[1986] OLRB Rep. February 194
1490-83-U Maurice Berlinguette, Pat Proulx, Lionel Trudel, Paul Pilon, Complainants, v. Labourers' International Union of North America, Local 1036, Respondents
BEFORE: Owen V. Gray, Vice-Chairman.
APPEARANCES: A. Bradley, Leo Berlin guette, Maurice Berlin Guette, Pat Proulx, Lionel Trudel and Paul Pilon for the complainants; S. B. D. Wahl and J. Lewis for the respondents.
DECISION OF THE BOARD; February 7, 1986
In this complaint filed under section 89 of the Labour Relations Act, the complainants, all members of the respondent trade union, complain that the union has violated section 69 of the Labour Relations Act, which provides:
'Nhere, 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.
When it was filed in October, 1983, this complaint referred to an alleged failure by Jimmie Lewis, the respondent's business manager, to provide the complainants with copies of the respondent's out-of-work lists and other documents covering hiring hall transactions during the period January to September 1983, and went on to allege baldly that .... .Jimmie Lewis has violated Article 69 of the Labours [sic] Relations Act by using his office as an Instrument of Favoritism and patronage, due to his hiring hall practice."
On the first day of hearing February 23, 1984, the respondent moved for dismissal on the grounds that a refusal to supply information could not constitute a violation of section 69 of the Labour Relations Act, and that the allegation just quoted failed to meet the requirements of Rule 72 of the Board's Rules of Procedure with respect to particularity. At the conclusion at that day of hearing, I directed that the complainants file a written statement of the material facts, actions and omissions on which they intended to rely. That direction was confirmed in a decision dated April 2, 1984, (reported at [1984] OLRB Rep. April 586) in which I concluded that a refusal of information could constitute a violation of section 69 of the Act if the refusal was "arbitrary, discriminatory or in bad faith." After that decision was released, the complainants made further inquiries of Jimmie Lewis and, after receiving his answers, filed the following Bill of Particulars dated May 22, 1984 ("the bill of particulars"):
Mr. Reynolds was improperly referred to Cliffside Construction Company. worked June 16th 1983 until November 18th, 1983.
Mr. William Suppa was improperly referred to Cliffside Construction Company July 21st, 1983 worked until August 24th 1983.
Mr. Ronald Dauphin was improperly referred to Bird Construction on March 12th 1984. He is still employed at Bird Construction.
Mr. Jacques Pitre was working for Brunswick Drywall, Ontario Ltd. on March 15th 1984 and probably before that time. He was number 231 on the Out-of-work-List on March 15th 1984. Date of lay off April 12th, 1984.
Mr. Joseph Neveau was improperly referred to Cliffside Construction Company on June 16th 1983. He worked till December 10th, 1983. Layed [sic] off December 10th, 1983.
Mr. Vincent Chilelli - the date on the Out-of-work-List is improper and could result in an improper referral.
Mr. Ed Danz was improperly referred on September 21st, 1983 to Laurentian Masonry Sudbury Ltd. until September 28th, 1983 also worked October 2nd, 1983 until October 10th, 1983. He was then laid off.
Mr. Jack Barry was improperly referred on September 7th, 1983 to Sampson Construction Company. He worked until September 20th, 1983 then laid off. This improper referral would give him recall rights and then he would be eligible for more improper referrals in the future.
Mr. Waito was improperly referred on November 9th 1983 to Sampson Construction.
The bill of particulars makes no reference to any failure of the respondent to supply information. When the hearing of this complaint resumed on June 27, 1984, the complainants' representative confirmed that they did not wish to pursue any allegations concerning their earlier attempts to obtain information from the respondent.
The parties' evidence and argument occupied 11 days of hearing on various dates from June 27, 1984, to May 23, 1985. At the very end of this process, in the course of his reply argument, the complainants' representative withdrew their complaint with respect to the matters referred to in paragraphs 4, 5, 6, and 7 of their bill of particulars. This decision, therefore, deals only with the 5 work referrals complained of in paragraphs 1, 2, 3, 8 and 9 of the complainants' bill of particulars.
The respondent is a trade union which engages in the referral of persons to employment pursuant to the provisions of at least two collective agreements: the provincial agreement between the Labourers International Union of North America, Ontario Provincial District Council, and the relevant employer bargaining agency, covering the industrial, commercial and institutional sector of the construction industry ("the ICI agreement") and the Labourers Distribution Pipeline Agreement for Canada between the Pipeline Contractors Association of Canada and the Labourers International Union of North America ("the distribution pipeline agreement"). Both agreements require that employers bound by them obtain their workers from the hiring hall of the appropriate local union so long as thatunion has qualified workers available for work. With certain exceptions, the union has the sole right to select the persons who will be referred to work in response to an employer's request. An employer dealing with Local 1036 under the ICI agreement has the right to re-hire by name any unemployed union member in good standing whom that employer has employed during the preceding twelve months. The distribution pipeline agreement gives a bound employer the right to retain the original crew on a particular job until that job is completed, and the further right to re-hire by name some or all (depending on the circumstances) of those union members in good standing whom it has employed within the previous six months.
Under its constitution, members of the respondent union elect a business manager, who becomes its full-time, paid employee. The operation of the respondent's hiring hall is one of the business manager's chief functions. In the time frame with which this complaint is concerned, there was no single document setting out the rules which governed or guided the business manager in the selection of members for referral to work in response to employer requests.
The current business manager, Jimmie Lewis, was first elected to that position in 1973, displacing the man who had served as business manager since the local came into existence in the early 1960's. Lewis testified that when he took office he continued the system employed by his predecessor in referring members to work, as modified from time to time thereafter by resolutions of the membership. That system involved the maintenance of an "outof-work list." Upon his registering for employment, an unemployed member's name would be placed on this list. If he had become unemployed as a result of lay-off from a job at which he had worked less than fourteen working days, his name would be returned to the position it occupied at the time he was referred to that job. If he had quit or been terminated for cause or laid off after more than fourteen days' work, the member's name would be placed at the bottom of the list. As a general rule, the business manager or someone acting under his supervision would respond to an employer's request for a worker by going through the outof-work list staring at the top and contacting in succession each member with the qualifications required by the employer for the work in question. The job opportunity would go to the first member contacted who accepted the referral, and his name would then be struck from the list. The complainants agree that these are the general rules and they acknowledge that member may be referred to work regardless of his position on the list if a former employer exercises a collective agreement right to recall him by name. At the time Lewis became business manager, it was part of the hiring hall practice that members of the union's executive board who were laid off would be sent out to work again as soon as possible; in effect, they would be placed at the top of the list. This preference was eliminated by resolution of the membership in 1979.
The collective agreements referred to earlier each recognize that the union will appoint a steward from among the employees it sends to a job. The steward acts as the union's on-site representative in matters involving the administration of the collective agreement. The agreements afford some protection to that function, by requiring that the steward not be excluded from overtime opportunities and that he be the last or next-to-last person laid off. Lewis testified that it has been his policy and practice to ensure that the person appointed as steward is the person best qualified to act as steward on the job in question. In selecting a person to be dispatched as steward, Lewis does not limit himself to persons whose names appear at the top of the list. He takes the position that he should dispatch the best qualified person regardless of that person's position on the list. From his perspective, appropriate qualifications include experience as a steward on similar projects, knowledge of the provisions of the particular collective agreement which applies to the project, familiarity with the scope of jurisdiction asserted by the Labourers union on projects of that kind and of the kinds of jurisdictional difficulties which might be experienced with other crafts who are expected to be at work on the site. Familiarity with the area in which the job is to be performed may be important on jobs outside the immediate vicinity of Sault Ste. Marie. The ability to speak languages other than English is also an important consideration, because many of the local's members do not speak English. Past experience in dealing with the particular employer and familiarity with his supervisory personnel can also be important in some circumstances. The complainants said that they had not been aware of any situation in which the worker appointed as steward on a job had been sent to that job otherwise than as a result of his position on the out-of-work list. In its evidence, however, the respondent provided a number of examples of members having been referred to a job and appointed steward although there had been others above them on the out-of-work list who had the qualifications requested by the employer.
Mike Reynolds and Bill Suppa were the President and Recording Secretary, respectively, of the respondent trade union when Lewis referred them to employment with Cliffside Construction on June 16 and July 21, 1983, respectively. Neither man's name appeared on the regular out-of-work list at the time of these referrals. Reynolds had been employed as a full-time business agent to assist Mr. Lewis from June 1, 1981 to February 4, 1983. Employment opportunities for labourers were plentiful in 1981. Mr. Reynolds had quit his existing job in order to take up the position with the local. Had he put his name at the bottom of the "out-of-work list" at that time, as he would have been entitled to do, his name would clearly have been at the top when his appointment as business agent terminated in 1983. It was Lewis' policy that persons laid off from full-time employment with the union ought then to be treated as being at the top of the out-of-work list and referred to the first satisfactory work opportunity. He noted this approach had been followed when he was first elected as business manager: his predecessor had been referred out to work immediately, without complaint by the membership. Ron Dauphin had been employed by the union as a business agent for six months in 1981; he too had been referred out to work immediately upon the termination of that employment, although his name was not then on the out-of-work list. Lewis testified that the referral of Reynolds to Cliffside Construction in June of 1983 could have been justified on the basis of this past practice, since this was the first referral of Reynolds to work following the completion of his assignment as business agent in February of that year. However, that was not the basis of the referral decision.
Cliffside was corporate relative of a company referred to in evidence as "McDace", a distribution pipeline contractor to whom the union had previously supplied men for a project in 1981 and 1982. A number of difficulties had arisen during that earlier project. Mindful of those difficulties, Lewis met in June 1983 with Michael Slugoski, who was general superintendent for the 1983 Cliffside project and had been general superintendent for McDace on the earlier project. In the course of their discussion about how the earlier problems could be avoided on Cliffside's 1983 project, Lewis and Slugoski agreed it would be helpful if each of the two required crews included a top-notch steward. Lewis decided to refer Reynolds to the Cliffside job as one of those two stewards, as he regarded him as best qualified to fill that function.
Bill Suppa's name was not on the regular out-of-work list because his name was being used to test and de-bug a computer system which the union was then developing (and later implemented) for the maintenance and processing of hiring hall records and job referral transactions. If his name had been on the regular list, however, it would not have been at or near the top. Lewis referred Suppa to Cliffside as the second of the two stewards required for Cliffside's two crews, because be considered Suppa best qualified to act in that capacity.
Lewis says quite simply that the referrals of Reynolds and Suppa to Cliffside were made in accordance with his policy and practice to refer the best possible stewards to each job regardless of the positions of the appointees on the out-of work list. I do not propose to review in detail the evidence I heard concerning the qualifications of Messrs. Reynolds and Suppa. They both had extensive experience in all aspects of labourers' work. They were familiar with pipeline work, something with which only a minority of the local's members had had any experience. They both had extensive experience in collective agreement administration. While the complainants challenged the theory that the business manager ought to appoint the most qualified persons as stewards, and suggested that other members of the union could have done an adequate job or ought to have been given an opportunity to try, they did not seriously challenge the proposition that Reynolds and Suppa were among the best, if not the best, qualified members of the union to act as stewards on the Cliffside job.
Jack Barry was referred to work for Sampson Construction Company on September 7, 1983, and worked for Sampson until September 20th, when he was laid off. The referral came about as a result of a telephone call Lewis received from Wes Carson, Sampson's superintendent. Carson told Lewis that Sampson had been awarded an emergency job at Algoma Steel. It had to be done quickly, and would be completed in less than two weeks. Although Sampson already had 3 or 4 Local 1036 members working on the job, Carson felt he could add one more labourer. He asked for Jack Barry by name because Barry had worked for Sampson before, knew its employees and supervisory staff and was familiar with its yards. Carson explained that he needed someone who could work on the night shift and go back and forth between Sampson's yard at Cedar Street and the one it maintained at Algoma Steel in order to get supplies for the job. Carson thought that Barry could do this without supervision, and he was confident that Barry could handle the jackhammer work which would also be involved. Because the job was a short one, Carson said, he would not have time to break in a new person for this work. If the union would not send Jack Barry, he did not want the199 union to send anyone at all. Sampson did not at that point have the right under the applicable collective agreement to request Barry by name; Barry's last employment with Sampson had ended more than twelve months previous.
Lewis was not happy about Carson's statement that he would not take anyone but Barry, but he took that statement seriously; he thought Carson meant it. He weighed a number of considerations. Sampson had three or four other members of the local in its employ and also had a contract with the carpenters' union. He thought about whether the failure to supply Barry would result in those other members being overworked or in transfer of labourers' work to members of the carpenters' union. Barry had been unemployed for over a year. The job was a short one - so short that a member sent to the job would not lose his place on the out-of-work list, unless discharged by Sampson for unsatisfactory performance. Lewis had to consider whether that would be the result if he sent anyone else. In the end, he decided to refer Barry to the job.
Percy Waito was referred to work for Sampson Construction on November 9, 1983. Waito had worked for Sampson from August 1981 to September 15, 1982, when he was laid off. Waito was the steward at Sampson's YMCA project when he was laid off. At that time Sampson was still employing labourers on a project in another area of the city. The applicable collective agreement required that "a union steward shall be one of the last two (2) employees retained on the job. Waito felt this obliged Sampson to transfer him to the other project and lay off one of theother labourers working there, if necessary, so that he would remain employed with Sampson until the other project was completed. Waito brought this grievance to Lewis. Lewis asked Mike Reynolds, who was then employed by the local as a business agent, to discuss the matter with Sampson's owner. One of the matters they discussed was that the superintendent on the project to which Waito would be transferred if he was then reinstated was a man with whom Waito did not get along well, and this might cause problems. This was not presented as a legal defence to the grievance but, rather, as a practical consideration in devising a suitable settlement. Sampson expected to get further work which would require further labourers. He proposed settling the grievance on the basis that Waito would be dispatched to fill the very next labourer's job that opened up with Sampson.
Waito was satisfied with this proposal, and Lewis agreed to it on behalf of the respondent union. At the time of the agreement, all concerned expected that Waito's recall to Sampson would occur within the next several months. Under the collective agreement, Sampson had the right (but not the obligation) to recall Waito by name, regardless of Waito's position on the list, at any time during the twelve months following the lay-off which Waito had challenged. The settlement created an obligation to recall Waito by name. That obligation was not limited in time, and the opporunity to fulfill it did not arise until November 1983 when the collective agreement right had expired. The existence or otherwise of recall rights was not an issue at the time of Waito's referral, however. As far as Lewis was concerned, he made the referral in accordance with the terms on which Waito's grievance had been settled.
Lewis referred Ronald Dauphin to work for Bird Construction commencing March 12, 1984 on a project involving the construction of a water treatment plant. Dauphin was not at the top of the out-of-work list. Lewis dispatched Dauphin to the job because he intended to and did appoint Dauphin steward on that job. Lewis anticipated (correctly,as it turned out) that jurisdictional disputes might arise between labourers and carpenters on this project, and he wanted to have a steward who was quite familiar with the jurisdiction claimed by labourers on this type of project. In addition to his experience as a business agent in 1981, Dauphin had been steward on a number of projects, including the construction of water and sewage treatment plants in Elliot Lake. Again, while the complainants challenged the necessity of a policy that the best available persons be appointed stewards regardless of their position on the out-of work list, and while they argued that others could have done an acceptable job or ought to have been given an opportunity to try, the complainants did not challenge the proposition that Dauphin was a good steward for this project.
In my decision of April 2, 1984, I recorded the reasons which the complainants' representative then said had prompted their filing this complaint:
... Mr. Bradley told the Board that the complainants want to get a set of rules with respect to the operation of the union's hiring ball. ... They feel that a detailed accounting of hiring hall operations is needed. They are not happy with the documentation available to them. They want documentation which would tell them who worked where on any particular occasion. They want to know what the classifications are which determine referrals. To this end, he said, the complainants want a directive from theBoard just like the directive in the Portiss case ([1983] OLRB Rep. July 1160). Mr. Bradley explained that the rules and regulations governing the operation of the respondent's hiring hall have been under consideration by a committee of members and by the Executive Board of the respondent union. One of the complainants is a member of both the committee and the Executive Board. In the circumstances, the complainants feel that the Board's decision in this complaint would and should have a bearing on the question of what rules and regulations the Local Union should have in place.
It appeared then that the complainants misunderstood the Board's function, believing it to have some general jurisdiction to decide what rules ought to be followed in the operation of a hiring hail upon application of a member who is unhappy with the existing rules. It appeared this belief sprang from a reading of the result in Joe Portiss, [1983] OLRB Rep. July 1160, (1983) 4 Can. LRBR (2d) 69, without considering the unique circumstances which gave rise to that result. I observed then that:
…Record keeping obligations and inspection rights were imposed in the Portiss case in response to a demonstrated pattern of abuses and favouritism which had been able to flourish in a climate of secrecy maintained by the union's officers...
It is important to note that in Portiss the Board did not prescribe the rules by which referral decisions were to be made. It directed only that the union properly establish, and then follow, such rules. The Board's requirement that various lists be maintained and kept available for inspection by members was in response to what the reader will understand was an unusual situation. The remedies imposed by the Board in the Portiss case do not represent a standard with which every trade union must in every case comply in order to satisfy its duty under section 69. The language of the Board in the Portiss case makes that clear; the Board would not otherwise have described its remedies as "far-reaching". The Board is not in the business of imposing hiring hail rules or dictating improvements to hiring hail administration, as appears from the following passage from the Board's decision in John Cooper, [1984] OLRB Rep. Jan. 6:
- This is not to say that we are entirely happy about the way in which the hiring hall is operated. The union's record-keeping procedures leave something to be desired and the heavy reliance on the [business manager's] memory creates a real potential fbr error. There may be up to 100 unemployed members on the list at any one time, and it will obviously be difficult for [the business manager] to remember the qualifications, preferences and circumstances of each one of them. An honest error may not be illegal but the union should still make every effort to reduce the potential for error and the possibility that members may think they have been dealt with unfairly. Unless the union's hiring hall rules and the factors which [the business manager] takes into account are reduced to writing and regularly explained to the membership so that there can be no excuse for misunderstanding, suspicions are bound to arise fueling dissention in the Local and potentially costly and unnecessary litigation. Equally important, if members are not fully aware of the criteria which might support their claim for a job referral, they may fail to communicate their situation to [the business manageri and, in consequence, remain out of work longer than might otherwise be the case. However, it is one thing to suggest that the system could be improved or that more effort should be made to educate the membership. It is quite another to suggest that the existing system, endorsed by the membership, is illegal, or that [the business manager] himself has acted improperly and in contravention of section 69 of the Labour Relations Act. we do not think that the evidence supports either proposition.
[emphasis added]
The particular focus in those observations on the record keeping and information disclosure aspects of hiring hall administration was a response to what then appeared to be the complainants' concerns. While the apparent focus of their complaint shifted thereafter to the nine matters set out in their bill of particulars, it became apparent from the conduct of their case that they still thought the Board would, in effect, arbitrate their differences with the union's business manager, executive board and other members over what rules ought to govern the operation of the respondent union's hiring hall. The complainants' representative had to be regularly reminded that the complaint was limited to the matters outlined in the bill of particulars. Despite those repeated reminders, the complainants' representative consumed an inordinate amount of hearing time with questions about matters and issues which had little or no apparent connection with those raised by the complainants' bill of particulars, except as unnecessary background or as part of an unparticularized and entirely unsuccessful attempt to show that the complainants had been treated badly by Lewis or others of the respondent's officers. By way of example, the classifications set out in Article 10 of the Sault Ste. Marie local schedule to the ICI provincial agreement were the subject of questions asked of almost every witness: which of the listed qualifications did the witness have, how many constituted qualifications which would have been recorded against a member's name before the referral system was computerized, how many were actually recorded against that member's name, how had they come to be recorded, how did the business manager decide whether a member was qualified to be referred a job which required special skills, did the witness feel the number of special qualifications which could be recorded against a member's name under the computer program now used by the respondent was adequate, and so on. All this was pursued despite the fact that no-one, not even the complainants as it turned out, was suggesting that the way in which qualifications were ascertained or recorded had played any significant part in any of the circumstances complained of in the bill of particulars.
The complainants' misconception of the Board's role and jurisdiction in a complaint of this sort persisted to the end, and manifested itself in much of the argument made by their representative when the evidence finally concluded. This was particularly so in the argument about the referral of stewards.
In his evidence, Lewis explained that the welfare of the union and its members is directly affected by the union's ability to defend and, if possible, extend its work jurisdiction, to ensure employer compliance with the applicable collective agreement and to minimize work-site problems, because these matters all have an effect on the future quantity and quality of the work opportunities available to members. In his view, the steward on each job plays such a critical role in all of these important matters that it is in the best interests of the union and its members that the selection of members for referral to a job be done with an eye to including among them someone with the best possible qualifications to act as steward on that job. That was how he justified his policy of sending the member best qualified as steward regardless of his position on the out-of-work list.
The complainants' representative argued, as he had with witnesses during his examination of them, that the purpose of the out-of-work list was to make a fair distribution of work opportunities on the basis of "seniority on the out-of-work list" and appropriate qualifications to perform the work required by the employer. He argued that a steward ought to be selected from those otherwise entitled to a referral to the job, and that the union ought to have a training program for stewards.
These arguments highlight the interests which must be balanced by a union which operates a hiring hall in determining the basis on which referral decisions will be made and the factors to be taken into account in making them. The trade union has a legitimate interest in maximizing the quantity and quality of its future work opportunities. From that perspective alone, it makes sense to send out only "the best": not only the best stewards, but also the best workers. The trade union also has a legitimate interest in ensuring that there is an equitable distribution of work opportunities among all those with the minimum qualifications for those opportunities. That perspective favours a rigid "first in, first out" system. Obviously, these interests conflict. 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.
I must observe once more that neither section 69 nor any other provision of the Labour Relations Act gives this Board the power to arbitrate an internal disagreement over what rules ought to govern the operation of a hiring hall. Section 69 requires that a trade union like the respondent not act in a manner that is "arbitrary, discriminatory or in bad faith" in the operation of its hiring hall. A complaint under section 69 must focus on those quoted words and show that the behaviour complained of falls within them.
The referrals of Reynolds, Suppa and Dauphin were referrals made in accordance with the business manager's customary approach to the appointment of stewards. That approach has a rational basis. I am satisfied it has not been applied in a manner which is arbitrary, discriminatory or in bad faith, either in these referrals or any of the other instances referred to in evidence. Reynolds, Suppa and Dauphin were clearly well qualified in accordance with the objective criteria Lewis described. These referrals did not violate section 69 of the Labour Relations Act.
The referral of Barry was a departure from the rules Lewis ordinarily followed in making referrals and the same is true of Waito's referral, particularly if the settlement of his grievance is ignored or treated as irrelevant. That does not necessarily make either referral arbitrary, discriminatory or in bad faith. The context must be considered in each case. Asked what Lewis should have done in the context in which he decided to refer Barry, the complainants' representative said Lewis should have done nothing: he should have sent no-one. While this meant no unemployed member would get the work offered, this was preferable,in the complainants' opinion, to making a referral from which Barry would get "recall rights." In Waito's case, the complainants' representative says Waito's grievance should have been pressed and Sampson should have been forced to layoff one of the other labourers it employed. While he acknowledges the union's right to settle grievances, he says the union cannot do so in a way which "hurts" other members. He says this settlement "hurt" other members because it resulted in an out-of order recall beyond the ordinary 12 month limit on recall rights.
Acceptance of the complainants' submissions in Waito's case would effectively deprive unions of the power they must necessarily have to resolve disputes in an amicable manner. Disputes involving any one union or bargaining unit member will ordinarily have an impact on other members; so will settlements of such disputes. The impact of settlement will be different from that of pursuing the dispute; a settlement is made because its impact is considered preferable to that of pursuing the dispute. A settlement nearly always involves an ad hoc departure from what at least one interested party thought should be the result of applying the usual rules. That departure may well change the circumstances of other members of the union or bargaining unit. Ignoring the group interests in which individual members share, a settlement of one member's grievance can often be perceived as having some negative impact on another member or members. That is inevitable. The mere fact that a settlement made for one member in some way alters the rights actually enjoyed by others does not make the settlement a violation of section 69. I do not find either the Waito settlement or the referral which resulted from it to be a violation of section 69.
Even when it does not result from settlement of a grievance, a departure from ordinary rules will not necessarily constitute a violation of the duty to act in a manner which is arbitrary, discriminatory or in bad faith: see Thomas Beck, [1985] OLRB Rep. Jan. 14 and the decisions referred to therein. Lewis felt that he was entitled to depart from strict adherence to his ordinary practice when the circumstances warranted such action. He concluded they did in the case of Sampson's request for Barry. A discretion of this sort carries with it both the possibility of abuse and the potential for a more equitable and sensitive administration than could be possible with mechanical application of simple rules to unforeseen situations. The mere fact that such a discretion is exercised is not a breach of section 69. Once again, the question is whether the discretion has been exercised in a manner which is arbitrary, discriminatory or in bad faith. In the case of the request for Barry, Lewis faced a difficult problem. He was not obliged to bury his head in the sand. The factors he considered in dealing with the problem were relevant, and the conclusion he came to was rational. He was not influenced by any improper matter. His decision did not violate section 69.
Having spent eleven days hearing about what the complainants presumably regarded as the worst misconduct they could think of to complain about, I feel that one final observation will be in order. The members of Local 1036 have since 1973 entrusted Jimmie Lewis with the day-to-day management of the affairs of their local. They no doubt expected him to advance their collective interests to the best of his ability and to balance their individual interests in a fair and even handed manner. I heard nothing in those eleven days which would lead me to conclude that he has acted otherwise.
This complaint is without merit, and is hereby dismissed.