[1986] OLRB Rep. June 758

1607-84-U Donald McConvey, Complainant, v. United Association of Journeymen and Apprentices of The Plumbing and Pipefitting Industry of The United States and Canada, Local 46, Respondent

BEFORE: Owen V. Gray, Vice-Chairman.

APPEARANCES: C. J. Abbass and Don McConvey for the complainant; L. C. Arnold and S. O’Ryan for the respondent.

DECISION OF THE BOARD; June 19, 1986

1. The nature of this complaint was described in an interim decision dated September 10, 1985, now reported at [1985] OLRB Rep. Sept. 1386 at paragraphs 2 and 3. I quote those paragraphs here as a convenient starting point for this decision:

2. The complainant is a member of the respondent trade union. When work is available, he works as a pipefitter for pipeline contractors who are party to collective agreements with the respondent's parent International Union and those of its Locals, including the respondent local, to which it has assigned pipeline jurisdiction. The provisions of those collective agreements which control the hiring of journeymen pipefitters and welders for pipeline construction projects give the employer the right to fill a certain percentage of the available jobs with trade union members it requests by name with the trade union selecting and referring the remainder of the required employees. Because pipeline contractors have the right to "name hire" a percentage of their crew, experienced pipeline workers solicit work by approaching contractors directly and asking that they be "name hired".

3. The complainant says the respondent trade union violated section 69 of the Labour Relations Act by refusing to honour contractors' requests to "name hire" him and by interpreting and administering the applicable collective agreements in such a way as to restrict the opportunity for "name hires" and, therefore, the opportunities for direct solicitation of work.

4. Section 69 of the Labour Relations Act provides:

5. 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.

In this case, the relevant collective agreement is the Mainline Pipeline Agreement between the Pipeline Contractors Association of Canada on behalf of its members and the United Association of Journeymen and Apprentices of the Plumbing and Pipe fitting Industry of the United States and Canada ("the United Association") and those of its local unions, including the respondent ("Local 46"), to which it has assigned jurisdiction in Canada, covering the period from May 1, 1983 to April 30, 1985. Article V of that agreement provides, in part, as follows:

ARTICLE V

HIRING PROCEDURE

A. Upon receipt of the Job Notification from the Employer the Local Union(s), shall, prior to the pre-job conference provide the Employer with a list of available qualified Journeymen.

B. The Employer shall select fifty percent (50%) of the required Journeymen from the list of qualified members supplied by the Local Union(s). The Employer shall have the right to select twenty-five percent (25%) of the required employees from any source provided such employees are members of the Union. The remainder of the required employees shall be supplied by the Local Union(s) provided that qualified members are available.

C. The ratio of employees selected from and supplied by the Local Union(s) shall be maintained throughout the project.

The pre-job conference referred to in paragraph A of Article V is dealt with in Article IV, paragraph B as follows:

ARTICLE IV

JOB NOTIFICATION AND ENFORCEMENT

B. The Employer and the Union shall hold a pre-job conference before the start of the job and the Union Representatives of the Local Unions in whose jurisdictional areas the work is being performed shall be authorized by the Union to represent the Union at the pre-job conference and establish those job arrangements stipulated in this Agreement for the duration and for the entire area covered by the job. The purpose of the pre-job conference shall be to define those matters outlined in the Pre-job Conference Report which is attached to this Agreement as an Addendum, but not including the changing of any of the conditions of this Agreement nor any interpretation of any of its clauses. Any interpretation of this Agreement shall be made between the prime parties hereto so that proper application thereof may be made on the job.

The Pre-Job Conference Report form referred to in this paragraph appears as Addendum B to the agreement. Matters outlined in that form include the hiring procedure and particulars of the numbers and classifications of workers required in the crew which will do the work described in the report.

3. The Mainline Pipeline Agreement is not the only collective agreement pursuant to which the respondent trade union is "engaged in the selection, referral, assignment, designation or scheduling of persons to employment". By far the greatest volume of the work its members perform is not in the pipeline field but in various sectors of the building construction and industrial maintenance industries. When and to the extent that this union has the opportunity to select persons for assignment to job opportunities in those fields, it uses an "out-of-work list" system which was described in detail in the Board's decision in Thomas Beck, 11985] OLRB Rep. Jan. 14. That system involves the use of an out-of-work list to which a member can add his (or her) name when his employment is terminated. Subject to certain refinements described in the Beck decision, a member's ranking on the out-of-work list depends on the date he registered as out of work, and referrals are made from the list on a "first-in, first-out" basis. The list used for referral to building construction and maintenance work, however, was not used in making referrals under the collective agreement under consideration here.

4. The daily affairs and business operations of Local 46, including the referral to work of members and the operation generally of its hiring hall, are under the control and supervision of its business manager by virtue of section 104 of the Constitution of the United Association. Sean O'Ryan succeeded Bill Howard as the respondent's business manager in 1983. According to O'Ryan and Bill Weatherup, the respondent's pipeline business agent, there was no clearly defined, consistent method of selecting members for referral to work on pipeline projects during the tenure of Mr. Howard and his predecessor. To be fair, the need for formality and structure was less pressing in those years when, as the evidence discloses, the number of pipefitters and welders with the necessary experience in the pipeline field was small and none of those persons was ever without work for long. Substantial increases in available pipeline work during the early 1980's provided pipeline opportunities for more members of Local 46, leaving a greater number of experienced workers seeking a diminished number of pipeline jobs when those big projects came to an end.

5. During a period in which the number and financial attractiveness of pipeline work opportunities was increasing, Mr. Weatherup proposed, and in May 1982 the union's membership passed, the following resolution:

WHEREAS, there is an ever increasing job opportunity in the energy field.

WHEREAS, it is part of our trade and the opportunity to work in that field and the opportunity to work in that field should be available to all members of Local 46 if they so desire to put the effort in to obtain the basic required knowledge.

WHEREAS, posting of a visible list is consistent with our general policy relating to the out of work book.

THEREFORE be it resolved. A separate list be posted on the out of work board pertaining to three categories

Welder Pipeline

Fitter Pipeline

Helper Pipeline

1. Helpers having qualifications of fitter or plumber shall have opportunity to progress to the bottom of pipeline fitter list after completion of 16 weeks as pipeline helper that including a minimum of six weeks work on front end.

2. The pre-job hiring procedure by pipeline agreement. This is to ensure at least 25% of the members request come off the out of work list.

3. All request for additional help after pre-job by contractor come off the respective posted lists.

The precise mechanics of constructing and maintaining the separate out-of-work lists called for by this resolution were the subject of considerable discussion between O'Ryan and Weatherup after O'Ryan took over as business manager in 1983. Having regard to the evidence before me, I find that the approach they adopted and the steps taken to implement it were as they have been described in an earlier decision of the Board (differently constituted) in Raphael A. Julien, [1985] OLRB Rep. Apr. 537, particularly at paragraphs 16 and 17. I will not repeat what was said there. It is enough to observe that a member's placement on these pipeline lists was made a function of both the period of time since the member's last pipeline work and the period of time since the member last registered as out of work for the purpose of the building trades list. That formula is not under attack in these proceedings nor, having regard to his periods of employment with McWaters Plumbing, is McConvey complaining that he ought to have received a referral as a result of the operation of these lists.

6. In his dealings as business manager with pipeline contractors at pre-job conferences, O'Ryan seeks to persuade the contractor not to exercise, fully or at all, its right to select twenty-five percent of its work force from the membership of other locals of the United Association. In that respect, his approach was the same as that of his predecessor, Bill Howard. What O'Ryan seeks, instead, is an agreement that the contractor would name-hire from among Local 46 members up to fifty percent of the required crew and Local 46 would select and dispatch the balance of the required tradesmen. In this respect, O'Ryan's approach did differ from that of his predecessor, who had often agreed that a contractor could name-hire all of his crew, provided they were all members of Local 46. O'Ryan also asks that the contractor specify at the pre-job conference not only the numbers of journeymen, welders and helpers it requires for its crew but also the names of all of its name-hire selections as well as alternates in case those first choices prove to be unavailable. The names of persons selected by the employer as its name-hires and alternates are ordinarily set out in the pre-job conference report signed by both parties, a copy of which is posted in the union dispatch office following the pre-job conference. Having had an employer identify all those who could be the object of the employer's right under Article V to select a portion of his crew, O'Ryan takes the position that there can be no name-hires after the pre-job conference with respect to work covered by the pre-job report. That appears to be, or result in, another change in practice, since name-hiring of persons not requested at a pre-job conference did occur on pipeline projects before O'Ryan became business manager.

7. It is against that background that McConvey made this complaint. McConvey was one of the first members of Local 46 to "break out" into pipeline work, at which he is universally regarded as highly skilled. It would appear that until 1984, at least, when pipeline work was available, he was generally able to solicit his own job, and did not rely on the respondent trade union to find him work. More than once in the spring and summer of 1984, however, McConvey had the disheartening experience of soliciting work from a pipeline contractor who would assure him he would be name-hired, only to be told by the union that he could not have a referral slip because, it said, he had not been requested by the employer. As originally framed, this complaint alleged that in three such situations the pipeline contractor had actually requested him by name but the union had denied him a referral slip because, McConvey alleged, the union's officials bore ill-will toward him. McConvey's complaint connects these refusals with events a year earlier, in which he became the subject of discipline by a union trial board as a result of drunk and disorderly behaviour at a union meeting.

8. The hearing of this complaint occupied several hearing days spread out over the course of a year. During McConvey's wide ranging case in chief and the union's exhaustive response, the Board was presented with detailed evidence of Mr. McConvey's employment history and that of others whose names emerged in evidence, a detailed examination of what took place at the pre-job conference for each of the jobs on which McConvey's complaint initially focused, a blow-by-blow examination of the incident which gave rise to the union's discipline proceedings against McConvey, a review of the discipline proceedings themselves and of several instances in which other union members had disrupted meetings and been disciplined as a result, a close examination of the meaning of the words "solicited" and "dispatched" when used in documents posted in the hiring hall to show what job referrals had been made, and a thorough investigation of the circumstances in which, through an erroneous assumption on the part of a dispatcher, another member got a referral slip without being dispatched from the list or name-hired by the employer. While no demonstrably irrelevant evidence was entertained when it was objected to, much of what was led can best be described as marginally relevant to the central issues and insignificant in the result. I do not propose to review such evidence here.

9. McConvey did not call any witness with firsthand knowledge of any contractor's having unsuccessfully sought to name-hire him in the exercise of its rights under Article V of the collective agreement. As evidence of the one such allegation which he continued to press to the conclusion of the hearing, counsel for McConvey sought to tender the following letter written to McConvey by Jerry Lozynsky, an employee of Marine Pipeline of Canada Limited ("Marine"):

This letter will confirm our endeavours to name request you for employment on our pipeline project for I.P.L. in Clarkson, Ontario. The following is a brief summary of the events:

1. On July 5, 1984, we called the Local 46 dispatch office and name requested you as a journeyman for our pipeline project. We were advised at that time by the pipeline business agent that you were too far down the list and therefore you were unable to be dispatched to the project.

2. On July 6, 1984, we again called the Local 46 dispatch office and requested you as a Straw Boss. We were advised that this could be facilitated, but you were not able to perform any journeyman work.

We found this situation impractical and inefficient for our project, and therefore we ceased our endeavours to obtain your services on our project.

Should you require additional information, please contact us at 403-274-3433 in Calgary.

I ruled that I would not accept the letter as evidence of the truth of its contents, for reasons which are set out in my decision of September 10, 1985. Rather than seek a dismissal of this aspect of McConvey's complaint for want of evidence, the respondent trade union dealt with the allegations in this letter during the testimony of its business manager, its pipeline business agent and its two dispatchers, thus examining and making available for cross-examination every official or employee of the respondent who could have been a participant in conversations of the sort referred to in this letter. Their evidence was that McConvey was not name-hired at the pine-job conference, nor was he requested "as a journeyman" at any time thereafter. Marine officials did have a discussion with Bill Weatherup about whether McConvey could be referred as a "utility fitter", a term not used in the collective agreement nor recognized by Bill Weatherup despite his experience in the pipeline field. When Weatherup asked the Marine officials what they meant by this term, their explanation led him to believe, and to say to them, that they were describing the position of "straw boss". "Straw boss" is a first-line supervisory position outside the bargaining unit (and, thus, beyond the ambit of Article V of the collective agreement), and one to which Local 46 was more than happy to refer McConvey. McConvey told O'Ryan in early July that he expected to be sought by Marine as straw boss shortly before Weatherup reported to O'Ryan his conversation with Marine officials on this subject. O'Ryan asked one of the dispatchers to call Marine and ask when they wanted McConvey as straw boss. The dispatcher did so. The person he spoke to, whom he believes was Jerry Lozynsky, said that Marine did not want McConvey as straw boss at that time. None of the four union witnesses ever received a request from Marine that McConvey be referred as a straw boss on the project in question.

10. Counsel for McConvey did not call Lozynsky as a witness during his case in chief. He did not attempt to call him in reply. In argument, he submitted that the Board should draw an adverse inference from the fact that the union did not call Lozynsky as a witness with respect to the alleged refusal to honour his name-hire request. Despite that and other equally imaginative arguments offered by counsel for McConvey, I am left with no affirmative evidence whatsoever of a refusal by the union to honour any contractor's request that McConvey be referred to work, either pursuant to the subject collective agreement or otherwise. I would have no such affirmative evidence even if I disbelieved, as counsel for McConvey submitted I should, all of the evidence offered by the union's witnesses apart from Weatherup's evidence about his conversation with Marine officials about the possibility of referring McConvey as a "utility fitter". I should say that I do not disbelieve those witnesses, nor do I accept the submission that their explanations of hiring and pre-job conference procedures represent an elaborate fabrication designed to camouflage single-minded determination by union officials to so arrange its dealings with employers as to preclude McConvey from obtaining work. On the contrary, I accept as honest and credible the evidence of all of the union's witnesses. With respect to the discipline imposed on McConvey in 1983, in my view, neither the conduct nor the result of those proceedings warrants any inference that the union generally, or O'Ryan specifically, then or thereafter was influenced by ill-will toward McConvey or predisposed to act in bad faith in any matter which could fall within the ambit of section 69.

11. With respect to McConvey's alternate claim that the union breached section 69 by administering the collective agreement in such a way as to restrict the opportunities for direct solicitation of work, counsel for the union correctly observed that there is no evidence to show McConvey suffered any loss attributable to any difference between the way O'Ryan administered or interpreted the collective agreement and the way in which O'Ryan's predecessor administered and interpreted predecessor collective agreements. Nevertheless, counsel for the union urged the Board to deal with McConvey's argument on its (disputed) merits. I am satisfied that it would be appropriate to do so and will, for that purpose, assume that the differences between the way O'Ryan deals with hiring under the mainline pipeline agreement and the way with which hiring was dealt by O'Ryan's predecessor are likely to reduce the number of work opportunities McConvey can secure in the pipeline field.

12. Analysis of McConvey's argument must begin with some general observations about the nature of a hiring hall, and in that regard I adopt the following observations of the Board (differently constituted) in Joe Portiss, [1983] OLRB Rep. July 1160.

13. The hiring hall is a significant component in the administration of employment in the construction industry. Before the advent of unionism employment in the construction industry was not methodical, often being governed at the whim of employers and their personnel agents. Without the hiring hall employees, notably in the construction industry and the maritime industries, were too frequently the victims of abuse and arbitrary treatment at the hands of employers. (See, generally Hearings On Hiring Halls in The Maritime Industry. Sub-Committee On Labour Management Relations of Senate Committee On Labour And Public Welfare, 81st Cong. (2d) ses. 100-01(1950) and Bastress, "Application of a Constitutionally Based Duty of Fair Representation to Union Hiring Halls [1982] West Virginia Law Review 31). If they are operated fairly hiring halls provide an equitable and efficient means to distribute jobs, particularly in industries where jobs are temporary and manpower needs fluctuate. In these situations the union is well suited to act an an employment agency.

14. The hiring hall offers advantages to both employees and employers. It saves the employee from the need to canvas numbers of employers in an often fruitless search for work, acting as a clearing house in which available jobs and available workers can be matched. Particularly in periods of high unemployment it also provides the worker with a rational and objective system for the more equitable distribution of work among all employees rather than to the privileged few. The employer gains to the extent that the hiring hall relieves him of the need to screen and recruit employees with adequate qualifications for short term jobs. The employer avoids the administrative cost he would otherwise bear as well as incidental costs which he might have to incur to retain a crew of workers through slow periods to insure available manpower in busier times. A well run hiring hall will give the employer a ready pool of labour from which he can draw on short notice with little or no administrative cost. Moreover, to the extent that the hiring hall dispatches the same members to different kinds of jobs for different employers, as is notably the case for labourers, it may engender a work force with greater experience and sophistication, which will also benefit the employer.

15. 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 factual premise of McConvey's argument is that he is more likely to get work in the pipeline field when pipeline employers are permitted to choose their employees than he is if the union is entitled to distribute the available work among all adequately qualified members. In that respect, McConvey would fall within the "privileged few" category referred to in paragraph 7 of this extract from Portiss.

13. His counsel argued that McConvey's "right" to solicit his own work is analogous to seniority rights about which the Board has special concerns in matters arising under section 68 of the Act. He argues that an impairment of that right constitutes a violation of section 69. He also argues that the trade union's policy of allowing no name-hires after the pre-job conference and its policy of seeking employer agreement to increase the relative percentage of the jobs filled by dispatch from the out-of-work list both violate or are inconsistent with Article V of the collective agreement and therefore violate section 69.

14. Having regard to the substantial differences between construction industry employment relationships and those employment relationships in which long employment with a single employer is expected and comes to be reflected in seniority rights, it is difficult to establish any close analogy between seniority rights of that sort and the rights or expectations of construction workers whose employment opportunities are affected by the operation of a hiring hall. To the extent such analogies can be drawn, however, the particular analogy are proposed by counsel for McConvey is quite inapt. In the context in which seniority rights have their ordinary meaning, the potential contest for work opportunities is between the employee whose turn to be considered has arrived because of the effluction of time in employment, on the one hand, and the employee whom the employer would have selected for the job opportunity but for the seniority rights, on the other. From the perspective of the latter employee, the availability to him of job opportunities is restricted by any requirement that seniority be recognized. It could be said of that employee that his "right" to solicit such job opportunities is interfered with by the seniority provision won by the union in negotiations. The use of the word "right" in this regard is inappropriate, of course, both in his case and in McConvey's. The name-hire provisions of the collective agreement do not provide McConvey with solicitation rights - the only relevant rights are the name-hire rights of the employer parties to that collective agreement. If there can be any analogy between seniority rights and the operation of hiring halls, it is the one which was offered by the complainants in Maurice Berlin guette, [1986] OLRB Rep. Feb. 194, where the issue was whether the referral to work without regard to their place on the out-of-work list of members the union desired to act as job stewards was a violation of section 69:

15. 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.

16. 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 of in bad faith.

17. Both at the bargaining table and during the term of any collective agreement which results from bargaining, a trade union is entitled to seek from the employer those accommodations and changes which it feels best advance the collective interests of the employees it represents. Changes in hiring procedures and job rights will almost inevitably have a differential impact on those who are or may become employees governed by the collective agreement. When a trade union wins recognition of seniority rights as a means of minimizing possible employer favouritism in the assignment of work opportunities, that will have a negative impact on those employees who might otherwise have been the beneficiaries of such favouritism. Similarly, changes in the scope, effect or relative weight given to seniority will almost inevitably benefit some workers more than others. As the Board observed in Dufferin Aggregate, [1982] OLRB Rep. Jan. 35:

18. Allocating work and wages, whether in scarcity or in plenty, is the central fact in any scheme of collective bargaining. The struggle between union and management over the division of profits in the form of wage and benefits settlements usually gets the bulk of public attention. The less visible question, however, of which employees will work and how much they will get is often no less important. It may generate as much heat inside the union hall as does the confrontation with the employer outside. That kind of internal union tension stands in high relief in the facts of this case.

19. There are those who maintain that it is inconsistent with the duty of a trade union to fairlyrepresent individual employees for the union to take steps that will prejudice employees' vital job interests, including their job security. That view has generally been associated with the argument for an absolute right of individuals to have access to arbitration for such serious consequences as the loss of their employment. (See, e.g. Blumiosen, Legal Protection for Critical Job Interest: Union Management Authority Versus Employee Autonomy (1959), 13 Rutgers L.Rev. 631.)

20. The fact, however, that a union may be required in bargaining to make a hard decision that has a serious economic impact on individuals, up to and including the loss of their jobs, cannot of itself make that decision unlawful. That kind of decision is, moreover, not unusual. In making collective agreements it is practically impossible for unions to avoid making decisions that benefit one class of employees at the expense of another. For example when a union opts for more wages rather than better pension provisions it benefits its younger members rather than the older ones. Trade-offs of that kind are the everyday stuff of collective bargaining.

21. Under the Labour Relations Act such decisions are lawful so long as they are not arbitrary, discriminatory or in bad faith within the meaning of section 68 of the Act. In the knowledge that unions are commonly required to make hard decisions affecting their members, those words have been deliberately chosen by the Legislature to avoid undue interference in the internal affairs of trade unions. The Board's powers of review over union actions under the section go only to matters of representation, when the quality of representation falls below the limited threefold standard set out in section 68....

In Dufferin Aggregates, the trade union had sought and obtained a mid-term amendment of collective agreement provisions which required (before amendment) that haulage work be distributed among a number of dependent contractor truck drivers on a work-sharing basis. The work available had fallen to a level which represented economic starvation for all or nearly all of those who were entitled to share in it. The change sought and obtained permitted the employer to lay off more junior dependent contractors, with the result that the senior ones would receive a greater allocation of work. The Board observed:

22. In this case the complainants ask the Board to conclude that the decision to effectively eliminate the jobs of a minority is in itself a violation of the duty to fairly represent the members of the minority. Counsel for the complainants argues that the grievors had a contractual right and expectation to work out of the quarry over the life of the collective agreement, and that to re-open the contract to undo that right is a violation of their vested rights inconsistent with the duty of fair representation.

23. As compelling as that argument may seem, in my view it does not assist the understanding of the issue to simply assert that the members of a minority have an absolute right to be protected against negative consequences to their job security. The collective agreement is a contract made between the employer and the union. They are the parties to it, and any benefits which it confers on individual employees are necessarily subject to the possibility of amendment between the parties. In this regard it should be recalled that a cc'llective agreement is not "a bundle of individual contracts between employer and employee negotiated by the union as agent for the employees". (Syndicat Catholique des Employes de Magasins de Quebec, Inc. v. Compagnie Paquet Ltee, [1959] S.C.R. 205; (1959); 1959 CanLII 51 (SCC), 18 D.L.R. (2d) 346; McGavin Toastmaster Ltd. v. Ainscough (1975), 1975 CanLII 9 (SCC), 54 D.L.R. (3d) 1 (S.C.C.))

24. That is not to say that a trade union can with impunity disregard the interests of the employees it represents or take either a hostile or an indifferent attitude where employees' critical interests are at stake. In discharging its duty to fairly represent all of the employees in a bargaining unit a union must address its mind to the circumstances of those who may be adversely affected by its decision. It has a duty to weigh the competing interests of the employees it represents and make a considered judgement the procedure and result of which must be neither arbitrary, discriminatory nor in bad faith.

The Board went on to observe that special considerations attached to any decision by a union that alters or abrogates the job security of employees, especially in relation to seniority rights. It observed that the Board must be especially concerned where the job opportunities of a minority are transferred to a majority as a result of the majority's decision, and explained that some objective justification for so doing must be offered by the union beyond the mere fulfillment of the will of that majority. The test to be applied was elaborated in paragraph 37 of the Board's decision:

37. The Board must obviously use great care in assessing what is and what is not objective justification for a union's decision, particularly a decision relating to choices as to the allocation of goods in conditions of scarcity. In my view it would be clearly inappropriate for the Board to substitute its own view for the union's by simply asking itself whether it would have acted differently. To do that is to substitute one subjective standard for another, and not to consider the issue of objective justification. The appropriate standard to be adopted by this Board is not unlike that expressed by the Court in the judicial review of the decisions of arbitrators; the Board should ask not whether the decision is right or wrong or whether it agrees with it - rather it should ask whether it is a decision that could reasonably be made in all of the circumstances, even if the Board might itself be inclined to disagree with it. Used in this sense "reasonable" must mean by the rational application of relevant factors, after considering and balancing all legitimate interests and without regard to extraneous factors.

38. It is unnecessary to determine whether, as the union asserts, its rule against name-hires following the pre-job conference arises by necessary implication from the language of the collective agreement. If it does not, the fact remains that the union has been able to extract this concession from employers. It has also been able to persuade employers not to fully exercise their right to name-hire, so that the union is left with an increased number of job opportunities which it may fill by dispatch from the out-of-work list. Neither approach is inconsistent with Article V of the collective agreement. The language of Article V does not compel the employer to name-hire a percentage of its crew, nor does it require the union to encourage name-hiring. Whether or not it compels an employer to commit itself at the pre-job conference to an exhaustive definition of the use it can make of its name-hire rights on that job, Article V prohibits neither the making nor the solicitation of such a commitment. Once such a commitment is made and the right to name-hire is (it may reasonably be argued) exhausted, it naturally follows that name-hiring of persons other than those stipulated at the pre-job conference cannot be made thereafter. In that regard, on the evidence before me, it is entirely possible, indeed probable, that the existence of past instances of name-hiring after the pre-job conference merely reflects the fact that O'Ryan's predecessors did not request such exhaustive name-hire commitments at the pre-job conferences for those projects.

39. Whether or not O'Ryan's initiatives were compelled or expressly authorized by the resolution passed by the union's membership in May of 1982, they represent initiatives which O'Ryan in good faith felt were consistent with that resolution and, in the exercise of his authority under the union s constitution, felt best advanced the collective interests of the union's members. The impact of these policies on McConvey and other members of the "privileged few" category of experienced pipeliners is not as clear or as stark as the impact on junior dependent contractors of the decision under review in Dufferin Aggregates, supra. Taking that into account, I am unable to describe the changes wrought by O'Ryan and his reasons for them as unreasonable. While they result, as virtually any change in hiring procedures will, in a differential impact on union members, I do not find them to be discriminatory in the sense in which that word is used in section 69 of the Labour Relations Act. As I have indicated earlier, I am satisfied that the union, and particularly O'Ryan, did not act in bad faith toward McConvey or similarly situated members in adopting and applying these policies.

40. In short, McConvey has not established that the respondent acted in a manner which was arbitrary, discriminatory or in bad faith. This complaint is, therefore, dismissed.