Luciano D'Alessandro and Donato Marinaro v. Labourers' International Union of North America, Local 1089, and Rocco D 'Andrea

[1985] OLRB Rep. January 1708

1296-82-U; 0195-83-U Luciano D'Alessandro and Donato Marinaro, Complainants, v. Labourers' International Union of North America, Local 1089, and Rocco D 'Andrea, Respondents

BEFORE: Robert D. Howe, Vice-Chairman, and Board Members F. W Murray and W F. Rutherford.

APPEARANCES: Ed J. Brogden for the complainants; A. M. Minsky, R. D 'Andrea and D. D 'Andrea for the respondents.

DECISION OF THE BOARD; December 11, 1985

1. File No. 1296-82-U is a complaint under section 89 of the Labour Relations Act in which Luciano D'Alessandro alleges that he has been dealt with by the respondents contrary to section 69 of the Act. (The complaint as originally filed also alleged a breach of section 68 of the Act, but that allegation was withdrawn on February 2, 1984 by Mary F. Portis, who was at that time Mr. D'Alessandro's counsel.) File No. 0195-83-U is a section 89 complaint in which Donato Marinaro alleges that he has been dealt with by the respondents contrary to sections 69 and 70 of the Act. Those two complaints were consolidated by the Board on August 18, 1983, along with four other section 89 complaints which are no longer before the Board. (The respondent Labourers' International Union of North America, Local 1089, is also referred to in this decision as the "Union" and the "Local".) The respondent Rocco D'Andrea was the Business Manager of the Union from 1965 until June of 1985. It is his actions (and those of fellow Union officials) which are the focus of these complaints.

2. Mr. Marinaro's complaint, which was filed with the Board on April 28, 1983, originally impugned 46 referrals that allegedly occurred between July of 1981 and September of 1982. By letter delivered to the Board on July 4, 1983, Brian Iler, who at that time was counsel for Mr. Marinaro, filed, as an additional particular to that complaint, an allegation pertaining to a March 1, 1983 referral. On October 11, 1983, Diane L. Haskett, who by that time had replaced Mr. 11cr as Mr. Marinaro's counsel, filed further particulars, impugning seven referrals alleged to have occurred in March and April of 1983, and also alleging that Mr. Marinaro was laid off by D. W. Rankin Limited on July 7, 1981 at the direction of the respondent Rocco D'Andrea, who was the Local's Business Manager at all material times.

3. On October 17, 18, and 19, 1983, on the agreement of the parties, the Board heard as a preliminary matter the evidence and submissions of the parties concerning Mr. Marinaro's delay in filing those allegations. In a decision dated October 31, 1983 (reported in [1983] OLRB Rep. Oct. 1699), the Board wrote, in part., as follows concerning that matter:

4. .... Having regard to all the evidence and the submissions of the parties, we are satisfied that if Mr. Marinaro had proceeded with due diligence after the hiring hall records became accessible to him, he would have filed his section 89 complaint (concerning the aforementioned 46 referrals) by the end of February of 1983, if not before. However, his delay in filing has not been so extreme as to make it appropriate for the Board, in the circumstances of this case, to decline to hear his complaint on the merits.

5. ... we are satisfied that any prejudice to the respondents which Mr. Marinaro's delay may have occasioned can be adequately dealt with by the Board in the exercise of its remedial discretion under section 89 of the Act in determining the amount of compensation, if any, to be paid to Mr. Marinaro by the respondents. Similar considerations apply to the delay by Mr. Marinaro (or by Mr. Iler, who was then his legal counsel) in filing, by letter dated July 4, 1983, the additional particular to the complaint in respect of a referral which allegedly occurred on March 1, 1983.

6. While there has been several months of undue delay on the part of Mr. Marinaro (or his agent, Mr. 11cr) in failing to file or cause to be filed, prior to October 11, 1983. the allegations contained in paragraph 3(D) of his "further particulars"~ which allegations pertain to seven referrals that allegedly occurred in March and April of 1983, we are satisfied that any prejudice to the respondents which may have been caused by such delay can also be adequately dealt with by the Board in assessing any compensation which might be awarded in respect of those referrals.

7. Paragraph 3(E) of the "further particulars" filed on October 11, 1983 alleges that Mr. Marinaro was laid off from work at D. W. Rankin Limited on July 7, 1981, without justification, at the direction of Mr. D'Andrea. Although that subparagraph pertains to an event which allegedly occurred 27 months prior to the filing of that allegation with the Board, we are satisfied that the information which led to its filing first came to the attention of Mr. Marinaro in late July or early August of 1983 when clemente cicehini, a member of the Executive Board of Local 1089, revealed to Mr. Marinaro that Mr. D'Andrea had stated, in the presence of Mr. Cicchini and some other Executive Board members, that after the aforementioned Executive Board election, Mr. Marinaro and the others who were opposing them in the election would have to be laid off any job that they came to. (It is unnecessary at this stage in the proceedings to make any finding as to whether or not Mr. D'Andrea actually made that statement. It is sufficient to find that Mr. Cicchini told Mr. Marinaro that Mr. D'Andrea did so, and that Mr. Marinaro, in reliance upon that information, instructed his counsel to add to the complaint the allegation which ultimately became paragraph 3(E) of the further particulars.) Nor can it be said that Mr. Marinaro should have been aware of the information which gave rise to that allegation prior to late July or early August of 1983. Although Mr. Marinaro had earlier approached Mr. Cicehini in an attempt to obtain information which might assist him in his quest for hiring ball justice, Mr. Ciechini did not divulge that information at that time. 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). Moreover, we note that unlike Mr. Marinaro's other allegations, his paragraph 3(E) allegation does not pertain to one of many referrals, but rather to an extraordinary event which, if it occurred, would almost certainly be within Mr. D'Andrea's recollection. Thus, while there has been some undue delay on the part of Mr. Marinaro (or his agent, Mr. 11cr) in failing to file the allegation contained in paragraph 3(E) prior to October II, 1983, that period of delay (between August and October of 1983) is not so extreme as to prompt the Board to decline to hear that serious allegation. Therefore, having regard to all the circumstances, we are satisfied that any prejudice which that delay may cause to the respondents can be adequately dealt with by the Board in the exercise of our remedial discretion under section 89 in determining the amount of compensation, if any, to be awarded to Mr. Marinaro in the event that he succeeds in proving that allegation.

8. By letter dated January 24, 1984, Mary Portis, who was at that time counsel for Mr. D'Alessandro, advised the Board of her intention "to move prior to the hearing ... that the reverse onus of the Labour Relations Act applies to the ... complaints". On January 31, 1984, after hearing the submissions of Ms. Portis and Ms. Haskett concerning that matter, the Board made the following unanimous oral ruling:

It will not be necessary to call upon Mr. Minsky on this issue. Section 89(5) is expressly confined to employers and employers' organizations. We are not persuaded that a trade union such as the respondent becomes an employer or an employers' organization when it refers persons to employment pursuant to a collective agreement which it enters into with an employer or an employers' organization. We are not unmindful of the difficulties of proof which a complainant may encounter in proceedings such as the present case. However, if the reverse onus is to be made applicable to sections 68 and 69 of the Act, that will require a legislative amendment and cannot legitimately be accomplished by this Board straining beyond the breaking point the definition of "employer".

5. The Board then heard the submissions of the parties concerning the extent, if any, to which the Board could rely in these proceedings on the findings of fact contained in the decisions of the Board, differently constituted, in the Joe Portiss case (File No. 1278-82-U). The unanimous oral ruling given by the Board on February 1, 1984 in respect of that issue was subsequently provided to the parties in writing, as part of a decision dated June 6, 1984 (reported in [19841 OLRB Rep. June 798). Paragraph 2 of that decision reads:

In a decision dated July 11, 1983 in File No. 1278-82-U (reported in [1983] OLRB Rep. July 1160), another panel of the Board found that the respondent trade union (also referred to in this decision as "Local 1089") had engaged in arbitrary and discriminatory referrals to employment and designations to employment in the administration of its hiring hall contrary to section 69 of the Act, and made an extensive order to remedy the situation. That complaint was brought by Joe Portiss, who is serving as an advisor to complainants' counsel in the instant case. On January 31, 1984, the present panel of the Board heard submissions of the parties concerning the extent to which we could rely in the instant proceedings on the findings made in the Portiss case. On February 1, 1984, the Board made the following oral ruling (which counsel for the respondents requested the Board to provide in the form of a written decision):

Having carefully considered the submissions of the parties, we are not prepared to adopt, without proper proof before this panel, the findings of fact contained in the decisions of the Board, differently constituted, in the Joe Portiss case (File No. 1278-82-U). With respect to the extent to which the Board can rely upon findings made in an earlier decision, see generally Radio Shack, [1979] OLRB Rep. March 248; Re Tandy Electronics Ltd., 1979 CanLII 1914 (ON HCJ), 26 OR. (2d) 68 (Div. Ct.); Napev Construction Limited, [1980] OLRB Rep. June 862; and Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501.

The present complainants were not parties to the Portiss complaint, nor were they privies to any of those parties. Thus, if Mr. Portiss's complaint had been dismissed, they would not have been precluded from filing the present complaints by the concept of res judicata, issue estoppel, or any analogous legal principle. Moreover, the issue before the Board in the Portiss case was whether the respondent trade union contravened section 69 of the Act by acting arbitrarily, discriminatorily or in bad faith in the selection, referral, assignment or scheduling of Mr. Portiss to employment. The issue in the present case is whether the respondent trade union has acted arbitrarily, discriminatorily or in bad faith in the selection, referral, assignment, designation or scheduling of Donato Marinaro and Luciano D'Alessandro to employment. Although the Board awarded extensive relief to remedy the hiring hall abuses which it found in that case, we do not view that decision as being a decision in rem which is binding as against any and all future parties. The respondents elected to call no evidence in respect of the complaint by Joe Portiss. However, they are entitled by the rules of natural justice and by section 102(13) of the Act to present evidence and make submissions in respect of the present consolidated complaints if they wish to do so. As indicated in our earlier ruling in which we found the section 89(5) "reverse onus" to be inapplicable in the present case, the onus is on the complainants to duly prove their complaints on the balance of probabilities. The fact that another member of their union succeeded in proving his complaint and obtained monetary and other relief from the Board does not assist the present complainants, although the existence of the broad remedial order made in that case is a matter of public record and can be taken into account in the present case in determining the appropriate remedy to be granted to the complainants if their case succeeds. Similarly, the method of calculation of damages set forth in that panel's decision dated September 30, 1983 (reported in [1983] OLRB Rep. Sept. 1554) may well be of assistance to the present panel if it becomes necessary to quantify damages, since we would be unlikely to deviate from that approach unless we were satisfied that the approach adopted in that case is inappropriate in the circumstances of the present case. Thus, the existence of the Partiss decisions is by no means irrelevant to the present proceedings. However, for the aforementioned reasons, we are not prepared to accede to the complainants' request that we adopt and apply the findings of fact contained in those decisions.

We are very concerned, however, about the potential length of the present proceedings, and the associated costs to the parties and to the Board. Accordingly, we strongly urge counsel to meet and attempt to agree upon as many pertinent facts as possible so as to narrow and define the factual issues in dispute between the parties. It appears to us that it is in the interest of all of the parties to minimize as far as possible the number of days of hearing time required to litigate this case, so as to minimize legal and other costs associated with it and avoid unnecessarily protracted and costly litigation.

6. On February 1, 1984, the Board afforded Ms. Portis an opportunity to "show cause" why her client should be permitted to amend his complaint to include five further allegations, as set forth in her letter dated October 27, 1983 to the Board. After hearing evidence and argument concerning that matter, the Board made the following unanimous oral ruling on February 2, 1984:

The Board's general approach to delay in cases of this type is summarized in paragraph 5 of our October 31, 1983 decision in this matter. Having regard to that approach and to all the evidence and the submissions of the parties, we find that there has been unreasonable delay on the part of the complainant, Luciano D'Allessandro, in seeking to amend his complaint to include same of the further allegations which form the subject matter of this "show cause motion. Our assessment and review of all the evidence has led us to conclude that Mr. D'Alessandro did not take reasonable steps in a timely manner to attempt to obtain access to the Union's hiring hall records prior to October of 1983. We have also concluded that by November 1, 1982, Mr. D'Alessandro had retained lawyer Wallace Lang in respect of this complaint, which was filed by Mr. D'Allesandro on October 13, 1982, and that Mr. D'Alessandro and his lawyer Mr. Lang knew or should have know by late November of 1982, if not earlier, that access to the Union's hiring hall records could have been obtained at or about that time by proceeding with Mr. D'Alessandro's complaint under section 69 of the Act. The prejudice which can result to a respondent in cases of delay in relation to alleged breaches of section 69 of the Act has already been described in paragraph 13 of our decision dated October 31, 1983 concerning these consolidated proceedings, and need not be repeated in this ruling. Although Mr. D'Alessandro's delay has not been so extreme as to prompt us to deny the requested amendments in their entirety, we are of the view that this is an appropriate case in which to decline to permit the amendments requested in numbered paragraphs I and 2 of Mr. Portis's letter dated October 27, 1983, and to indicate at this time that we will not award any compensation to Mr. D'Alessandro for the period preceding September of 1982. We will allow the other requested amendments, but will leave open for final argument the matter of whether compensation ought to be further restricted or reduced due to Mr. D'Alessandro's undue delay.

After the Board had made that ruling, Ms. Haskett advised the Board that Mr. Marinaro had decided to withdraw four of his allegations (namely, that Jeff Prozorowicz was unjustifiably sent to work ahead of him in July of 1981, that Frank Manola and Italo Laudino were unjustifiably sent to work ahead of him in February of 1982, and that Earl Brown was unjustifiably sent to work ahead of him in March of 1982.)

7. The hearing of the merits of these consolidated complaints commenced on February 2, 1984, and continued on April 10, 11, 12, May 1, 2, June 12, 13, July 26, and August 9, 1984. The hearing of the merits was interrupted on August 9, 1984 when the Board, on the agreement of the parties, proceeded to hear the evidence of the parties concerning the complainants' allegation (made through their counsel, Mr. Brogden) that Salvatore Gagliardi, one of the complainants' witnesses, had been "jumped" on the Union's out-of-work list (also referred to in this decision as the "list"), in an attempt to intimidate him. The hearing of the evidence concerning that allegation, in what was referred to by counsel as a "voir dire", commenced on August 9 and continued on August 10, 22, 23, and 24, 1984. The parties subsequently submitted written argument concerning the subject matter of that "voir dire". After carefully considering all of that evidence and the written submissions of the parties, the Board, in an unreported decision dated October 5, 1984, concluded that no attempt to intimidate Mr. Gagliardi had been established, and that Mr. Gagliardi had not been "jumped" on the list. Following the release of that decision, the hearing of the merits continued on October 16, 17, 18, 30, 31, November 28, 29, December 11, 12, and 13, 1984, and on February 7, 8, and March 20, 1985. On the agreement of the parties, the Board heard counsel for the complainants' argument in chief on March 30, 1985, and then received written argument from counsel for the respondents on April 18, 1985, and written reply argument from counsel for the complainants on April 29, 1985.

8. During the course of the protracted hearing of these consolidated matters, the Board heard oral evidence from over thirty witnesses and received more than one hundred exhibits. In making the findings of fact set forth in this decision, the Board has carefully considered all of that oral and documentary evidence, the oral and written submissions of counsel, and such factors as the firmness of the witnesses' respective memories, their ability to resist the influence of self-interest to modify their recollections, the consistency of their evidence, their capacity to express their recollections clearly, and their demeanour. We have also assessed what is most probable in the circumstances of the case, and what influences may reasonably be drawn from the totality of the evidence.

9. Before turning our attention to the numerous referrals that have been challenged in these proceedings, we will briefly consider the significance of union "hiring halls", and the Board's developing jurisprudence under section 69, which provides as follows:

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.

10. In commenting on the significance of union "hiring halls" and the potential for their abuse, the Board wrote, in part, as follows in Joe Portiss, [1983] OLRB Rep. July 1160:

11. 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.

12. The hiring hall offers advantages to both employees and employers. It saves the employee from the need to canvas numbers of employers in an often fruitless search for work, acting as a clearing house in which available jobs and available workers can be matched. Particularly in periods of high unemployment it also provides the worker with a rational and objective system for the more equitable distribution of work among all employees rather than to the privileged few. The employer gains to the extent that the hiring hall relieves him of the need to screen and recruit employees with adequate qualifications for short term jobs. The employer avoids the administrative cost he would otherwise bear as well as incidental costs which he might have to incur to retain a crew of workers through slow periods to insure available manpower in busier times. A well run hiring hall will give the employer a ready pool of labour from which he can draw on short notice with little or no administrative cost. Moreover, to the extent that the hiring hall dispatches the same members to different kinds of jobs for different employers, as is notably the case for labourers, it may engender a work force with greater experience and sophistication, which will also benefit the employer.

13. 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 the 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.

14. The advantages of the hiring ball system and the potential for their abuse were well summarized by Professor Bastress in the following passage at page 31:

The union hiring hall has been one of the major developments in twentieth century labour relations. It has provided many industries with a means of efficiently matching unemployed workers with job vacancies and has replaced a system of haphazard, unjust, and corrupt employment practices. Yet it has also developed substantial problems of its own. A hiring hall is fraught with potential for abuse, and, indeed, that potential is all too frequently realized. The largely unreviewable discretion of union business agents and inadequate protection for workers can combine to make hiring halls a mixture of whim, nepotism, prejudice and irrationality.

10. Unfortunately Canadian labour relations have not been without some degree of abuse, albeit exceptional, in the hiring hail system. (See, Robert Cliche, Brian Mulroney, Guy Chevrette, Report of the Commission on the Exercise of Union Freedom in the Construction Industry, Quebec, (1975): Waisberg, Report of the Royal Commission on Certain Sectors of the Building Industry, ("The Waisberg Report") Ontario, (1974) at pp. 326-28; see also the recent decision of the Supreme Court of Canada in Nauss v. Halifa.~ Longshoreman's Association, Local 269, 83 CLLC 14,022 (5CC.)).

11. In applying section 69 of the Act, the Board has recognized that the operation of a hiring hall is a complicated matter which undoubtedly must involve an element of discretion:see, for example, Raphael A. Julien, 119851 OLRB Rep. April 537, and Thomas Beck, [1985] OLRB Rep. Jan. 14. The Board has also indicated that honest mistakes or errors in judgment in the exercise of such discretion do not generally fall within the ambit of section 69: see, for example, John Cooper, [1984] OLRB Rep. Jan. 6. However, the abuse of such discretion- such as using it to benefit relatives or friends, or to punish political enemies - is clearly violative of section 69:

12. For the detailed reasons set forth below, we are satisfied that the complainants have proven on the balance of probabilities that the respondent Union, which is engaged in the referral of persons to employment pursuant to various collective agreements, has contravened section 69 of the Act by acting in a manner that is arbitrary, discriminatory, or in bad faith in respect of a number of job referrals. The individual in charge of the operation of the Union's hiring hall, and primarily responsible for its contraventions of section 69, is the respondent Rocco D'Andrea. Mr. D'Andrea was elected as the Union's Business Manager in 1965 and continued to occupy that position for the ensuing twenty years, including the period of time covered by the instant complaints. Some responsibility for the Union's illegal actions is also borne by Orfeo Iacobelli, who was first elected as the President of the Local in 1967, and remained in that office at all material times. Orfeos daughter, Anna Isacobelli, was hired by the Local in June of 1979 as a full-time employee after she graduated from high school. (She had previously worked for the Local on a part-time basis.) Ms. lacobelli devoted almost all of her working time to the operation of the Local's hiring hall from June of 1979 to September of 1982, when she became the Local's bookkeeper. Thereafter, the hiring hall occupied only about ten per cent of her time. Although Ms. lacobelli looked after many of the administrative and clerical duties involved in the day-to-day operation of the Local's hiring hall, she took instructions from Rocco D'Andrea and, to a lesser degree, from her father, who in addition to being the President of the Local, was also one its three business agents. She also occasionally took instructions from the other two business agents, Tony Sproviero and Dan D'Andrea, who is the son of Rocco D'Andrea. Job orders called in by employers were "okayed" by Rocco or one of the three business agents. Rocco and Orfeo reviewed the hiring hall records from time to time, and also from time to time made decisions concerning which members would be referred to work.

13. Prior to the Board's decision in the Joe ADortiss case, supra, the Local's hiring hall was operated under a veil of secrecy and uncertainty. Members were denied access to the hiring hall records, and there were no written rules available to the membership concerning its operation. Some of the hiring hall procedures were, of course, known to members as a result of their personal experience and discussions with other members. For example, it was generally known that when members went to the Union office to report that they were out of work, their names would be entered on the Union's out-of-work list and they would each be given a number (between 1 and 1,000) in sequence of registration. Members could telephone or visit the Union office to find out what number was next to be called. When a member's number was reached on the list, Ms. lacobelli (or another member of the Union's office staff) would attempt to telephone him at intervals of approximately ten minutes for a period of two hours. If he could not be contacted by the end of that two-hour period, his name would be struck off the list and would not be put back on (with a new number) for a period of seven days. Similarly, if a member quit a job, requested a layoff, or was discharged for cause, he would have to wait seven days before going back on the list if there were less than one hundred names on the list. (If there were more than one hundred names on the list, his name would be put on the list as soon as he came to the Union office to register.) If a member was laid off before he had worked twenty-four hours, he went to the top of the list and was sent out to the next available job. If he was laid off, that procedure would be repeated until he had accumulated a total of twenty-four or more hours of work.

14. Other hiring hall "rules" were less well known, if known at all, by members. Some members were aware that they could have one or more classifications placed beside their names

on the list, thereby entitling them to be called for work in such a classification ahead of unclassified members. Although not all members were aware of the Union's practice with respect to classification calls, it appears that the aforementioned two-hour rule did not apply to such calls; in the event that a member was not available when called for work in a particular classification, Ms. lacobelli would simply move on to the next member who had the desired classification beside his name on the list. Failure to answer such a call or to accept such a job offer would not affect the member's position on the list.

15. The range of classifications which could be entered on the list was also a matter on which members were kept in the dark. Some members, including the complainants, were aware of the existence of some classifications, such as foreman, general foreman, cement finisher, and carpenter. However, the existence of some other classifications, such as gradesman and "vibrator man", was less widely known. Since it is clear from the evidence that most labourers would be able to perform the work of a "vibrator man" with little, if any, training, the respondents' failure to adequately advise the membership of the existence of that classification permitted those who were aware of its existence to obtain referrals which should have been available to others. Inequities also resulted from the fact that some members had classifications entered beside their names on the list at the direction of Rocco D'Andrea, while others, such as the complainants, were not assigned any classifications unless they specifically asked to have them entered beside their names each time they registered on the list.

16. Although the Union did not have any procedures by which light duty work was specifically allotted to injured or partially disabled members, some members were able to increase their prospects of obtaining such work by having classifications such as foreman, janitor, or tool crib affixed beside their names on the list. Others were able to avoid the usual consequence of refusing a job (i.e., being struck off the list and required to wait seven days before being assigned a new number) by obtaining a medical certificate indicating that they were unable to report to work due to sickness or disability. Under a hiring hall procedure adopted by the Union in 1969 on the recommendation of its Executive Board, but not made known to all of the members, a person who presented such a certificate would remain in limbo" until he provided a second medical certificate certifying his fitness to return to work, after which he would be placed on the top of the list seven days later and given the first available referral. However, that procedure was not applied uniformly, as evidenced by the fact that while Clemente Cicchini was a member of the Executive Board, he was placed at the top of the list on March 25, 1983 and referred that day to SNC Foster-Wheeler following a period of absence, without obtaining a medical certificate certifying his recovery. (At the time of that referral, Mr. Marinaro, who had registered on the out-of-work list on November 19, 1982, was #955 on the list, and Mr. D'Alessandro, who had registered on December 16, 1982, was #118.) Respondents' counsel submitted that the Union's non-observance of that aspect of the rule was a technical matter which constituted, at most, a mistake or instance of inadvertence rather than a breach of section 69 of the Act. However, we are satisfied on the totality of the evidence that this failure by the Union to follow its hiring hall procedures in respect of an Executive Board member is but one example of a course of conduct clearly violative of section 69 of the Act, by which Executive Board members and others in good favour with Rocco D'Andrea received preferential treatment in respect of work referrals, while others who were not in good favour with him, such as the complainants, were discriminated against and dealt with arbitrarily and in bad faith.

17. There is nothing before the Board in these proceedings which suggests that the

Union's hiring hall records do not accurately reflect the dates on which members registered on the list, the dates on which employers called in job orders, and the dates on which members were referred by the Union to employment. Indeed, the complainants rely on that information to support their complaints that various other members who registered on the list after them were referred to jobs to which the complainants should have been referred. However, oral and documentary evidence adduced before us in these proceedings has led us to conclude that the Union's hiring hall records are unreliable concerning "classification" referrals. For example, the Union's hiring hall records indicate that Cecil lacobelli was referred to Rankin (at MHG) on April 3, 1981 as a cement finisher. (Cecil lacobelli is related to Orfeo lacobelli, but it is common ground among the parties that the relationship between them is so distant that it is irrelevant to the present case.) The notation "C. finisher" appears beside Mr. lacobelli's January 14, 1981 registration (as #597) on the list. "CF" also appears on what purports to be the Union's "carbon copy" of the referral slip (number 5863) which was given to Mr. lacobelli in respect to that referral. However, it was Mr. lacobelli's uncontradicted evidence that he has never been a cement finisher and that he did not ask to have that classification entered beside his name on the list. Indeed, it was his evidence that he had never even seen a cement finisher working, and did not know what they did, before he went to that job. Although it is not obvious at first glance, a closer examination of the notation "C. finisher" which appears beside Mr. lacobelli's name on the list reveals that it has been written with a different pen (and, in all probability, by a different writer) than the entry of his name and telephone number on the list. Moreover, the original referral slip (Exhibit 40A in these proceedings) does not bear the letters "CF", which appear on the Union's "carbon copy" in carbon letters which are appreciably darker than the other letters and numbers which appear on that "carbon copy". The same is true of referral slip number 5075 and number 5972, by which Mario Galister and Frank Taglione were referred to Rankin (at MHG) on January 15, 1981 and February 18, 1981~ respectively. The originals of those three referral slips were produced at the hearing of this matter by Daniel Rankin, the President of the Company to which those three persons were referred by the Local. Mr. Rankin was certain that those three persons were not ordered as cement finishers since his Company did not have the cement finishing subcontract on that project, that subcontract having been awarded to another subcontractor. Having regard to all of the evidence~ we are satisfied that the aforementioned alterations of Union hiring hall records were carried out by Rocco D'Andrea, or by someone under his direction and control for whose actions he, as Business Manager of the Local, was ultimately responsible, for the purpose of misleading the Board or anyone else having occasion to enquire into the manner in which the Union's hiring hall was being operated.

18. The evidence of William Willis provides a further indication of the unreliability of the Union's hiring hall records insofar as they are relied upon by the respondents as providing documentary justification for referrals in which members have been sent to work ahead of the complainants in spite of the fact that the complainants were higher on the list at the time of the impugned referrals. It was Mr. Willis's uncontradicted evidence that on April 6, 1983 Rocco D'Andrea admitted in the presence of himself, Joe Portiss, and Evelyn Portiss, that he (Rocco) had altered the Union's hiring hall books to justify the referral of various persons to work, including an individual who had been permitted to join the Local and had been referred to work "right away" because his mother had made coffee for some members who were on a picket line in Mooretown. Although Rocco D'Andrea was present throughout most of the hearing of this matter, he was not called to contradict or qualify that evidence.

19. The unreliability of the Union's hiring hall records renders much of Anna lacobelli's

evidence concerning individual referrals unreliable as well, since it was apparent that she was placing considerable reliance on those records in attempting to explain the impugned referrals. Moreover, although we found Ms. lacobelli to be a fairly reliable witness concerning general hiring hall procedures, her evidence concerning the reasons why various members were referred to particular jobs can be given little weight as it was proven to be inaccurate in a number of respects. For example, it was her evidence that Jaime Lopes was referred to Collavino (at Polysar) on July 14, 1981, because he was one of the men that Collavino was allowed to bring in from Windsor on the understanding that Collavino would hire additional labourers through the Local. She testified that Mr. Lopes, Rocco D'Andrea, Orfeo lacobelli, and the Project Manager told her that. However, Mr. Lopes, whom we found to be a candid and credible witness, testified that he had never worked for Collavino prior to the job in question. It was his evidence that he went to the Union office in July of 1981 to speak to Rocco D'Andrea on the advice of some friends who had told him there was a "big job" open at Collavino. He told Rocco that he was a qualified cement finisher who was looking for work. Rocco stated that he would attempt to find him a job as a cement finisher. A few days later he was referred to Collavino (at Polysar) as a cement finisher. The referral slip given to him by the Union was dated July 17, 1981, and indicated that he was to report for work the following morning. Mr. Lopes worked there for approximately a month as a cement finisher, and then remained on the site for almost a year as a general labourer in the employ of Collavino. At the time of the impugned referral Mr. Lopes was #250 on the list. Mr. Marinaro was ahead of him on the list, having registered on July 7, 1981 as #192. The classifications listed beside Mr. Marinaro's name and forming part of that entry include "CF" which, it is common ground, stands for cement finisher.

20. Counsel for the respondents argued that the referral of Mr. Lopes to the job in question was within the Business Manager's authority under the discretion vested in him by the following recommendation made by the Executive Board at its June 17, 1981 meeting, and adopted by the membership on July 9, 1981 at a regular general meeting:

The Exe. Board recommends that the business manager be impowered [sic] & authorized to move among jobs, transfer or reffer [sic] workers because of thier [sic] skill or classification as he deems necessary in order to enhance the interest of this local union, the Labourer Int Union of NA. & the compliance of [sic] the provincial collective agreement in the ICI. sector.

However, in the absence of testimony by Rocco D'Andrea concerning why Mr. Lopes was referred to job in question ahead of Mr. Marinaro, who was also an experienced cement finisher, we do not find that argument to be persuasive. The evidence clearly establishes that Mr. Marinaro and Rocco D'Andrea were political rivals and that Mr. D'Andrea was of the view that the powers of his office could be used to penalize such persons. In this regard, it was the uncontradicted evidence of Clement Cicchini that during May of 1981 Rocco D'Andrea told Mr. Cicchini and some of the other members of the Executive Board that after the Union election, Mr. Marinaro and the other persons who were running against them in the election would "have to be laid off on any job that they came to". Given Rocco D'Andrea's ability and expressed willingness to penalize his political rivals by denying them work opportunities, it was incumbent upon him to come forward with a plausible explanation for what appears to be an anomalous and arbitrary job referral. Under the circumstances, we are satisfied on the balance of probabilities that the Union contravened section 69 of the Act in referring Mr. Lopes to Collavino without first offering the referral to Mr. Marinaro.

21. Another example of the unreliability of Anna lacobelli's evidence concerning

individual referrals is provided by her testimony concerning the Union's August 20, 1982 referral of Anthony Belak. It was her recollection that Mr. Belak, who registered on the list as a foreman onMay 21, 1982 (as #270), was name hired by Eastern Construction on August 20, 1982. However, David Anderson, who was Eastern's Project Manager on the site in question, testified that he telephoned the Local and merely asked for a foreman when he placed the job order in question by speaking with Orfeo lacobelli. It was his evidence that he did not ask for Anthony Belak or anyone else by name when he phoned in that order. Mr. Anderson was a candid and credible witness whose evidence we accept without reservation. In this regard, it is noteworthy that although Orfeo lacobelli was present during these proceedings, he was not called to contradict or qualify Mr. Anderson's evidence. At the time of that referral, Mr. Marinaro, who had registered on the list on May 7, 1982 as a foreman (and cement finisher) was #212 on the list. He was not referred to work until September 10, 1982. Thus, the Union has again failed to provide a credible explanation as to why Mr. Belak was referred to that job at a time when Mr. Marinaro was ahead of him on the list. In the absence of such explanation, we find that the Union contravened section 69 by referring Mr. Belak to that job out of order of registration.

22. Counsel for the respondents sought to defend some of the impugned referrals on the basis that the complainants had failed to establish that they had been made "pursuant to a collective agreement". It is clear from the wording of section 69, and the Board's jurisprudence concerning that provision, that it applies only to situations in which a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment pursuant to a collective agreement. (See, for example, Blue Line Taxi Company Limited, [1983] OLRB Rep. Feb. 192, and Local 247 of the Labourers' International Union of North America, [1979] OLRB Rep. July 675.) However, as noted by complainants' counsel in his reply argument, Anna lacobelli (who was summoned by the complainants to testify as a witness in these proceedings) testified that she would not send men to a "non-union job". Having regard to that uncontradicted evidence and to all of the other evidence in this case concerning the existence of collective agreements by which the Union is bound, we are satisfied on the balance of probabilities that at all material times the Union was engaged in the referral of persons to employment "pursuant to a collective agreement", within the meaning of section 69 of the Act, and that the protection which that provision provides against arbitrariness, discrimination, and bad faith applies to each of the impugned referrals. the same ground. On the following day he was listed as #680 with "labourer foreman" as his classification. On March 26, 1984 he was called again by the Union and again refused a job referral.

23. Mr. Alessandro was granted a ten per cent permanent partial disability award effective November 15, 1978, under what is now the Workers' Compensation Act, for residual disability resulting from his May 8, 1968 accident. In a decision dated February 2, 1981, the Appeal Board rejected Mr. D'Alessandro's claim that he remained totally disabled as a result of that accident.

24. Mr. D'Alessandro, who was called as a witness (on the merits) by counsel for the respondents, testified that during the period covered by his complaint, his condition became worse. It was his evidence that he tried to work around the house by cutting the lawn and gardening, but was unable to do so for very long because he "got dizzy, got cramps and had to leave it". Indeed, he testified that he sometimes had too much pain to even sit down. Although he testified that he would like to go to work if he could find something that was suitable, he also stated, "I don't know myself what kind of work I will be able to stand up to." After reiterating that he did not know if there was any work that he could have done during the period in question, he testified (in response to a leading question from his counsel) that he could have worked as a flagman, could have done "spark watch" work, and could have performed a foreman's job on some kinds of projects. During his re-examination by respondents' counsel, Mr. D'Alessandro conceded that he did not know if he could have been a flagman standing in one place for many hours each day. He agreed that he could not have been a working foreman, but asserted that he could have been a non-working foreman. However, he conceded that the job which he left at Rankin in November of 1981 was that of a non-working foreman, and that his condition had worsened after he left that job.

25. Dr. William Southcott, an orthopaedic surgeon to whom Mr. D'Alessandro had been referred by his family physician, was called as a witness in these proceedings by counsel for the respondents. Dr. Southcott testified that his diagnosis of Mr. D'Alessandro's condition was that he was suffering from chronic mechanical (muscular) back pain. He also told the Board that chronic pain of that type "can go on for years" and can be aggravated by "anything", including, at times, even a "simple movement". However, it was also his evidence that when he physically examined Mr. D'Alessandro in May of 1983, he found him to be a well built, muscular man whose level of fitness indicated that he must have been engaging in heavy

1720 activities in order to keep in shape. Thus, he concluded at that time that Mr. D'Alessandro was physically able to return to a job entailing heavy work. However, he also suggested (in his report to Mr. D'Alessandro's family physician) that since Mr. D'Alessandro experienced problems every time he returned to work, it might be wise to have him re-evaluated by the Workers' Compensation Board medical team at Downsview. In explaining that advice, Dr. Southcott told the Board that there would be psychiatrists and psychologists at Downsview who could deal with problems which he was not qualified to evaluate. He further testified that such re-evaluation might lead to retraining or further compensation.

27. Mr. D'Alessandro ran against Orfeo lacobelli for the office of President of the Local in 1981. Rocco D'Andrea and other members of the Executive Board attempted to persuade him to change his mind about running against Mr. lacobelli, but he was not dissuaded. After Mr. D'Alessandro was defeated by Mr. lacobelli, Rocco D'Andrea displayed animosity toward him at several Union meetings. For the reasons set forth below, we are also satisfied on the totality of the evidence that he used his control over Local 1089's hiring hall to penalize Mr. D'Alessandro by denying him job opportunities that should have been offered to him. Whether Mr. D'Alessandro would have been physically able to perform those jobs is, of course, a factor to be taken into account in determining the quantum of compensation to be paid to him by the Union in respect of its contraventions of section 69 of the Act.

28. As a result of the amendment to Mr. D'Alessandro's complaint permitted by the Board in its oral ruling of February 2, 1984 (as set forth above), there are a total of six referrals impugned by Mr. D'Alessandro:

(1) Mario Savo to Chemstand Mach me & Equipment Limited ("Chemstand") on September 10, 1982;

(2) Gino lacobelli to Lummus on September 10, 1982;

(3) Aldo Rocca to MHG-DB-Catalytic on October 18, 1982;

(4) Alberto D'Andrea to SNC-Foster Wheeler on March 16, 1983;

(5) Clemente Cicchini to SNC-Foster Wheeler on March 25, 1983; and

(6) Peter Vani to Foster Wheeler on September 15, 1983.

29. The Union's March 25, 1983 referral of Mr. Cicchini has already been dealt with in this decision (in the context of the Union's procedures with respect to medical certificates) and has been found to constitute a violation of section 69 of the Act. Three of the remaining five referrals (namely, numbers 1, 2, and 4) have also been challenged by Mr. Marinaro, and we are of the view that the propriety of the remaining two must also be assessed in the context of the totality of the evidence which is before the Board in this case. Accordingly, we shall proceed to deal with the balance of the referrals challenged by Mr. Marinaro, including the four which are also challenged by Mr. D'Alessandro, and will then return to the two remaining referrals which are challenged by Mr. D'Alessandro.

30. On July 16, 1981, Alberto Michetti (who had been referred by the Union to Combustion Engineering two weeks earlier) registered on the list as #266. The classifications entered beside his name at the time of his registration were asphalt raker and foreman. On the following day he was referred to Armbro (at Highway 40B, across from the Guildwood Inn), ostensibly as a gradesman. At the time of that referral, Mr. Marinaro was #192 on the list, having registered on July 7, 1981. He was not referred to work until August 17, 1981. The word "gradesman" has been squeezed in beside Mr. Michetti's name (above the words "asphalt raker" and "foreman") with a different pen from that used to write those other words, as well as Mr. Michetti's name and telephone number. In view of that unexplained addition, and our foregoing findings concerning the unreliability of Anna lacobelli's evidence and of the Union's hiring hall records pertaining to "classification" referrals, we have concluded on balance that the Union contravened section 69 of the Act by referring Mr. Michetti to that job out of order of registration on the list.

31. On July 23, 1981, Joao De Melo was referred to Grandbar as a cement finisher. At the time of that referral he was #258 on the list, having registered on July 15, 1981. The classifications shown beside his name are vibrator man and cement finisher. As indicated above, Mr. Marinaro had registered on the list on July 16, 1981 (as #266). The classifications entered beside his name at that time were cement finisher, carpenter, and foreman. Ms. lacobelli told the Board that she was unable to remember whether or not Mr. Marinaro had been called before this job was offered to Mr. De Melo, although she also stated that she "assumed" that he had. In the absence of any reliable evidence which indicates that the proper hiring hall procedures were followed in respect of this referral, we find that in the context of the pattern of improper referrals that has been established in this case, the referral of Mr. De Melo was also made in contravention of section 69 of the Act.

32. On July 24, 1981 Manuel Albino who had registered on the list on July 15, 1981 as #259, was referred to Collavino (at Polysar). The classification "pipelayer" appears beside his name in the same ink as his telephone number and registration number. The words "vibrator man" have been written above "pipelayer" with a different pen, and the words "vibrator man" on the Union's carbon copy of the applicable referral slip (No. 12278) are appreciably darker than the other letters and numbers which appear on that "carbon copy". Moreover, Collavino's employment records indicate that no premium pay was paid to Mr. Albino. Having regard to all of those circumstances, which, when considered together, are strongly suggestive of Union hiring hall record alterations similar to those established in relation to the three Rankin referrals described above (in paragraph 17), we can give no credence whatsoever to the suggestion that this referral can be justified as a classification referral. We also do not accept the alternate explanation proffered by Ms. lacobelli, that this referral was an application of the rule under which an employee who had worked for a cumulative total of less than twenty-four hours remained at the top of the list. The list does not support that explanation and we are not persuaded that the list is erroneous in this regard as suggested by Ms. lacobelli. Under the circumstances, we find this referral to be a further contravention of section 69.

33. John E. lanozzi joined the Local at age eighteen in February of 1981, after graduating from high school in January of that year. Mr. lanozzi and his parents are neighbours of Rocco D'Andrea, whose home is next door to theirs. When he met with Mr. D'Andrea to apply for membership in the Union, Mr. lanozzi told him that he could do carpentry work and cement finishing. His experience in doing that work consisted of summer time and part-time work which he had performed for his father's residential construction business. Following two referrals which are not in question in these proceedings, Mr. lanozzi registered on the

list on July 13, 1981 as #229. The letters "CF" have been written beside his name on the list with a different pen from that which was used to enter his name and telephone number. He has no recollection of asking to have those letters placed beside his name. He was referred to De Carolis General Contractors on July 28, 1981. At the time of that referral, Mr. Marinaro was #192 on the list, having registered on July 7, 1981 (with cement finisher, carpenter, and foreman as his listed classifications). Neither Ms. lacobelli nor any other witness provided the Board with any explanation of why Mr. lanozzi was referred to that job ahead of Mr. Marinaro. Having regard to all of the circumstances, we are satisfied on the balance of probabilities that the referral in question involved unwarranted favouritism toward a neighbour of Rocco D'Andrea, and illegal discrimination against Mr. Marinaro, which has no place in the operation of a union hiring hall.

34. Peter Rocca was referred to Collavino on August 10, 1981. At the time of that referral he was #324 on the list, having registered on July 24, 1981. Mr. Marinaro was still #192 at that time. Ms. lacobelli told the Board that Mr. Rocca was referred to that job as a vibrator man. However, Collavino's payroll records indicate that no premium was paid to Mr. Rocca. Having regard to that fact, in combination with our aforementioned findings concerning the unreliability of the Union's hiring hall records and of Ms. lacobelli's evidence, we are satisfied that this referral was also made in contravention of section 69 of the Act.

35. On the following day, Mike Fazzalari, who was #331 on the list was referred to Collavino. Neither Ms. lacobelli nor any other witness provided the Board with any explanation of why Mr. Fazzalari was referred to that job ahead of Mr. Marinaro, who remained #192 on the list. In the absence of any such explanation, it is reasonable to infer in the circumstances of this case that this referral is a further example of illegal discrimination against Mr. Marinaro.

36. The next referrals impugned by Mr. Marinaro occurred on February 8, 1982, when Edgar Bettencourt and Gaetano Ventura, who were #503 and #504 on the list, were referred to INS-CO Sarnia Ltd. ("INS-CO") at Polysar. At the time of that referral, Mr. Marinaro was #464 on the list having registered on January 13, 1982 with the classifications of carpenter and foreman beside his name. Mr. Bettencourt had been employed at INS-CO at the site in question from March 9, 1981 until January 22, 1982 when he was laid off. Mr. Ventura was also laid off that day, following six months of employment by INS-CO at that site. In permitting INS-CO to recall them to work at that site, Local 1089 was honouring the terms of a "Project Agreement" incorporated into a Memorandum of Settlement (Exhibit 22) that was entered into on January 17, 1980 by various parties including INS-CO and the Building and Construction Trades Council of Sarnia and Lambton County. Article 4.05 of the Agreement provides:

Terms of hiring to be at the Employer's sole option and discretion to select from the out-of­work list of tradesmen required.

Thus, we are satisfied that the Union did not contravene section 69 in referring Messrs. Bettencourt and Ventura to INS-CO on February 8, 1982. The same is true of the referral of Abraham Frederick, Richard Labine, and Dan Teixeira to employment with INS-

CO at the Polysar project on August 6, 1982.

37. Kevin Glysinski was referred to Alznar Contractors Ltd. (at Lambton Mall) on February 12, 1982. At the time of the referral, Mr. Glysinski was #554 on the list having registered on January 29, 1982. Mr. Marinaro remained #464 on the list at that time. (He was not referred to work until March 31, 1982.) The Union seeks to justify that referral on the basis that it was a classification referral of Mr. Glysinski as a forklift operator. However, the aforementioned pattern of a classification ("F LIFT") being written beside an employee's name on the list with a different pen, and that same classification appearing on the Union's "carbon copy" of the referral slip in carbon letters which are appreciably darker than the other letters and numbers on the slip, has repeated itself in respect of this referral. Moreover, the Union's "job order book" (Exhibit 28) does not support the Union's position concerning this referral, nor do the employer's payroll records. In the totality of the circumstances, we find that this referral constitutes a further instance in which section 69 has been violated by the Union.

38. The evidence adduced with respect to the reason why Carmine Moretta, who registered on the list as #492 on January 20, 1982, was referred to work ahead of Mr. Marinaro (#464) was also far from satisfactory. Ms. lacobelli was unable to find any justification in the Union's hiring hall records for the referral of Mr. Moretta to Da Cunha Masonry on February 16, 1982, but told the Board, "I seem to recall Moretta being name hired by Da Cunha". However, the unreliability of her evidence concerning that referral was underscored by the fact that she also testified that she thought that De Cunha was under the road and sewer collective agreement. It is common ground among the parties that Da Cunha is bound by the ICI Provincial Agreement. Under the circumstances, we are satisfied on the balance of probabilities that this referral also constituted a breach of section 69 vis-a-vis Mr. Marinaro, who, as noted above, was not referred to work until March 31, 1982.

39. Mr. Marinaro also challenges the referral of Michele Gabriele to Alvaro Contractors Ltd. ("Alvaro") at MHG on March 4, 1982. At the time of that referral, Mr. Gabriele was #593 on the list, having registered on February 10, 1982, following his layoff by that same employer on or about that date. Mr. Marinaro was #464 on the list at that time. However, the evidence adduced before us establishes that the Union was obligated to refer Mr. Gabriele to that job by virtue of the following recall provision contained in the Cement Finishers Appendix to the Provincial Agreement that was in force at that time:

2.04 The Employer may request by name the recall of an Employee who has worked during the preceding twelve (12) months for that Employer, provided that the Employer shall give preference to the most senior Employees who are currently on lay-off if those Employees can perform the work available.

Accordingly, we are satisfied that the Union did not contravene section 69 by referring Mr. Gabriele to Alvaro on March 4, 1982. Similar reasoning applies to the Union's referral of Raffaele Di Frederico to Alvaro on March 19, 1982, following his lay-off by that employer on or about January 26, 1982.

40. Saleotino Da Silva registered on the list on February 5, 1982 as #573. The entry to the right of his name and telephone number on the list is "Da Cunha Mar 4/82". That entry would normally be indicative of a referral to Da Cunha on the specified date. However, there is no job order for that employer recorded in the Union's job order book on that or any contemporaneous date, nor is there a referral slip. Thus, the Union's hiring hall records confirm Ms. lacobelli's evidence that the Union did not refer Mr. Da Silva to Da Cunha but rather merely found him working for that employer on March 4, 1982. Thus, the March 4, 1982 entry was made to remove his name from the list. Having regard to all of thecircumstances, we find that no breach of section 69 has been proven in respect of Mr. DaSilva. Similar considerations apply to Adriano Medeiros, who was permitted by the Union to continue working for Area Construction after he was found working for that employer on or about July 20, 1982, following his direct recall to employment by that Company, which had previously employed him from November 3, 1981 to mid June of 1982.

41. Vaniglio Michieli registered on the list on February 15, 1982 as #616. The classification "carpenter" appears directly besides his name in the same ink as his name and telephone number. Ms. lacobelli attempted to justify his referral to Catalytic (at Esso) on March 9, 1982 on the basis of a classification referral as a janitor. However, we do not find that explanation to be reliable. The word "janitor" has been squeezed in above the word "carpenter" with a different pen, and the referral slip does not contain any indication that Mr. Michieli was being referred as a janitor. Moreover, it is open to serious question whether any such classification existed at that time. If it did, its existence had certainly not been adequately communicated to the membership. Thus, the respondent has not rebutted the prima facie case established in the circumstances of the present case by the fact that Mr. Michieli was referred to the job in question ahead of Mr. Marinaro.

42. Orlando lacobelli registered on the list on March 1,1982 as #678. He was referred to Alvaro (at MHG) on March 22, 1982 as the cement finisher, at a time when Mr. Marinaro, who was also classified as a cement finisher, was #464 on the list. Ms. lacobelli told the Board that Orlando lacobelli was referred to Alvaro out of order because "Alvaro could name hire whomever it wanted on that job". In his submissions on behalf of the Union, Mr. Minsky suggested that this referral was made pursuant to the Business Manager's discretion under the aforementioned Executive Board recommendation adopted by the membership on July 9, 1981. However, in the absence of testimony by Rocco D'Andrea concerning why it was necessary or appropriate to refer Mr. lacobelli to that job instead of Mr. Marinaro, who as noted above was also an experienced cement finisher, we do not find that argument to be persuasive. Having regard to all of the circumstances, we find that the referral of Mr. lacobelli to Alvaro on March 22, 1982 contravened section 69 of the Act. Similar considerations apply to the referral of Pasquale Muscedere to Alvaro (at MHG) on September 3, 1982, at a time when Mr. Muscedere, who registered on August 23, 1982, was #490 on the list and Mr. Marinaro was #212, having registered on May 7, 1982.

43. Mr. Marinaro also impugns the referral of Jim A. Belak to McKay Cocker Construction Limited ("McKay") on March 26, 1982. However, it is clear from the evidence that Mr. Belak had been employed by McKay from June 12, 1981 to March 10, 1982, and that his referral back to that employer on March 26, 1982 was justified (and required) by Article 3.1(b) of the May 1, 1980 to April 30, 1982 collective agreement (Exhibit 23) between Local 1089 and McKay, which provided:

The Employer shall have the prerogative when adding to its working force to first re-hire former regular employees who have been employed by the Employer for at least three (3) of the proceeding [sic] twelve (12) months.

The same is true of the Union's March 29, 1982 referral to McKay of John Medeiros, who had previously been employed by that Company from September of 1981 until December 11, 1981, and of the Union's June 7, 1982 referral to McKay of Antonio Bento, who had been employed by that Company from June 29, 1981 until mid May of 1982.

44. Perry Sinclair transferred into the Local on May 2, 1982 from Local 1111 in Calgary, Alberta, and registered on the list that day as a signal man. Ms. lacobelli had been told by business agent Tony Sproviero that Mr. Sinclair was an expert signal man who was being allowed to transfer into Local 1089 to do signal work for Hardrock Forming Company ("Hardrock") at Petrosar. On May 14, 1982, Ms. lacobelli received the expected job order from Hardrock and referred Mr. Sinclair to that site pursuant to Mr. Sproviero's instructions. We are satisfied on the totality of the evidence that the referral of Mr. Sinclair to Hardrock on May 14, 1982 did not contravene section 69 of the Act, and did not in any event deprive Mr. Marinaro of any work as he was not qualified to perform the work of a signal man.

45. Silverio Sardo was employed by C & R Masonry Ltd. ("C & R") from April 12, 1982 until sometime in early May of 1982, pursuant to a referral which is not in question in these proceedings. On May 13, 1982, he registered on the list as #230. During June of that same year, the Union discovered that he had been recalled to work directly by C & R without notification to Local 1089. The Union permitted him to continue working there, presumably because C & R was entitled to recall him by name pursuant to Article 2.04 of the Cement Finishers Appendix to the Provincial Agreement (as set forth earlier in this decision). Under the circumstances, we find that a contravention of section 69 has not been established with respect to Mr. Sardo. Similar considerations apply to Joaquim Bento, whom the Union found to be working for C & R in June of 1982, after being laid off by that Company in early May of 1982 following fourteen months of continuous employment.

46. After working for Shaeffer-Townsend for about seven years, John Dc Macedo was laid off by that Company on or about June 4, 1982 as a result of a strike by another trade. The evidence establishes that it was the Union's practice to treat a lay-off resulting from a labour dispute differently than a lay-off resulting from a shortage of work. Persons laid off as a result of a labour dispute were permitted to register on the list on the understanding that if their numbers came up before the labour dispute ended, they would be referred to other jobs, but that if their numbers had not come up by the time the labour dispute ended, they would be permitted to return to their former jobs. In accordance with that practice, the Union referred Mr. De Macedo back to Shaeffer-Townsend on June 25, 1982, since the strike had ended and work had resumed. As noted above, the Board has recognized that the operation of a hiring hall will invariably involve an element of discretion. Under the circumstances, we find that Union officials did not act in a manner that was arbitrary, discriminatory, or in bad faith in exercising their discretion in that fashion. Thus, we find that the Union did not contravene section 69 in permitting Mr. Dc Macedo to return to Shaeffer-Townsend after the strike which had interrupted his employment with that Company had been settled. Similar reasoning applies to the referral of Clarimundo Silva, Antonio Sousa, Tony Williams, Roger Lapratt, and Jim Brooks to MHG-DB-Catalytic on August 27, 1982, following the resolution of the labour dispute which gave rise to their lay-off by that Company on July 30, 1982.

47. Tony D'Andrea, who is not related to Rocco or Dan D'Andrea, registered on the list on May 7, 1982 as #219. The initials "CF" appear beside his name on the list. Mr. Marinaro had registered as a foreman and cement finisher three days earlier, and had been given #212. Tony D'Andrea was referred to Alvaro (at MHG) as a cement finisher on August 16, 1982. At the time of that referral, Mr. Marinaro was still #212 on the list as he had not been referred to work. He remained unemployed until September 10, 1982, when he was referred to Chemstand. Ms. lacobelli testified that Tony D 'Andrea was referred to that job because he was requested by Alvaro. She also told the Board that Alvaro was allowed to request whomever it wanted on that particular job by virtue of an arrangement which the Company made when it signed a collective agreement with the Local. The unreliability of that evidence is apparent from the undisputed fact that Alvaro was bound by the Provincial Agreement at all material times. Dan D'Andrea also testified concerning that referral. He initially told the Board that Tony had come to the Union office and told him that Alvaro wanted to name hire him. However, he then changed his evidence by testifying that Tony had told him that Alvaro wanted to recall him. It was Dan's understanding that although Tony had not worked for Alvaro as a labourer in the preceding twelve months, he had done "some kind of supervisory work or clerical work" for Alvaro (luring that period. Dan testified that after the matter had been considered by himself, his father, and Orfeo Jacobelli, it was decided to allow Alvaro to recall him pursuant to Article 2.04 of the Cement Finishers Appendix to the 1982-84 Provincial Agreement (which is identical to Article 2.04 of the Cement Finishers Appendix in the 1980-82 Provincial Agreement, as quoted above). Dan told the Board that it was decided to permit this "recall" because Article 2.04 merely requires the employee to have worked for the employer during the preceding twelve months, and does not expressly require him to have worked as a labourer. However, we did not find his testimony to be convincing; having regard to his demeanour while testifying and to the other factors pertinent to assessing the credibility of a witness (as set forth earlier in this decision), we have concluded that this expansive interpretation of Article 2.04 is simply a rationalization that has been adopted in an attempt to shield the Union from liability in respect of the referral in question. In concluding that this referral was made in contravention of section 69, we have also taken into the account the fact that Rocco D'Andrea and Orfeo lacobelli did not testify before the Board concerning what prompted them to approve the referral of Tony D'Andrea to that job at a time when Mr. Marinaro was prima facie entitled to be offered the referral before the Union offered it to Tony D'Andrea.

48. Tony D'Andrea was subsequently laid off by Alvaro in January of 1983 and, after registering on the list on January 14, 1983, was referred back to Alvaro when that employer recalled him on April 12 of that year. If Mr. D'Andrea had been legitimately referred to Alvaro on August 16, 1982, his referral back to that employer on April 12 would clearly have been justified by Article 2.04 of the Provincial Agreement. However, in view of our finding that the August 16, 1982 referral was made in contravention of section 69, it is arguable that his subsequent referral to Alvaro on April 12, 1983 was also in contravention of section 69, or at least gave rise to further liability on the part of the Union insofar as it constituted a further deprivation of work opportunities that might have been available to Mr. Marinaro, who was ahead of Tony D'Andrea on the list on April 12, 1983 when the latter was referred again to Alvaro. However, it is unnecessary to express a final conclusion on that matter at the present time as it is a matter which can be addressed by the parties during the quantification stage of these proceedings, in the event that the parties are unable to resolve the matter without further intervention by the Board.

49. As noted above, the referral of Mario Savo to Chemstand on September 10, 1982 was challenged by both Mr. Marinaro (who was #212 on the list at that time, as a result of having registered on May 7, 1982) and by Mr. D'Alessandro (who was #255 on the list at that time, having registered on May 18, 1982). Up to the time of that referral, Mr. Savo had been working for Rankin (at MHG), having been referred to that job by the Union on June 11, 1982 after registering on the list on April 29, 1982. Mr. Savo's September 10 referral to Chemstand was made without any registration by him on the list. Ms. lacobelli told the Board that Mr. Savo was referred at the direction of Rocco D'Andrea because Chemstand had requested a "cement finishing foreman" and she was unable to find anyone else on the list who was a cement finishing foreman. When it was drawn to her attention by complainants' counsel that Mr. Marinaro had registered on he list on May 7, 1982 with "foreman" and "cement finish [sic]" entered beside his name, Ms. lacobelli testified that she was looking for a "cement finishing foreman, not just a cement finisher and a foreman". She also told the Board, "It's common knowledge that if a foreman registers as a foreman, it's just a labour foreman, unless he registers as a cement finishing foreman or something else." However, there is no indication in the hiring hall records which were placed in evidence in these proceedings that Mario Savo ever registered as a cement finishing foreman. The classifications listed beside his April 29 registration are "Foreman" and "GF" (i.e., General Foreman). The classifications which appear beside his November 18, 1980 registration are "C Finisher" and "T. Driver". (The Union records concerning his initial registration on the list (on October 10, 1980) have not been placed before the Board in these proceedings.) Although the referral slip given to Mr. Savo in relation to his September 10, 1982 referral to Chemstand indicates that he was referred as a "Foreman" and makes no reference to the term "cement finishing foreman", Dan D'Andrea told the Board that Mr. Savo was referred to Chemstand as a cement finishing foreman. It was also his evidence that Mr. Savo's referral was an example of the Business Manager exercising his discretion (under the aforementioned Executive Board recommendation adopted by the membership on July 9, 1981) to transfer a member from one job to another because of his skill or classification. However, in the absence of testimony by the Business Manager concerning why he found it necessary or appropriate to transfer Mr. Savo to that job at a time when Mr. Marinaro, who was also an experienced cement finisher and foreman, had been unemployed for over four months, we are not prepared to accept that explanation. Having regard to all of the circumstances, including Mr. Marinaro's prima facie entitlement to the referral in question, the unreliability to the testimony of Anna lacobelli and Dan D'Andrea, the failure of Rocco D'Andrea to testify notwithstanding the evidence of Ms. lacobelli that it was Rocco who directed her to refer Mr. Savo to the job in question, and the lack of any cogent evidence establishing that Mr. Savo was more qualified to perform the work than Mr. Marinaro, we find that the Union contravened section 69 of the Act by referring Mr. Savo to the job in question on September 10, 1982 without first offering it to Mr. Marinaro. However, no violation of section 69 has been established vis-a­vis Mr. D'Alessandro in the context of that referral, as the evidence does not establish that he had the requisite cement finishing expertise.

50. The totality of the circumstances, including the unreliability of the Union's hiring hail records and of Anna lacobelli's and Dan D'Andrea's evidence in respect of "classification" and "name hire" referrals has led us to conclude that the Union also contravened section 69 of the Act in making each of the following referrals: Domencis Luis to Leo-Jan Masonry (at Harbor Street) on June 1, 1982, when Mr. Luis was #251 on the list and Mr. Marinaro was #212; Manuel Dos Santos to Alznar (at the Lambton Mall) on June 23, 1982, when Mr. Dos Santos was #250 on the list and Mr. Marinaro remained #212; Francois Bezeau to Sartori and Son Company Limited on August 27, 1982, when Mr. Bezeau was #429 and Mr. Marinaro remained #212; Dan Teixeira to Tempo Construction Limited on August 31, 1982, when Mr. Teixeira was #515 and Mr. Marinaro remained #212; and Manuel Dos Santos to Filipowich on August 31, 1982, when Mr. Dos Santos was #458 on the list and Mr. Marinaro remained #212. Similar considerations have led us to conclude that the Union's referral of Orfeo lacobelli's brother Gino to Lumus on September 10, 1982 contravened section 69 of the Act. At the time of that referral, which reflects an unmistakable element of nepotism that has no place in the proper operation of a union hiring hall, Mr. Marinaro remained #212 on the list and Mr. D'Alessandro, who had registered on May 18, 1982, was #255.51. Mr. Marinaro also questions the validity of the Union's referral of Eric Burger to MHG-DB Caralytic on March 8, 1983. However, the evidence establishes that Mr. Burger was validly name hired by that employer on the date in question, pursuant to Minutes of Settlement (Exhibit #38) entered into on March 7, 1983 by the Union and the employer in full settlement of a grievance dated January 28, 1983, in which the Union alleged that the employer had violated the Provincial Agreement by failing or refusing to appoint the agreed number of foremen, and by locking out Mr. Burger and other members of Local 1089. That grievance was referred to the Board under section 124 of the Act (File No. 228 l-82-M) and was subsequently withdrawn (by leave of the Board) in accordance with that settlement. In his written reply argument, counsel for the complainant submitted that the fact that the parties made an agreement does not give them the right to negotiate away the rights of people not privy to the agreement. However, that submission misses the mark in the present case, as the complainants had no "right" to be referred to the job in question in place of Mr. Burger, who was validly name hired under the Provincial Agreement, particularly where that name hire was being used to redress what the Union believed in good faith to be a grievable wrong against Mr. Burger. Complainants' counsel also suggested that the reasons advanced by the Union for making this and many of the other impugned referrals should not be accepted by the Board because they were not revealed to the complainants until the hearing of this matter. Although a trade union is not legally obligated to provide such reasons prior to a hearing in respect of a section 69 complaint, it is generally desirable for it to do so in that it may eliminate the need for costly and time consuming litigation. Moreover, as submitted by complainants' counsel, the fact that such reasons have not surfaced before the hearing is a factor which the Board may take into account in determining whether they are bona fide justifications or after the fact fabrications. However, we are satisfied that the reason

which the Union has given for referring Mr. Burger to MHG-DB-Catalytic is the true reason for that referral, and we are also satisfied for the foregoing reasons that the Union did not breach section 69 in making that referral.

52. As noted earlier in this decision, the referral of Alberto D'Andrea to SNC Foster Wheeler on March 16, 1983 is challenged by both Mr. Marinaro and Mr. D'Alessandro. (In Mr. Iler's letter dated July 4, 1983, which is referred to in paragraph 13 of our preliminary decision dated October 31, 1983 in this matter, that referral is erroneously described as having occurred on March 1, 1983.) However, the complainants have not established on the balance of probabilities that the Union contravened section 69 in making that referral. Alberto D'Andrea, who is not related to Rocco or Dan E)'Andrea, was referred to that employer pursuant to Article 3.01(b) of the (1982-84) Provincial Agreement, which provides:

The Employer shall have the right to name hire one foreman per project, providing such foreman is a member in good standing of the Local Union having jurisdiction over the area and the employee is registered on the Local Union unemployment list.

That this referral was indeed a valid name hire was confirmed not only by the candid and credible evidence of Tony Sproviero, who at the time of the referral was a member of the Local's Executive Board and was also one of its business representatives, but also by the following letter which was delivered to Rocco D'Andrea prior to the impugned referral, and taken into account by the Executive Board in concluding that the Company was entitled to name hire Mr. D'Andrea: In accordance with the provisions of Art. 3.01 (b) of the Provincial Collective Agreement, please be advised that we wish to name hire Mr. Alberta D'Andrea as Labourer General Foreman at our Suncor Project commencing 7:30 a.m. Wednesday, March 16, 1983.

We, therefore, request you issue the necessary referral slip as required by Art. 16 of the LU. 1089 Schedule to the Collective Agreement.

Sincerely,

(signed) "D. Butt"

Mgr. Industrial Relations

53. Abraham Frederick registered on the list on March 22, 1983 and was referred to Plibrico (Canada) Limited on March 25, 1983. Mr. Marinaro was not offered that referral, although he was above Mr. Frederick on the list, having registered on November 19, 1982. Ms. lacobelli testified that Virginia Mauri, the clerk who performed the paper work concerning that referral, had told her that Mr. Frederick had been referred to Plibrico by mistake, as a result of Ms. Mauri's failure to strike Mr. Frederick's November 9, 1982 registration from the list when he was referred to work on December 6, 1982 pursuant to a recall by INS-CO. Ms. Mauri, who apparently left Sarnia when her husband was transferred to another location (that was not identified in the evidence), was not called as a witness in these proceedings. While it is possible that this out-of-turn referral was the result of simple inadvertence which would not fall within the ambit of section 69, in the context of a case such as the present one in which the complainants have established a pattern of conduct which violates section 69 of the Act we are not prepared to accept that characterization of this out-of-turn referral on the basis of hearsay evidence from a witness whose evidence we have found to be unreliable even with respect to a number of matters of which she had firsthand knowledge. Thus, we find that the prima facie case established by this out-of-turn referral in the context of the aforementioned pattern has not been rebutted.

54. Counsel for the complainants argued that the job order book (Exhibit 29) indicated that Gino lacobelli, who was #958 on the list, was called at 7:30 a.m. on May 6, 1983 in respect of a job referral, while Mr. Marinaro, who was ahead of him on the list, was not called until 2:00 p.m. that day (concerning another referral). However, in view of the fact that the referral slip (number 17250) given to Mr. lacobelli in respect of that job specifies 7:30 as the time at which he was to report for work, it appears more likely that, as suggested by Anna lacobelli, the "7:30" notation in the job order book refers to the starting time of the job and not to the time at which Mr. lacobelli was called by the Union. Thus, no violation of section 69 of the Act has been proved in respect of that referral.

55. We have also concluded that the complainants have not established on the balance of probabilities that on May 6, 1983 Dave Moscone (who was #959 on the list) was called before Mr. Marinaro (who was #955). While the Union's records appear to indicate that Mr. Marinaro was called at 2:00 p.m. that day, we are unable to determine from those records, or from any other evidence adduced in these proceedings, the time at which Mr. Moscone was contacted that day. While this provides a further example of the inadequacy of the hiring hall records that were being kept at that time, it does not establish a contravention of section 69 of the Act.

56. In summary, we have concluded, for the reasons set forth above, that the following 23 referrals involved contraventions of section 69 of the Act, in respect of which Mr. Marinaro is entitled to be compensated by the respondent trade union for lost wages and benefits:

Jaime Lopes to Collavino on July 14, 1981,

Alberto Michetti to Armbro on July 17, 1981,

Joao DeMelo to Grandbar on July 23, 1981,

Manuel Albino to Collavino on July 24, 1981,

John lanozzi to De Carolis on July 28, 1981,

Peter Rocca to Collavino on August 10, 1981,

Mike Fazzalari to Collavino on August 11, 1981,

Kevin Glysinski to Alznar on February 12, 1982,

Carmine Moretta to Da Cunha on February 16, 1982,

Vaniglio Michieli to Catalytic on March 9, 1982,

Orlando lacobelli to Alvaro on March 22, 1982,

Domencis Luis to Leo-Jan Masonry on June 1, 1982,

Manuel Dos Santos to Alznar on June 23, 1982,

Tony D'Andrea to Alvaro on August 16, 1982,

Anthony Belak to Eastern Construction on August 20, 1982,

Francois Bezeau to Sartori on August 27, 1982,

Dan Teixeira to Tempo on August 31, 1982,

Manuel Dos Santos to Filipowich on August 31, 1982,

Pasquale Muscedere to Alvaro on September 3, 1982,

Gino lacobelli to Lumus on September 10, 1982,

Mario Savo to Chemstand on September 10, 1982.

Clemente Cicchini to SNC Foster-Wheeler on March 25, 1983, and

Abraham Frederick to Plibrico on March 25, 1983.

However, for the reasons set forth above, we have concluded that no violation of the Act has been established in respect of the remainder of the referrals impugned by Mr. Marinaro.

57. As indicated above, Mr. Marinaro has also alleged that he was laid off by D. W. Rankin on July 7, 1981 at the direction of Rocco D'Andrea. However, the evidence indicates that Rocco D'Andrea had nothing to do with that layoff. Indeed, it is clear from the testimony of Mr. D'Alessandro, who was Mr. Marinaro's foreman on that job, that it was Mr. D'Alessandro who selected Mr. Marinaro for lay-off, on the basis that Mr. Marinaro was less productive than the other persons on his crew due to his propensity to leave the work area in order to temporarily escape the strong odour emitted by a nearby plant.

58. Having dealt with all of the referrals impugned by Mr. Marinaro, including four of the six referrals challenged by Mr. D'Alessandro, we shall now return to the two remaining referrals that are challenged only by Mr. D'Alessandro. The first of these is the Union's referral of Aldo Rocca to MHG-DB-Catalytic on October 18, 1982. Mr. Rocca had registered on the list as #670 ten days prior to that referral. At the time of Mr. Rocca's referral, Mr. D'Alessandro was #629 on the list, having registered on September 30, 1982. The Union has not provided any explanation as to why that referral was made out of sequence of registration. Although an isolated instance of an out-of-turn referral might not establish a prima facie case, the impugned referral is not an isolated instance, but rather is but one of several instances which have been found to involve contraventions of section 69 in respect of Mr. D'Alessandro. Having regard to all of the evidence, we are satisfied that in the absence of any explanation by the Union, it is reasonable to infer in the circumstances of this case that this out-of-turn referral is another in which Mr. Alessandro has been dealt with by the Union arbitrarily, discriminatorily, or in bad faith, in contravention of section 69.

59. The final referral challenged by Mr. D'Alessandro was that of Peter Vani to Foster Wheeler on September 15, 1983. As noted by counsel for the respondents in his written submissions to the Board, that referral is the only one of the many referrals challenged in these proceedings which involves the application of the following written hiring hall rules that, with the exception of rule #15, were adopted by the membership on May 12, 1983, after being placed before them by the Executive Board for "explanation, discussion and adoption, with or without amendment", pursuant to the Board's order in the Joe Portiss case (which order will be set forth later in this decision):

60. It is each member's responsibility to keep himself informed as to the availability of work through the Union Office and to ensure that the Union has accurate and up to date records of his address and telephone number where he can be reached for a job referral;

61. Members shall be entitled to be referred to jobs which are covered by the hiring hall clauses in the various collective agreements with or binding upon the Union in the order of their registration on the out-of-work list, save and except where otherwise provided by these Rules;

62. The Union will attempt to contact a member for up to a maximum of two hours for referral to a job. If the Union is not able to contact that member within such period of time, the member will be considered 'not available" and his name struck from the out-of-work list. A member who has been considered not available may, upon his request made in person, have his name placed on the bottom of the out-of-work list;

63. A member who refuses a job without just cause will have his name struck from the list and must wait seven (7) regular days before he is able to request that his name be placed on the bottom of the out-of-work list and such request must be made in person;

64. Job orders placed by Employers on the basis of classifications or skills set forth in the Union's various collective agreements will be treated specially by the business manager or his delegate in that the manager or his delegate will only refer members or prospective members possessing, to the best of the manager's or delegate's knowledge and belief, the specific classification or skill required by the Employer. Rules 3 and 4, above, shall not apply to such job orders placed on the basis of classifications or skills. It is each member's responsibility to see to it that his special skills cr classifications are registered next to his name at the time of placing his name on the out-of-work list. The business manager or his delegate may disallow any member's claim to possess skills or classifications if he is satisfied that the member does not truly hold such skills or classifications;

65. Subject to Rules 4 and 9, any member who is referred to a job(s) which lasts less than forty (40) accumulative hours will be placed back on the top of the out-of-work list in the event that he reports back to the Union office within twenty-four (24) hours from the time he worked at the job to which he was referred and satisfies the Union that such termination of employment was due to shortage of work;

66. Any member who cannot work due to illness or injury when called by the Union for a referral must provide the Union with a certificate from his physician verifying the reason why he cannot work. Before a member is eligible for a referral to employment, he must furnish the Union with a doctor's certificate verifying that he is now willing and able to work. After waiting seven (7) regular days, upon presentation of a doctor's certificate, the member will then be so referred to work by the Union or so soon thereafter as work becomes available;

67. A member accepting a job referral slip and then failing to report to work as directed without just cause will be considered as having quit the job;

68. A member who quits, requests lay-off or who is fired for just cause, regardless of the member's length of employment with that employer, will be subject to a seven (7) regular day waiting period before he can request the Union to place his name on the bottom of the out-of-work list and such request must be made in person;

69. The seven (7) day waiting periods referred to in Rules 4 and 9, above, shall only apply when there are less than 100 members registered on the out-of-work list;

70. A member who abuses the referral system by giving or selling his referral slip to another member or person will be disqualified from further job referrals for a period of at least three (3) months and may be subject to further disciplinary action as and when recommended by the Executive Board of the Union;

71. The business manager may grant variances, tolerances or exceptions from any of the specific provisions of these Rules if he is satisfied that the same is necessary to accomplish an object or purpose of the Union. By way of example, the business manager may refer a member or a prospective member to employment or move or transfer members from job to job in order to accomplish an object or purpose of the Union, without regard to whether such member is registered on the out-of-work list or to his position on such list;

72. A member who obtains a job referral slip by falsifying employment information will be disqualified from receiving job referral slips for a period of three (3) months and will be subject to disciplinary action as and when recommended by the Executive Board;

73. Unemployed elected officers of the Local Union may have preference for job referrals without regard to their position on the out-of-work list;

74. An unemployed member who is out of work for a period of at least twelve (12) months and who has exhausted his unemployment insurance benefits may receive preference for a job referral without regard to his position on the out-of-work list;

75. A member shall be entitled to recall by his employer to employment or to be name-hired by an employer in accordance with the terms of the applicable collective agreement without regard to his position on the out-of-work list;

76. Actions taken by the Union in pursuance to any provisions in any present or future applicable collective agreements shall supersede any of the above-mentioned Rules.

(Rule 15 was referred back to the Executive Board by the membership at that meeting.)

60. The evidence adduced before us in these proceedings indicates that in accordance with Rule 2, Mr. Vani, who registered on the list as #348 on February 21, 1983, was referred by the Union to Canadian Asbestos Covering on August 29, 1983 when his number came up on the list. Since that job lasted for less than forty hours, he was placed back at the top of the list pursuant to Rule 6, and was referred back to Canadian Asbestos Covering on September 7, 1983 when a further order for labourers was received by the Union from that employer. When he arrived at the job site, he refused the job (which involved bringing sixteen foot lengths of lumber to a carpenter) because he was experiencing back pains which prevented him from doing that work. When he returned to the Union hall, he was told that his name would be put at the bottom of the list unless he produced a medical certificate. Mr. Vani, who told the Board that he knew this to be "law of the Union" because it had been discussed at Union meetings, then went to his physician, Dr. A. W. Canning, who provided him with the following medical certificate:

To whom it may concern:

Re: Peter Vani.

This is to certify that the above patient has been under my care recently suffering from back pain and is unable to return to work until Sept. 9, 1983.

Mr. Vani then returned to the Union office with that certificate. Following a seven day waiting period, he was referred to Foster Wheeler on September 15, 1983, pursuant to Rule 7. The work which he performed at that location consisted of general cleanup and assisting a carpenter by carrying some 2 x 4's and other lumber. Having regard to all of the circumstances, we find that Mr. Vani's September 15, 1983 referral was made in accordance with the rules adopted by the membership on May 12, 1983, and did not involve any violation of section 69 of the Act.

61. In summary, we have concluded, for the reasons set forth above, that of the six referrals challenged by Mr. D'Alessandro, three involved contraventions of section 69 of the Act by the respondent trade union vis-a-vis Mr. D'Alessandro (namely, the referral of Gino lacobelli to Lumus on September 10, 1982, the referral of Aldo Rocca to MHG-DB-Catalytic on October 18, 1982, and the referral of Clemente Cicchini to SNC-Foster Wheeler on March 25, 1983). To remedy those violations, the Union will be directed to compensate Mr. D'Alessandro for the wages and benefits which he lost as a result of those contraventions of the Act. The quantification of those losses must, of course, take into account various contingencies, including the likelihood of Mr. D'Alessandro refusing one or more of those referrals, or being physically unable to perform the work in the event that he accepted one or more of the referrals. 62. As indicated earlier in this decision, in Joe Portiss, [1983] OLRB Rep. July 1160, another panel of the Board found that the Union had engaged in arbitrary and discriminatory referrals to employment in the administration of its hiring hall contrary to section 69 of the Act, and granted a broad remedial order, which included the following relief:

(3) Local 1089 and its officers shall cease forthwith from the administration of the hiring hall's out of work list in any way that is arbitrary, discriminatory or in bad faith.

(4) The executive committee of Local 1089 shall forthwith prepare a written list of hiring hall rules. Such list of rules shall be presented for explanation, discussion and adoption, with or without amendment, by the general membership of Local 1089 within 90 days of the date of this order.

(5) A copy of the hiring hall rules so adopted, as amended from time to time, shall be permanently posted in the hiring hall and a copy of the rules, as amended from time to time, shall be provided to each member within 10 days of their approval by the general membership.

(6) At the next general meeting of the Local a committee on classifications, comprising no less than five members elected from the general membership, shall be established. It shall, within ninety days thereafter, recommend to the general membership a list of specialized job classifications as well as rules governing the determination of qualifications for registration on the out of work list under such classifications. It shall also recommend procedures for applications by members for admission to the classifications established. The classifications, standards and procedures so recommended shall be adopted, with or without amendment, by the general membership. The classifications, standards and procedures so approved shall be permanently posted in the hiring hall and copies, as amended from time to time, shall be provided to each member of Local 1(189.

(7) The respondent Local 1089 and the complainant shall, within 30 days of this order, meet and agree upon the selection of a person or firm licensed under the Public Accountancy Act or a firm whose partners are licensed under the Act. The person or firm agreed upon shall not be from Sarnia and shall not have any other contractual relation with Local 1089 or any other local of the Labourers International Union of North America. The auditor so selected shall, at the expense of Local 1089, be retained for a period of two years to audit, on a periodic basis, the administration of the hiring hall rules and procedures, including job referrals. The auditor shall be given full access to all hiring hall documents maintained by Local 1089, as well as to such other sources of information as may be necessary for the purposes of the audit. The auditor shall report to each regularly scheduled meeting of the general membership, and be available to answer the questions of members respecting any matter relating to the administration of the hiring hall list and job referrals. In the event that the parties are unable to agree on the selection of an auditor they shall, within 45 days of the date of this order, each submit three names proposed by them to this Board and the Board shall then select an auditor from among the names submitted.

(8) Copies of the out of work list, with entries of all referrals, shall be posted in the hiring hall in a clear and legible manner. A companion list of employer requests for referrals shall also be posted, including entries of members who are referred under each request. The two lists shall be so maintained and revised from time to time as to allow all members to know their place and the place of others in the order of the list and to be aware of all referrals, including the dates of referrals, the employer to whom a member is referred and, where applicable, any special classification of employee requested or dispatched.

(9) Within 90 days of the date of this order, the executive committee of Local 1089 shall make recommendations to the general membership for the establishment of a list of injured or partially disabled members with a view to devising a system for the referral of such members, without penalty or discrimination, to jobs which they are reasonably able to perform. Any rules adopted in relation to those recommendations shall be posted in the hiring hall and copies of the rules, as amended from time to time, shall be provided to each member of Local 1089.

(10) The respondent Local 1089 of the Labourers' International Union of North America shall post forthwith copies, in English and Italian, of the attached notice marked 'Appendix", duly signed by its business agent, in conspicuous places at its hiring ball in Sarnia, including all places where notices to members are customarily posted, and shall keep these notices posted for 90 consecutive working days. Reasonable steps shall be taken by the respondent to insure that the said notices are not altered, defaced or covered by any other material.

(11) Copies of the Constitution and By-Laws of Local 1089 and of the Labourers' International Union of North America shall be made available, at no cost, to all members requesting copies of same at the union's hiring hall.

Copies of the Constitution and By-laws shall be kept at the hiring hall in sufficient numbers to satisfy such reasonable requests for copies as are made by members from time to time.

(12) The respondent shall forthwith compensate the complainant, Joe Portiss, for all wages and benefits lost as a result of its violation of section 69 of the Labour Relations Act.

63. The evidence adduced before us indicates that, for the most part, that order has removed the veil of secrecy under which the hiring hall formerly operated, and has created a situation in which the membership have access to the hiring hall rules and other pertinent information concerning the manner in which the hiring hall is being operated by Local 1089. Moreover, there is no evidence that the Union's hiring hall has been operated in a manner which contravenes section 69 of the Act at any time following the issuance of that order.

64. The relief requested by the complainants initially included the removal of Rocco D'Andrea from the position of Business Manager of the Local. However, by letter dated June 13, 1985, counsel advised the Board that this claim for relief had been eliminated, as Mr. D'Andrea had been defeated in the Local's June 5, 1985 election. (We do not find it necessary or appropriate to comment on the other matters referred to in that letter.)

65. Counsel for the complainants has asked the Board to award costs to his clients. That request was opposed by respondents' counsel, who noted that his clients were not asking for costs in the event that the complaint was dismissed. In rejecting a similar request by a complainant in Silknit Limited, [1983] OLRB Rep. Nov. 1913, the Board wrote, in part, as follows:

66. We are not entirely unsympathetic to the complainant's concern, for we recognize that a party may well have to expend substantial sums in connection with proceedings under the Labour Relations Act. Moreover, there is something to be said for the argument that if one can obtain costs upon the vindication of private law rights, the measure of compensation for the successful assertion of public rights guaranteed by statute should be no less generous. However, there are a number of difficulties with this superficially attractive proposition. In the first place, costs are not dealt with explicitly in the statute, with the result that it is arguable that the Board has no jurisdiction to award costs except as a part of the compensation award flowing from a finding of a statutory violation. Thus, there may be no authority to compensate a party respondent which has successfully resisted or defended against a claim. And how should one deal with a situation in which, from a practical or legal stand point, success is divided? The law of costs in the civil process is both technical and complex, and there are good policy reasons why it should not be readily imported into a law of collective bargaining which has survived without it for forty years and which the laymen who operate within the system and regularly appear before the Board have some difficulty understanding as it is. Finally, while it is tempting to suggest that flagrant or egregious violations of the statute should result in a 'make whole" remedy in which the aggrieved party is compensated for the costs of the proceedings, it is much less clear how one would distinguish an 'ordinary" violation of the statute from a "flagrant" one or a frivolous assertion from one which is arguable but ultimately rejected. It is one thing to suggest that a serious breach of the Labour Relations Act may trigger special remedial considerations or call for ingenuity in fashioning the appropriate remedy; it is quite another to suggest that an "ordinary" breach of the Act yields one level of compensation while a "serious" one warrants a higher level of compensation. Such an approach would begin to look 'penal" rather than "compensatory" (and see sections 96 - 99 of the Act which are expressly penal in character).

See also John Glykis, [19851 OLRB Rep. March 420; Comstock Funeral Home, [1981] OLRB Rep. Dcc. 1755; and Radio Shack, [1979] OLRB Rep. Dec. 1220, at page 1271. In addition to the compelling policy reasons set forth in those decisions for not awarding costs in respect of complaints under section 89 of the Act, the complainants' mixed success in the present case also militates against an award of costs.

66. For the foregoing reasons, the Board finds that the complainants have been dealt with by the respondent trade union contrary to section 69 of the Act, and hereby orders the respondent trade union to compensate the complainants for their respective wage and benefit losses.

67. The Board remains seized for the purpose of dealing with any issues which may arise concerning the quantification of that order.