John Cooper v. International Brotherhood of Painters and Allied Trades, Local 1590, and Ronald Last

[1984] OLRB Rep. January 6

0064-83-U John Cooper, Complainant, v. International Brotherhood of Painters and Allied Trades, Local 1590, and Ronald Last, Respondents

BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members J. W. Murray and H. Kobryn.

APPEARANCES: Brian 11cr and John Cooper for the complainant; A. M. Minsky and R. Last for the respondents.

DECISION OF THE BOARD; January 12, 1984

1. John Cooper is a painter. In March, 1983, he was unemployed. There were job openings at Bagwell Coatings where Cooper had worked before, but other out-of-work union members were referred to these positions. Cooper complains that the union's failure to refer him to one of these jobs constitutes a breach of section 69 of the Labour Relations Act. That section reads as follows:

69. 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.

2. This is not the first section 69 complaint that Mr. Cooper has filed. On May 7, 1982, he filed a similar complaint in which he also alleged that the union had wrongly failed to refer him to a job opening at Bagwell Coatings. That complaint was resolved in accordance with minutes of settlement which read as follows:

WHEREAS the Ontario Labour Relations Board ("the Board") has dis­missed that portion of the above complaint under section 89 ("the Com­plaint") of The Labour Relations Act R.S.O. 1980 c.228 ("the Act") dealing with alleged irregularities in the specially called meeting dealing with the merger of Locals 1783 and 1590 of the International Brother­hood of Painters and Allied Trades;

AND WHEREAS the Complainant John Cooper ("Cooper") has with­drawn that portion of the Complaint dealing with a violation of section 68 of the Act for allegedly failing to file a grievance on his behalf with respect to the rate of pay paid to foremen;

The parties to the Complaint, without any admission of guilt or wrong­doing on anyone's part, each agree with the other to settle the remaining portion of the Complaint as follows:

(1) International Brotherhood of Painters and Allied Trades, Local 1590 ("the Union") shall administer its system for the referral of members to employment in accordance with Section 69 of the Act;

(2) The Union agrees that the "out-of-work" list and other sup­porting documents shall be made available for reasonable inspection by its members during regular Union office hours;

(3) Cooper may present any proposals for the amendment of the Union's system for the referral of members to employment in ac­cordance with the Bylaws and Constitution of the Union and such proposals shall be dealt with in accordance with the Bylaws and Con­stitution of the Union;

(4) The foregoing represents full settlement of the remaining portion of the Complaint and accordingly the Complaint is withdrawn.

These minutes of settlement were incorporated in a Board decision issued on October 22, 1982.

3. Before turning to the specifics of Mr. Cooper's complaint, it may be useful to com­ment briefly upon the nature of a union "hiring hall" — a work allocation mechanism which is quite common in the construction industry. The purpose of the hiring hail was succinctly described in Joe Portiss and Labourers' International Union of North America, Local 1089 et al., [1983] OLRB Rep. July 1160 at page 1161:

6. 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.

7. 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 the privileged few. The employer gains to the extent that the hiring hall relieves him of the need to screen and recruit employees with adequate qualifications for short term jobs. The employer avoids the administrative cost he would otherwise bear as well as inci­dental costs which he might have to incur to retain a crew of workers through slow periods to insure available manpower in busier times. A well run hiring hall will give the employer a ready pool of labour from which he can draw on short notice with little or no adminstrative 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.

8. 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.

This description is equally applicable to the hiring hall operated by the respondent union, and, as will be seen, it is the functioning of the hiring hall that is at the heart of this case.

4. The hiring hall of Local 1590 is currently run by Ron Last, its financial secretary and business manager. He is elected by the Local membership and has held his position since 1974. Before that, he held other union offices while still working "at the tools" like the other members of the Local.

5. Last testified that when he took over in 1974, the hiring hail was largely a mis­nomer. In his view, the system was riddled with abuses and did not operate as a very efficient or equitable mechanism for distributing work opportunities. Unemployed members regularly sought their own jobs, bypassing the hiring hall altogether, and applying only later for a union referral slip. In this way, they were able to gain precedence over union members who might have been out of work longer, and of course, this merely encouraged employers to hire in­dividually and disregard the hiring hall. Some employers had developed a practice of re­questing employees by name — again passing over capable employees who might have been out of work longer, or have a better equitable claim to the work. Some union members used the hiring hall to secure employment while continuing to solicit alternative work on their own. These members would then quit, and seek a union referral slip, bypassing other out-of-work members, and annoying the employers to which they had been initially referred.

6. All of these practices undermined the hiring hall, and when Last assumed office, he sought to discourage them. But he did not always get the full co-operation of his mem­bership. When he sought to introduce a more formalized classification of employee skills, some members cavalierly claimed to be skilled in all phases of the painting trade — when Last knew that they were not. A system whereby individuals were asked to list their qualifications quickly broke down. Thereafter, Last has relied upon his own personal knowledge and investigation of the members' capabilities.

7. The painting trade is not as simple or unskilled as one might at first assume. There are, of course, ordinary brush painters who need no particular training, but there are also a number of specialties. There are skilled sandblasters, spray painters, and employees trained in the application or handling of particular compounds and coatings. There are employees who specialize in hanging expensive vinyl wall coverings or doing commercial interiors. Still oth­ers are prepared to work outside, exposed to the elements, on catwalks or suspended platforms painting the stacks and piping systems common in Sarnia' s "chemical valley".

8. The painters also have personal preferences and, insofar as possible, they want the job allocation system to accommodate them. There are companies they like and those they dislike. There are foremen with whom they get on well, and foremen whom they try to avoid. No one is anxious that members should go back to a company where there were problems, or from which the employee had previously been fired. As Last put it, he would simply be "asking for trouble" from both his members and the employers. Nor is there any evidence that anyone, other than the complainant, has ever wanted a "strict list" or "first in, first out" system. On the contrary, all of the witnesses were adamant that they do not want jobs to be allocated on a strict rotation basis. Indeed, even the complainant was equivocal about this. The fact is, that a strict list system is not desirable from the members' point of view, and would be unworkable given the variation in employee skills and abilities.

9. In Lambton County there are four major painting contractors: C. H. Heist, Bagwell Coatings, K. L. McCormack, and Harkness and Waters. They are the principal employers of the union's members, however, their demand for labour is highly seasonal. It begins in the spring, as weather conditions improve, peaks in the summer, and declines sharply in late No­vember or December with the onset of cold weather. At that point, the bulk of the work force will be released and is likely to remain out of work until painting activity picks up again in the spring. The overall level of activity and employment, of course, depends upon general economic conditions. In 1982 some union members did not work at all.

10. Ron Last testified at some length about the criteria which he applies when referring unemployed members to work. The process begins with a request from an employer for a particular number of employees having specified skills. However, there will generally be more workers available than there are job openings, and when this is the case, Last must decide which of them will be referred and which of them will have to wait. He takes into account such factors as: whether the individuals have the required skills and abilities; whether they have expressed a preference for or against this type of assignment; the length of time they have been unemployed; whether their unemployment insurance benefits have expired; whether they are on welfare, or are suffering particular hardship by reason of family circumstances (age, illness, parental responsibilities, etc.); whether they have been able to find work or are working outside the trade; whether the job is short term or long term, whether further hirings are anticipated, and whether the individuals available have expressed any particular interest in or antipathy to the company making the request or the supervisors with whom they will have to work. Last testified that he tries to meet the employers' requirements, accommodate the preferences of the membership, and distribute work in an equitable manner.

11. Last pays special attention to the employees' past work record, if any, with the company making the request. A number of employees have established themselves with a par­ticular company and go back year after year. In effect, they have steady employment with a seasonal layoff, cushioned by unemployment insurance benefits. Last makes an effort to maintain the continuity of these relationships and to reassemble the previous year's crew.

12. The practice of returning the same crew is of considerable advantage to employers and employees alike. The employers know that, by and large, they will be able to get back their core or key people who are known to be reliable and familiar with the company's equip­ment. Employees who have worked for a particular company over the years know they will return to familiar circumstances. many event, to meet these employer and employee desires, Last determines which of the out-of-work members have worked for the company in the pre­vious year and, in addition, whether they have worked for one or more years before that so as to have an established relationship with the company making the request. If they have, Last makes an effort to assemble the same crew as the company had in the previous painting sea­son.

13. All of these factors must be balanced as each referral is made, and obviously there is a considerable latitude for discretion and the exercise of judgment. That discretion is rec­ognized and authorized by the Local union's bylaws which currently read as follows:

(h) REFERRAL SLIPS

1. All members must receive a referral slip from Local 1590 before re­porting to work for any signatory to our Agreement.

2. Any member going on a job for any signatory to our Agreement without first obtaining a referral slip from Local 1590 shall be sub­jected to a fine of $150.00 dollars.

3. Members referred to jobs of five days duration or less will not be removed from their place on the list of unemployed.

4. Members refusing to comply with the above Sub-Section 3 without good reason shall be moved to the bottom of the list of unemployed. Discretion to be used by the Business Representative in carrying this out.

5. The hiring system that Local 1590 will use is as follows:

Members who have established themselves with a company could [sic] return to that company when it starts hiring again, but, all hiring would [sic] be left to the business agent's discretion.

The operative provision, section (5), was passed in that form at a specially-called meeting held for that purpose in March 1983. There was a large turnout of union members, the bylaw was passed overwhelmingly, and there was a thorough discussion of the way in which the hiring hall had traditionally operated — although, not all of the employees may have understood that process and there were obviously those who were opposed to vesting such wide discretion in the business agent.

14. However, the bylaw did not alter the way in which the hiring hail was run. It merely ratified the status quo. For some years, referrals have been made, in the business manager's discretion, based upon a variety of factors, including those set out above. The passage of the bylaw merely amounts to an endorsement of the existing practice.

15. Nevertheless, it was clear from the evidence of the complainant's witnesses that there was and remains some confusion on their part, as to how the hiring hall has been run in the last couple of years, and, in the absence of more detailed written rules, clearly spelling out the criteria which Last applies when making job assignments, the Local union leaves itself open to uninformed allegations of impropriety simply because its members do not have a clear understanding of the factors taken into account when deciding who should be referred to par­ticular jobs. On the other hand, we are constrained to note that the misconceptions of the complainant and his witnesses cannot be attributed solely to the absence of detailed hiring hall rules or to any conduct on Last's part. It was apparent that they were quite prepared to trans­form their uninformed suspicions, conjecture, personal animosity and speculation into a con­clusion that there had been misconduct, while at the same time making little effort to investigate their complaint or seek a resolution through established internal union channels. Had the complainant made even minimal enquiries about the way in which the hiring hall operated, this entire proceeding, with its attendant expense to all concerned, might well have been avoided; nor is there much to indicate that Last extended any great effort to explain things to Cooper. Litigation is a rather expensive and time-consuming way to secure or convey in­formation.

16. The complainant testified that he was certain that after March, 1982, the hiring hall was operated on a "strict list", "first in, first out" system. He testified that he came to this conclusion after a casual perusal of some of the out-of-work lists posted in the union hiring hall. He said that he observed that people were being struck off near the top of the list and assumed that Last was applying a "first in, first out" principle.

17. There is no basis whatsoever for this conclusion. The hiring hall lists in question were put in evidence before the Board and it is evident that members' names were also being struck out (i.e., they were referred to work) lower on the list. Whatever referral formula was being applied, it was obviously not a strict list system and the complainant would have re­alized that had he been more careful in examining the posted list or taken the trouble to in­vestigate or ask Ron Last about it. But he did not. He testified that he never checked the out-of-work lists in any detail, he never requested or considered the supporting documents, he never asked for an explanation from Last about how the hiring hall worked, and he never raised the matter at a union meeting. He made no effort to check his present allegations even though the settlement of his earlier complaint expressly acknowledges his right to peruse all of the union's documentation respecting the operation of the hiring hall as well as his right to propose changes. The complainant did neither. Instead, he filed this complaint.

18. The complainant's witnesses, while sharing his antipathy to Mr. Last, were equally uncertain about how the hiring hall has been run over the years, and, like the complainant, had made little or no effort to find out. Albert Shaw was sure that Last was acting improperly and testified that he would never trust Last no matter what he said. But Shaw testified that he never uses the hiring hall, he has never registered as unemployed, he has never collected unemployment insurance, and has never been placed upon or relied upon the union's out-of-work list. He was sure that during the 1982 painting season, the hiring hall was operated on a first in, first out basis (which it was not), but he had no foundation for this belief other than what Mr. Cooper may have told him. Shaw was not active in the union s affairs. In Shaw's opinion, union meetings "don't mean nothing" and he didn't bother going to any.

19. Robert Moore was equally sure that, until recently, the hiring hall was operated on the basis of what he described as a "six-man rule": a company could request six individuals by name, then thereafter referrals were made on a one for one basis in which the employer would choose one employee by name, then the union would select one from the out-of-work list. Moore testified that he "would lay odds" that the system he described was expressly set out in the collective agreement. It isn't; and there is no evidence that in recent years such system has ever been in effect. Moore was also of the opinion that after March, 1982, the hiring hall was operated on a strict list system. It wasn't; nor is there any apparent basis for that particular misconception except Mr. Cooper's unfounded speculation.

20. When pressed in cross-examination, the complainant's witnesses also indicated some awareness that factors other than employee skills or employment history could affect job re­ferrals. They admitted that, historically, the hiring halt has not been operated on a strict list, first in, first out basis. Moore complained that some years ago, before Last's time, the busi­ness agent had taken into account such factors as the members' unemployment insurance status and their family responsibilities. Moore was annoyed that an unemployed worker with a num­ber of children had been referred to work before he was. The complainant admitted that, his­torically, the union had considered the fact that a member's UIC benefits had expired, and whether he was a foreman, or had an established relationship with a particular company. His present complaint as initially framed (but later abandoned) was that he had not been referred to Bagwell as a foreman. On cross-examination, he also indicated that prior to 1982, he had no concern about the way in which the hiring hall was operated or the referral of members to employers with whom they had an established relationship. That had worked to his ad­vantage before, and it was only in 1982, when he was not referred back to Bagwell, that he had a complaint. In that case, it was not a departure from a first in, first out system that he complained about, but rather that, as a previous employee of Bagwell, he had not been sent back. It is also admitted that if Last had applied a strict list system to the impugned referral, in 1983, the complainant still would not have been sent to Bagwell. The complainant's tes­timony as to the system he wanted in place was somewhat confused, but giving it its most generous gloss, would suggest that he was content with referrals being based upon a variety of criteria, including list position, qualifications, and whether the individual had established himself and worked for the requesting company during the previous painting season, provided it resulted in a referral to his preferred employer.

21. The union does, in fact, maintain an out-of-work list, members' names do appear on that list in sequence, the list is considered when referrals are made, members' names are struck off when they go to work, and their names are put on the list again, at the bottom, when they report to the union that they are seeking work. Over time, names will appear to move up the list as those ahead of them are referred out. But list position is not determinative in the allocation of jobs. One cannot assume that someone higher on the list will necessarily be referred out before someone lower down. It depends upon a number of factors, including: the individual's skills, whether the individual and those below him were part of last year's crew and had worked for the company prior to that; whether they were running out of un­employment insurance benefits or on welfare, or suffering special hardships; whether they had an expressed preference for a particular company or were prepared to wait a little longer until their favourite appeared; whether the job was a relatively short one so as to appear unat­tractive when compared with continued idleness on unemployment insurance; and whether, although appearing on the top of the list as an out-of-work painter, the member had in fact been able to secure alternative employment outside the trade, thereby making his claim less pressing; and so on.

22. The out-of-work list only shows union members not presently working in the paint­ing trade. Persons on the list are not necessarily out of work altogether; moreover, it would appear that employees who maintain their membership in the union remain on its rolls and can "opt in" to the hiring hall upon notifying Last that they are again seeking work as paint­ers. They would then be referred on the basis of the functional and equitable criteria set out above. In addition, there will occasionally be new members or transferees from other locals who will be added to the out-of-work list and given a share of available work opportunities. Finally, there will be individuals who do not lose their list position, even though they are referred to jobs of short duration, on the theory that one, two or even a few weeks' work does not make up for a long period of unemployment. Last testified that the "five-day rule" for short jobs specified in the Local's bylaws (see supra) has never been applied in practice, and that he would face considerable opposition from the membership if he sought to do so. And, of course, there will be those who prefer their unemployment insurance benefits to these short-term jobs and would strenuously object to any penalty being imposed while they await referral to their favoured positions. Given the well-entrenched practice of accommodating these preferences, one cannot fault Last for trying to do so — regardless of the bylaw.

23. The order on the out-of-work list will not coincide precisely with the order that employees sign in the registration book kept at the union hiring hall. The registration book is maintained primarily for unemployment insurance purposes. By signing it, a member avoids the UIC requirement of providing concrete evidence of job search. Members normally sign in as soon as they are laid off, but they do not always do so. Sometimes they telephone to advise of the date of layoff and sign the unemployment insurance registration book some days later. Further, persons going to alternative employment (for example, one individual works for the Highway Department during the winter while on layoff from the painting trade) or someone transferring from another local may not appear in the registration book at all. Persons working elsewhere, but retaining their union membership and desiring to return to the trade, will not appear in the registration book but may well appear on the out-of-work list.

24. Last was cross-examined at some length about alleged discrepancies between the order of names in the registration book and on the out-of-work list, as well as the reasons why, in the past, particular individuals (other than the complainant) were referred to work before others. Sometimes Last was able to advance an explanation and sometimes he simply could not recall. But we do not attach much weight to this testimony one way or the other. There was no allegation of impropriety in respect of any of these individuals, and their names were not particularized in advance of cross-examination. One could hardly expect that, some months later, Last would be able to recall with precision the factors and individuals considered in filling a particular request for workers. At the time there was no requirement or reason to keep notes of the reasons why particular persons were or were not referred instead of others, nor any reason why Last should remember all of the factors influencing his discretion. Last's memory may be fallible but one would not have expected anything else in the circumstances.

25. With this general background, we turn to the specific job referral of which Mr. Cooper complains.

26. On or about March 18, 1983, Bagwell Coatings requested eight workers. Last sent them. No objection is taken by Mr. Cooper to the dispatch of three members above him on the out-of-work list; however, he asserts that the sending of the five individuals below him indicates a breach of section 69 of the Act. This argument is advanced on the premise that precedence on the out-of-work list (i.e., an earlier layoff date) should imply a favoured po­sition when new work opportunities arise. However, as we have seen, the hiring hall system does not work that way. Nor did it in this case.

27. Upon receipt of the request from Bagwell for eight employees, Last scanned the out-of-work list and selected five qualified individuals who had worked for Bagwell in the 1982 painting season, had been laid off on or about December 22, 1982, and were desirous of returning to work with Bagwell in March, 1983. Each of these individuals had also worked for Bagwell in 1981, and some have been employed in prior years as well. In contrast, the complainant had not worked for Bagwell during the 1982 painting season. He had not been part of the 1982 crew. In Last's opinion, the five individuals sent each had a better claim for referral than the complainant, since they were both "established" with Bagwell and had been part of the 1982 crew.

28. There were three employees ahead of Mr. Cooper on the out-of-work list who were sent to Bagwell. Mr. Taylor was number one on the list, had run out of unemployment in­surance benefits, had not worked at all in 1982, and had suffered the effects of an unfortunate accident. Mr. Bromberg was number two on the list, had not worked at all in 1982, and was penniless. Mr. Huggett had not worked in 1982, had been forced to seek work outside the trade in 1983, and, in Last's view, had a superior claim to those above him on the list. In each case the unemployed member had what might be termed an equitable claim to the avail­able job and, on an objective basis, it is not unreasonable for Last to have sent them.

29. We detail the circumstances of these three members only for the purpose of com­pleteness. The complainant makes no objection to their referral. They were above him on the list. But even in their case the list was not determinative. These referrals illustrate the efforts of Last to accommodate the particular problems of the members he is elected to represent.

30. Much testimony was advanced on behalf of Mr. Cooper in an effort to establish that Last had a particular antipathy towards him which, it is argued, influenced the decision not to refer him to Bagwell Coatings in 1983. We do not accept that proposition. We do not doubt that, in Last's view, Cooper was an annoyance who made uninformed and ill-founded allegations, was prepared to bypass internal union procedures, and was prone to "run to the Labour Relations Board" with his complaints without adequate investigation or any effort to resolve them at the Local level. Nor do we doubt that, in the circumstances, Last may well have made some intemperate or ill-advised remarks. He may well have suggested, for ex­ample, that Cooper should not be or did not deserve to be a union member, or even that he (Last) would prefer that Cooper were out of the union. However, these remarks must be put in context. Last was angry by what he believed to be a groundless attack on his integrity, launched without any effort to even discuss the matter with him prior to initiating litigation. Whatever his personal faults may be, Last honestly (and not unreasonably) believes that he has been wrongly accused to the detriment of his personal reputation and the funds of the Local union which must be expended in the union's defence. In any event, we are not satisfied that any personal animosity which Last may have had for the complainant influenced the 1983 referral to Bagwell, nor are we satisfied that Last was influenced by the fact that Cooper ran against him in the last election. We accept Last's evidence that he never considered Cooper to be a threat, and the election results would seem to bear out that assessment.

31. The complainant argues that he was just as "established" as the other persons re­ferred to work at Bagwell in 1983, and that he should not be "penalized" because of what he characterizes as an "illegal" failure to refer him to Bagwell in 1982. The complainant asserts that, but for the failure to refer him to Bagwell in 1982 (which gave rise to the first section 69 complaint), he would have been in a pre-eminent position for referral in 1983 —having worked for Bagwell in the previous season as well as for some period before that.

32. The evidence establishes that in 1982, the complainant registered on the out-of-work list, even though he was not yet out of work. That February, he performed some hours of work, for wages, after he had registered himself as unemployed. He was not unemployed. He was still working — albeit the season was "winding down". Yet by registering early while continuing to work, he might have gained some advantage on the out-of-work list since his name would appear above those of other employees who were laid off later.

33. Last thought that the complainant was "playing games". He was "not playing by the hiring hall rules". He was cheating. Thus, when Bagwell requested ten employees by name — in itself a practice which Last had tried to discourage — Last was not prepared to accede to that request in the complainant's case. Last testified that there were other employees who had worked for Bagwell just as long as the complainant, had been laid off at the same time, and had "played by the rules". They were sent in response to Bagwell's request for workers.

34. The complainant contends that this Board should go behind the earlier settlement and determine the propriety of the 1982 referral because the failure to refer him to Bagwell in 1982 may have had consequences in the following year. The complainant asserts that, but for the allegedly improper 1982 referral, he would have been part of the 1982 crew so that in 1983 he would have been in a better position to claim a job with Bagwell than those who were sent. We do not agree. The 1982 referral was the subject of a section 89 complaint which was resolved by a written settlement. That settlement fully and finally resolved the mat­ters then in dispute between the parties and without any admission of liability on the re­spondent's part. Having settled his case in 1982, we do not think it is open to the complainant to revive those allegations now in order to argue that, after all, and despite the settlement, the 1982 referral was illegal. We therefore decline to make any finding on the 1982 referral one way or the other. The complainant's case must stand or fall on whether he can show that in 1983, he was dealt with in a manner that was arbitrary, discriminatory or in bad faith, and we do not think the evidence supports a finding of bad faith or discrimination.

35. On a more general level, the complainant argues that the hiring hall system itself is totally arbitrary, since it is based entirely upon the exercise of Last's subjective and largely unfettered discretion. It is Last alone who determines what weight is to be given to particular criteria and, the complainant asserts, an individual may never know why he has been passed over. He may not even know the variety of factors which Last could take into consideration. Counsel notes the degree to which Last relies upon his memory and points out that, in cross-examination, his memory was often fallible; moreover, counsel notes Last's admission that in the particular referral at issue, instead of sending five members of the 1982 crew and three individuals high on the list with particular needs, he might have sent some other combination if, in his (Last's) opinion, there were others with an equitable claim to these work oppor­tunities. In the complainant's submission, such subjective judgments are totally arbitrary and no more than an expression of Last's whims at a particular time.

36. The union responds that the exercise of discretion is inevitable. A "strict list" or "first in, first out" system is not workable, nor do any of the members want it. That is why the question of the business agent's discretion was recognized and formalized in the Local union's bylaws which were ratified by a solid majority at a meeting specially called for that purpose. In the union's submission, the question is not the existence of the business agent's discretion, but how it is exercised in particular cases. The union argues that, on the evidence, the failure to refer the complainant to Bagwell in 1983 was not motivated by discrimination or bad faith, and was not based on arbitrary considerations.

37. Similar issues and arguments were canvassed before the Board in Richard Boon et al. and Labourers' International Union of North America, Local 247, Board File No. 2393-81-U, decision released September 21, 1982, unreported, and in view of the periodic re­currence of problems such as this, the views of the Board in that case are worthy of brief mention. In Boon, the union hiring hall was in fact run on a strict first in, first out basis, and the gist of the complaint was that the union's officers had introduced a discretionary ele­ment into the system by taking into account the expiry of members' UIC benefits. That ex­ercise of discretion was the subject of complaint, however, at page 7 the Board commented:

13. It is clear that the operation of any hiring hall is a complicated matter and undoubtedly must involve various levels of discretion. Presumably a hiring hall is operated correctly if that discretion is exercised in a manner which is demonstrably for the benefit of the members of the union as a whole or even simply the unemployed members of the union. As a con­sequence, unions frequently make specific rules concerning the operation of the hiring hail and, indeed, the respondent local trade union has in fact formally set out the informal rules which had governed the operation of its hiring hall. Although these rules have been set out in the by-law, it is clear that they nevertheless involve the use of discretion. That dis­cretion, however, cannot be exercised in a manner contrary to section 69 of the Act. However, the mere exercise of discretion does not in of itself constitute a violation of section 69. What gives rise to a complaint under section 69 is the manner in which the discretion is exercised. In point of fact the complainants themselves in this case were all the beneficiaries of the type of discretion which is inherent in the operation of a hiring hall, but because it was for the benefit of certain members as a whole does not constitute a violation of section 69.

14. The type of discretion referred to relates to the matter of U.I.C. ben­efits. It is clear that the local from 1979 through 1980 suffered a high level of unemployment. That unemployment was for such a long duration that members started to run out of U.I.C. benefits. Thus, notwithstanding a "first-in-first-out'' rule concerning assignments to employment from the hiring hall, the local adopted a policy with respect to the hiring hall, that if a member demonstrated to the local that he had run out of U.I.C. ben­efits he would be placed in employment as soon as possible in an effort to rebuild benefits from the U.I.C. This is, of course, a discretionary change from the "first-in-first-out" general rule of operation. However, it can be seen that it was adopted as a policy for everyone and that it was exercised in an attempt to benefit the members both individually and as a whole. Indeed, this practice has also helped the complainants. It would be impossible to say that such a discretionary change in the hard and fast rule for operating a hiring hall is in of itself a violation of sec­tion 69, notwithstanding the fact that certain members who might have been out of work longer were not referred to jobs because they still had U.I.C. benefits.

In our view, these observations are equally apposite in the instant case, even though here the union's case is stronger because the hiring hall is not operated on a "first in, first out" basis and the bylaws now formally authorize the exercise of the business agent's discretion.

38. Neither the fact of discretion nor its exercise are, per se, illegal. Discretion is in­evitable in the circumstances. The business manager must balance a number of factors in de­termining which of the available out-of-work members should be sent to a particular job at a particular time. In so doing, he may well make an honest mistake. But the question is not whether the business manager (and, vicariously through him the union) may have erred in some way or made a decision of which this Board, with hindsight disapproves. Business agents, being human, will make mistakes or errors in judgment and may even appear to be inconsistent from time to time as they respond to the circumstances of the moment, and per­haps, subjective pleas for special consideration. The question is whether that discretion has been abused — for example, to benefit family or friends, or to punish political enemies (see Joe Portiss, supra). Obviously nepotism and patronage have no place in the hiring hall sys­tern, nor should the Board condone reliance upon obviously extraneous factors. But where a union official honestly turns his mind to the circumstances at hand, and without malice or any improper intent makes a sincere effort to assess the situation and balance competing claims before dispatching employees, we do not think we should readily infer that the decision was "arbitrary" and illegal. The term "arbitrary" in section 69 was intended to connote a de­cision-making process that is reckless, cursory, consistent with a non-caring attitude or in­fluenced by totally extraneous and irrelevant considerations. The facts of this case do not fall within those parameters at all.

39. In the circumstances of the instant case, we are satisfied that Last did not act im­properly. The factors which he considered when making the impugned referral are reasonable ones and we find that he was acting in good faith. There is no basis for the complainant's assertion that he was singled out for invidious discrimination or dealt with unfairly. There has been no breach of section 69 of the Act.

40. 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 Mr. Last'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 Last 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 they have been dealt with unfairly. Unless the union's hiring hall rules and the factors which Last 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 Last 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 Last 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.

41. For the foregoing reasons, this complaint is dismissed.