[1988] OLRB Rep. April 403
3332-86-U Michael Alfred Jones, Complainant v. International Association of Heat and Frost Insulators and Asbestos Workers Union Local 95, Respondent
BEFORE: Robert Herman, Vice-Chair.
APPEARANCES: Robert Reid and Michael Jones for the complainant; Bernard Fishbein, Joe deWit and Jim Bourne for the respondents.
DECISION OF THE BOARD; April 25, 1988
In an oral decision provided at the conclusion of the hearing on March 28, 1988, the Board ruled that the respondent union had breached section 69 of the Act. That section reads as follows:
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.
Subsequent to the hearing, counsel for the complainant requested written reasons, which the Board hereby provides.
The Board found all witnesses to be credible. The only real inconsistency in their evidence was with respect to the date that the referral request was received by the union. In this regard, the Board prefers the evidence of Bourne and deWit.
At the time the referral request was received by the union, Jimmy Bourne had been the area steward for approximately one month. As area steward, it was his responsibility to respond to requests for employees and to administer the union referral list. Bourne had been President of the local for four years, a member of approximately twenty years duration, and the Board is satisfied Bourne was fully familiar with the referral system utilized by the respondent notwithstanding his election as area steward had occurred only recently. The referral system used by the union consisted of numerous rules, including rights of refusal and the right to take short term jobs without going to the bottom of the list. These rules were not in issue. The practice of the union had been to rigorously proceed down the list and offer the job to the member at the top of the list. The evidence suggested that the union had never deviated from this adherence to the list.
The employer in question had been using non-union labour for a particular part of the job. When officials of the respondent union discovered this~ they were able to convince the employer to terminate its arrangement with the non-union company and to use members of the respondent. At approximately 8:30 p.m. on Sunday, February 1, Bourne received a call from the area steward for the Kitchener area, requesting that Bourne refer two members for a job in Brantford, the two employees to report for work the following morning. It was anticipated that the job would only take three or four days. There was nothing unusual or abnormal about this request. The request was received during the time of the evening Bourne ordinarily set aside for handling such matters, and it was quite common both for such requests to be received Sunday evenings, and for the employees to be required to report the following morning. The number of employees being requested, the number of days they were requested for, and the fact that members of the respondent were being employed to replace non-union employees on site, were all factors common to other requests for employees. As with all such requests, as the employees had to be on site the following morning, a quick response was needed by the area steward.
Although Bourne was aware that area stewards were to follow the list, offer the job to the first member on the list, and then proceed down the list until the requisite number of members accepted the referral, Bourne decided to ignore the list. He testified he decided to do so for three reasons: the late time of the day (approximately 8:30 p.m.) that the request was received, coupled with the fact that it was anticipated that the job was only for three or four days; the fact that it was winter and members on the list not living in Brantford would have to travel to the site during winter weather; he wanted members who could check on the job after the work covered by the referral was completed, to ensure that the contractor had not resumed having the work done by non-union employees. Presumably, if these members lived in Brantford they could easily check the job site, as they returned home from their own jobs each evening. Although the Board accepts that Bourne did consider these factors in deciding to ignore the referral list and rules, none of them appear to be of more than minimal relevance. As noted, the time of the evening the request was received was within the normal time Bourne dealt with referral requests. Jobs of only three to four days duration were also regularly referred. There was no evidence, or suggestion, that the weather at the time was abnormally harsh, or was other than the cold conditions of an Ontario winter. There was no impending storm which might reasonably have led Bourne to conclude that employees who had to drive some distance to the site might have difficulty. Finally, members could and did check on jobs to ensure union personnel were being employed regardless of whether they had previously F worked on the job. Members would volunteer their time after work to drive by a job site to see whether an employer was honouring the agreement. There was no practice of giving jobs to members who lived near job sites; to the contrary there was no evidence that where a member lived had ever been considered in offering jobs. Again, though new to the area steward position, Bourne was fully aware of these matters.
Bourne focused on these three reasons but did not check the list to see if those at the top would satisfy his three concerns. He knew of two individuals who lived in Brantford, Judson and Burns, who were available to be referred, and accordingly, Bourne phoned them and referred the two of them to the job in question. At the time, the complainant was the third member on the list. It is this referral that the complainant alleged violated section 69 of the Act.
The mere fact that the union over many years never departed from the list in terms of offering referrals would not make the referral in question arbitrary. A departure from a referral list is not per se arbitrary action, and may not be in breach section 69 of the Act. Union officials responsible for administering a referral list can and must exercise discretion in making referrals. Similarly, the fact that the Board might have made the referral differently does not address whether the Act has been breached. It is not the Board's function under the legislation to attempt to second guess union officials as to the appropriateness of a particular referral. The question for the Board is not whether the Board would have reached a different decision, or whether the union made a mistake, but whether the union acted in a fashion which was arbitrary in all the circumstances. There was no suggestion that Bourne or any other union officer acted in any bad faith manner, and there was no evidence supporting a conclusion that the referral had been made in a discriminatory manner.
In an earlier case, John Cooper, [1984] OLRB Rep. Jan. 6, the Board wrote as follows:
... Business agents, being human, will make mistakes or errors in judgment and may even appear to be inconsistent from time to time as they respond to the circumstances of the moment, and perhaps, subjective pleas for special consideration. The question is whether that discretion has been abused - for example, to benefit family or friends, or to punish political enemies (see Joe Portiss, supra). Obviously nepotism and patronage have no place in the hiring hall system, nor should the Board condone reliance upon obviously extraneous factors. But where a union official honestly turns his mind to the circumstances at hand, and without malice or any improper intent makes a sincere effort to assess the situation and balance competing claims before dispatching employees, we do not think we should readily infer that the decision was "arbitrary" and illegal. The term "arbitrary" in section 69 was intended to connote a decision-making process that is reckless, cursory, and consistent with a non-caring attitude or influenced by totally extraneous and irrelevant considerations. The facts of this case do not fall within those parameters at all.
Bourne did turn his mind to the issue at hand, and reached his decision without malice or any improper intent. However, Bourne never considered whether following the list would have satisfied fully the concerns that motivated him. Given Bourne's concerns, his position as area steward, the fact that though new to the job he was aware of the operation of the referral system and that the list was rigorously followed, and given particularly that the request in question was not unusual in any respect, the Board found it was arbitrary for Bourne not to have at least considered whether following the list would have met all his concerns.
For the above reasons, the Board gave its oral decision that the union had breached section 69.