[1985] OLRB Rep. April 537
1948-84-U Raphael A. Julien, Complainant, v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Respondent
BEFORE: Robert D. Howe, Vice-Chairman.
APPEARANCES: Leroy A. Crosse and Raphael A. Julien for the complainant; L. C. Arnold for the respondent.
DECISION OF THE BOARD; April 3, 1985
The name of the respondent is amended to United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46.
This is a complaint under section 89 of the Labour Relations Act in which the complainant alleges that he has been dealt with by the respondent (also referred to in this decision as the Union) contrary to sections 68 and 69 of the Act. The essence of the complaint is that Union members classified as pipeline helpers have been given priority over the complainant to pipeline helper work which the complainant is qualified to perform, and that the respondent's Executive Board refused to duly consider his concerns about that matter. (For ease of reference, the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, which is the respondent's parent body, will be referred to in this decision as the UA.)
The hearing of this complaint commenced on December 5, 1984, and continued on February 4 and 19, 1985. During those three days of hearing, the Board received 21 exhibits and heard the evidence of Raphael A. Julien, the complainant; Peter Signal, a member of the respondent's Executive Board; Sean O'Ryan, the respondent's Business Manager; and Debbie Ratcliffe, who has been the respondent's chief dispatcher since May of 1982. In making the findings of fact contained in this decision, I have considered all of that oral and documentary evidence, the submissions of the parties, my assessment of the relative credibility of the witnesses, and the inferences which may reasonably be drawn from the totality of the evidence.
Mr. O'Ryan was elected as the respondent's Business Manager in January of 1983. Before that he was one of the respondent's business representatives for three years. The respondent has approximately 4,500 members in various classifications, including plumbers, pipefitters, pipeline welders, pipeline fitters, and pipeline helpers. It operates a dispatching office from which it refers members to work pursuant to various collective agreement provisions. Members are also permitted to solicit jobs directly from employers in some circumstances.
The complainant joined the Union in 1968 as a plumber in its Organizing Division. (For a description of that division and the circumstances which gave rise to its creation, see United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, [19801 OLRB Rep. May 808.) As a member of the respondent's Organizing Division, the complainant was entitled to solicit work from residential (highrise) contractors. (The Union is rarely called upon to dispatch workers to projects in the residential sector as almost all of those jobs are filled by means of direct solicitation.) As a member of the Organizing Division, he was also entitled to work in other sectors of the Union, such as the ICI sector and the power sector, when there was full employment of the regular members in those sectors. He was also eligible to obtain work through other UA locals by means of a travel card.
On November 3, 1980, the Union dispatched the complainant to work at an Ontario Hydro construction project. After he ceased working on that job, he reported to the Union's dispatch office on February 11, 1981, at which time his name was placed on the Union's out-of-work list. On April 22, 1981, the complainant left the respondent's jurisdiction and went to work in Saginaw, Michigan, under a travel card to UA Local 85. While he was in Michigan, he received in the mail a card (from the respondent's dispatch office) advising him that there were job opportunities available within the respondent's jurisdiction, and requesting him to return to Ontario for dispatch by the respondent. However, since he was not sure how long the work would last in Ontario, he elected to remain in Michigan at that time, as he was entitled to do.
It is common ground between the parties that the following paragraphs from the Board's decision in Thomas Beck, [19851 OLRB Rep. Jan. 14, accurately describe the respondent's general hiring hall procedures:
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 ball. 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.
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 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.
The dispatcher maintains a work record card for each member of the respondent registered on the out-of-work list. .. 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.
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.
The work performed by pipeline helpers is generally of a labouring type which requires little skill or previous experience. Thus, almost all of the members of the respondent are capable of working as pipeline helpers, although some of that work does require an element of skill and is best performed by experienced pipeline helpers. Prior to 1981, the respondent referred some plumbers and pipefitters to work as helpers on pipeline jobs; however, many pipeline helpers were obtained directly by the contractors without a referral by the Union, or were obtained through the Union by means of name hiring at a pre job conference pursuant to the applicable collective agreement provisions. Thus, the pre-1981 practice with respect to pipeline helpers was (in the words of Mr. O'Ryan) loose at best. However, this did not give rise to any dispatching problems because prior to 1981 the position of pipeline helper was not very attractive, as there was no board allowance or pension. In that period, pipeline helpers tended to move from job to job with particular welders in order to gain an opportunity to learn the ropes with a view to eventually breaking out as journeymen.
In 1981 the Union was given much greater control over the pipeline helper situation when it became responsible for dispatching all pipeline helpers to pipeline jobs. At the same time, other collective agreement changes in respect of board allowance and pensions made pipeline helper work much more attractive to unemployed members.
In May of 1982, on the recommendation of William Weatherup, the respondent's pipeline business representative, the membership passed a motion under which a separate list was to be posted (at the Union's dispatch office) pertaining to the following three categories: pipeline welder, pipeline fitter, and pipeline helper. By the time that motion was passed, pre job conferences had already been held in respect of the three major pipeline projects (two large main lines and a river crossing) for which the Union was required to supply workers. Welders had already been selected for dispatch to those projects, but pipeline helpers had not yet been selected. Since there was not sufficient time to set up a separate list of the type contemplated by the motion, Bill Howard, who was the respondent's Business Manager at that time, decided in consultation with Ms. Ratcliffe to select members directly from the Union's regular out-of-work list in chronological order. Of the approximately 300 Union members referred to pipeline work in 1982 in that manner, about 175 were referred as pipeline helpers. Virtually every Union member who wished to work on a pipeline project in 1982 was able to do so, as there was a lot of pipeline work available (in the respondent's jurisdiction) that year. The complainant was not one of the persons dispatched by the respondent to work on a pipeline project in 1982 as he was working in Michigan and was not available for work in Ontario until October 12 of that year. (A person who is on a travel card does not lose his position on the respondent's out-of-work list, but is not called for job referrals since he is not available for work. Thus, when the complainant returned to Ontario in October of 1982, his out-of-work date remained February 11, 1981.)
The normal seasonal layoff of pipeline workers began in September of 1982. As pipeline helpers (and other pipeline workers) reported to the dispatch office to register, Ms. Ratcliffe started a pipeline card system and began to compile a pipeline list in accordance with Mr. Howard's instructions to set up a separate pipeline list as soon as possible. After completing the registration of the members who had worked on pipeline projects in 1982, Ms. Ratcliffe began the arduous task of going through each of the approximately 4,500 members' cards to determine which of them had pipeline experience prior to 1982. The complainant was one of the ten or fifteen members whose previous experience as a pipeline helper was inadvertently overlooked in that process. However, that oversight did not in any way affect the complainant's job opportunities as the omission of his name from the pipeline list was promptly remedied when he brought it to Ms. Ratcliffe's attention prior to the time when the respondent received its first call for pipeline helpers in respect of the 1983 pipeline construction season.
In or about February of 1983, Ms. Ratcliffe approached the newly elected Mr. O'Ryan and asked him for instructions concerning the manner in which the ten members classified as pipeline helpers were to be referred to work. (This number subsequently decreased to nine when one of the pipeline helpers was expelled from the Union for non-payment of dues.) Those individuals were not eligible for referral to any other work, such as ICI or residential projects; they were only eligible to work as pipeline helpers. As indicated above, prior to 1981 the referral to work of members classified as pipeline helpers had not been a problem for the dispatch office as they had always solicited their own jobs or been name-hired by employers at pre job conferences. However, when dispatch by the Union became their sole source of work, their situation presented a problem for Ms. Ratcliffe, who was concerned that placing them on a list with hundreds of other members qualified to work as pipeline helpers (but holding other classifications) would severely restrict their work opportunities. Ms. Ratcliffe recommended to Mr. O'Ryan that the members classified as pipeline helpers be the first persons to be dispatched as pipeline helpers. In adopting that recommendation, Mr. O'Ryan proceeded by analogy to the Union's longstanding referral practice in respect of classifications. For example, members having a metal trade classification are given first preference for metal trade referrals even though other unemployed members such as plumbers or pipefitters may be qualified to perform such work. Similarly, plumbers and other members qualified to perform steamfitting work are not referred to such work until all the members classified as steamfitters have had an opportunity to obtain work. The same is true of combustion helpers and welders. For example, the complainant, as a member with welding experience and capability, was referred to an Ontario Hydro project in May of 1979 as a welder, but he became entitled to be so referred only after the respondent had exhausted its supply of welders.
In explaining the fairness of making members classified as pipeline helpers the first persons to be dispatched to perform such work, Mr. O'Ryan noted that persons classified as pipeline helpers are eligible only to perform that work and, unlike the complainant, have no opportunity to perform building trades work. If those ten members were merely placed on the pipeline list with the hundreds of other members qualified to perform pipeline helpers' work, and were sent out in rotation with all those other members, they could be without work for years when (as in 1983 and 1984) there is little pipeline work available in the respondent's jurisdiction. In adopting that approach, Mr. O'Ryan also considered the Union's collective agreement obligations to supply qualified men. In this regard, it was his uncontradicted evidence that the ten persons in question tend to be the Union's best qualified pipeline helpers.
The introduction of that refinement received a somewhat mixed reaction from the membership. Many of the members supported it, but some of the plumbers and steamfitters who were near the top of the pipeline list were very angry about it and raised it for discussion at various Union meetings. Mr. O'Ryan responded to their objections by explaining the equity of the approach and the analogous situations from which the approach had been derived. Thus, Mr. O'Ryan stood by the decision which he had made in good faith to fulfill his responsibilities under the UA Constitution, which provides, in part, as follows:
SEC. 104. The Business Agent and/or Business Manager meets in daily contact with the public and with employer [sic]. becoming the trustee of the welfare of the members of the Local Union. It is his solemn duty and obligation to vigilantly protect the trade jurisdiction of the United Association in the plumbing and pipe fitting industry of his locality: also to compel employers to observe and respect collective bargaining agreements, adjusting all grievances between members of his Local Union and their employers with justice and fairness, as well as fostering and promoting employment for the members of the Local Union.
The following interpretation has been applied by the UA General President to the duties of a local union business manager:
The duties of the Business Manager or Business Agent are specifically set forth in Section 104 of the United Association Constitution. This section sets out specific constitutional authority and power over certain important matters in conducting the affairs of a local union on a day to day basis expressly conferred upon the Business Manager.
In interpreting a constitution, we must always keep in mind that a specific provision controls the general. Thus. Section 104 in the opening sentence sets a very practical approach to the control of the daily business affairs and operations of a local union by stating that it is in the hands and control of the Business Manager, as follows:
The Business Agent and/or Business Manager meets in daily contact with the public and with the employer … and it states a very important principal [sic] that by virtue of the office of Business Manager he becomes
… the trustee of the welfare of the members of the Local Union.
This sentence is the constitutional recognition that the daily affairs and business operation of a local union are under the control and supervision of the Business Manager, or Business Agent, who is generally a full-time paid officer, and in many instances the only full-time paid officer, of a local union. Section 104 then goes on to make specific delegation of constitutional authority and power of a Business Manager or Business Agent by stating:
It is his solemn duty and obligation to vigilantly protect the trade jurisdiction of the United Association in the plumbing and pipe fitting industry of his locality.
Further, it then states it is the duty of the Business Manager to compel employers to observe and respect collective bargaining agreements, and that a further duty of the Business Manager is
…adjusting all grievances between members of his Local Union and their employers with justice and fairness.
And a further duty:
…as well as fostering and promoting employment for the members of the Local Union. Further, under Section 105, it is the responsibility of the Business Manager or Business Agent to file all collective bargaining agreements with the General Office, as well as any supplementary wage increases.
Under Section 101(b), when there is a Business Agent or Assistant Business Agent besides the Business Manager, the Business Agent or Assistant Business Agent is under the supervision and control of the Business Manager.
Thus, the full-time daily operation of a local union in all of its affairs and operations is under the control and supervision of the Business Manager by virtue of Section 104 of the UA Constitution
This area of the daily functioning and operation of a local union by a Business Manager under Section 104 in carrying out the terms and conditions of the local union's collective bargaining agreement, including referral of men, settlement of jurisdictional disputes, enforcement of the contract, and organizing non-union contractors is specific, and thus, is controlling under the UA Constitution.
Because of these facts, many local unions provide in their constitution and bylaws that the Business Manager by virtue of his office is automatically Chairman of the Negotiating Committee and a delegate from the local union to the Building Trades Council and Central Body, and to all conventions to which the local union is entitled to delegates.
The selection of other members of the Negotiating Committee is [sic] some cases is determined by election, and in other cases by appointment. The procedure for appointment varies from local to local and area to area, depending on what is worked out in a democratic fashion in the best interest of the membership.
There should be no question that, because of the duties and responsibilities of the Business Manager of a local union, he should be a member of, and head of, the Negotiating Committee.
Marvin J. Bode
General President, UA [Emphasis added]
In exercising his constitutional responsibilities, Mr. O'Ryan, in consultation with other Union officials and Ms. Rateliffe, decided that since virtually all of the members who were interested in working on pipeline projects within the respondent's jurisdiction in 1982 had done so, they would be placed on the pipeline list in chronological order (based upon the respective dates on which they registered at the dispatch office following their layoffs in the fall of 1982). Members who had prior pipeline experience but who did not work on a pipeline project in the respondent's jurisdiction in 1982 were placed on the list after them, followed by members who subsequently expressed interest in obtaining pipeline work but who had no previous pipeline experience. In deciding to place members who worked on pipeline jobs in the respondent's jurisdiction in 1982 higher on the list than members with earlier experience, Mr. O'Ryan concluded, not unreasonably, that those members who had demonstrated a continued interest in pipeline work in 1982 by accepting a referral by the respondent to a pipeline job that year should be referred to pipeline jobs in 1983 in advance of those with prior experience who had not demonstrated such continued interest, in that they had not availed themselves of the plentiful opportunities to work on pipeline projects in the respondent's jurisdiction in 1982. The complainant was not dispatched to pipeline work in 1983 because there was relatively little pipeline work available in the respondent's jurisdiction that year. Thus, his name was not reached on the out-of-work list. He was not dispatched to any other work that year because the high level of unemployment in the ICI sector and in some of the other sectors of the Union resulted in the complainant not being entitled to be dispatched to any such work. As noted above, there are almost no referrals in the residential sector since virtually all of that work is obtained by direct solicitation by members. However, it was Mr. O'Ryan's evidence that employment prospects in the residential (highrise) sector have been excellent since mid 1982 and that, as a member of the Union in its Organizing Division, the complainant could have solicited work in that sector. Thus, the complainant had employment opportunities available to him which were not available to the respondent's members classified as pipeline helpers.
In the summer of 1983, the following notice was posted in the respondent's dispatch office:
RE: PIPELINE DISPATCHING PROCEDURE
General Rules
I. All classifications of the pipeline (welder, journeyman and helper) are dispatched according to the same procedure.
If a member is working, either for a Local Contractor or on another pipeline, he will not be contacted for this job.
If a member is on Travel Card, the Dispatch Office will try to contact the member. If that is impossible, he will be by-passed.
Procedure:
I. The first date of importance is the sign-in date of the member from his last mainline pipeline job. The Dispatch Office then calculates the number of days unemployed, from that date until present.
The second date of importance is the sign-in date of the member on the Out-of-Work board. The Dispatch Office then calculates the number of days unemployed, from that date until present.
The two 'number of days unemployed' are then added together. (i.e. Pipeline - 300 days unemployed. Out-of-Work board - 150 days unemployed. Total - 450 days unemployed.)
The list is then compiled, starting with the member who has the most total days unemployed.
Sean O'Ryan
Business Manager,
Local Union 46.
That procedure was arrived at by Mr. O'Ryan and the Union's business representatives, in consultation with Ms. Ratcliffe. It reflects the fact that an overwhelming majority of the respondent's members who work on pipeline projects also work in the ICI sector and in other sectors. By providing for two numbers of days unemployed to be added together — a process referred to in the evidence as correlation — Mr. O'Ryan eliminated the anomaly which would result if only the date last worked on a pipeline job were taken into account; if that approach were adopted, a member who ceased work on a pipeline project on October 1st and remained unemployed throughout the winter would be lower on the pipeline list than a member who ceased pipeline work on September 30 but then worked for several months (or throughout the winter) on residential or ICI projects. In the case of members who worked on pipeline projects in the respondent's jurisdiction in 1982, their respective sign-in dates from their last pipeline job were used in correlating their position on the pipeline list. In the case of members who had not worked on a pipeline project in 1982 but who had previous pipeline experience in the respondent's jurisdiction, January 3, 1983 was used. That date, which was the first working day in 1983, was suggested by Ms. Ratcliffe and adopted by Mr. O'Ryan in order to position such members above members with no previous pipeline experience, but below members who had demonstrated their continued interest in pipeline work by working on a pipeline project in the respondent's jurisdiction in 1982. Persons without previous pipeline experience who subsequently visited or telephoned the dispatch office to express interest in pipeline work were given the date on which they expressed such interest as their pipeline sign-in date.
After the decision was made to use a correlation system for making pipeline referrals in 1984, it took Ms. Ratcliffe about two months to prepare a new pipeline list. Each time she is required to update that list, Ms. Ratcliffe requires a further month to prepare new correlations. It is her hope that this time can be substantially reduced in the future by placing the pipeline list on cards under glass.
In the spring of 1984, the complainant, who had worked as a pipeline helper in 1980, became concerned that he had not been referred to work even though pipeline work had started to pick up. When he approached Ms. Ratcliffe and learned from her that there were nine members classified as pipeline helpers who were the first persons being dispatched on pipeline helper referrals, he wrote to the respondent's Executive Board to express his concern. In that letter dated May 24, 1984, the complainant expressed the opinion that he was being black-listed, and requested an opportunity to meet with the Executive Board and the Business Manager. In response to that request Union Secretary-Treasurer Thomas Russell advised the complainant (by letter dated June 15, 1984) that he could meet with the Executive Board at their meeting on Wednesday evening July 4. At that meeting, Peter Signal told the complainant, who had appeared before the Executive Board several times before, that the Executive Board was fed up with [his] frivolous complaints. He also told the complainant that if he had a complaint against a Union official such as Mr. O'Ryan, he should lay charges against him. At that meeting Mr. Signal also told the complainant that there were thousands of members out of work and that he was no different from the others.
Mr. O'Ryan was not in attendance at the Executive Board meeting as his presence was required at a joint officers' committee meeting which was being held concurrently in relation to important matters pertaining to Ontario Hydro. Although he advised the Union Vice-President that he could be called into the Executive Board meeting if there was any business which required his presence, he was not called in because the Executive Board members were of the view that if the complainant wished to impugn the actions of Mr. O'Ryan, he should do so by laying specific charges against him under the UA Constitution. However, the complainant elected not to do so.
While it might well have been prudent for the Executive Board to have dealt with the complainant's concerns more diplomatically than they did, I am not persuaded that their treatment of him on the evening in question contravened section 68 of the Act, as contended by complainant's counsel. In this regard, it is well established in the Board's jurisprudence that for the Board to find a breach of section 68 of the Act, the Union's impugned actions must involve the representation of a bargaining unit employee in relation to his or her employer. See, for example, Angelo Moro, [1983] OLRB Rep. Aug. 1354, at paragraph 3, in which the Board wrote, in part, as follows:
The Board has consistently ruled in past decisions, that the duty of fair representation in section 68 is concerned only with the representation by a trade union of an employee in relation to his or her employer.
(See also Ronald Lewszoniuk, [1984] OLRB Rep. Jan. 48; Sylvia Colalillo, [1982] OLRB Rep. July 1066; and Frank Manoni, [1981] OLRB Rep. Dec. 1775.)
There remains, however, the question of whether the respondent, through Mr. Signal, contravened section 69 of the Act at the meeting in question. In Maurice Berlin guette, [1984] OLRB Rep. April 568, the Board noted (in paragraph 13) that the phrase 'engaged in the selection, referral, assignment, designation or scheduling of persons to employment' describes the sort of trade union to which section 69 applies, but does not limit the acts to which that section applies. In that decision, the Board also wrote (in paragraph 15): The language and history of section 69 suggests that the actions with which that section is concerned must be actions analogous (at least so far as the analogy can be drawn) with actions to which section 68 is directed: actions and matters affecting the employment of persons the union represents. Since the subject matter of the complainant's letter of May 24 was his concern about the fact that members classified as pipeline helpers were being referred to work ahead of him, it is arguable that the manner in which the Executive Board dealt with those concerns falls within the ambit of section 69. However, it is unnecessary to decide that matter (which was not argued by counsel) in the present case. Assuming without deciding that the words and actions of Executive Board members such as Mr. Signal are open to scrutiny by the Board under section 69 in such circumstances, I am not convinced that the complainant has established any entitlement to relief in that regard. Although (as noted above) it might well have been prudent for the members of the Executive Board to have dealt with the complainant's concerns more diplomatically than they did, there is no evidence before me which indicates that Mr. Signal was inaccurate in characterizing the complainant's previous complaints to the Executive Board as frivolous. More importantly, it is clear from the evidence as a whole that the Executive Board was not denying the complainant an opportunity to have his concerns addressed, but rather was advising the complainant that if he wished to question the propriety of the Business Manager's actions, he should do so by laying charges against him under the UA Constitution. While that approach might reduce the likelihood of obtaining an informal resolution of a member's concerns in some circumstances, it is unlikely that any such resolution would have been possible in this case in any event as notwithstanding various overtures by Mr. O'Ryan, the complainant has refused to even speak to him since 1981, when the complainant was discharged by Ontario Hydro for assaulting a fellow worker and the Union decided not to refer his discharge grievance to arbitration. (The Union's actions in that regard formed the subject matter of an earlier complaint before this Board (File No. 1641-81-U.) That complaint was dismissed by the Board, differently constituted, in an unreported decision dated April 6, 1982.) Even if Mr. Signal's comments at the Executive Board meeting could be found to constitute a breach of section 69 by the respondent, no remedial relief would be necessary or appropriate as the complainant has not established that he suffered any loss or prejudice as a result of those comments. As noted above, instead of filing charges as suggested by Mr. Signal, the complainant elected to file the instant section 89 complaint in respect of what he considered to be an arbitrary or discriminatory failure to refer him to pipeline helpers' work prior to June 21, 1984. However, for the reasons set forth in this decision, I am of the view that there is no merit in that complaint. I am also satisfied that if the members of the Union Executive Board had considered his allegations, they would in all probability have come to the same conclusion.
When an updated pipeline list was prepared in June of 1984, the application of the correlation approach described above resulted in the complainant's name being third on the pipeline list. On June 21, 1984, the Union dispatched the complainant to a job as a pipeline helper. The complainant continued to work on that job until August 7, 1984, when he registered on the out-of-work list after quitting that job. It is the complainant's contention that he was only dispatched to that job because of his letter of May 24, 1984 to the Executive Board. However, it is clear from the evidence that there is no substance whatsoever to that allegation. The complainant was dispatched to that job on June 21 because each of the nine members classified as pipeline helpers, and the two members whose names were above him on the pipeline list, had already been called for dispatch purposes. Thus, it was the complainant's turn to be dispatched. Moreover, I accept without hesitation or reservation the candid and credible evidence of Ms. Ratcliffe that she made that referral on her own without any interference from Mr. O'Ryan or anyone else, and was unaware at the time of that referral that the complainant had written the aforementioned letter to the Executive Board.
In 1983 a new By-laws Committee was activated by the respondent's officers. That Committee embarked upon the task of drafting a comprehensive by-law regarding the Union's hiring and dispatching procedures. In addition to a notice from the Chairman of the By-laws Committee requesting written input from the membership, the following notice was prominently displayed in the June 1983 edition of the respondent's monthly newsletter, The Trade Wind:
NOTICE TO EMPLOYEES
LOCAL 46 MEMBERS
Presently the By-Laws Committee is formulating a By-Law governing the dispatching system. Included in their task of structuring the By-Law they will correlate the various Resolutions adopted and passed by the membership of Local 46.
Recently a Resolution was passed by the membership pertaining to the dispatching of men to the Mainline Pipeline sector. Clarification is needed in respect to the present Pipeline Helper's list. Therefore, until a By-Law formalizes the dispatching of men to this sector, any member of Local 46 wishing to have his name placed on the Pipeline Helper list may do so by submitting his name and card number to the Local Union Dispatch Office.
Fraternally yours,
Sean O'Ryan,
Business Manager,
Local Union 46.
Since that time, the By-laws Committee has met approximately once a month in respect of by-laws concerning the Union's hiring and dispatching procedures. A proposed by-law covering various aspects of the respondent's referral procedures has been published in The Trade Wind and considered at a special called Union meeting in the fall of 1984. Some parts of the proposed by-law were passed by the membership, other parts were referred back to the Bylaws Committee for further consideration, and other parts had not yet been considered as of February of 1985, due to time constraints. Detailed consideration of the pipeline helpers' referral system awaits the completion of the Committee's and the membership's deliberations concerning other aspects of the Union's dispatching procedures.
In the summer of 1984 the complainant became a member of the Union's General Membership Division. In doing so, he took advantage of changes introduced in February of 1984 by which it became easier for experienced plumbers and steamfitters to transfer from the Organizing Division to the General Membership Division. Thus, he became eligible for referrals to ICI projects. However, employment prospects in the ICI sector in 1984 were rather bleak due to the depressed state of that sector. Thus, the complainant had not become eligible for any job referrals in the ICI sector during the period covered by this complaint.
In his submissions to the Board, counsel for the complainant contended that a person such as the complainant who has worked to upgrade his qualifications and skills should have the same entitlement to pipeline helpers' work as persons classified as pipeline helpers. While that approach is not without merit, it does not follow that a failure to adopt such approach contravenes section 69 of the Act. In the present case, Mr. O'Ryan, in fulfilling his responsibilities under the UA Constitution (as interpreted by the UA General President) pending a review and consolidation of the Union's job referral practices and procedures by its By-laws Committee, decided in good faith, after duly considering the various competing interests, that as a matter of fairness and equity, the Union members classified as pipeline helpers should be referred first, before pipeline helpers' work was offered to members in other classifications. In adopting that approach, Mr. O'Ryan was proceeding by analogy to established referral practices within the Union (as described above). Having regard to all of the circumstances, I am satisfied that neither the adoption of that approach nor the manner in which it was implemented contravened section 69 (or any other provision) of the Act. As the Board noted in John Cooper, [1984] OLRB Rep. Jan. 6, at paragraph 38:
The business manager must balance a number of factors in determining which of the available out-of-work members should be sent to a particular job at a particular time. In so doing, he may well make an honest mistake. But the question is not whether the business manager (and, vicariously through him the union) may have erred in some way or made a decision of which this Board, with hindsight disapproves. Business agents, being human, will make mistakes or errors in judgment and may even appear to be inconsistent from time to time as they respond to the circumstances of the moment, and perhaps, subjective pleas for special consideration. The question is whether that discretion has been abused — for example, to benefit family or friends, or to punish political enemies (see Joe Portiss, 119831 OLRB Rep. July 1160). 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 maliec 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.
(See also Thomas Beck, supra.)
There is also no merit in the complainant's contention that he should be entitled to be referred to pipeline helpers' work in preference to the pipeline helpers who joined the Union after he did, as it is clear from the evidence that referrals proceed on the basis of classification and length of time out of work, not on the basis of length of time in the Union. Thus, as noted by Ms.Ratcliffe in her testimony before the Board, although the complainant is qualified to perform welding work, a welder who joined the Union in 1984 would be dispatched to a welding job in advance of the complainant, regardless of when the complainant joined the Union, because the complainant is classified as a plumber, not as a welder. I am also satisfied that this longstanding practice does not contravene section 69 of the Act.
Having regard to all of the evidence and the submissions of the parties, I have concluded that the complainant has not established that the respondent has acted in a manner that is arbitrary, discriminatory, or in bad faith within the meaning of sections 68 or 69 of the Labour Relations Act.
For the foregoing reasons, this complaint is hereby dismissed.