Ontario Labour Relations Board

[1985] OLRB Rep. January 14

0623-84-U Thomas Beck, Complainant, v. The United Association of Journey­men and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, Respondent

BEFORE: Harry Freedman, Vice-Chairman, and Board Members F. C. Burnet and R. Wilson.

APPEARANCES: Tom Beck on his own behalf Bryan D. Hacket, and Sean O'Ryan for the respondent.

DECISION OF THE BOARD; January 9, 1985

2. This is a complaint filed under section 89 of the Labour Relations Act alleging a violation of sections 68 and 69 of the Act. At the opening of the hearing the complainant withdrew that portion of his complaint alleging a violation of section 68 and elected to proceed only with the complaint alleging a violation of section 69.

3. The evidence before the Board in this matter was adduced through the testimony of Debbie Ratcliffe, the dispatcher employed by the respondent in its hiring hall, and Sean O'Ryan, the business manager of the respondent. The complainant chose not to give evidence in this proceeding. The evidence relating to the material facts relevant to the complaint was clear and uncontradicted. The Board notes that although the complainant attempted to raise some doubts about the veracity of the evidence explaining some of the respondent's conduct through his examination-in-chief and re-examination of Ms. Ratcliffe, a witness whom he had summoned, and the cross-examination of Mr. O'Ryan, the Board accepts without hesitation the evidence given by those two witnesses, particularly in the absence of any evidence adduced by the complainant to contradict or explain the testimony of Ms. Ratcliffe or Mr. O'Ryan.

4. The respondent operates a hiring hall pursuant to several different collective agree­ments relating to various sectors of the construction industry and industrial maintenance industry. Under some of those collective agreements, the hiring by employers is done entirely by way of dispatch from the respondent's hiring hall. Under the other agreements, and in particular, under the provincial agreement relating to the industrial, commercial and institutional sector of the construction industry, an employer is free to select the union members it wishes to hire, so long as those members obtain referral slips from the respondent. The respondent's members are free to solicit employers for work, provided they obtain a referral slip from the respondent before commencing work. The respondent will also dispatch its members to jobs with employers bound by the provincial agreement for work in the industrial, commercial and institutional sector of the construction industry if such an employer calls the respondent's hiring hall for employees.

5. A register or out-of-work list is kept of unemployed members of the respondent who are listed in one of three classifications; steamfitter, plumber or welder. When a member's employment is terminated, he can register with the hiring hall. When a member is referred to a job, his name is removed from the register. However, there is a 30 day rule under which a member who is referred to a job of less than 30 working days' duration does not lose his place on the list. Only the number of days actually worked by that member is added to his date of registration on the out-of-work list. The member's date of registration with the hiring hall determines the member's place on the out-of-work list.

6. The dispatcher maintains a work record card for each member of the respondent registered on the out-of-work list. (See exhibit #5.) The dispatcher records the details of a member's employment on that card. The cards are kept in the order that the members are ranked on the out-of-work list. A duplicate set of cards are kept in the same order locked under glass so that members coming to the hiring hall can determine their ranking on the list. Daily, the dispatcher also posts a chart showing the details of hiring of the respondent's members. The chart lists the name of the member, the member's classification, the contractor, the job location, the name of the project and whether the job was obtained either by the member through direct contact between the employer and member or by dispatch from the hiring hall. (See exhibits #4 and #6.)

7. If a contractor calls the hiring hall for employees, the dispatcher attempts to contact the members in the order that they are ranked on the out-of-work list. Any call the dispatcher makes to a member is recorded on the member's work record card. A member may refuse to accept a referral from the hiring hall without losing his place on the list. A member may also inspect his own work record card on request.

8. The complainant does not challenge the general hiring hall procedures used by the respondent. Rather he alleges that the respondent violated section 69 of the Labour Relations Act by the way it dealt with a request for employees by Baragar Mechanical Installation to work on a job at the Consumers Glass plant on Kipling Ave. in Metropolitan Toronto on Thursday, May 24, 1984.

9. On Wednesday, May 23, 1984, an explosion occurred at the Consumers Glass plant on Kipling Ave. at approximately 2:30 p.m. The respondent had been advised at a later date by Howard Hanford, the President of Baragar Mechanical Installation that the explosion had put the plant out of production and had caused the lay-off of approximately 600 employees of Consumers Glass. Baragar Mechanical Installation had been working in that plant prior to the explosion. Between 3 and 3:30 p.m. that Wednesday afternoon, Consumers Glass had asked Baragar Mechanical Installation to begin repair work as soon as possible. As a result of that request, Baragar Mechanical Installation began contacting members of the respondent that it knew in order to hire them for this repair work. Other members of the respondent who heard about the Baragar Mechanical Installation job, presumably from people that had already been contacted, began calling Barager Mechanical Installation directly, for employment.

10. The job at Consumers Glass required two 12-hour shifts with 10 employees on each shift. The first shift began working the evening of Wednesday, May 23, 1984. Apparently, Baragar Mechanical Installation had transferred some of its own employees, who were members of the respondent, from other jobs to the Consumers Glass job. The respondent's members hired at that time did not immediately obtain referral slips from the respondent before commencing work because of the hiring hall's hours of operation. Ms. Ratcliffe found out on Thursday morning, May 24 that one or two members had commenced working for Baragar Mechanical Installation at the Consumers Glass job without a referral slip. Also on that morning, Mr. Hanford called the hiring hall and requested that twelve pipefitters and one welder be dispatched to the Consumers Glass job as soon as possible. Later that morning, he called to cancel the order because he had been able to fill his requirements by directly hiring members of the respondent who had solicited their own jobs with Baragar Mechanical Installations. However, between the first and second call to the hiring hall from Mr. Hanford, Ms. Ratcliffe had contacted three members, including the complainant, who at the time of the second telephone call were either on their way to the job or on their way to the hiring hall to pick up a referral slip. Ms. Ratcliffe informed Mr. Hanford of this and as a result, Baragar Mechanical Installation agreed to increase its complement by three additional people.

11. Ms. Ratcliffe had advised all three members whom she dispatched to the Baragar Mechanical Installation job at Consumers Glass, including the complainant, that the job was urgent and that they had to be on the job by noon. The complainant had told her on the phone that he would make his own arrangements with Baragar Mechanical Installations. The complainant picked up his referral slip at the hiring hall at approximately 11:00 a.m. but did not arrive at the Consumers Glass job until approximately 4 p.m. that afternoon. Mr. Hanford refused to hire the complainant for the day shift because he was too late, and the job had been filled by another member of the respondent. The complainant was permitted to wait to see if any person who had been hired for the evening shift failed to appear, but everyone who had been hired arrived for work for that evening shift.

12. A grievance was later filed and referred to arbitration before a different panel of this Board by the respondent relating to the complainant's attempt to be hired on that day. That decision (Board File No. 0857-84-M, October 11, 1984, unreported, which was filed by the respondent with this panel of the Board) outlines in greater detail the circumstances of the refusal of Baragar Mechanical Installation to hire the complainant on May 24, 1984.

13. Baragar Mechanical Installation had hired twenty-one of the respondent's members for the Consumers Glass job, and of those twenty-one, seven did not have referral slips from the respondent when they were hired. Referral slips were issued by the respondent to those members subsequently on May 25, 1984. On that day, Mr. Hanford called the respondent and advised it of the names of all of the respondent's members who had been hired to work for Baragar Mechanical Installation on the Consumers Glass job.

14. Working rule 2 of the respondent's hiring hall rules (exhibit #1) provides:

There shall be a form known as a "work referral slip." This to be issued by the Local Union to members when they have secured a job, either through the Local Union office or their own solicitation.

No one may start work prior to picking up a work slip.

Slips may be picked up at the office between the hours of 7:30 a.m. and 4:00 p.m.

Working rule 2 is complemented by article 101 of the provincial agreement, (exhibit #2) section 101.1, which provides:

The Contractor agrees to give preference in employment to Members of the Union having jurisdiction over the area where the work is being performed. Such Member shall have his Certificate of Qualification for the trade required, and shall present to the Contractor a Work Referral Slip issued to him by the Union.

Furthermore, paragraph 16 of by-law 4 of the respondent's by-laws (exhibit #3) states:

No member of Local Union 46, or member of the United Association working within the jurisdiction of Local Union 46, shall take up employment with any contractor except in accordance with the hiring procedures established by Local Union 46, under powers granted in this or other By-Laws of Local Union 46.

15. The respondent has, on occasion, permitted its members to commence employment without first picking up a referral slip, particularly where the job site is isolated, such as a pipeline job, and the members must travel a long distance to get the referral slip. On those occasions the referral slips have been mailed to the members. Also, the respondent has not required a member to obtain a referral slip before starting work on a job if that job is located in the western part of the respondent's geographic jurisdiction, and the member referred to that job lives in the vicinity of the job. In those cases members' referral slips have been sent with another of the respondent's members working on that job who has picked up the referral slips at the respondent's hiring hall, which is located in Scarborough.

16. The Board was advised that the respondent will always issue a referral slip to any member who obtains a job with an employer bound by the provincial agreement through direct solicitation, unless a "hold" is placed on that job by respondent. At the time relevant to this complaint, May 24 and May 25, no hold had been put on the Baragar Mechanical Installation job at Consumers Glass.

17. The complainant had also received a letter from a business representative of the respondent, which purported to advise Baragar Mechanical Installation that the complainant had been appointed the job steward. (See exhibit #7.) Baragar Mechanical Installation refused to recognize the complainant as a job steward since he was not its employee. Mr. O'Ryan explained that the complainant could not be the steward on that job since he had not been hired by Baragar Mechanical Installation and therefore was not an employee. Mr. O'Ryan referred to the provincial agreement which, in his view, required that a job steward be an employee. He specifically directed the Board to article 103 of the provincial agreement, section 103.1, which provides:

Where, in the opinion of the Union, a Job Steward is required, the Business Manager or his representative shall make such appointment from among the Contractor's employees who are qualified journeymen and if possible one in possession of a 'Class A' Safety Certificate from the Construction Safety Association of Ontario.

[emphasis added]

18. Mr. O'Ryan testified that he thought it was in the best interests of the entire membership of the respondent to secure employment for as many of its members as quickly as possible. Mr. O'Ryan said that in the unusual and emergency circumstances of the Baragar Mechanical Installation job at Consumers Glass, strict compliance with the referral slip requirements in the hiring hall rules and provincial agreement might well have prevented the necessary number of people from getting to work quickly. He felt that strict adherence to those requirements could have jeopardized the ability of Baragar Mechanical Installation to perform the job required for Consumers Glass. Mr. O'Ryan said he was concerned that if Consumers Glass formed the opinion that a contractor in a collective bargaining relationship with the respondent could not act promptly to deal with an emergency because of union rules requiring referral slips before work could commence, all of the plant maintenance and repair work for Consumers Glass might go to either non-union contractors or be performed directly by employees of Consumers Glass.

19. Mr. Beck's complaint of a violation of section 69 is based on the respondent permitting some of its members to be hired by Baragar Mechanical Installation without a referral slip, contrary to the union's hiring hall rules and by-laws, and also by not actively attempting to secure his employment with Baragar Mechanical Installation since he was appointed job steward. He argued that the respondent discriminated against him because, in the past, when stewards have been laid off and not re-hired by an employer, the union has put a "hold" on referral slips for that employer until the steward is hired.

20. Dealing with the second point first, the provincial agreement binding on the respondent and Baragar Mechanical Installation provides the complete answer to that element of this complaint. The complainant was not an employee when the letter appointing him steward was issued. Therefore, under the provincial agreement, he could not be a job steward until he became employed by Baragar Mechanical Installation. Nor was the complainant a steward who was laid off, thus clearly distinguishing the complainant's case from the ones that the complainant had referred to as evidence of discrimination. In our view, the evidence in this case did not even disclose a hint of discrimination against the complainant by the respondent not putting a hold on referral slips to Baragar Mechanical Installations to compel the hiring of the complainant.

21. As for the first element of this complaint, the complainant contends that he would have been hired if he had not gone to the hiring hall for a referral slip, but instead had gone directly to the job. He submitted that it was possible that another member took the complainant's job since that other member went to the job before the complainant did because that other member did not get a referral slip from the respondent before being hired while the complainant stopped at the hiring hall to pick up his referral slip. The complainant argues that the business manager of the respondent acted arbitrarily in violation of section 69 of the Labour Relations Act by deliberately violating the hiring hall rules and union by-laws as they relate to referral slips by permitting members to be hired without referral slips and then subsequently issuing referral slips to them and that such arbitrary conduct resulted in the complainant not being employed by Baragar Mechanical Installation for the duration of the Consumers Glass job.

22. The role of the Board in assessing the merits of a complaint alleging a violation of section 69 is to decide whether a union which is subject to that section acted in a manner that is arbitrary, discriminatory or in bad faith. In making that decision, the Board may have to ascertain whether certain hiring hall rules or union by-laws have been violated. However, it is not the function of the Board to determine whether there has been a violation of a union's rules or by-laws. A. J. Roberts, [1974] OLRB Rep. March 169 at 172; Ontario Hydro, [1980] OLRB Rep. July 1039 at 1043; Frank Manoni, [1981] OLRB Rep. Dec. 1775 at 1781-82. It need only do so where that determination will be relevant to the issue of whether the respondent's conduct was arbitrary, discriminatory or in bad faith. (See Dufferin Concrete Products, [1983] OLRB Rep. Dec. 2014 at 2023.)

23. The complainant argues that the respondent's business manager had no authority to waive the strict requirements of the hiring hall rules or by-laws, and further that such authority could only come from a new by-law passed by the membership. In our view, whether the business manager did have the actual authority under the respondent's constitution, by-laws or hiring hall rules to do what he did is not the issue. Mr. O'Ryan clearly thought he did have the authority to decide to exercise some discretion in applying the hiring hall rules, and acted in a way which he thought would benefit the respondent and its membership. Indeed, there had previously been waivers of the referral slip requirement and there was no evidence put before the Board to suggest that such conduct had been challenged as being in violation of the laws of the respondent.

24. The Board faced a similar type of argument in Rupert S. Martin, [1977] OLRB Rep. Oct. 671 at 675:

If under the respondent's constitution or bylaws the decision made by Mr. Morris should in fact have been made by some other person or body (and the Board would note that there is no evidence before it to this effect) then it was always open for the complainant, as a union member, to seek to ensure that the constitution or bylaws were being adhered to either by going through the internal process of the union or possibly by taking the matter into the Courts. While this Board has the authority under the Act to determine whether or not a union has violated its duty under section 60a [now 69], it does not have the authority to police union constitutions and bylaws. This is not to say, however, that where a union's constitution or bylaws have been deliberately flouted or where certain steps have been taken notwithstanding a challenge that they might be in violation of the constitution or bylaws, that those actions might not be a relevant factor in determining whether or not a breach of section 60a has occurred. Mr. Mor­ris' actions in this case clearly did not come within this class of conduct.

[emphasis added]

We are satisfied that Mr. O'Ryan had a reasonable basis for thinking that he had the authority to decide to exercise some discretion in strictly applying the hiring hall rules of the respondent in the unusual circumstances of May 23 and May 24, 1984. The constitution of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (exhibit #8) provides in section 104 that it is "the solemn duty and obligation" of the business manager of a Local Union "to. .. foster and promote employment for members of the Local Union." If Mr. O'Ryan had reasonable grounds to believe that deciding to exercise some discretion in the circumstances confronting the respondent on May 23 and 24, 1984 was fulfilling the duty or discharging the obligations that a business manager of a Local Union has under the Union's constitution, it cannot be said that the “ … union's constitution or bylaws have been deliberately flouted …". The explanation he provided to the Board satisfies us that he did have reasonable grounds to believe that he was discharging his obligations under the constitution to "foster and promote employment" for members of the respondent.

25. The Board has also commented on a situation somewhat analagous to the facts of this complaint where the strict rules of the union's hiring hall were not adhered to due to the exercise of discretion in the application of those rules by officials of the union. In John Cooper, [1984] OLRB Rep. Jan. 6 the Board discussed its earlier decision in Richard Boon and Labourers International Union of North America, Local 247, Board File No. 2393-81-U; decision dated Sept. 21, 1982, unreported, in the following terms at page 16 — 18:

13. It is clear that the operation of any hiring hall is a complicated matter and undoubtedly must involve various levels of discretion. Presumably a hiring hall is operated correctly if that discretion is exercised in a manner which is demonstrably for the benefit of the members of the union. As a consequence, unions frequently make specific rules concerning the operation of the hiring hall and, indeed, the respondent local trade union has in fact formally set out the informal rules which had governed the operation of its hiring hall. Although these rules have been set out in the by-law, it is clear that they nevertheless involve the use of discretion. That discretion, however, cannot be exercised in a manner contrary to section 69 of the Act. However, the mere exercise of discretion does not in of itself constitute a violation of section 69. What gives rise to a complaint under section 69 is the manner in which the discretion is exercised. …

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

26. In our view the Board's comments in those cases are equally applicable here. The respondent was faced with a situation which required prompt action. The referral slip requirement set out in the hiring hall rules was not strictly adhered to, but the necessary referral slips were subsequently issued on Mr. O'Ryan's direction. The respondent had also in the past, in special circumstances, not required members to have their referral slips in hand before being hired. We believe that the respondent, rather than acting arbitrarily or in bad faith, or in a discriminatory manner, acted responsibly in a situation which required some flexibility in order to ensure that its members could promptly start work and perhaps more importantly, to demonstrate to the client of Baragar Mechanical Installation that a "union contractor" could act quickly to deal with emergency situations in the hope that future work for Consumers Glass would go to employers who are in a collective bargaining relationship with the respondent.

27. We are also of the view that not only did the respondent not act contrary to the Labour Relations Act, the complainant was the author of his own misfortune. He did not testify as to why he arrived at the job some four hours after the time he was told he was to start. During the course of the hearing, his questioning of the witnesses alluded to some possible circumstances that might have explained his delay, such as waiting for the letter appointing him steward to be typed, but he did not come forward to give any evidence of an explanation.

28. Additionally, there was no specific evidence that the actual job for which the complainant was referred was filled by another member who did not have a referral slip. While it was possible that the job to which the complainant was going was taken by another member who had been hired without first obtaining a referral slip, in our view the evidence suggests that it is more probable that Baragar Mechanical Installation filled that particular job with a member of the respondent who had already picked up a referral slip or was already employed by Baragar Mechanical Installation, bearing in mind that only one-third of the employees hired by Baragar Mechanical Installation did not have a referral slip before they started work. Therefore, we are not persuaded that the job to which the complainant had been referred was filled by someone who had not obtained a referral slip before being hired.

29. In our opinion, the respondent's appreciation in this case of the potential harmful consequences that could have resulted by a strict and technical application of the hiring hall rules was far from arbitrary. We have expressly not determined whether the respondent's actions were contrary to the hiring hall rules, or whether Mr. O'Ryan violated any of the union s laws. However, we are satisfied that whether or not those rules or laws were violated, the respondent did not act in bad faith, nor did it act in a manner that was either arbitrary or discriminatory.

30. For the foregoing reasons, this complaint is hereby dismissed.