John Craddock et al. v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 527
[1987] OLRB Rep. December 1488
1049-87-U John Craddock, Ray Buttineau, James Craddock, Blair Small, Mike Pepe, Bryan Johnstone, Dave Clemett, Mark Gaudet, J. D. Colling, Dietrich Buchwald, Ron Brown, Al Johns, Graham Marr, Peter Martin, Paul Schildroth, Keith Dadswell and Mike Petter, Complainants v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 527, Respondent
BEFORE: Ken Petryshen, Vice-Chair, and Board Members R. J. Gallivan and C. A. Ballentine.
APPEARANCES: John Craddock, James Craddock, Paul Schildroth, Keith A. Dadswell and Ray Buttineau for the complainant; N. W. Meikle and Jack Porter for the respondent.
DECISION OF THE BOARD; December 8, 1987
This complaint is amended to reflect the fact that the complainants are John Craddock, Ray Buttineau, James Craddock, Blair Small, Mike Pepe, Bryan Johnstone, Dave Clemett, Mark Gaudet, J. D. Colling, Dietnich Buchwald, Ron Brown, Al Johns, Graham Mann, Peter Martin, Paul Schildroth, Keith Dadswell and Mike Petter. The name of the respondent is amended to read: "United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 527".
This is a complaint under section 89 of the Labour Relations Act which alleges that the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 527 (hereinafter referred to as "Local 527") has contravened sections 3,62(2), 68, 70, 71,74,78 and 135(2a) of the Act.
John Craddock testified on behalf of the complainants. Counsel for Local 527 called Jack Porter as a witness. In making its factual determinations, the Board has considered all of the oral and documentary evidence, the credibility of the witnesses and the parties' submissions.
Craddock is a licensed plumber with welding qualifications and has been a member of Local 527 since December 1969. The majority of the remaining complainants are steamfitters and a few are welders. As far as the material facts giving rise to this complaint are concerned, Craddock and the other complainants are in essentially the same position.
During the month of August 1986, Craddock worked at the Honda Plant at Allison. Prior to this job, he had been unemployed for approximately seven months. In September 1986, Craddock and the other complainants succeeded in obtaining work with Ontario Hydro ("Hydro") the Bruce Nuclear Generating Station as temporary mechanical maintainers ("TMM"). Although initially it was expected that the work would last for approximately six weeks, the majority of the complainants worked as TMM's until December 24, 1986. While performing the work of a TMM, the complainants were covered by the terms of a collective agreement between the Canadian Union of Public Employees ("CUPE") and Hydro. Before accepting the job with Hydro, the complainants approached Local 527 requesting permission to take the jobs. They spoke to Jack Porter, the Business Manager of Local 527 for the past nineteen years. Porter told the complainants that they could take the Hydro jobs since their presence at Hydro might assist Local 527 in its organizing efforts. But Porter warned the complainants that Local 527 may call them off the job at some point in time in the future.
In early October 1986, a special meeting of building trade unions, including Local 527, was held in Kitchener. The use by Hydro of TMM's under the CUPE agreement was discussed. '['he building trade unions were fearful that this development would have the effect of considerably I educing the work opportunities at Hydro for their members. In Porter's view and in the opinion of then building trades representatives, a substantial portion of the work which had been performed previously by their members under various agreements with Hydro would be performed by CUPE members under CUPE's maintenance agreement with Hydro. The fact that Hydro filled the TMM positions with persons who were members of the building trade unions or persons who had the qualifications of these members was confirmation to the building trades representatives that the work being performed by their members was within the jurisdiction of their respective trades. It was resolved at the meeting that the various building trade unions would address their concerns by insuring that their members did not work for Hydro "non-union" in the sense of working outside of the hiring hall system.
In mid-October 1986, Porter convened a meeting of UA members working for Hydro as MTT's at his office. In order to attend this meeting the complainants obtained permission from Hydro to take a day off work. During the course of the meeting, Craddock acted as the spokesman nor the complainants. Porter advised the complainants that Local 527 was directing them to quit the Hydro job and made reference to the recent special meeting of the building trades. Craddock explained to Porter that quitting the Hydro job would cause the complainants considerable hardship since there was no other work in Local 527's jurisdiction. He pointed out as well that many of the complainants were not entitled to claim UIC benefits while those who could make such a claim risked disentitlement by quitting. Having concern for the plight of these members, Porter left the fleeting and contacted the business manager for U. A. Local 463 in Oshawa. After explaining the situation to him, the Local 463 business manager agreed to permit the complainants to work at Darlington under Local 463's jurisdiction. Porter described the accommodation as an effort to even out the work around the province among the local unions and something which was not uncommon. Porter returned to the meeting and advised the complainants that any one of them could get a travel card and work at Darlington. Porter advised the complainants that if they refused to quit the TMM jobs at Hydro, they would likely be charged under the Union's constitution. Two U. A. members elected to work at Darlington. The complainants chose to continue working at Hydro. Craddock testified that they did not want to go and work at a location two hundred miles from their homes for less money. They also were of the view that it was not proper for them to take the Darlington jobs. There were members of the U. A. who were paying travel card dues and had waited for an opportunity like the one presented to the complainants. The complainants suggested that it was not right for them to take the Darlington jobs when other members had a greater entitlement to them.
Charges were filed against the complainants pursuant to section 204(a) and (b) of the U. A. Constitution. Those provisions read as follows:
SEC. 204.(a) a member shall not perform any work that comes within the work jurisdiction of the United Association for an employer who is not a party to a collective bargaining agreement entered into either by a Local Union or the United Association.
(b) No member may be employed in an industrial plant on any work, whether it be construction, maintenance or modernization, that comes within the work jurisdiction of the United Association where the Local Union does not have a collective bargaining agreement with the industrial plant or where the wage rate and terms and conditions of employment in the plant are less than the standards established in the Local Union's agreement, unless the member has, prior to employment in such a plant, obtained the consent of the Local Union Executive Board.
The charges were forwarded to the Local 527 Executive Board. The Trial Board consisted of the five members of the Executive Board. The chairman of the Trial Board had initiated the motion for trial and the person who seconded the motion was also on the Trial Board. The Business Manager, who was the charging party, and the Business Agent were present at the trial. The trial was held on December 12, 1986 and required the complainants to obtain Hydro's permission to take that day off. The complainants argued that by working for Hydro as M'TT's they were not working within the U. A. jurisdiction. The complainants eventually were notified that they were convicted. Members of Local 527 were fined $2,000.00 and were denied a voice or vote in the Local for a year. Members who were working in Local 527's jurisdiction on travel cards were fined $500.00. Section 214(b) of the U. A. Constitution provides that approval must be obtained from the General Executive Board for penalties exceeding $500.00. In this instance, Local 527 did obtain the necessary approval from the General Executive Board.
The complainants appealed their convictions and penalties. As a part of the appeal process, R. Watson, a U. A. international representative, held meetings with all interested parties, including the complainants. For the most part, the complainants' appeals were denied. The General Executive Board reduced the fines for the travel card violations from $500.00 to $250.00 but upheld the $2,000.00 fine imposed on the Local 527 members.
For the period from December 24, 1986 until March 30, 1987, the complainants were unemployed. From the beginning of April 1987 to the end of September 1987, the complainants again worked for Hydro as TMM's without the approval of Local 527.
Most of the members of Local 527 have not paid their fines. In order to get on the Local's out-of-work list and be referred to a job, a member must be in good standing with the Local. For those members of Local 527 who have not paid their fines, Local 527 has rejected their dues and has not permitted them to go on the out-of-work list. Those persons convicted of travel card offences did pay their fines. When they attempted to return to Local 527's jurisdiction to work again for Hydro as TMM's, their travel cards and dues were returned to their own local by Local 527.
Effective November 1,1986, Local 527, by means of a by-law, required that any member working on maintenance in a power plant, industrial, commercial or institutional building, other than through the Local's hiring hall, will be assessed $24.00 per month. Shortly after the bylaw became effective, Craddock sent a cheque for $24.00 to Local 527. This cheque was returned to him with the explanation that the Executive Board did not approve of him working for Hydro as a TMM.
In support of the complaint, Craddock testified that there are members of Local 527 performing the same kind of work that the complainants were fined for performing, at the Pickering Nuclear Generating Station. Charges have not been filed against these members although the Toronto local was advised of this situation. Craddock conceded that the work at Pickering was outside of Local 527's geographical jurisdiction. In addition, as of September 1987, there were two Local 527 members performing work for Hydro at the Bruce Nuclear Generating Station as 3'IvIM's who have not been charged. Porter testified that he was aware of this situation and that charges will soon be filed against these members.
As indicated in paragraph 2 of this decision, the complainants attempted to prove that the respondent's actions contravened a number of provisions of the Labour Relations Act. As their general theme, Craddock emphasized that the work the complainants were performing was maintenance work under the CUPE collective agreement and not work under U.A.'s jurisdiction. Craddock argued that the respondent contravened section 3 of the Act since its conduct was motivated by a desire to prevent the complainants from continuing to work as CUPE members. CUPE, at the time, was the union of their choice. The complainants alleged that the respondent contravened section 62(2) of the Act since CUPE was the sole successor of the work, that the work the complainants performed had always belonged to CUPE, and that the U. A. could not carve outside work for itself. The complainants relied on section 68 of the Act in support of a general argument that they were being treated unfairly. Specific reference was made to the November 1986 bylaw which they argued was not adhered to and to the composition of the Trial Board. The complainants submitted that the respondent contravened section 69 of the Act by offering them jobs at Darlington ahead of the members who had been paying travel card dues who were denied the opportunity to go to Darlington. Craddock argued that the respondent contravened section 70 of the Act since it sought by intimidation and coercion (the charges and fines) to compel the complainants to cease being members of CUPE and to refrain from exercising their rights under the Act. The complainants base their alleged contraventions of sections 71, 74 and 78 of the Act on the fact that the respondent required them to leave work on a number of occasions, thereby causing an unlawful strike. Finally, Craddock argued that the respondent contravened section 135(2a) of the Act when, in effect, it attempted to have the work of CUPE brought under its jurisdiction.
The provisions relied upon by the complainants are set out below:
Every person is free to join a trade union of his own choice and to participate in its lawful activities.
62.-(1) Where a trade union claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.
(2) Before issuing a declaration under subsection (1), the Board may make such inquiry, require the production of such evidence or hold such representation votes as it considers appropriate.
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
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.
No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade him during his working hours to become or refrain from becoming or continuing to be a member of a trade union.
No trade union or council of trade unions shall call or authorize or threaten to call or authorize an unlawful strike and no officer, official or agent of a trade union or council of trade unions shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike.
No trade union shall suspend, expel or penalize in any way a member because he has refused to engage in or to continue to engage in a strike that is unlawful under this Act.
135-(2a) Where, on the complaint of an interested person, trade union, council of trade unions, employers' organization, employee bargaining agency or employer bargaining agency, the Board is satisfied that a person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency, bargained for, attempted to bargain for, or concluded any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection 146(1), it may direct what action, if any, a person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations, or employer bargaining agency, shall do or refrain from doing with respect to the bargaining for, the attempting to bargain for, or the concluding of a collective agreement or other arrangement other than a provincial agreement as contemplated by subsection 146(1).
The circumstances of this case are such that it is very difficult to see how sections 62(2), 71, 74, 78 and 135(2a) have any application. Section 62 is concerned with successor nights of trade unions by reason of a merger, amalgamation or transfer of jurisdiction. The fact that the respondent may have attempted to obtain work for its members which is performed by members of another trade union, as suggested by the complainants, does not give rise to the invocation of section 62. Section 71 is a provision which cannot be violated since the section simply indicates that nothing in the Act authorizes certain conduct specified therein. Since the complainants left work on a number of occasions with Hydro's permission in order to attend to union matters, those provisions dealing with unlawful strikes, section 74 and 78, are of no assistance to the complainants. They did not engage in an unlawful strike and the respondent did not attempt to have them engage in any such unlawful activity. Section 135(2a) gives the Board authority to remedy a situation where an entity which can only be bound by a provincial agreement as contemplated under subsection 146(1) bargained for, attempted to bargain for or concluded a collective agreement on other arrangement affecting employees other than a provincial agreement. The facts disclose no contravention of this provision by the respondent.
From the clear wording of section 68 of the Act, one must conclude that the respondent has not contravened that provision with respect to these complainants. Section 68 places a duty on a trade union to act in a certain way with respect to "employees in a bargaining unit" that it is entitled to represent. Since the complainants are not employees in a bargaining unit represented by the respondent, they do not fall within the scope of section 68. See, Arthur Joseph Roberts, [1974] OLRB Rep. Mar. 169; Ontario Hydro, [1980] OLRB Rep. July 1039; and, Frank Manoni, [1981] OLRB Rep. Dec. 1775.
In Deborah Brown, [1976] OLRB Rep. Feb. 4, and consistently since then, the Board has held that section 3 of the Act is a declaration of rights and by itself does not create an offence under the Act. Although he did not specifically link the two in his argument, Craddock relied on both section 3 and section 70 of the Act when arguing that the respondent's conduct was based on a desire to prevent the complainants from continuing to be CUPE members. In reviewing the respondent's conduct as a whole, we are satisfied that its conduct did not breach sections 3 and 70 of the Act. The respondent's actions which had an impact on the complainants were not motivated by a desire to interfere with the complainants' rights to select the bargaining agent of their choice. The respondent's conduct was based on a concern relating to the work the complainants were performing for Hydro outside of the hiring hall system. The respondent's decision not to permit them to continue to perform the Hydro work only incidentally impacts on the complainants' rights to select the union of their choice. The respondent did not attempt to interfere with CUPE's representation of the complainants or to prevent them from becoming CUPE members. The complainants are members of the respondent and, as such, have obligations as members of U. A. If the respondent takes legitimate steps to ensure that its members adhere to its objectives, its conduct would not run counter to sections 3 and 70 even if it results in some members ceasing to work in a particular bargaining unit in which they were represented by another trade union.
ip. When arguing that the respondent contravened section 69, Craddock made specific reference only to the fact that the respondent was prepared to send the complainants to Darlington ahead of those members who paid travel card dues and who would normally be given the first opportunity to obtain work outside of their local's jurisdiction. There are a number of difficulties With this position. The vast majority of the complainants elected not to go to Darlington. Moreover, there is no evidence before the Board that there were any members paying travel card dues at the relevant time, on that the practice of the union was to give those members preference on all occasions no matter what the circumstances. In our view, it is not necessary to decide whether the complainants are in a position to complain in the circumstances of this case with respect to alleged contraventions of the Act which did not affect them but affected other members.
Having reviewed all of the evidence, we are not satisfied that the respondent has contravened section 69 of the Act. In arriving at this conclusion, we recognize that the respondent cannot defend against the section 69 allegation by simply demonstrating that the complainants are not members in good standing and that members in such a position are not entitled to be on the out-of-Work list. As a general rule, the Board does not police internal union affairs. However, the very substance of section 69 requires the Board to review the internal decision-making processes of trade unions which have an impact on their referral systems in order to decide whether referrals are being made in a way that is arbitrary, discriminatory or in bad faith. The Board explained its role in Ontario Hydro, supra, at paragraph 15, as follows:
In the case at hand the Board is not dealing with a question of improper referral, including failure to refer, to employment from the Local 506 hiring hall, rather it is dealing with the removal of the complainant's eligibility to be on the out-of-work list. The removal of his eligibility has resulted from internal procedures under the respondents' constitution. While this Board has no specific authority under the Act to undertake any sort of watch-dog role over a union s internal processes under its constitution and by-laws, the Act clearly gives it authority to determine whether a union had breached its section 60a [now section 69] duty. This in turn may require the Board to examine the union's conduct under its constitution and by-laws. While the Board is reluctant to invade the internal procedures of a trade union, it does do when it becomes essential to the exercise of the Board's authority and responsibility under the Act. See for example, the Board's decision in George Zebrowski, [1977] OLRB Rep. Mar. 143, in which the Board reviewed the procedures followed by the trade union under its "Constitution and Laws" in expelling the complainant from membership in the union, as a consequence of which the complainant was discharged from his employment. Another example of the Board finding it necessary to review a trade union's internal procedures is found in the Board's decision in Rupert S. Martin, [1977] OLRB Rep. Oct. 671. The Board in that case, in order to determine whether section 60a [now section 69] of the Act had been breached, reviewed the internal decision-making process by which the respondent trade union decided not to refer the complainant to any employers who were seeking to employ members of the respondent through its hiring hall. In that same decision the Board had dealt with a question of whether one officer of the trade union had authority to make the decision not to refer the complainant to employment. In dealing with that issue, the Board acknowledged that it "..., does not have the authority to police union constitutions and by-laws." and then stated:
"This is not to say, however, that where a union's constitution or by-laws have been deliberately flouted or where certain steps have been taken notwithstanding a challenge that they might be in violation of the constitution or by-laws, that those actions might not be a relevant factor in determining whether or not a breach of section 60a [now section 69] has occurred.".
In a like manner, the Board finds it essential in the circumstances of the instant case to review how the complainant was dealt with by Local 506 under its constitution and by-laws in order to determine whether there has been a breach of section 60a [now section 69] of the Act.
As we read the evidence, the respondent granted the complainants permission to work at Hydro but advised them when it did so that its permission could be revoked at any time. Porter testified that the respondent decided to revoke its permission since it formed the view that allowing its members to perform the type of work the complainants performed for Hydro would jeopardize the interests of subcontractors who have bargaining relationships with the respondent, and accordingly, harm the interests of its members. We are satisfied that this is the only reason why the respondent decided to direct the complainants to quit their Hydro jobs and that such a reason is based on a legitimate trade union interest. It was this legitimate trade union goal which motivated the respondent throughout its dealings with the complainants, up to and including denying placing their names on the out-of-work list. We express no view as to whether the union's decision was a wise one or one which would achieve the goals the union sought. It is not the Board's function to express such an opinion, much less to substitute its own judgement in this regard for that of the respondent's officials. The Board's sole function under section 69 is to determine whether the union has acted in a manner that is arbitrary, discriminatory or in bad faith.
The fact that the complainants initially sought the respondent's permission to take the Hydro jobs suggests that they themselves considered the union had a legitimate interest in the matter and could deny them permission. When granted permission, the complainants were advised that the respondent's permission could be withdrawn. The respondent offered the complainants alternative work, which most of them refused. The respondent advised the complainants that charges under the constitution might be filed against them if they refused to abide by the direction to leave the Hydro jobs. The evidence reveals that the trial was held in accordance with the provisions of the union's constitution. The complainants exercised their right to appeal under the constitution, unsuccessfully. The decision of most of the complainants not to pay the fines was made with the knowledge of the consequences. There is no evidence before us, nor was it argued, that the amount of the fines levied on the complainants was out of line with fines imposed on members by the respondent for similar constitutional violations.
The fact that certain members have not been charged is of no assistance to the complainants. Since the evidence suggests that decisions regarding work in a particular area are made by the U. A. Local having jurisdiction in that area, the rules governing the work of U. A. members at Pickering are determined by the Toronto Local, not Local 527. We accept Porter's evidence that those Local 527 members who recently started working at the Bruce Nuclear Generating Station for Hydro as TMM's will be charged under the constitution. The Board is satisfied that the failure to change these members prior to the hearing in this matter is not evidence of discriminatory conduct by the respondent against the complainants.
For the foregoing reasons, this complaint is dismissed.