast the word's meaning adrift, allowing it to focus on anything from union politics to the union's dealings with those who supply its pencils and paper. The section's historical antecedents, however, both favour the broader interpretation and make sense of its limits. Those antecedents include section 68 of the Act, this Board's decision in Arthur Joseph Roberts, [1974] OLRB Rep. March 169, and the Report of the Royal Commission on Certain Sectors of the Building Industry in December, 1974 (the "Waisberg Report").
Section 68 of the Act provides:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
The origins of the section and the principles which guide its application are the subject of extensive Board jurisprudence and scholarly analysis (see, for example, Ontario Hydro [1975] OLRB Rep. May 444; Savage Shoes Ltd. [1983] OLRB Rep. Dec. 2067; Raymond E. Brown, "The 'Arbitrary', 'Discriminatory' and 'Bad Faith' Tests Under the Duty of Fair Representation in Ontario", (1982) 60 Can. Bar. Rev. 412; and Richard M. Brown, "Toward a General Theory of Fair Representation in Contract Administration" in Swan & Swinton, Studies in Labour Law (1983, Butterworths) at page 177). A detailed exploration of those matters will not be repeated here. It is sufficient to note that the "duty of fair representation", which evolves by necessary implication from the restraints of section 68, speaks to a trade union's behaviour as agent for employees in dealings with their employer. A union's conduct of its own business and internal proceedings become the focus of section 68 only if and to the extent that they affect the representation of individuals in matters involving their employment. In March 1974, this Board concluded in Arthur Joseph Roberts, supra, that the language of section 68 was ineffective to extend these duties to a relationship between a union operating a hiring hall and its unemployed members:
Would the Board therefore be on a sound footing in granting relief to persons who are not employees for purposes of section 60 of the Act? In this regard the Board has come to the conclusion that it would do violence to the intent of the Legislature if it presumed that members of a trade union affected by a union hiring hall are "employees in a bargaining unit" for purposes of supervising the operation of that hiring hall through the union's alleged duty of fair representation.
We are satisfied that it was the intention of the Legislation to restrict the scope of a trade union's duty of fair representation to employees in a bargaining unit. It would be a forced interpretation of the word employee in section 60 for the Board to presume the contrary where the Legislature permits parties to the collective bargaining relationship under section 39(1)(a) of the Act to determine through negotiation the very conditions upon which the employer-employee relationship may be established. It is the Board's opinion that if the Legislature intended the scope of the trade union's duty of fair representation to extend beyond employees in the bargaining unit it would have done so in the clearest of language. The Legislature has given the Board a clear mandate with respect to granting relief against discriminatory hiring practices based on trade union activity. It has not done so for purposes of section 60
The Board holds that under section 60 a trade union's duty of fair representation does not extend to members in good standing who are not employees in a bargaining unit.
In December, 1974, His Honour Judge Waisberg expressed concern at this result, and discussed the need of members for access to hiring hall records (The Waisberg Report, supra, at pp. 327-328):
In the construction industry the employees do not enjoy the security of employment that is found in other industries. The only permanent relationship is that established with the union. It is understandable that the unions would wish to provide their members with a system of hiring that would provide maximum job security. But privileges and obligations go together. The only opportunity for a tradesman to find work might be through his respective union and hiring hall: if a work application by a qualified tradesman is not accepted, that tradesman is denied his right to work. Section 38 [now 46] of the Labour Relations Act provides some protection for employees, and section 60 [now 68] provides for fair representation of employees by the union. But what about the person who is still seeking to become an employee? In a case before the Ontario Labour Relations Board, A. J. Roberts and Plasterers Union Local 49 (File No. 4715-73-U, dated 20 March 1974), it was held that the scope of a trade union's duty of fair representation was restricted to employees in a bargaining unit. Equally, the opportunity for an employer to find workmen would be through the union and hiring hall. There must be some assurance that he will be treated fairly. I do not feel that a case has been made for removing the hiring hall from union control. But, in view of the fact that the operation of hiring halls by unions with closed shop collective agreements places them in a position of complete monopoly, it would seem to me that some form of public inspection would be justified. The records should at all times, be available to the union members, the employers and the inspectors. There was a favourable response by a few unions appearing before the Commission to some degree of public supervision. It may prove sufficient in correcting some of the abuses. Further investigation and consideration are warranted.
Section 60a, now section 69, was then enacted by the Legislature, and came into effect July 18, 1975 (s.o. 1975, c. 76, s. 16). All this preceded the broader purposive interpretation later given to "employee" in hiring hall situations by the Ontario Court of Appeal in Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103, and the Supreme Court of Canada in International Longshoremen's Association et al. v. Maritime Employers' Association et al, 1978 CanLII 158 (SCC), [1979] 1 S.C.R. 120. If the scope of section 69 is narrower than the scope section 68 would have if "employees in the unit" were given a similar interpretation, then the Board would be obliged to consider whether Roberts was correctly decided. Any current question of the correctness of that decision does not, however, affect the analysis presented here.
- The language and history of section 69 suggest that the actions with which that section is concerned must be actions analogous (at least so far as the analogy can be drawn) with the actions to which section 68 is directed: actions in matters affecting the employment of persons the union represents. The duty will have different elements and will apply to different sorts of actions, however. The kind of union to which section 69 applies has a much greater control over the employment of the persons to whom the duty is owed and the employment relationships which result from the operation of a hiring hall are often very different from those in respect of which the section 68 duty usually applies. However, sections 68 and 69 both have at their root principles from which the duty of fair representation which was judicially and administratively elaborated by the Courts and the NLRB in the United States. The NLRB's reasoned elaboration of those principles has led it to conclude that the unjustified refusal of a trade union operating a hiring hall to supply job referral information in response to a manageable request violates the union's duty of fair representation: Local No. 324, Intern ational Union of Operating Engineers, and Melvin Carlson, 226 NLRB 587. The Administrative Law Judge noted in that case (at pp. 598-599):
... where an employee seeks information from his collective-bargaining agent in a 'matter affecting his employment,' and the Union establishes on the record no arguably reasonable basis for refusing to supply that information, I must conclude that the Union's conduct is arbitrary.
A union is a service agency, designed to further the interests of the employees it represents. There is no reason for it to be a closed society, unresponsive to reasonable requests of the unit employees. As the Court of Appeals for the District of Columbia Circuit noted in L U E., Frigidaire Local 80] v. NL.R.B., supra, 307 F.2d at 683 (per Burger, J.), a union, as the agent of employees, is subject to the positive obligation set forth in Restatement (Second), Agency 381 (1958): 'to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have.'
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.
Section 69 of the Labour Relations Act imposes a duty on certain trade unions. Strictly speaking, only a trade union can breach that duty. Of course, a trade union acts only through its officers and agents. Their acts and omissions are the acts and omissions which determine whether the section has been contravened. The actor himself is not, however, an appropriate named respondent in a complaint alleging contravention only of section 69 of the Labour Relations Act. There is no allegation here that Mr. Lewis has violated any other section of the Labour Relations Act. Accordingly, the Board ruled orally at the hearing that the phrase "and Jimmie Lewis, Business Manager and Secretary-Treasurer" should be deleted from the style of cause in this complaint. As the Board made plain at the hearing, however, by deleting his name from the style of cause the Board is neither approving nor disapproving of anything Mr. Lewis is alleged to have done in the course of his duties as an official of the respondent trade union. This ruling reflects only the fact that no remedy would be awarded against Mr. Lewis personally even if, by his actions, he has caused the trade union to violate section 69 of the Act.
Counsel for the respondent argued that the Board should defer to processes available to the complainants under the constitutions of the respondent Local Union, the District Council of which it is a member and the parent International Union. The complainants have not initiated any such process, nor do they wish to do so. A similar argument was made, and rejected, in Ontario Hydro, [1980] OLRB Rep. July 1039. In that case the Board noted that it would not, in any event, dismiss a complaint in deference to a union's constitutional processes. At most, deference would result in the Board retaining jurisdiction to assure that the outcome of that process was an adequate resolution of the subject matter of the complaint filed with the Board. In Ontario Hydro the Board was not satisfied that the respondent's constitutional process would have been as expeditious as the Board's, nor could the Board be satisfied that adequate relief would be available under the union's constitution. In The International Association of Bridge. Structural and Ornamental Ironworkers, [1982] OLRB Rep. Feb. 233, the Board highlighted some other considerations which must be kept in mind in assessing a request for deferral to other proceedings:
In the absence of any allegations that arguably constitute a breach of the Labour Relations Act, the propriety of a trade union's behaviour vis-a-vis its members is governed by its constitution and by-laws, and the procedural remedies which these provide, subject to the controlling supervision of the courts (see Operative Plasterers' and Cement Masons' International Associaton of the United States and Canada, Local 48, [19741 OLRB Rep. March 169). However, in Canadian Textile Union, [19711 OLRB Rep. Aug. 470, the Board referred to the expectation of the Legislature that the Board is the more appropriate forum to adjudicate upon the matters of public policy which find expression in the Labour Relations Act, in support of its unwillingness "to accede to the 'contract theory', which indicates that members of a trade union may have contracted to exhaust their rights within the internal trade union machinery before resorting to this Board, where the issue prima facie indicates a violation of public policy". In that case, the Board declined to defer to the union's internal procedures where it was alleged that the grievor had been removed from office as president of a local of the International Chemical Workers by certain officials of the International contrary to the predecessors of what are now sections 3, 70, and 80 of the Act. (See also Imperial Tobacco Products (Ontario) Limited, [1974] OLRB Rep. July 418.)
In his argument, counsel for the respondent referred to a number of provisions of the International, District Council and Local constitutions. The Board was not persuaded that the processes referred to therein afforded either substantive or remedial jurisdiction adequate to enforce the rights contended for by the claimants here. Accordingly, the Board ruled orally that it would not defer, or force the complainants to defer, to internal union procedures.
- The respondent also argued that the complaint before the Board is insufficiently particular. He referred to Rule 72 of the Board's Rules of Procedure, which provides as follows:
72.-(1) Where a person intends to allege, at the hearing of an application or complaint, improper or irregular conduct by any person, he shall,
(a) include in the application or complaint; or
(b) file a notice of intention that shall contain,
a concise statement of the material facts, actions and omissions upon which he intends to rely asconstituting such improper or irregular conduct, including the time when and the place where the actions or omissions complained of occurred and the names of the persons who engaged in or committed them, but not the evidence by which the material facts, actions or omissions are to be proved, and, where he alleges that the improper or irregular conduct constitutes a violation of any provision of the Act, he shall include a reference to the section or sections of the Act containing such provision.
(2) Where, in the opinion of the Board, a person has not filed notice of intention promptly upon discovering the alleged improper or irregular conduct, he shall not adduce evidence at the hearing of the application of such facts, except with the consent of the Board and, if the Board deems it advisable to give such consent, it may do so upon such terms and conditions as it considers advisable.
(3) Where a statement in an application or complaint or in any document filed under these Rules in respect of the application or complaint is so indefinite or incomplete as to hamper any person in the preparation of his case, the Board may, upon the request of the person made promptly upon receipt of the application, complaint or document, direct that the information stated be made specific or complete and, if the person so directed fails to comply with the direction, the Board may strike the statement from the application, complaint or document.
(4) No person shall adduce evidence at the hearing of an application or complaint of any material fact that has not been included in the application or complaint or in any document filed under these Rules in respect of the application or complaint, except with the consent of the Board and, if the Board considers it advisable to give such consent, it may do so upon such terms and conditions as it considers advisable.
This Rule was brought to the attention of the complainants in this case not only by the correspondence of counsel for the respondent, but also by the form they completed when they first filed their complaint (see paragraph 4 of Form 58, and Note 3 referred to in that paragraph).
- As noted by the Board in Guaranteed Insulation '77 Limited, [1981] OLRB Rep. Oct. 1394, at paragraph 12:
... the purpose of particulars is to ensure a fair hearing by avoiding prejudice, delay or embarrassment to the opposing parties by enabling them to know in advance what case they have to meet at the hearing. Particulars reduce the risk of opposing parties being taken by surprise and enable them to prepare for cross-examination of the witnesses called by the party alleging the improper or irregular conduct. Particulars also assist opposing parties to determine what witnesses they will need to have available in rebuttal. The Racine case [Racine, Robert and Gauthier Reg 'd, [1978] OLRB Rep. June 559] ... provides the following examples of considerations that are relevant in ruling on the sufficiency and adequacy of the particulars provided by an applicant:
(I) Whether the allegations substantially identify and describe the offences alleged and indicate the acts or omissions and the time when and place where they occurred and give the names of the persons who committed or engaged in them;
(2) The knowledge or availability of knowledge possessed by the parties of the circumstances and details of the alleged violations;
(3) Whether the language of the allegations and the absence of certain particulars are likely to mislead, confuse or cause real prejudice to the opposite party in the preparation of its defence;
(4) Whether additional particulars sought or demanded are merely descriptive of the evidence by which they are to be proved rather than of the acts or omissions and the time when and place where they occurred and the names of the persons who engaged in or committed them;
(5) The nature and circumstances of the violations alleged;
(6) Whether particulars demanded are likely to be required by the party demanding them for the bona Jide purpose of preparing his defence or whether they are more likely being demanded solely as a technical matter for the purpose of harassing and embarrassing the applicant and to create delay in the disposition of the application.
Having regard to these considerations, the allegations in the Complaint under "other relevant statements (recited in ¶2, supra) clearly violate Rule 72. However, three or four of the referrals mentioned in Mr. Bradley's letter of December 16th seem adequately particularized. Indeed, the respondent said it was prepared to deal with allegations relating to all eight of the names referred to in the passage of that letter which is quoted above in paragraph 4 of this decision. The refusals of information alleged in the complaint and subsequent correspondence of Mr. Bradley also seem to be adequately particularized. However, it was quite apparent from Mr. Bradley's submissions that the complainants wanted the Board to deal with a number of referrals about which they had suspicions or incomplete information, and that the totality of their existing knowledge and suspicions with respect to those referrals had not yet been set out in material filed with the Board or provided to the respondent. The respondent's argument was that the complainants had not taken advantage of the documentation made available by the respondent. They had not, he said, done their "homework". Such lazy complainants, he argued, should not be permitted to proceed with their complaint. Apart altogether from any positive obligation to investigate, Rule 72 requires at least that the complainants set out with as much precision as possible the facts they already know (or suspect) about the matters they wish to put before the Board. There seemed no point proceeding with a hearing limited to considering only the allegations which had been adequately particularized, when it was apparent that that would not deal with all of the complainants' concerns, and might well result in the filing of another complaint to deal with the additional allegations which the complainants were capable of more fully particularizing. Equally, there seemed no point in dismissing the complaint for lack of particularity, only to have the complainants file another complaint in which the parties and the Board would have to repeat preliminaries already completed in the processing and initial hearing of this complaint. For those reasons, the Board directed orally that the complainants file particulars in accordance with Rule 72, and adjourned this complaint sine die pending compliance with that direction. The Board indicated that it would not and, indeed, could not specify in advance the degree of detail necessary in the particulars to be filed. The Board also expressly declined to impose any particular time limit on the filing of particulars or to limit in advance the time frame which those particulars could cover. With respect to both of those issues, the Board noted the effect delay might have on the consideration of allegations, but also noted that that effect was a function of the nature of the allegation as well as the delay in asserting it. The Board did note, however, that pursuant to Practice Note No. 14, the complaint would be terminated if not rescheduled for hearing within a year. The Board said its direction to the Registrar would be that this complaint could not be rescheduled for hearing at the request of the complainants in the absence of purported compliance with its direction to supply particulars. No such limitation would apply to a request by the respondent, and the respondent's right to request re-listing could be employed by the respondent if so advised, to have the Board deal with any problems which arise out of delayed compliance with the Board's direction to deliver particulars.
The Board also expressly declined to rule that allegations with respect to referrals would only be entertained if the person allegedly referred was, at the time of the referral, listed below one or more of the complainants on the out-of-work list. That argument assumes that, under the rules which the respondent applies or ought to apply in the operation of its hiring hall, a member never has a greater right to any particular work than someone "above" him on the out-of-work list. None of the parties has indicated what rules they think are applicable in the operation of this hiring hall. There has been some mention of job classifications or specialties. If special qualification or experience with respect to the particular work offered is one of the criteria applied in making a referral, then the referral of an unqualified or inexperienced person farther up the list could be relevant to an assessment of losses suffered by a qualified complainant farther down the list. In any event, the existence of improper referrals which do not deprive a named complainant of work opportunities may be relevant both to an assessment whether behaviour which does affect the complainants is arbitrary, discriminatory or in bad faith and to an assessment of the appropriate remedy.
It should be made clear that in ordering the complainants to supply further particulars, the Board has not adopted the respondent's argument that the complainants have been lazy or that they are obliged to review all the out-of-work lists available to them and extract from them all the particulars which might be extracted before they can again pursue their complaint. The complainants say that the out-of-work lists are not particularly useful in determining what has actually happened. By implication, the respondent argued that those lists are useful for that purpose. The Board cannot choose between those competing contentions without hearing evidence. When the complainants deliver their further particulars, there may again be an issue whether the particulars are adequate, having regard to the tests recited in paragraph 20 of this decision. Having said that, the Board wishes the complainants to understand clearly that it is for them, and not the Board, to identify improper referrals, if there are any. The respondent has said that relevant information is available. It has made an undertaking to supplement that information with more detail if any particular referral is questioned. The complainants would be well advised to take advantage of those opportunities.
Accordingly, the Board confirms the following directions and orders made orally at the hearing of February 23, 1984 in this matter:
(a) the name "Jimmie Lewis, Business Manager and Secretary-Treasurer" is deleted from the style of cause herein;
(b) the hearing of this complaint is adjourned sine die;
(c) the complainants are directed to file with the Board a written statement of the material facts, actions and omissions on which they intend to rely as constituting improper or irregular conduct, in compliance with Rule 72 of the Board's Rules of Procedure. By way of clarification, the written statement of particulars to be filed pursuant to this direction should include particulars of all of the allegations on which the complainants intend to rely on, including allegations already made in filings to date.
- Upon receipt from the complainants of a written statement of allegations purporting to comply with the Board's direction in the next preceding paragraph, or at the request of the respondent, the Registrar shall relist this matter for hearing in Sault Ste. Marie after consulting the parties or their representatives.