Donald Vasseur v. Labourers' International Union of North America, Local 1059, 1985 CanLII 940

3021-84-U Donald Vasseur, Complainant, v. Labourers' International Union of North America, Local 1059, Respondent

BEFORE: Paula Knopf, Vice-Chairman.

APPEARANCES: David J. Ashford for the complainant; David Strang, Ken Sawyer, Manuel Reis, Jose Alves and Tom Connelly for the respondent.

DECISION OF THE BOARD; April 18, 1985

I. The name of the respondent is amended to read Labourers' International Union of North America, Local 1059.

2. This is a complaint under section 89 of the Labour Relations Act alleging a violation of section 69 of the Act. The basis of the complaint is that the union violated its by-laws and the Act by effectively preventing the complainant from being name hired on a pipeline construction project.

3. At the opening of the proceedings, the respondent raised two preliminary objections to the complaint. First, it was submitted that the complaint was untimely and should be dismissed. It was argued that the events which gave rise to the complaint all occurred in the latter part of June and early July of 1984. The project in question was completed in September of 1984 and the contractor, Majestic Contractors Limited (Majestic), has since left the province and returned to Edmonton, Alberta. The complaint itself was not filed until February 11, 1985. The particulars of the complaint referred to people affiliated with Majestic. Therefore, counsel for the respondent voiced concern about being prejudiced by the respondent's inability to obtain witnesses at this time from Majestic to assist in the respondent's defense. The respondent referred the Board to the case of Luciano D 'Alessandro, [1983] OLRB Rep. Oct. 1699.

4. In response, the complainant testified that his delay in processing his complaint arose because of the time it took him to process his application for legal aid in London, Ontario and to retain counsel. These delays were due partly to the complainant's absence from London while on a job in Sudbury and partly due to the procedures of Legal Aid itself. Counsel for the complainant also stated that the complainant's case would not in any way be based upon statements made by agents or principals of Majestic.

5. The respondent's second preliminary objection was that the complainant had not raised a prima facie case in his complaint because the materials filed did not allege that any other person was improperly hired over the complainant, that the complainant had secured a name hire request from Majestic that had been denied, or that the union had ever arbitrarily, discriminatorily or in bad faith frustrated the complainant's attempts to get a job with Majestic. The respondent submitted that the complainant's case at its highest could only raise a suggestion of a breach of the union by-laws and that that would not amount to a breach of section 69 of the Act. The Board was referred to the case of Thomas Beck, [1985] OLRB Rep. Jan. 14.

6. The Board reserved ruling on the issues of timeliness and the prima facie case and heard the evidence of the complainant on the merits of the claim because of a lack of details and clarity in the complaint that was filed and in order to properly assess the substance of the respondent's objections. Thus, the complainant was called to the stand to testify and was cross-examined thoroughly. No other witnesses were called in support of the complainant's case. After hearing the testimony of the complainant, the Board was able to rule on the preliminary objections. On the issue of timeliness, the Board was mindful of the oft quoted criteria set out in the Corporation of the City of Mississauga, [1982] OLRB Rep. March 420 at paragraph 22:

A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it: when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who arc unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.

In this case, it was apparent from the complainant's testimony that he was not relying upon any statements or conduct of the associates of the contractor Majestic. The union did not submit that a representative of Majestic would be crucial to their defense after hearing the complainant testify.

Therefore, the issue of prejudice was resolved by the evidence which made it clear that in this particular case, the unavailability of Majestic would not prejudice the union. Further, the period of delay was satisfactorily explained to the Board. Thus, this was not an appropriate case to bar the complaint on the basis of the time of its filing. However, a delay such as this would be a relevant factor in the question of remedy, should the complaint succeed.

7. On the preliminary issue of whether the complaint disclosed a prima facie case, the Board ruled that a prima facie case had been raised. The union then elected to call evidence in response. The merits of the case shall be discussed in detail below and so there is no need to deal further with this objection.

8. The facts giving rise to the complaint are relatively clear and uncontradicted. The union adopted a set of by-laws in the spring of 1983 to deal with its responsibilities with regard to the running of its hiring hall. The by-laws which are relevant to these proceedings are:

3.01 Local 1059 shall maintain two hiring hall lists as follows:

(ii) Southern List - covering Local 1059 jurisdictional area south of a line drawn from and excluding the Town of Goderich to and excluding the Town of Palmerston.

3.03 On jobs within the jurisdictional area governed by the Southern List, where collective agreements require members to be referred from the Local 1059 Union Office, Work Referral Permits shall be issued on the basis of a single name request from the Members listed on the Southern List followed by a single supply of a Member from the Southern List. The ratio to be maintained is one name request from the Southern List by the Employer followed by one referral from the Southern List by the Local 1059 Union Office in accordance with these by-laws. A company in exercising its one name request may select one Member from the Southern List by name no matter where that Member appears on the Southern List. The next Member to be referred to that Employer whether encompassed by the same call for men or a subsequent call for men must be filled by a Member on the Southern List on the basis that the said Member out of work the longest and registered on the Southern List the longest shall be first sent to work provided that Member is able to perform the work required by the Employer as contemplated in paragraph 3.09 of this by-law. All named requests for employees must be in writing.

3.06 All Members transferring into Local 1059 from other Locals of the Labourers' International Union of North America will be added to the bottom of the Hiring Hall Lists and may not be sent to work for a period of at least 120 days by employer request. unless in accordance with the paragraph governing the Hiring Hall Lists and referral of members by the Local 1059 Union Office save and except for the provision relating to an employer name requests. In circumstances where an operative collective agreement provides for the transfer of Members into the jurisdictional area of Local 1059 from outside locals of the Labourers' International Union of North America as key men, the transfer of such key men shall be considered name requests giving rise to the right of Local 1059 to supply members from the out-of-work lists on the basis that the Member out-of-work the longest and registered on the list the longest shall be first sent to work until the ratio of one-to-one is re-established. Members transferring back to Local 1059, who were originally initiated into Local 1059. are exempt from the 120 day waiting period before being allowed to be requested by name.

9. In June of 1984, Majestic came into the jurisdiction of the union to execute a pipeline project requiring approximately 30 men from this Local. It is acknowledged by all that any member of the union would have a tremendous desire for one of these jobs because they are so lucrative, netting $1,200 to $1,800 a week for each individual.

10. The complainant was particularly desirous and anxious to obtain one of these jobs. He had not had a great deal of work in the past year and he did have experience on pipeline projects. He has only recently transferred back into the Local in the hopes of getting this job after being away on a job in another jurisdiction. But he knew he was approximately 300th on the out-of-work list and therefore had no chance of getting work by a straight union referral from the list. What he then desired to do was to approach the company directly and to try and convince someone there to request him specifically at the pre-job conference or to submit a name request for his services. This could result in him being named hired and is permitted under the union's by-laws.

11. The pre-job conference was held on July 3, 1984. At the conference, the union was represented by its Business Agent, Manuel Reis, and its International Representative, Ugo Rossini. One of the traditional purposes of the pre-job is to give the employer the opportunity to submit the names of their key men or particular men they want to have at the job. This union allows this and, in accordance with the by-laws, ensures that the ratio of requests and hiring’s from the list remain one to one. On this particular project, Majestic named six men. The complainant was not requested by Majestic. After the six names were submitted and accepted, the evidence of Mr. Reis is that the union then requested, and the company then agreed, that there would be no further name hires or name requests on the project. Mr. Reis's reasons for obtaining this agreement or commitment was that it would save the union and the company a lot of headaches by avoiding having up to 50 men in the yard waiting and trying for jobs daily. Further, Mr. Reis says that this kind of arrangement is customary for the union and the union prefers this because it would avoid the corruption that could be associated with members trying to convince employers to submit name requests and thus avoid the out-of-work list. Mr. McKinnon, the Secretary/Treasurer and Acting Business Manager of the union, is someone with more experience on pre-jobs than Mr. Reis. Mr. McKinnon explained that the limiting of name requests is the normal practice at pre-jobs in pipeline and other projects. The reason for this is to help ensure that local members are called into jobs on the basis of their placement on the out-of-work list so that men unemployed the longest would get the work. Yet, he admitted that on every job members also go out and try to sell themselves to the contractors and obtain name requests for their services to jump the list.

12. In any event, immediately after the pre-job conference, the complainant discovered that Majestic had not submitted a name request for him. So he spoke to Mr. Reis and Mr. McKinnon immediately about his chances of being hired as a name request. Mr. McKinnon told the complainant, We'll face that when the time comes. Mr. McKinnon and Mr. Reis met the complainant shortly thereafter the same day and told him that he could not be hired as a name hire because of the arrangement that had been made at the pre-job. They told him that he could no longer be requested by Majestic. This was on June the 29th.

13. On July the 3rd, the project began. The complainant again appeared at the job site hoping for work as did approximately 25 other union members. The complainant was unsuccessful as were the others. On July the 9th, he took his complaint to the union's Executive Board, still seeking the opportunity to be selected as a name hire. While there is some dispute over what occurred at this meeting, it is clear that his complaint was heard and he was given an employee request form. That is the document that Majestic could have completed to have made a name request for the complainant's services. In addition, the Executive Board decided that it needed a legal opinion to determine whether or not the company could now make a name request after the arrangement had been made with the union to limit the number of name requests. Thus, the Executive Board told the complainant that it would seek the opinion of their lawyers. The complainant understood this to be an enquiry as to whether or not the by-laws would apply to this particular job. The following day, the union obtained the opinion of their lawyer. The lawyer advised them that the by-laws did apply to the job and that should the company submit a name request for a particular union member, this should be honoured. This opinion was given to Mr. McKinnon who relayed that opinion to Mr. Reis. However, when the complainant talked to Mr. Reis, the complainant was left with the impression that Mr. Reis had said that the legal opinion had been that the by-laws did not apply to that particular job. Mr. Reis denies saying that to the complainant. I must conclude that there was a misunderstanding between Mr. Reis and the complainant. It was certainly the union's impression that the company had on reserve the right to continue to make a request for a name hire should they wish to exercise it. However, this was never made clear to the complainant. Further, the complainant was under the clear impression that no name hires would be accepted in the future.

14. In any event, although the complainant had the employee request form which had been supplied to him by the Executive Board, he did not take it to the contractor to have it filled out. He clearly did not do so because he felt it would be of no use. The evidence also establishes that Majestic did not submit any other name request for hiring and that, with the exception of the six names submitted at the pre-job conference, all the other jobs on the project were filled through the union's out-of-work list in accordance with the order on that list.

15. The argument made on behalf of the complainant is that the union's by-laws must be binding upon the union. But, nothing in the by-laws permits the union to make the kind of agreement it did with Majestic to limit the number of name hires and thus prevent an individual from having him hired upon a job. It was said that this amounted to discrimination.

16. In response, the union argued that this fact situation falls within the facts of the Thomas Beck case, supra, in that if anything, all that has been established was a breach of the by-laws and not a breach of the Act. Further, or in the alternative, the union submitted that the complainant's failure to obtain a written name request was fatal to his case because it would mean that he does not fall within by-law 3.03 because there was no evidence that the employer had ever intended to name hire the complainant. Thus, it was said that he could not prove that there had been discrimination against him. Further, it was submitted that under article 3.08, the Business Manager has ample discretion to make the kind of arrangement that was made with Majestic in this case.