Ontario Labour Relations Board
[1986] OLRB Rep. September 1241
1978-85-U Ron Lawrence, Complainant, v. International Brotherhood of Electrical Workers, Local Union No. 120, Respondent
BEFORE: Patricia Hughes, Vice-Chairman.
APPEARANCES: E. G. Posen, George Surdykowski and Ron Lawrence for the complainant; Bernard Fishbein, W. Arnezeder and G. Smithers for the respondent.
DECISION OF THE BOARD; September 23, 1986
Ron Lawrence alleges that the International Brotherhood of Electrical Workers, Local Union No. 120 ("the union", "Local 120" or "120") has violated section 69 of the Labour Relations Act ("the Act") by failing to refer him to a job on which he had bid. Essentially, Lawrence alleges that the union did not apply its rules to him in a proper manner.
Lawrence has been a journeyman electrician since 1957. He has been a member of Local 120, International Brotherhood of Electrical Workers, since 1958. Lawrence explained that he had been working at the Bruce Generating Station for five and a half years and prior to May 1984, for four and a half years without interruption. The Bruce is within the jurisdiction of Local 1788 which will refer members of other Locals when it cannot supply its own. He admitted that the job at Hydro was good because it was steady work and close to his home in Ripley. He further agreed with counsel for the respondent that he did not have to worry about "bouncing cheques" or "cheating on the agreement" and that the job at the Bruce is a preferred job. During the operative period, Lawrence was still employed by Ontario Hydro at the Bruce power plant, but had been on strike since May 4, 1984. During the strike, he heard that there was a job available through Local 120, called the Local, found that the Canal job at Kellogg was available and decided to bid on that job. What happened after he bid on the job is in dispute between the parties. It is not clear whether or not he was ever told that he would have the job, but it is clear that he was at some point informed that he could have the Canal job only if he quit Hydro and produced his separation slip. This requirement was in accordance with Rule 3 of Local 120's working rules, the "two-job" rule. Lawrence did not wish to quit Hydro and did not do so. Therefore, he did not obtain the Canal job. Lawrence did nothing further until June 4, 1984, when he called William Arnezeder, the business manager of Local 120, and said that he wanted to go to work. Arnezeder told Lawrence that he (Arnezeder) would have to go to the Executive Board on the issue of the application of the rules to striking members of Local 120 and that he would be able to give Lawrence an answer on June the 7th. At the Executive Board Meeting, there was a vigorous debate about how to apply Rule 3. Eventually, however, the members of the Executive Board decided to modify the rule so that members of Local 120 who were on strike would have priority on abandoned jobs (jobs on which no Local 120 members had bid) over travellers, that is, members of other Locals who could come into the London area, the jurisdiction of Local 120, for jobs. Arnezeder told Lawrence and two other members of 120 who were in the same position as Lawrence (that is, on strike) that the rule had been modified and that they could seek abandoned jobs. Again, there is dispute over what Lawrence was told with respect to the job that he eventually did get, but he did obtain a job at Zymaize at Stern Catalytic. He remained at that job until September 28, 1984, when the Hydro strike was over; at that time he quit Zymaize and returned to Hydro. This outline of the facts is not in dispute between the parties, except as indicated.
The operation of the hiring hall of Local 120 is set out in writing and the information is available to all members. Members are required to sign an "out-of-work" book to show they are out of work and, if they are prepared to be assigned out of town, they are required to sign the “out-of-town" book. The out-of-work book is public. Members are listed by the number of hours they have worked in the last twelve months, within the jurisdiction of Local 120, with those having worked the fewest hours at the top. Contractors requiring employees telephone the union office and the information with respect to the jobs is recorded on a dispatch slip. The dispatch slip will show the name of the contractor, the type of job, perhaps the length of the job and the number of employees requested and when they are required. At the end of the day all these requests are put on a tape on an answering machine and members can then call in and find out what jobs are available. The next day members can telephone and bid on any of the jobs and their bids are recorded in a "bid book". At 11:00 a.m. the bidding is closed and jobs are awarded on the basis of the number of hours members have worked within 120's jurisdiction. Members who have worked the fewest hours will get the jobs. If a job receives no bids, it is put on the tape again for a second time that evening and members can bid on it again until 11:00 a.m. the following day. Once a job has been placed on the tape for two days and no bids have been received, it is considered an "abandoned job". When a job is abandoned, the union will call other Locals to see if they have out-of-work members who could be referred to the jobs. The union prefers to provide work for travellers, who are also members of the IBEW, rather than have contractors hire employees "off the street". Members of other Locals are not required to sign the out-of-work book or the out-of-town book. Local 120 does not pass judgment on the employees sent by other Locals but, in effect, merely acts as a conduit between the other Local and the contractors within 120's jurisdiction. Arnezeder testified that when he called for travellers to come into Local 120's jurisdiction to take abandoned jobs, he depended on the business manager of the relevant Local to send him only unemployed workers. But he also said that it made sense not to require travellers to produce separation slips because there would be no reason for travellers to come to London if they already had jobs. He admitted that travellers would receive preference on abandoned jobs over employed (including striking) Local 120 members.
The specific rule at issue in this case ("the two-job rule") is the portion of Rule #3 which states:
No member will be dispatched to a job (in town or out of town) if he is employed at ANY OTHER JOB in the Electrical Industry. In order to substantiate this, a member must be able to produce his record of employment separation slip if asked to do so.
It appears in Local 120's written Work Rules and continues to appear in this form. The modification to the rule, which effectively changes "job" to mean "unabandoned job", has not been reduced to writing.
The two-job rule came into effect in 1981 after Arnezeder became business manager. Arnezeder testified that before he was elected to office, members were concerned that about fifty per cent of Local 120 members were working in the Sarnia area which was extremely busy. Because of lack of work in London, members had taken on other kinds of jobs rather than working as electricians. For example, some members were teaching and others were doing maintenance work. Under the previous system, a worker might take holidays from a job in Sarnia, take a job in London and then return to Sarnia. Teachers and maintenance workers would do the same in the summer when work was more plentiful in London. In other words, men who already had some kind of work were also getting work as electricians through the hiring hall in London. This infuriated the unemployed members and therefore the two-job rule came into being. It requires that any member who is already employed will quit that employment before taking another job, including abandoned jobs (that is, jobs on which no unemployed member of Local 120 has bid). Travellers, however, are eligible for referrals only when a particular job is abandoned, regardless of their employment status. The union would prefer members of other Locals to obtain such jobs, thereby retaining a link between the union or hiring hall and the contractor, rather than extinguish or diminish the link by having the contractor obtain employees elsewhere or "from off the street".
Although Lawrence does not challenge the unmodified rule itself, it is desirable to make clear that on the facts of this case, any such challenge would be misplaced. The two-job rule was established to ensure a more equitable distribution of available work. It seemed unreasonable that members who already had employment should be able to obtain a second job when there were members without any work at all. The rule is a rational way of distributing work. It is far from arbitrary, but is, rather, a rational and considered response to an actual problem facing the Local when Arnezeder became business manager. Ron Lawrence does not in fact question the fairness of the rule itself. He complains because it was applied to him and not to travellers. The difficulty arose because while Lawrence was employed when he bid on the Kellogg job and, therefore, clearly within the rule, he was not actually working because Hydro employees were then on strike. The fact is that the rule did not anticipate this situation. Under the province-wide bargaining scheme, the normal pattern is that all workers are on strike at the same time, not that some workers are on strike and others not on strike. However, there are exceptions to that pattern. Hydro is one such exception. The failure to anticipate the latter situation and to incorporate a contingency into the rule to deal with it cannot be seen as arbitrary in light of the usual reality of bargaining in the construction industry.
Furthermore, when the situation came to Arnezeder's attention (that there were three members - Lawrence, Lorne Freeman and Rex Johnson - who were on strike and were being treated as eligible for other employment only on condition that they quit their current job), he and the other members of the Executive Board addressed their minds to it and developed a solution to deal with the particular problem. Lawrence's counsel maintained that Arnezeder went to the Executive Board with the issue only because Lawrence threatened to go to the Human Rights Commission or the Labour Board. However, the evidence suggests that while Lawrence may have raised the possibility of his doing so with Arnezeder, Arnezeder had already decided to bring the matter to the Executive Board at the June 5th meeting. At the meeting, the members were split. Some members believed that the striking members were in the same position as other employed members and that therefore they should choose between staying with Hydro, albeit on strike, and quitting Hydro and obtaining referrals elsewhere; they did not want to change or modify the rule. Other members were concerned that travellers were obtaining abandoned jobs while members of Local 120 were not eligible, even though they were not actually working. Amezeder pointed out that with Local 1778 on strike, members of 1788 could get those jobs (because they were not subject to the two-job rule since they were not members of Local 120): this seemed unfair. Gerry Smithers, President of Local 120, testified that there was recognition that Local 120 could be in the position of treating Local 1778 members better than their own. For this reason the rule was modified to permit striking 120 members to obtain abandoned jobs before travellers. This modification was a rational way of dealing with the issue and reflects an attempt to balance the interests of all members of Local 120. In particular, the union has attempted to respond to the specific needs of members in the position of Lawrence, even though it does not place Lawrence in exactly the same position as other members of Local 120 with respect to bidding on all jobs. However, as observed by the Board in Maurice Berlinguette, [1986] OLRB Rep. February 194 at paragraph 21:
Any set of hiring hall rules, procedures or guidelines will necessarily reflect a compromise which results from a balancing of those and other conflicting individual and group interests. From the perspective of the Labour Relations Act, the trade union is free to strike that balance as it sees fit, so long as it does not act in a manner which is arbitrary, discriminatory or in bad faith.
- Lawrence claims that the way in which the two-job rule was applied to him constitutes a breach of section 69 of the Act. Section 69 states:
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.
- More particularly Lawrence's allegations are as follows:
- that the union acted in bad faith through Gerry Smithers, President of
Local 120, when he required Lawrence to produce a separation slip from
Hydro;
that the union acted in an arbitrary manner by rescinding Lawrence's referral to the Canal job on May 9, 1984; and
that the union discriminated against Lawrence by
(a) referring John Groom, Jim Matheson, Tony Davison and Thomas Keagan to jobs to which it did not refer Lawrence; and
(b) restricting Lawrence to the Catalytic job.
- The power unions have over their members' economic well-being through the referral system imposes on unions a particular obligation with respect to their hiring hall processes, as indicated in Joe Portiss, [1983] OLRB Rep. July 1160, at paragraph 8:
To the extent that the hiring hall functions as an employment agency it vests considerable power in the hands of union officers in charge of its management. Through the administration of hiring hall rules, including the determination of qualifications and classifications of employees, the union officer in charge of a hiring hall has a substantial degree of control over the employment opportunities of union members. The hiring hall system effectively vests in those union officers powers and prerogatives which were previously associated with an employer. Control over the employment opportunities of hundreds, and sometimes thousands, of union members involves the exercise of a considerable amount of power over their lives. By the enactment of section 69 of the Act the Legislature introduced certain minimal safeguards against abuse of that power.
The abuse of these powers was widespread in Joe Portiss. There is no similar allegation here (as openly conceded by counsel for the complainant) and all the evidence indicates that Arnezeder and the other officials run Local 120's hiring hall in a fair manner. Nevertheless, it is clear that the potential for abuse lies in the very nature of the hiring hall situation and that any allegation establishing a prima facie case that the system is not being applied fairly should be examined carefully.
In considering complaints under section 69, the Board is not intended to "second guess the union's decision, nor to pass judgment on all aspects of the internal practices or policies of the I2nion (except to the extent to which they are themselves motivated by bad faith or are arbitrary or discriminatory): see The Municipality of Metropolitan Toronto, [1978] OLRB Rep. Feb. 143; Thomas Beck, [1985] OLRB Rep. Jan. 14; and Maurice Berlinguette, supra. Unions are permitted t) make mistakes; they will be held by the Board to account for such mistakes only if it can be shown that they are the result of conduct proscribed by section 69.
The first issue which must be considered is whether Smithers did act out of hostile animus towards Lawrence. The evidence is in dispute on this point. The major evidence with respect t) the purported hostility of Smithers came from a witness for the complainant, Beverley DuMaresq. DuMaresq had been the business agent of Local 120 from 1971 to 1980 before Arnezeder assumed the position. In May, 1984, he was working on the Canal job. He testified that on the day that Lawrence was supposed to come to the Canal job, Smithers (who was the general foreman on the job) said that Lawrence was a "troublemaker of a sort" and he did not want him and that he told Smithers that Lawrence was a member of Local 120 and that he (Lawrence) came first. On cross-examination, he testified that Smithers approached him and said that Lawrence was coming on the job according to the bid system and because of troubles he had had with a previous business manager years ago, Smithers did not want him. The incident allegedly referred to by Smithers qccurred before 1971, that is, over fifteen years ago. He said he did not know why Smithers was telling him about Lawrence. DuMaresq testified there was a lot of conversation on the site about Lawrence not having a quit slip from Hydro.
Smithers testified that he did probably have a conversation with DuMaresq because he ad a conversation with a lot of people on the job with respect to this particular problem. He said t at there was no particular reason that he would be talking to DuMaresq, but that it was in the ature of a construction job that everybody was interested in the problems that arose. He testified t at he did not remember telling DuMaresq that he did not want Lawrence on the job because he as a disturber. He further testified that whether Lawrence got the referral slip was "not [my] call make". He could not deny him the job anymore than he could give it to someone else. He also denied that he had any particular axe to grind with respect to Lawrence. Under cross-examination Lawrence admitted that Smithers did not have any particular axe to grind against him prior to this time and that it was Smithers' view that this was the rule and the way it should work. Smithers further testified under cross-examination that the first time that the two-job rule occurred to him was when Eric Chovancek, another Local 120 member on the Canal job, raised it with him, even though he knew Lawrence was at Hydro and on strike at the time. He confirmed Chovancek's interpretation with Don Thompson, Vice-President of the Local, who was a steward at the Kellogg's site. He stated that if he had let Lawrence have the referral slip, he would not have been doing his job and to say that Chovancek and others would have been unhappy would be to put it mildly. He said that there would be trouble at the next union meeting and that the pressure of his office compelled him to agree that Lawrence could not have the job without the quit slip. He was prepared to give Lawrence a week or two to obtain the separation slip, as long as Lawrence indicated he would be quitting Hydro.
Eric Chovancek, a journeyman electrician on the Canal job, confirmed that he told Smithers that he would not be pleased if Lawrence came onto the Canal job without quitting Hydro and that he indicated that there might be trouble if Smithers permitted Lawrence to do so. He said that he would call the business agent and proceed himself if Smithers did not prevent Lawrence from coming onto the Canal job. He said that it seemed as if Smithers had forgotten about the two-job rule because he seemed quite surprised when Chovancek raised it.
Taking all the evidence into account, it is my view that Lawrence may well have believed that Smithers made some reference to his being a troublemaker. However, any comment that might have been made in that regard must be seen in the context of Chovancek's testimony. Any concern of Smithers arose not from the purported incident of over fifteen years ago, but because he believed that if he let Lawrence have the job, other Local 120 members would create difficulties. In my view the evidence does not support the allegation that Smithers acted out of hostile animus towards Lawrence.
The second issue is whether Lawrence was told he would be referred to the Canal job on May 9, 1984, and if so, whether that referral was rescinded. Counsel for Lawrence argues that the union's treatment of Lawrence with respect to this referral was arbitrary. A union will be considered to have acted in an arbitrary manner if its officials have acted capriciously or unreasonably or, put another way, if, where appropriate, they have failed to direct their minds to the complainant's concerns or failed to assess relevant factors in balancing the interests of the persons subject to its actions: Diamond "Z" Association, [1975] OLRB Rep. Oct. 791; Leonard Murphy, [1977] OLRB Rep. March 146; De Havilland Aircraft of Canada Ltd., [1979] OLRB Rep. Oct. 933; Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067. The Board considered the meaning of "arbitrary" in the hiring hall context in John Cooper, [1984] OLRB Rep. Jan. 6. In discussing the exercise of discretion by the business manager, the Board stated at paragraph 38:
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 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, 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.
Lawrence's version of the events involved in this matter differs slightly from the version set out by the respondent's witnesses. However, the major point of difference, whether or not Lawrence was ever told he had the Canal job, does not change the outcome of the decision, since, if indeed he was told that he had the job, it is my view that he had been told because the two-job rule had been forgotten. Lawrence initially testified that he found out from another member that the Canal job was available and called the hall to bid on the job between 9:00 and 9:30 a.m. on May 14, 1984. He later agreed that he may have called on May 9, 1984. The bid book shows that Lawrence made his bid on May 9. He said he was told sometime between 11:00 and 11:30 a.m. on 'lay 9 by Joanne MacEachern, Arnezeder's secretary, that he had the job. She has been Local 120's secretary for almost 10 years. It is her responsibility to record the bids and to issue referral lips. At 1:30 p.m. of the same day, Lawrence stated, he received a call from MacEachern, telling him he did not have the job because he did not have a quit slip from Hydro. According to Lawrence, she said that her orders were to cancel the work slip.
MacEachern acknowledges Lawrence's call and that she entered his name in the bid nook, along with the number of hours he had worked in the jurisdiction of Local 120 over the past twelve months, that is, 300 hours. She knew that he was working at Hydro and that Hydro was not within the jurisdiction of Local 120. Before she talked to Lawrence, Smithers, the general foreman n the Kellogg job, called her to see who might be coming on the job. She mentioned two people, including Lawrence, and at that time, Smithers expressed no concern. However, Smithers called her back to tell her Lawrence had to quit Hydro as a condition of the referral. She relayed this information to Lawrence, but she also admitted she might have told Lawrence at some point that "it looks good" because of his low hours. Because Lawrence was upset, she put Smithers (who was scting in Arnezeder's place while Arnezeder was away) in touch with Lawrence to explain to Lawrence why he would have to quit Hydro if he wanted the Kellogg job. Lawrence did not quit Hydro pr indicate he would do so and an unemployed member of Local 120, Abe Stevens, obtained the Kellogg job.
It is reasonable to conclude that Lawrence believed he had been referred or would be referred because he was told he had the lowest number of hours of anyone bidding for the job. Furthermore, I believe MacEachern intended to refer him to the job before being instructed not to do so by Smithers. However, I accept the testimony of MacEachern that she made no definite Statement to him that he had received the job at that time. In any case, once the two-job rule had come to the attention of Smithers, it would not have been improper to rescind the referral even if Lawrence had in fact been referred. Or, put another way, this merely takes us back to the question of whether the two-job rule has been properly applied to Lawrence. The union conceded that they would not have given Lawrence the job; I conclude that any referral, if indeed there was one, could have been in contravention of the two-job rule (even in its modified form, since Kellogg was at an abandoned job) and any cancellation would have been for the purpose of conforming to the rule.
It should be mentioned that counsel for the union argued, although not strenuously, that there was no denial of a job because Lawrence had indicated he did not want the job once he learned Smithers was the general foreman on the site. In light of what followed and the further discussions with respect to the two-job rule, it seems clear that the union determined that Lawrence could not be referred because he would not quit Hydro and that any indication by Lawrence that he did not want the job (and I do not find as a fact that Lawrence did so indicate) was not the determining factor. All parties continued on the basis that Lawrence had wanted the job.
The referrals of four individuals were raised as evidence that the union had treated Lawrence unfairly. One was the referral of Tony Davison on June 14, 1984 after the modification f the two-job rule. Davison is Arnezeder's brother-in-law and a traveller, a member of Local 1788. In Joe Portiss, supra, the preferential treatment of relatives was only one of many abuses in the operation of the referral system. I find no such abuse here. Davison was on strike; at that point, Lawrence would have been given preference over a traveller if he had applied for the same job. The business manager of 1788, Davison's Local, had told Arnezeder to take Local 1788 men in the order they approached Local 120; Davison was the first man to approach Local 120. Two other individuals, John Groom and Jim Matheson, were also referred to jobs on June 7, 1984, the date on which Lawrence was referred to the Catalytic job. However, these two men were unemployed members of Local 120 and their referrals were simply the result of the proper operation of a system which constitutes an attempt to achieve an equitable distribution of available work. None of these instances of referral therefore indicates that the union treated Lawrence unfairly.
The fourth referral raises the greatest difficulty. It occurred prior to the modification of the two-job rule. Lawrence alleges the application of the rule is discriminatory because a traveller, Thomas Keagan, in the same position as himself (on strike at Hydro) was able to obtain an abandoned job when he was not.
There are three questions which must be addressed with respect to whether Lawrence was discriminated against by Local 120 with respect to the Keagan referral. The first is whether there must be intention before discrimination can be said to occur; the second is whether a distinction between travellers and members of Local 120 constitutes the kind of distinction considered discrimination within the meaning of section 69 of the Act; and the third is whether there is a cogent labour relations purpose for the two-job rule which either results in there being no discrimination or in the discrimination being justified.
A finding of discrimination does not require that the person alleged to have been acting in a discriminatory manner was motivated by malice or intended to do so, whether so motivated or not. In Douglas Aircraft Co. of Canada Ltd., [1976] OLRB Rep. Dec. 779, the Board stated that the "union may not act in a manner that will result in discrimination"; however, in that case, there was differentiation on the face of super-seniority provisions in the collective agreement which gave a benefit to some employees (because of their status in the union) and not to others. That is not the case here, where the two-job rule does not itself specify that travellers will be given referrals when members of Local 120 will not be. Counsel for Lawrence would have the Board go further and find that a rule which does not differentiate on its face may be discriminatory if its application results in a disadvantage to a person because he is a member of Local 120 and not a traveller. He called this "systemic" discrimination. Systemic discrimination results when a neutral rule has a disproportionate negative impact on individuals because they belong to a certain group or possess certain characteristics. The issue here is less systemic discrimination than differential application. It is not the rule itself which has the alleged discriminatory result on Lawrence but the fact it is applied to him and not to travellers. Discrimination would result if it were not applied to someone else in the same position. With respect to the question of intent, the Supreme Court of Canada has held that intent is not necessary for a finding of discrimination: Re Ontario Human Rights Commission et al and Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), 23 D.L.R. (4th) 321 (S.C.C.) and Bhinder et al v. Canadian National Railway Co. et al, 1985 CanLII 19 (SCC), [1985] 2 S.C.R. 561. In both cases, the relevant legislation does not explicitly state that intention is not necessary, but the Supreme Court nevertheless held that intention was not a necessary prerequisite to a finding that the legislation had been contravened. While these cases were filed under the Ontario Human Rights Code and Canadian Human Rights Act, respectively, I see no reason not to apply this principle to the Ontario Labour Relations Act. It has already been applied under the Ontario Employment Standards Act: The Brantford General Hospital v. The Director of Employment Standards, (Ont. Div. Ct.; March 3, 1986) (leave to appeal by the Hospital refused). In that case, O'Brien, J., for the majority, stated:
The Supreme Court of Canada, in [Simpsons-Sears] ... made it clear the intent to discriminate is not a governing factor in construing human rights legislation. It is the result or effect of the alleged discriminatory action that is significant. There, although the court was considering the Ontario Human Rights Code, one of the points made was that the aim of such legislation is to remove discrimination, and the approach of the legislation is not to punish the discriminator but to provide relief to the victim of discrimination.
In my view, the same approach should apply when considering the [Employment Standards Act].
The concept of discrimination within the meaning of section 69 of the Act has never been restricted to the "traditional" or "invidious" forms of discrimination such as racial discrimination: Ford Motor Company of Canada Limited, [1973] OLRB Rep. Oct. 519. An intentional difference in treatment between travellers and members of Local 120 would likely fall within the prohibition against discrimination under section 69 of the Act, subject to the discussion of the "cogent I 4tbour relations purpose" test in paragraph 26 below. However, whether such a distinction would contravene section 69 in instances of systemic discrimination must be considered further. The nature of systemic discrimination is considered briefly below. It is sufficient to say here that a prohibition against systemic discrimination under section 69 (or section 68) would most likely be applied only to major distinctions, such as those based on race, sex or religion.
Not every instance of different treatment is prohibited by section 69 (or section 68) of the Act. The cases have followed two basic approaches: either discrimination is inherently limited (certain kinds of differentiation are not discrimination at all) or certain kinds of discriminatory treatment may be defensible: Ford Motor Company, supra; Douglas Aircraft Co., supra; Bernard Dorais, [1985] OLRB Rep. March 408. The question is whether the "cogent labour relations purpose" test applied in these cases is to be applied before determining whether there has been discrimination or afterwards. Alternatively, the Board has the discretion not to grant a remedy where, although there may have been discrimination, it considers such discrimination not to be serious enough or of a type which warrants a remedy. Of these approaches, applying the cogent labour relations purpose test prior to determining whether there has been discrimination within the meaning of section 69 (or section 68) appears to be more consistent with the scheme of the Act. The Act does not explicitly permit the Board to apply a justification test after finding discrimination; and the discretion not to grant a remedy is more appropriately reserved for unusual situations, rather than being employed in the interpretation of a specific section of the Act. Under section 69 or section 68, the Board is to examine the differentiation alleged to contravene the section, determine whether there has been a prima facie case established, and if so, consider whether there is a cogent labour relations purpose for the conduct or rule involved. It may be that it will be more difficult to establish a cogent labour relations purpose with respect to certain kinds of differentiation than others, but that remains to be considered on the facts of each case.
Keagan was sent to 120 when Arnezeder called (or instructed his secretary to call) the business manager of Kitchener Local 804 to tell him that there was work available in the London area for travellers. Keagan was referred to the Brinkman's Electric job on May 25, 1984. Keagan as the President of Local 804 and there is no doubt that Arnezeder and Smithers knew that. It is of clear that either Arnezeder or Smithers knew that Keagan was the person referred. Both Smithers and Arnezeder testified that they did not know that he was working at Hydro in Local 788's jurisdiction during the operative time. Arnezeder explained that Lawrence did not get the Brinkman's job because he did not bid on the job and in any case, even if he had bid, 120 would have applied the two-job rule and he would have had to quit Hydro. (At this time, of course, the two-job rule had not been modified to give Local 120 members on strike priority over travellers with respect to abandoned jobs). Under cross-examination Arnezeder stated that he did not ask Keagan to produce a separation slip because the work rules did not apply to Keagan and that he counted on the business manager of Local 804 to send him only unemployed men.
Although he said he did not know Keagan's status at the time of the referral, Arnezeder stated that Keagan had in fact quit his job at Hydro after the strike began and before his call to Local 120. He said that he had sought out this information from the business manager of Local 804 because of the litigation. But Arnezeder admitted that if Keagan had been on strike, 120 would have applied a different standard to him than to Lawrence. Counsel for the union urged me to infer from the circumstances that Keagan was not on strike at Hydro and therefore not in a similar circumstance to Lawrence. He argued that there was no evidence before me to show that Keagan was in Lawrence's position in continuing to be on strike at Hydro and reminded me that the onus was on Lawrence to show that indeed that was the case. He pointed out that the strike at Hydro ended in September, at which time Lawrence was quick to return to Hydro, while Keagan did not go back to Hydro but stayed at Brinkman's until December when he was laid off. Although I could make my finding on the basis of hearsay evidence since it is the only evidence before me on this point, I prefer to base my conclusion with respect to Keagan's status on the failure of Lawrence to show that Keagan was still at Hydro. There is no evidence that Keagan was employed at Hydro at the material time and therefore I find that in this particular instance, the evidence does not support the allegation that the union discriminated against Lawrence. A necessary element of a finding of discrimination, that the individuals being compared are in the same position, has not been established.
Although there is no evidence of actual discrimination against Lawrence, the union did have a rule which, as a consequence of its application to Local 120's members and not to travellers, resulted in Local 120's extending more favourable treatment to travellers than to certain of its members. Since this circumstance constituted a major element in the submissions of counsel for the complainant, I propose to consider briefly whether the referral of Keagan would have contravened section 69 of the Act, if Lawrence had established that Keagan had been on strike at Hydro at the time of the referral.
Even if Keagan had been on strike at Hydro, I would not have found the union liable under section 69. I have already found the rule to be a rational response to an unsatisfactory situation and to be a method of distributing work fairly and equitably. The two-job rule has a cogent labour relations purpose. Furthermore, it was rational to try to fill job requests by referring travellers when unemployed members of Local 120 did not want the jobs in order to keep the work within the union, even though travellers were not subject to the referral rules. Under the circumstances, I do not believe it was unreasonable for Arnezeder to trust other business managers to send him only unemployed members of other Locals, or to assume that a traveller willing to come into 120's jurisdiction would be unemployed. In other words, I do not believe Arnezeder acted in a manner contrary to section 69 in making those assumptions. In my view, even if a striking traveller had been referred to an abandoned job denied Lawrence, there would not be a contravention of section 69.
It has not yet been established that the term "discrimination" in section 69 (and section 68) of the Act encompasses systemic discrimination. However, any such interpretation of the term must be developed within the context of labour relations practice and policy and specifically with reference to the purpose of section 69. The Labour Relations Board will not tell a union how to run its hiring hall; that is not the role of the Board, nor should it be. However, the Board has been given jurisdiction to consider allegations of referrals which are arbitrary, discriminatory or in bad faith: essentially, to determine whether denials of referrals have been for illegitimate reasons. That jurisdiction cannot encompass every incidental effect of the application or implementation of the system. It would therefore be unreasonable to consider every instance of systemic or unintentional discrimination a contravention of section 69: that would cast a wide net indeed. On the other hand, it is not unreasonable to expect a union to consider the effect of its conduct and rules on major groups of persons for whom it is the bargaining agent. In particular, distinctions based on race, sex, religion and disability might raise concern. For example, a rule which gave preference to a specific job classification might unintentionally operate to the disadvantage of women who were clustered in another classification which was not given preference. In distinguishing those instances o[ systemic discrimination which would be caught by section 69 and those which would not, the Board may consider a variety of factors, such as, but not only, the nature of the discrimination, the way in which it arose, the way in which the union dealt with this matter, the balance between the type of discrimination and the importance of the rule and the effect of a finding that there has been a contravention of section 69, this last being in effect a consideration of labour relations policy. In this case, the distinction between travellers and Local 120 members arose because the union acted on reasonable assumptions about which doubts were raised only when an unusual circumstance occurred. The Executive Board of Local 120 addressed its mind to the problem arising from the hydro employees' strike and the effect it had on the application of the two-job rule and modified the rule to assist its own members. The significance of the type of differentiation involved is outweighed by the importance of the rule to the equitable functioning of the referral system. It is not reasonable to conclude that even if there were discrimination in this case (and I have found a necessary element of a finding of discrimination has not been satisfied), it would be of such a kind and so detrimental with respect to the treatment of individual union members or particular categories or members that it warrants a finding by the Board that Local 120 contravened section 69 of the A ct.
The next distinct issue which arises is whether Lawrence was restricted to the Catalytic job or whether he was able to claim any abandoned job. It is Lawrence's evidence that he was told that that was the only job he could have and that the Executive Board had made that decision. He t stified that Arnezeder stated during the telephone call of June 7th that the only job he could have was at Zymaize at Catalytic. He said that he did not like it because it paid a dollar less than regular construction jobs, such as Kellogg's Canal job or Brinkman's, but that it was a job. He testified that he bid for no more jobs because he had been told Catalytic was the only job he could have. (Lawrence admitted that the Catalytic job did not end up as a bad job. However, if the issue of the desirability of the job means anything at all, it must be assessed at the time the job was offered.) Smithers denied that there was any discussion at the Executive Board meeting of June 5, 1984, when the two-job rule was discussed, about restricting Lawrence to the Catalytic job or to any particular kind of job. He denied in fact that there was any discussion at all about Lawrence getting the Catalytic job. Arnezeder testified that the Executive Board did not determine what job Lawrence could have and that that was the task of the Business Manager in accordance with the bylaws. Indeed, the Executive Board could not know what job Lawrence would get since the Catalytic job was still in progress and it would only be at 11:00 a.m. on Wednesday, June 6, 1984, that it would be known it was abandoned. The first opportunity to bid on the Catalytic job would have b en on June 5th, the day of the Executive Board meeting. Arnezeder also testified that if Lawrence had not liked the Catalytic job, he could have quit and returned to his original status and bid o another abandoned job. Lawrence believed that Arnezeder's use of the phrase "take it or leave it' in connection with the Catalytic job indicated that it was the only job that he could have. I am n t convinced that Arnezeder used the phrase in that sense, although I do believe he used those words. Rather, I think it is consistent with the use of those words that Arnezeder was letting Lawrence know that he could have the job or he could decide not to take the job and that there would b other opportunities for Lawrence to bid on abandoned jobs. Lawrence agreed with respondent's counsel when counsel suggested to him that Arnezeder had said that he could get any abandoned job and that Stern Catalytic was an abandoned job. I find then that Lawrence was not rqstricted to the Catalytic job and that if he believed he was, then it was a misunderstanding on his part. Thus his further allegation that the job Keagan obtained was preferable to the one at Stern Catalytic which he (Lawrence) later obtained is also dismissed. Assessing these jobs at the time they were referred (and not as they eventually turned out), it is my view that while the Stern Catalytic job paid $1.00 less, it cannot be said to constitute discriminatory treatment that it was made available to Lawrence.
Counsel for the complainant urged me to award the complainant costs if I found in his favour. That issue does not arise since I have dismissed the complaint; however, even if I had found that the union had breached section 69, 1 see no reason in this case to depart from the Board's usual practice not to award costs as set out in D'Alessandro and Marinaro, [1985] OLRB Rep. Dec. 1708.
For all of the foregoing reasons, the complaint is dismissed.