[1985] OLRB Rep. February 313
2390-84-U Rudy Piluso, Complainant, v. Executive Committee of United Brotherhood of Carpenters and Joiners of America Local 38, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman.
APPEARANCES: John DiFiore and Rudy Piluso for the complainant; David McKee, Fern Fulham and Doug Putman for the respondent.
DECISION OF THE BOARD; February 1, 1985
- This is a complaint filed under section 89 of the Labour Relations Act, alleging that the complainant has been dealt with by his trade union contrary to the provisions of section 69 of the Act. Section 69 provides:
"Where, pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith."
The essence of this complaint is that the hiring rules of the Local were strictly applied to the complainant but not to other members of the Local. In particular, the complainant complains that when violations of the hiring rules were brought to the attention of the Local Executive, no effort was made to exact the full measure of punishment provided under the Local's by-laws, being the removal of the offending employee from the job. Following receipt of the evidence and the submissions of the parties, the Board issued orally its reasons for dismissing the complaint.
The Board is readily satisfied on the evidence that, whatever else might be said with respect to the decisions of the trade union's officers to act, or not to act, with respect to the enforcement of the Hiring Hall rules, none of those decisions were taken for the purpose of benefiting specific individuals over the complainant, or causing the complainant to suffer loss. The facts as they have evolved, however, have produced a situation of inequity, particularly for the complainant as one individual, and accordingly, it is important that the Board be satisfied that the respondent, however much good faith may have accompanied its actions, did not act tn a manner that was "arbitrary", within the meaning of section 69.
It is important to note at the outset that the case essentially involves a failure to act, on the part of the respondent trade union, that is, a failure to take all of the steps available to it to enforce certain rules set out in its by-laws with respect to the hiring of its members. There are, apart from this question, only two cases cited before the Board of the deliberate issuance of a referral slip by responsible officers of the respondent, in circumstances that arguably might not have justified it. One such case was in respect of Mr. Bell, but I do not find on the evidence that the understanding that he was engaged previously in industrial, commercial and institutional work, as opposed to what in fact turned out to be part of the N.E.E.D. program, was so implausible or obviously incorrect as to support an inference of arbitrariness on the part of the trade union, when it authorized the issuance of a referral slip for Mr. Bell's recall. The other case is the deliberate decision to treat the last day that Mr. Bert Loiselle was paid but did not work because of an injury not to be "hours worked" for the purpose of the 60-hour rule. That interpretation of the rule was at least "arguable", and given the compassionate circumstances surrounding Mr. Loiselle's case, we do not find the union executive to have acted in an arbitrary manner in this instance either. As Mr. Loiselle is a distant cousin of the President, Mr. Fulbam, Mr. Fulbam might have been better advised to leave the discussion of Mr. Loiselle's case to someone else. But time was of the essence, as the company wished its requisition to be filled immediately, and I find Mr. Fulbam's handling of the matter to have been, if anything, a political error in judgment, rather than an indication of a violation of the Act. There is no question but that Mr. Piluso acted properly in raising the legality of his accepting on his own the job of "foreman" with Piggott Construction in June, and that Mr. Fulham acted properly in advising Mr. Piluso that the unemployed list had to be followed. The only question is whether the subsequent assignment of Mr. Loiselle to that job was a deliberate violation of the rules, in contrast to the response given to Mr. Piluso, and I find that it was not.
As indicated, the problem raised with respect to the union's conduct was its failure to initiate the steps necessary to enforce the hiring by-law in full, and in that context I find it critical to recognize that the situation which Mr. Fulham was faced with was not a fresh one. Rather, I am satisfied from the evidence that the wide scale breach of the hiring by-laws, by members obtaining work from contractors on their own and not informing the union at all, had been going on for some time. I am also satisfied from the evidence that the members of the executive, and not just Mr. Piluso, demonstrated a concern over the existence of such "cheating". I note, for example, that Mr. Piluso and others were authorized to incur expenses on behalf of the local union in seeking to verify the names of members currently engaging in such improper conduct. Given the difficulties in tracking such employees, and the numbers involved, together with the number of potential "defences" to a charge which the union was required to investigate, I do not find the delay in the matter being brought to a head to have been unreasonable in this case. Nor do I find the grounds upon which Mr. Fulbam and the other members of the executive present at the final executive meeting decided to exact only the $10.00 fine provided for under the by-laws, and to issue each violator, and each contractor involved, a letter of warning, to be so unreasonable as to support a charge of arbitrariness. Again, the longstanding nature of the practice was a critical consideration, and I find that Mr. Fulham was not unreasonable in his concern, apart from the time and cost of investigating each circumstance, that he might be faced with a kind of "estoppel" argument from both employers and employees alike in seeking to grieve or exact the full penalty under the by-laws without any form of advance notice. The evidence also is that any employee who is caught and has to be warned twice for such violation of the by-laws becomes subject to having his membership removed from him. In light of that evidence, I do not find the decision to fine the member and issue a warning letter, rather than remove the offending member from the job, to have been simply a frivolous gesture. Rather, I find it to have a been within the bounds of reason for the trade union to have stopped short of seeking to exact the full penalties available under the by-laws, on the very first occasion on which it was taking significant steps to rectify the current practice. I would feel more comfortable with that final decision had it been deferred until a meeting at which Mr. Piluso, whose interest in the matter had been obviously demonstrated, could have been in attendance, but I do not find that the holding of the meeting without him was done deliberately, and his views were well known and not likely to have added a significantly different element to those factors upon which a quorum of the executive unanimously made their decision. My real concern is that the hiring system be made to apply and work uniformly as quickly as possible into the future, so as to insure that the good, honest men, like the complainant Mr. Piluso, and like the President, Mr. Fulbam himself (who also turned down a job improperly offered by a contractor) are not the ones who suffer. For that reason I have been troubled by the possibility of the present "transition" period being allowed to continue without any fixed termination point.
My concern has, however, been satisfied by the undertaking given by the respondent to the Board at the conclusion of closing argument, and I now note that undertaking fully on the record. The respondent trade union undertook:
- to instruct its counsel to draft a letter to be sent to all members of Local
38 in connection with the abuse of the hiring rules;
to send a similar letter of warning to all local contractors and any contractor who has made remittances to the administrator of the union's trust fund within the past three years;
to exact the full penalty for any violation of section 28 of the by-laws (the Hiring Rules) except as modified by any collective agreement to which the local is a party, or any duly enacted motion at a membership meeting; and
to file a grievance and if necessary proceed to arbitration for a violation of the hiring provisions in any collective agreement to which Local 38 is a party.
With respect to the two letters referred to in paragraphs 1 and 2 above, the respondent undertook to submit its proposed text for those letters to the complainant's counsel for approval, and failing such approval, to allow this matter to be reopened so that the Board may resolve any dispute over the text of the letters.
- On the basis of the foregoing, the complaint is dismissed.