[1992] OLRB Rep. June 714
0173-91-U Peter Galiatsos, Complainant v. International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of The United States and Canada, Local 173, Respondent v. Famous Players Inc., Intervener
BEFORE: Janice Johnston, Vice-Chair.
APPEARANCES: Peter Galiatsos on his own behalf; L. Steinberg, Mark Zigler, Robert Hilder, Graydon Hulse and Stanley Adams for the respondent; R. J. Harris on behalf of the intervener.
DECISION OF THE BOARD; June 10, 1992
The style of cause is hereby amended to reflect the correct name of the respondent as: "International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 173". The style of cause is also amended to add "Famous Players Inc." (the "employer" or "company") as the intervener.
This is a complaint filed pursuant to section 91 [formerly section 89] of the Labour Relations Act (the "Act") in which-the complainant, Mr. Peter Galiatsos, alleges that the respondent, the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada Local 173 (the "union" or "Local 173") has violated his rights in the administration of the union's hearing hall, contrary to sections 69 and 70 [formerly sections 68 and 69) of the Act.
Sections 69 and 70 of the Act read as follows:
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.
The Board first convened as a three person panel to hear this matter as the complaint, as originally framed, alleged a violation of sections 71 and 82 [formerly sections 70 and 80] of the Act. After hearing the submissions of the parties, the Board made a number of procedural rulings. It is not necessary to outline them in detail. Various portions of the complaint were dismissed as either untimely, as disclosing no prima facie case pursuant to Rule 71, or for a failure to particularize pursuant to Rule 72 of the Board's Rules of Procedure. In addition, Mr. Galiatsos sought the leave of the Board to withdraw his allegations that section 71 and 82 of the Act had been violated. This request was granted by the Board. As the complaint at this point dealt solely with alleged violations of section 69 and 70 of the Act, the Board proceeded to hear this complaint with the Vice-Chair sitting alone.
Mr. Galiatsos' complaint primarily focuses on two specific incidents. The first concerns the matter of a $100.00 fine levied against him on August 29, 1990 by the union. Mr. Galiatsos was fined for failing to remain in the projection suite during working hours. Although I heard some evidence on this point and documentation pertaining to the incident was filed with the Board, this incident was not pursued by Mr. Galiatsos in final argument. In any event, it is clear from the evidence before me that the matter of the $100.00 fine should be characterized as an internal union matter. The Board's jurisprudence makes it clear that the Board does not act as a "watchdog" with respect to the internal proceedings of a union. As was pointed out in Arthur Joseph Roberts, [1974] OLRB Rep. Mar. 169.
…..The case law indicates that the propriety of a trade union's behaviour vis a vis its members is governed by its constitution and by-laws and the procedural remedies provided therein. And recourse must be made by an aggrieved member to the governing rules provided under the constitution for relief. The safeguard provided by the controlling supervision of the courts are his assurance that these rules will be implemented fairly and impartially. (see; White v Kuzych (1951) 1951 CanLII 373 (UK JCPC), A.C. 585; Lee v Showmans Guild (1952) All. ER. 1175; Orchard v Tunney (1957) 1957 CanLII 57 (SCC), S.C.R. 436; 8 D.L.R. (2d) 273; Jurak et al v Cunningham (No. 1) (1959) 1959 CanLII 340 (BC SC), 20 D.L.R. (2d) 377; Jurak et al v Cunningham(No. 2) (1959) 1959 CanLII 341 (BC SC), 20 D.L.R. (2d) 381; Gee v Freeman et al (1958) 1958 CanLII 258 (BC SC), 26 W.W.R. 546).
This portion of the complaint is therefore dismissed.
Although there are various allegations raised by Mr. Galiatsos, the second main incident which formed the basis of his complaint concerned his removal by the union from the Cumberland Cinema in March, 1991 and the processes followed by the union thereafter.
Mr. Galiatsos was not represented by legal counsel in these proceedings. Accordingly, the Board at the commencement of the hearing explained to Mr. Galiatsos that there is no requirement that persons retain legal counsel and that many parties choose to appear before the Board unrepresented. It was indicated however that the proceeding is a legal proceeding and that persons appearing on their own behalf must bear any risks involved with doing so. The Board advised the complainant that we could explain the process to him but that we could not advise him on how to proceed. It was explained that it was his responsibility to prepare and present his case. It is the role of the Board to adjudicate in the proceedings, therefore it would inconsistent with that role for us to provide one party with legal advice at various stages in the proceeding.
The Board also advised Mr. Galiatsos at the beginning of the hearing that the onus of proving that the union had violated sections 69 and 70 of the Act lay with him. In reviewing the process to be followed at the hearing it was explained that witnesses would be sworn and give their evidence under oath. The Board indicated that Mr. Galiatsos was to proceed first to call his evidence followed by evidence from the company (if any) and then the union. After Mr. Galiatsos had been given the opportunity to call reply evidence the parties would be called upon to make final submissions.
The Board heard evidence from seven witnesses (one of whom was called twice by the complainant) over eight days of hearing. Before turning to the specifics of their testimony I feel it is helpful to make some general observations concerning the credibility of some of the witnesses. The complainant testified on his own behalf and called two witnesses, the company's representative at the hearing, Mr. R. J. Harris, Director of Central Operations and Mr. William Hunt, a co-worker. The union called four witnesses: Mr. Ilias Tsiobanos, a co-worker of Mr. Galiatsos'; Mr. Graydon Hulse, the business agent for the union in March, 1991; Mr. Stanley Adams, the President of the union; and Mr. Robert Hilder, the current business representative of the union.
Mr. Harris, Mr. Adams and Mr. Hilder were all very credible witnesses. They were candid and gave their evidence in a straightforward manner, answering the questions asked of them to the best of their ability. The same cannot be said for Mr. Hulse and Mr. Tsiobanos. They were very responsive to questions asked by union counsel and the Chair, but in cross examination both were, at times, argumentative, evasive, motivated by self interest and suffering from convenient memory lapses. In fairness to them, it was clear to me that both of these witnesses had difficulty being cross examined by the complainant and that the dynamic created by this fact was the primary cause of their non-responsive behaviour. As a witness, Mr. Galiatsos was responsive, honest and gave his evidence to the best of his recollection. However, his recollection of events was often different from that of other witnesses. As the hearing progressed, I observed concrete examples of Mr. Galiatsos's inability to accurately recollect events and statements made by others. On numerous occasions in cross examination Mr. Galiatsos, in the course of asking a question, would put to a witness either evidence he believed the witness had given earlier or evidence that another witness had given earlier. Virtually without exception, Mr. Galiatsos misquoted the evidence. It appeared to me that this was not done in a devious manner or with the intent of misleading the Board. Mr. Galiatsos does not listen carefully and as a result does not hear what people are saying. He hears what he wants to hear.
The union and the intervener are bound to a collective agreement. It provides in part as follows:
2.01 The Employer recognizes the Union as the sole and exclusive bargaining agent for motion picture machine operators (hereinafter sometimes referred to as "Projectionists") employed by the Employer within the territorial jurisdiction granted to the Union by the International Alliance of Stage Employees and Motion Picture Machine operators of the U.S. and Canada on the effective date of this Agreement. The Employer agrees to employ only motion picture machine operators supplied by Local 173 and further agrees to only employ members of the Union who are in good standing. It is, however, the responsibility of the Union to inform the Employer if a member is not in good standing.
2.02 The Union agrees to supply competent and efficient projectionists to perform work as required by the Employer under the provisions of this Agreement. Both parties agree to make every effort not to permit employees covered by this Collective Agreement to contravene the provisions of the Employment Standards Act in complying with this Agreement.
Once the employer notifies the union that projectionist work is available, the work is filled in accordance with internal union practices.
The union in this case holds bargaining rights for film projectionists in the Toronto area under at least two collective agreements. Under these agreements the members obtain work through the union's hiring hall. Mr. Harris in his evidence indicated that the union determines the number of projectionists who will work in any particular theatre. The employer plays no role in the allocation of work opportunities or in the determination as to how many permanent jobs shall exist in a theatre. The union supplies the workers and the employer only requires that they be competent.
There are three categories of work, permanent or steady work, permanent relief work and relief work. The union's constitution provides that all steady work or jobs are the property of the union and are to be filled in order of seniority at a general membership meeting. When a steady position becomes available it is posted in the union office for seven days before it is offered at a membership meeting. Members can put in a written application or bid on the job at the membership meeting. Steady jobs guarantee the member a set number of hours per week (and therefore guaranteed earnings) at a specific location.
Relief work assignments are essentially fill-in work. Relief work becomes available in a variety of situations such as illness, vacation, or leave of absence on the part of the steady or full-time projectionist(s) and can be from one shift to three months in duration. It is also seasonally affected as the theatres during the summer, and at Easter and Christmas, increase the number of shows per day. This results in more relief work being available, as in accordance with the union's constitution, the regular projectionist cannot work more than 44 hours a week. There are three separate relief lists. The "A" list consists of projectionists who are without a steady job and these members are given preference in the assignment of relief work. The "B" and "C" lists contain the names of members who are available for work on a more limited basis. An assignment lasting more than three months in duration is considered permanent relief work. The union has established procedures for the assignment of this type of work similar to the procedures used to fill steady jobs.
Normally working in a steady job entails working in one theatre. However, a unique form of steady work called "swing" work also exists. Swing operators work steady hours in one or more theatres. For example, ten or more regular hours may be available at each of the two theatres. These hours would be combined to form a swing job and the person who got that job would work regularly in the two theatres. Thus if the union feels there should be three steady jobs created out of the hours available at two theatres, they would create a swing job. The union has not created any new swing jobs recently. In the event that half of the swing job disappears, for example, if one of the theatres closed, the swing operator is entitled to keep working the remaining half of the job if he/she so chooses.
Whenever a new theatre opens the union decides, based on the number of hours and the hourly rate, how many new steady jobs to create. The Executive Board of the union arrives at a decision and then this decision is taken to a general membership meeting. The general membership then votes to accept or reject the Executive Board's recommendations.
Mr. Galiatsos has been working with Local 173 since 1965 and has been a regular member since 1977. Mr. Galiatsos worked as a relief projectionist until he had sufficient seniority to successfully bid on a permanent or steady job. In January, 1986 he obtained a steady job at the Uptown Backstage Theatre. This job guaranteed him regular hours and pay, at a specific theatre. Mr. Galiatsos was the only steady projectionist at the Uptown. In September, 1988 a steady job became available at the Cumberland Cinema. The Cumberland had originally provided sufficient work to enable the union to create five steady jobs. Due to automation and other factors, over time the union reduced the permanent steady work to three positions. It was the third position which was available in September, 1988. For historical reasons and depending on the number of screens in a given theatre, there is considerable variation in the hourly rate paid to the projectionists at various theatres. The Cumberland is a theatre with a high hourly rate. Projectionists working fewer hours at the Cumberland can make as much or more than projectionists working more hours at a single screen cinema. For this reason, the Cumberland is a desirable place to work.
Before going into the process the complainant went through to obtain this position, it is appropriate to set out some of the relevant portions of the union's Constitution and By-Laws. They read as follows:
Constitution
Article VII
Duties of Officers
Section 5. BUSINESS MANAGER
It shall be the duty of the Business Manager to investigate any trouble, or complaint, that may arise and affect a settlement, if possible, in an amicable and beneficial way to the Local. If he/she fails to do so, he/she must report the case to the Executive Board.
Section 7. EXECUTIVE BOARD
The Executive Board shall investigate all complaints of Members and decide, if possible, upon all questions in dispute between Employer and Employee, accepting any honourable means toward an amicable settlement that may be deemed essential to the best interests of this organization.
They shall decide on all matters referred to them by the Membership and their decision shall be binding, unless reversed by the Membership by majority vote of the Members present at a Regular, or Special Meeting of the Local.
Article XVII
SENIORITY AND FILLING JOBS
SectIon 1. All steady jobs shall be the property of this Union. Any job to be filled by this Local shall be in order of seniority at a Membership meeting, excepting where the Local's Constitution and By-Laws expressly state otherwise.
Projectionist 11 positions shall be exempt from this article.
Seniority of Members shall be governed by the length of continuous membership in Local 173.
Any Member may hold only one job in the jurisdiction of this Local. However, Members may hold elective or appointed positions in addition to their steady jobs.
Section 2. Upon the death of a Member of the Union no application or discussion re the vacancy created shall be permitted for a period of seven (7) days.
Any job openings shall be posted for seven (7) days before they are filled.
Only those Members in good standing shall be allowed to apply for any open job.
Section 3. BOOTH SENIORITY
In case of a reduction of workforce in any Theatre whatsoever, booth seniority shall prevail and the projectionist with the longest continuous booth seniority shall remain on the job.
Booth seniority shall commence when the Member takes the job on the floor.
Booth seniority shall prevail in the separate booths, distinguished by the Collective Agreements that are housed in the same building.
In the case of automated Theatres, a dual or triple etc., shall be considered as one booth.
In case of a Theatre closing for repairs, or alterations, the regular Projectionist(s) on the job shall have the privilege of returning to the job, if and when the job re-opens, providing said Member has not used his/her seniority to acquire another job.
If a Theatre changes policy the Projectionist(s) who leave(s) the job shall be entitled to the job should the Theatre revert back to its "original policy" providing the Member has not used his/her seniority to acquire another job. This privilege shall cease after one (1) year.
BY-LAWS
ARTICLE VI
FILLING JOBS
Section 1. MANDATORY FOR ONE YEAR
When a position as a Projectionist has been filled on the floor and the member has voiced, or written, his approval of acceptance, the move becomes mandatory and cannot be changed. The member must remain in the position for a period of one (1) year, commencing from the date the job was taken on the floor. Failing to do so the member shall lose his seniority standing for that year, or period thereof, unless however the position closes.
Section 3. PERMANENT RELIEF JOBS
All jobs, other than steady jobs, shall be filled by the Business Manager, unless classified by the Executive Board and approved by the Floor as permanent relief jobs, which shall be filled by seniority rules but with no successor rights. Where a relief job lasts more than three (3) months, the job shall be filled as a permanent relief job by seniority rules without successor rights.
All permanent relief jobs shall be filled on the floor, by seniority rules without successor rights, after all regular steady jobs have been filled.
Article VII
Section 1. WORKING HOURS AND RELIEF CALL
A regular projectionist or relief person, shall work only Forty-Four (44) hours in a one (1) week period at any one (1) job.
The minimum call for a relief person shall be four (4) hours, or one (1) shift.
Regular or Relief person shall not book off later than 7:00 p.m.
As noted, the job available at the Cumberland was the third steady position. If a reduction in the number of steady positions was necessary, Booth seniority would apply and the third position would be eliminated. Booth seniority is analogous to "departmental" seniority in an industrial establishment. It is utilized as the primary factor in determining the order in which projectionists at a given theatre will be removed. However, in the filling of steady jobs, a member's seniority within Local 173 is the relevant factor not Booth seniority.
Mr. Galiatsos testified that prior to applying for the position he did some research into the positions at the Cumberland. It is the job of the recording-secretary of the union to take minutes of Executive Board meetings and general membership meetings. In the course of his research, Mr. Galiatsos was able to obtain a copy of the minutes from a general membership meeting held in October, 1983. At that meeting the third steady job at the Cumberland was awarded to Mr. Tom Choi. When a job is awarded, it is normally subject to various conditions and these are outlined to the member before he/she accepts the job. The relevant portions of the October, 1983 Minutes read as follows:
CUMBERLAND 4 Plex. 3rd STEADY MAN 20 hrs. per week.
This job will last as long as the Theatres [sic] open in the afternoons.
Brother Tom Choi took the job on seniority. The chair asked 3 times if further applications were being made.
Market Square CinePlex - 2nd Job. If no matinees are run, there is no 2nd job.
Mr. Galiatsos testified that he interpreted these minutes to mean that if he got the third steady job at the Cumberland, as long as a single matine 2i was regularly scheduled, the third steady projectionist position would continue to exist.
As in any industry, there is a certain amount of jargon, or language peculiar to that industry. For example, a theatre is operating continuously, or as a "grind", when it is open from approximately noon to midnight seven days a week. Normally the theatre would run two matinees and two evening shows when it is operating continuously. There was some discrepancy between the witnesses called by the union and those called by the complainant concerning the meaning of the term "night house", as applied to the hours of operation of a theatre. Mr. Harris in his testimony defined a night house as a theatre that runs Monday to Friday evenings only and runs matinees in addition to the evening shows on Saturday and Sunday. The theatre is generally open from approximately 7:00 p.m. to 11:30 p.m. during the week and 12:00 p.m. to 12:00 a.m. on Saturday and Sunday. Mr. Harris testified that he had never heard of the situation where only one of the two matinees were eliminated, being referred to as a night house. Mr. Hulse on behalf of the union defined a night house as including the situation when a theatre runs the first matinee, eliminates the second one and re-opens at 7:00 p.m.
On September 6, 1988 Mr. Galiatsos attended the regular membership meeting and was successful in obtaining the third position at the Cumberland. He testified that he understood that the same conditions applied as in 1983, namely as long as the theatre was open in the afternoon and ran even one matine 2i he would retain his steady position. At the time he obtained the position in 1988, the Cumberland was running continuously. Mr. Hulse disagreed with Mr. Galiatsos. Mr. Hulse testified that Mr. Galiatsos was awarded the third job subject to the condition that the Cumberland continued to operate seventy hours a week or on a continuous basis. If one of the matineds was eliminated thereby making the Cumberland a night house (by the union's definition), the third position would be eliminated and Mr. Galiatsos would be out of a steady job. The minutes from this meeting were filed with the Board. The relevant portion is brief and simply says:
"Cumberland (3rd job) Brother P. Galiatsos Feb. '77 took this job on seniority and verbally accepted"
At the time of this meeting, Mr. Adams was the recording secretary. He testified that the conditions of the job were verbally outlined to Mr. Galiatsos. However, in response to a question from the chair he indicated "I can't swear that this [the event that would trigger the elimination of the 3rd steady job] was clarified at the meeting but I think that it was". Given the tendency of Mr. Galiatsos towards selective hearing, Mr. Hulse's unreliability as a witness and Mr. Adams honest uncertainty, exactly what did take place at the meeting remains extremely unclear.
From September, 1988 to March 1991 Mr. Galiatsos worked at the Cumberland Theatre as the 3rd steady projectionist. Mr. Tsiobanos held the first steady position, and Mr. Tom Choi held the 2nd position. The three men split the seventy regular hours available equally. Each worked twenty-three and one third hours per week on a regular basis plus split any additional hours which arose due to screenings, service and repair and make-ups. In March, 1991 the company announced that it would be eliminating one marine 2i at the Cumberland, reducing the available regular hours to sixty per week effective March 25, 1991.
Mr. Harris testified that he telephoned Mr. Hulse and notified him of the change in hours. He thought that he did this approximately two weeks prior to March 25, 1991. Based on written correspondence filed with the Board it appears that this conversation took place on March 18, 1991. Although Mr. Galiatsos found out about the reduction in hours at approximately the same time from a different source, it appears that he did not immediately understand the effect this would have on his job. Mr. Hulse telephoned Mr. Galiatsos on March 21 and told him that as the Cumberland was no longer operating on a continuous basis that his job had been eliminated. Naturally based on his understanding of the basis upon which he took the job, Mr. Galiatsos did not agree that he should be removed and indicated that he wished to take his case before the Executive Board and if necessary the general membership. Mr. Hulse indicated that if Mr, Tsiobanos and Mr. Choi were willing to split the available hours with him that he could remain on the job till the decision was finalized. Mr. Tsiobanos and Mr. Choi were not willing to split the remaining hours, therefore as of March 25, 1991 Mr. Galiatsos position was eliminated and Mr. Tsiobanos and Mr. Choi each started working thirty regular hours per week.
In Mr. Galiatsos' cross examination of Mr. Hulse, the following sequence of questions and answers took place.
Q. Mr. Harris stated that he had a conversation with you approximately ten days before the 18th [of March]?
A. He could have.
Q. I'm concerned whether there was a conversation before the 18th?
A. There could have been.
Q. That would bring us back to March 10. Between then and March 21 when you informed me by telephone that I would be removed did you make any effort to let me know?
A. Mr. Choi said you already knew.
- But you didn't contact me?
A. I probably tried and got a hold of you as soon as I could.
Mr. Harris did not testify that he had a conversation with Mr. Hulse approximately 10 days before the 18th of March. Mr. Harris testified that he spoke to Mr. Hulse approximately two weeks before March 25. This conversation was clarified (before the sequence set out above took place) to have taken place on March 18, one week before March 25th. However, that is not the way Mr. Galiatsos heard the evidence. In his mind Mr. Hulse had waited eleven days to call him to advise him of the reduction in hours. In fact, Mr. Hulse contacted him three days after the telephone call from Mr. Harris. This perception of delay and mistreatment appears to have increased Mr. Galiatsos' negative feelings towards the union. Mr. Galiatsos, albeit it appears to be unconsciously, in many instances appears to perceive that union officials are treating him unfairly, when there is no basis in reality for this perception.
- According to the union's constitution, the Executive Board is made up of the president, vice-president, secretary-treasurer, recording secretary, business manager, assistant business manager and one Executive Board member. All of these positions are elected positions within the union. On March 27, 1991 Mr. Galiatsos appeared before the Executive Board to appeal Mr. Hulse's decision to remove him from the Cumberland. The portion of the minutes from this meeting referring to Mr. Galiatsos read as follows:
Brother Galiatsos appeared because he believes he should remain employed at the Cumberland even though the theatre has been reduced to a night house. However, the union decision is that only 2 people should work the theatre while it is a night house. Peter has also requested that 2 weeks notice be paid and the union will see to it.
Mr. Hulse testified that before the Executive Board, Mr. Galiatsos took the position that the other two members should split the remaining hours at the Cumberland with him. Mr. Galiatsos also indicated that he felt it was unfair that the remaining two projectionists got extra hours as a result of his job loss. The Executive Board disagreed with this and unanimously decided that the two senior people should split the job. Mr. Hulse indicated that they felt that there was insufficient work to justify three steady projectionists. However, had the two senior men been willing to split the remaining hours with Mr. Galiatsos, the Executive Board would have accepted this result subject to its approval by the general membership.
The Cumberland theatre was not the only theatre where hours were reduced effective March 25, 1991 and a projectionist removed. Two other theatres, the Sheraton Centre and the Hollywood, were also affected in exactly the same way. The junior projectionist at the Hollywood, (there were only 2 projectionist at the Hollywood) Mr. Hunt, testified before the Board. His evidence is of little assistance to the resolution of Mr. Galiatsos' complaint. It appears however, that the circumstances at the Hollywood were different from those at the Cumberland and the senior projectionist, who was ill, agreed to split the reduced hours with Mr. Hunt. This arrangement was approved by the Executive Board subject to ratification by the general membership. Evidence concerning the situation at the Sheraton Centre theatre was not relevant to Mr. Galiatsos' complaint.
There was a general membership meeting on April 2, 1991. The first page of the minutes read as follows:
The minutes of the March, 1991 were read & approved
Vote Voice Carried
Notices of motion
Notice of motion re: Constitution and Fines as submitted by the Executive Board
Received the 2nd of 3 readings
Previous Notice
Article II Remove Paragraphs I, 2 & 3 and replace with Health & Welfare benefits shall be those as outlined in local 1735 group benefit & pension plan booklets'
Vote Voice Carried
Executive Board Report
Brother P. Galiatsos
Brother Galiatsos asked that he remain employed at the Cumberland even though it has been reduced to a night house. However, the union decision is that only 2 people should work the theatre while it a night house. Brother Galiatsos has asked to record that bumping isn't a Local 173 policy.
Information
Weeks Increase
1st weeks increases are now due from the Famous Players & Festival Theatre projectionists
Brother Beattie has challenged the amount he is to pay, but the exec. board is upholding the bylaws & is expecting Brother Beattie to pay the calculated increase.
Information
Sheraton / Hollywood / Cumberland
Famous Players has reduced these 3 theatres to a night house policy. It's the executive recommendation that the voluntary agreement between Brothers Hunt & Shapiro to equally split the hours be approved
Vote Voice Defeated
Brother Hunt will be removed from the theatre as of Tuesday April 2, 1991
Mr. Galiatsos testified that when the portion of the Executive Board report pertaining to himself was read, he made a short appeal to the membership indicating that it was immoral and unfair to remove him from a steady job in a recession when jobs were scarce. The president then ruled that that portion of the Executive Board report was for information only and would not be put to a vote. The evidence of Mr. Hulse confirms this. Mr. Galiatsos testified that when the arrangement between Mr. Hunt and the senior projectionist at the Hollywood was put to the membership it resulted in a heated discussion. Mr. Hulse spoke in favour of the arrangement while other members felt it was unfair and discriminatory to allow Mr. Hunt to remain while removing Mr. Galiatsos and spoke against it. At this point Mr. Galiatsos left the meeting. In his evidence, Mr. Hulse agreed that there was no vote specifically on Mr. Galiatsos' case and that the situation was put to the membership for information only. The vote that took place dealt with what should happen at all three cinemas. As the minutes point out, the motion that Mr. Hunt be allowed to remain at the Hollywood was defeated in the vote.
Mr. Hulse testified that had Mr. Galiatsos remained at the meeting he could have requested a vote specifically on his situation under new business at the end of the meeting. Mr. Galiatsos testified that he understood his situation was presented for information only, and that that was the end of it. He did not get the vote he felt he was entitled to, therefore he left the meeting. There is no dispute of any significance between the parties as to what took place at the April 2 membership meeting. However, the parties have placed different interpretations on these events and hold widely divergent perceptions of the events. The union feels Mr. Galiatsos was treated fairly and in accordance with past practice. Mr. Galiatsos disagrees.
The evidence is not clear when, but at some point Mr. Galiatsos indicated to the union that he was willing to work the remaining hours after the ten hours attributed to the elimination of one matine 2i were deducted. He was no longer requesting an even split of the sixty available hours amongst the three projectionists but was willing to have the senior men work 23.3 hours a week while he worked 13.3 hours. Mr. Hulse conceded that this arrangement could have been raised by Mr. Galiatsos at the general membership meeting. This arrangement was not acceptable to the union for reasons I will outline below. Mr. Galiatsos filed the complaint before me on April 6, 1991. Since his removal from the Cumberland he has been performing relief work.
Mr. Hulse and Mr. Adams testified that in accordance with the union's constitution, Article XVII, when a theatre changes policy the junior projectionist will be removed subject to the approval of the membership. A change of policy refers to a change in hours of operation in a theatre. The exact wording in the constitution is "in case of a reduction of workforce in any Theatre whatsoever, booth seniority shall prevail and the projectionist with the longest continuous booth seniority shall remain on the job". The union appears to interpret this wording as requiring the removal of a projectionist whenever hours are reduced at a theatre. The evidence of Mr. Adams and Mr. Hulse indicated that in determining whether or not to eliminate a steady job the other major factor considered by the business representative and executive committee is whether or not the job(s) provide a livable wage for the steady projectionist(s). Both Mr. Hulse and Mr. Adams testified that when the Cumberland ceased to operate on a continuous basis the third position was eliminated in accordance with these union practices or policies. These policies are not written down nor are they to be found encapsulated in minutes from either Executive Board meetings or general membership meetings. Mr. Hulse and Mr. Adams testified that they are common knowledge. Mr. Galiatsos disagrees with this.
Mr. Adams testified that the union has recently spent some time considering issues of job restructuring. In 1988-89 the union set up a special committee, the job restructuring committee, to inquire into the hours of work and incomes of projectionists to determine whether members were making a livable wage and to determine if the number of steady jobs should be reduced. The report of this committee primarily deals with specific situations and was approved at a general membership meeting. The report also appears to have generated discussion within the union at a more philosophical level. Mr. Adams, who was on the Committee, testified that the union has made efforts to eliminate "part-time" assignments (the term part-time was never defined) and to encourage a "full-time" commitment from its members. He indicated his belief that there is enough relief work available to support full-time relief projectionists and that the union operates more efficiently if members are regularly available to take relief assignments. Mr. Adams indicated that the union is currently encouraging a stronger commitment to the craft to ensure better service to the employers. He testified that the union gets less service, commitment and quality of work from part-time members.
With regard to the specific situation at the Cumberland Mr. Adams testified that the union was concerned that if the three projectionists split the remaining hours the union would be creating three part-time positions. The union decided therefore that it was better to have two full-time steady projectionists and one full-time relief projectionist. The same logic was utilized to resist Mr. Galiatsos' suggestion that he absorb the impact of the reduced hours and continue to work 13.3 hours a week. Mr. Adams testified that the trend is to increase the hours and enhance full-time jobs.
Mr. Hulse testified that he could not recall specifically when Mr. Galiatsos first raised his request to be allowed to remain at the Cumberland and work the hours available after Mr. Tsiobanos and Mr. Choi had worked their 23.3 hours. Mr. Hulse testified that in the circumstances at the Cumberland he felt that Mr. Choi and Mr. Tsiobanos had the right to work the remaining hours. In addition he indicated that it was the union's policy to disallow part-time work thereby ensuring that people made a decent livelihood.
I heard a great deal of evidence concerning the union's past practice in assessing, in a given situation, whether a steady job should or should not be eliminated and a projectionist removed. Some of the situations were similar to that of Mr. Galiatsos and some were quite different. I have carefully reviewed the evidence given by the witnesses with regard to the past practice of the union and do not find it particularly helpful.
At the general membership meeting on April 2, 1991 Mr. Galiatsos raised the issue of "bumping" within the union. It was his position that he should be able to bump any projectionist with less seniority than he, who was holding a steady position. Mr. Galiatsos quoted as justification for his position a letter dated April 6, 1977 which is attached to the collective agreement as Appendix "B". That letter makes a passing reference to bumping within the union, however Mr. Hulse on behalf of the union testified that bumping had never been allowed in Local 173 and that it was against the rules. He indicated that the letter set out in Appendix "B" is attached to the collective agreement because it sets out the policy agreed to by the union and the company concerning holiday pay. He was not sure whether bumping was allowed in Local 173's sister local in Ottawa but he was adamant that it never occurred within Local 173. Mr. Galiatsos did not give any examples of bumping having occurred within Local 173. He did not therefore contend that the union had treated him differently or discriminated against him when it refused to allow him to "bump" anyone. It appears to me that in raising this issue he is asking me to interpret Appendix "B" to the collective agreement and apply it to his situation. I am not prepared to do that, as in the context of this case, it is clear that the union did not violate the Act in interpreting Appendix B in the manner in which it did. There is no question that in refusing to allow Mr. Galiatsos to bump someone the union was acting in accordance with its past practice and did not in any way violate section 69 or 70 of the Act.
Argument
In final argument Mr. Galiatsos took the position that the union violated his rights in its administration of the hiring hail rules and procedure and acted in a way that was arbitrary, discriminatory and in bad faith contrary to section 70 of the Act. He argued that he was unfairly removed from his job and that the hiring hall rules had been administered on a day to day basis without regard to consistency or guiding principles. He argued that the union has abused its powers and prerequisites and were motivated by whim, nepotism, prejudice, irrationality and favouritism. He alleged that due to personal animosity towards him, the Executive Board eliminated his job. He argued that Mr. Choi and Mr. Tsiobanos were motivated by self interest and the decision on whether or not to share the remaining hours should not have been left to them.
Mr. Galiatsos urged the Board to find that he had been deprived his right to utilize the union's democratic processes in that his situation was never put to a vote of the general membership. He argued that the elimination of a single matine 2i should not have triggered his removal as it was contrary to his understanding of the conditions upon which he took the job. Mr. Galiatsos submitted that the policies and procedures put forward by the union to justify the elimination of the third steady position at the Cumberland are not known to the general membership and have never been debated, voted on and agreed to by the membership. The union in his contention, is merely utilizing them at this stage to justify their inappropriate conduct. Mr. Galiatsos requested that the Board direct the union to provide clear rules to the membership so they can make informed decisions on matters which affect their future. Mr. Galiatsos provided the Board with copies of Bernard Dorais, [1985] OLRB Rep. Mar. 408, Dufferin Aggregates, [1982] OLRB Rep. Jan. 35, John Bellenger, [1984] OLRB Rep. Aug. 1039, Joe Portiss, [1983] OLRB Rep. July 1160 and Susan G. Bartlett, [1983] OLRB Rep. Dec. 2067, in support of his submissions.
By way of relief Mr. Galiatsos requested that the Board direct that he be returned to the Cumberland and either share equally in the available hours or be given his fair share of hours. He requested to be allowed to remain in the job until he was able to bid for and obtain a steady job at a different location. In the alternative, he indicated that he would be willing to accept the 13.3 remaining hours of work in a fair system. By a fair system he was referring to the manner in which the hours were allocated amongst the three projectionists. For example, he wanted some say in the days of the week he worked. In the final alternative, he requested that the Board direct the union to provide him with the opportunity to present these options to the general membership and allow them to either ratify or disallow his return to the Cumberland.
Counsel for the union argued that one of the most difficult tasks facing a union is to allocate reduced work. He argued that there is often no right answer and that the test pursuant to section 70 was not whether the Board agreed with the way the decision was made. The test in his submission was whether the union acted in a manner that was discriminatory, arbitrary or in bad faith. Was there a valid reason for what was done and could the decision be rationally supported? In counsel's submission this was the question the Board had to answer, not whether the union's decision was right or wrong. Counsel took the position that there was no basis for a finding of arbitrariness on the part of the union. The union turned its mind to the issue and debated the situation at the Executive Board level and at a general membership meeting. A vote was held, with regard to the three theatres effected, but Mr. Galiatsos walked out before it was concluded. Had Mr. Galiatsos stayed he could have had an opportunity to put his case to the general membership at the end of the meeting under new business. Because Mr. Galiatsos left when he did he forfeited this opportunity. Counsel asserted that Mr. Galiatsos used many adjectives to described the factors influencing the union's decision such as nepotism, whim, animosity and hostility but that these allegations are not supported by the evidence.
Counsel for the union argued that in reaching the decision it did the union said it was not prepared to allow "half" jobs because they are contrary to the objective of ensuring full-time job security. He indicated that if Mr. Galiatsos only worked 13.3 hours per week at the Cumberland, he would want to supplement his hours with some relief work. This would be unfair to the other relief projectionists who had no guaranteed hours. In the end if part-time work was allowed the membership would be watered down to a lot of people with part-time work. They would not be committed to the craft. Counsel stressed that the union has an obligation to balance quantity and quality of jobs. Counsel urged the Board to weigh the interest of Mr. Galiatsos against the interest of the union and other members of the union. He asserted that there was a rational basis for the decision that was made.
Counsel reviewed the portions of the union's By-Laws and Constitution and argued that although they were not determinative of this situation one way or the other, they showed that the membership had turned its mind to the issue. In this case he argued that the Executive Board had made a decision and that this decision was put to the membership. After a debate, the membership voted on what was to be done at all three theatres with the result that the junior man was to be removed at all three theatres.
In response to Mr. Galiatsos' submissions, Counsel for the union argued that the decision to eliminate the third steady projectionists job at the Cumberland was not made by Mr. Tsiobanos and Mr. Choi as alleged by Mr. Galiatsos. That decision was made by the membership. Counsel also took the position that the rules and by-laws concerning job assignments could not be drafted to the degree of explicitly that Mr. Galiatsos asked for. Counsel argued that the membership understood what the rules were. In summary, counsel for the union argued that the union had not violated the Act and asked that the complaint be dismissed. In support of his submissions counsel for the union also referred the Board to Dufferin Aggregates, supra, Bernard Dorais, supra, and John Bellenger, supra. In addition counsel also referred the Board to Maurice Berlinguette, [1986] OLRB Rep. Feb. 194 and Donald Vasseur, [1985] OLRB Rep. April 615.
In reply Mr. Galiatsos suggested that counsel for the union was trying to twist what had occurred at the general membership meeting on April 2, 1992. Mr. Galiatsos argued that he tried to appeal the Executive Board's decision but was refused a vote as the matter was for information only. He contends that is why he walked out of the meeting. Had a vote taken place on his specific situation and request Mr. Galiatsos made it clear that he would have accepted the result.
Decision
Mr. Galiatsos is married to Mrs. Kitson-Galiatsos who is employed by the intervener as the District Manager for the Metropolitan Toronto Vicinity. She supervises fifteen theatres and reports to Mr. Harris. Mr. Galiatsos feels that the union discriminates against him because of his wife's position. I heard absolutely no evidence to justify this perception and find it totally without merit. There is no factual basis to support any allegations of discriminatory conduct towards Mr. Galiatsos by the union because his wife is a member of management. This allegation is therefore dismissed.
Mr. Tsiobanos and Mr. Galiatsos were at one point in time good friends. They are not now. At some point in the relatively distant past, Mr. Hulse acted as a witness in the marriage of Mr. Tsiobanos. The wedding took place at Old City Hall and at the time Mr. Hulse was working in a nearby theatre. This proximity was the basis for Mr. Tsiobanos's request, on the day of the wedding, that Mr. Hulse act as a witness. Somehow over the years the story changed and evolved into one that had Mr. Hulse acting as Mr. Tsiobanos's best man. Mr. Galiatsos asked Mr. Tsiobanos in cross examination the question "Do you recall telling me Mr. Hulse was your best man" and Mr. Tsiobanos responded "I never told you that, you've mentioned it to me and I never bothered explaining it". A less than honest approach to the issue on the part of Mr. Tsiobanos. Mr. Galiatsos in his complaint accuses Mr. Hulse of discriminating against him, in situations involving Mr. Tsiobanos, due to this apparent long time friendship between Mr. Hulse and Mr. Tsiobanos. Mr. Hulse vociferously denied this accusation and based on the evidence before me, I agree. Once again Mr. Galiatsos has seen conspiracies that simply do not exist. Albeit in this instance Mr. Tsiobanos did not help matters by allowing Mr. Galiatsos to continue in his mistaken belief. The allegations of discrimination by the union on this basis are therefore dismissed.
The conduct of the union in this case does not support a finding that a violation of section 69 of the Act has occurred. Section 69 of the Act regulates the manner in which a union represents its membership vis a vis the employer. The duty of fair representation under section 69 arises from the union's role as exclusive bargaining agent for its members. Section 69 ensures that the union does not misuse that authority in dealings with the employer. On the facts of this case it is clear that the employer did not make the decision to remove Mr. Galiatsos from the Cumberland. That decision was made by the union pursuant to its authority to run the hiring hall. Therefore, section 69 is not applicable to the situation before me and the allegations that the union has violated section 69 are dismissed.
Counsel for the union in final argument indicated that the evidence before me did not support Mr. Galiatsos' contention that the union's decision making was motivated by bad faith or discriminatory intent. I agree. It is clear to me that Mr. Galiatsos genuinely feels discriminated against. However, the evidence does not in any way lend itself to such a finding. The union officials who testified before me were at times obviously frustrated with Mr. Galiatsos' tendency to selective hearing, but I cannot conclude that they bore him any ill will. Neither the union nor it officials have acted in a manner that is discriminatory or in bad faith contrary to section 70 of the Act.
The decision made by the union to remove the complainant as third projectionist was made in circumstances for which there is no governing article in the union's Constitution or ByLaws. Article XVII, section 3 of the union's Constitution outlines that Booth seniority shall apply in the case of the reduction of the workforce in a theatre. It does not outline what triggers the reduction of the workforce in a theatre. It deals with who shall be removed once the decision to reduce the workforce has been made. As counsel for the union pointed out, the Constitution and By-Laws are not determinative of the situation which occurred at the Cumberland in March of 1991. They are not the primary basis upon which the decision to eliminate the third projectionist's job was made. There is no allegation by the complainant that the union acted contrary to its ByLaws and Constitution in removing him from the Cumberland.
Mr. Galiatsos obtained the position at the Cumberland in October, 1988. Had better minutes been kept of the conditions governing the job, this case might have been avoided. This was acknowledged by Mr. Adams and I urge the union to adopt a process which ensures that more thorough and complete records are kept of the basis upon which steady jobs are awarded to union members. Mr. Galiatsos feels he took the job based on certain conditions and the union has a different perception of those conditions.
1 have determined that the union did not act in a manner that was discriminatory or in bad faith when it made the decision to eliminate the third steady projectionists position and remove Mr. Galiatsos from the Cumberland. However, did they act in a manner which was arbitrary? Having thoroughly reviewed the evidence before me on this issue~ regardless of the basis upon which Mr. Galiatsos originally took the job, I have great difficulty with the union's reasons for removing Mr. Galiatsos from the Cumberland theatre.
Counsel for the union argued that the decision of the business representative and the Executive Board was based on valid reasons and was rationally supportable. I heard a great deal of evidence concerning the policies and practices of the union which purported to establish the rights of Mr. Tsiobanos and Mr. Choi to Mr. Galiatsos hours, the circumstances which trigger the removal of the junior projectionist from a theatre, and the philosophical approach to job restructuring taken by the union to ensure that their members earn a livable wage and feel a full time commitment to the union. But none of these policies and practices are written down. In an organization where major decisions appear to be made by the general membership none of these policies (other than the specific situations dealt with by the report of the job restructuring committee) appear to have been put to and endorsed by the membership. The evidence of past practice put before me concerning the manner in which a reduction in hours was dealt with in other theatres is quite ambiguous. On some occasions jobs were reduced through attrition or displaced members were placed in other steady positions and in other cases swing jobs were created. The business representative has a wide latitude in the manner in which he decides questions of his nature. The union had reasons for the decisions it made but a consistent policy is difficult to ascertain. This apparent lack of consistency in a matter which goes to the very heart of the union's obligation to administer the hiring hall in a fair manner, gives me some concern. I can certainly understand why Mr. Galiatsos was confused. However, a check on the discretion of the business representative exists as it is possible to appeal his/her decision to the general membership. Due to the conclusions I reach concerning that process, it is therefore not necessary for me to decide whether the decision of the business representative and the executive committee to remove Mr. Galiatsos was made in an arbitrary fashion and I decline to do so.
There was no evidence put before me which establishes that "part-time" projectionists are less committed to the job than "full-time" projectionists. Particularly in the case of the complainant, I have no evidence that he would be less committed were his hours to drop from 23.3 hours per week to 20 hours per week or from 23.3 hours per week to 13.3 hours per week. While this philosophy has some appeal, I heard no evidence that in specific situations employers received inferior quality service from part-time projectionists. No reasons were advanced as to why this conclusion had been reached. Counsel for the union alleged that Mr. Galiatsos would not be satisfied working 13.3 hours a week and would want to be assigned relief work. Mr. Galiatsos asserts this is not true and I have no reason to disbelieve him.
While it is certainly not necessary for a union to have written rules and procedures concerning the operation of the hiring hall, I would encourage the union in this case to outline the policies which govern the decision making of the executive on questions such as the one before me, and to distribute this to the membership. Also, if it is not doing so already, the union should consider providing its members with a copy of the current union Constitution and By-Laws as well as the collective agreement. These actions in conjunction with clearer more complete minutes establishing the conditions upon which steady positions are offered and filled, should go a long way towards eliminating the apparent breakdown in communication which occurred in the situation before me.
1 also have great difficulty with the process followed at the union's general membership meeting on April 2, 1991. The processes followed at a union's membership meeting would normally be considered to be internal union matters and therefore the Board would choose not to interfere. In the case before me, Mr. Galiatsos asserted that he had a right to take his case concerning his removal from the Cumberland, to the general membership, for a final decision. This was not disputed by the union. The membership therefore, in some circumstances, takes a direct role in the operation of the union's hiring hall procedures. That body has the authority to confirm or reject the decisions made on a daily basis by the business representative. The general membership has the right to determine union policy and to deal with specific situations concerning manpower in a given theatre. Mr. Hulse and Mr. Adams in their evidence made numerous references to decisions that "would be taken to the membership to vote on". Therefore given the scope of the union membership's authority it is appropriate to review this process pursuant to section 70 of the Act.
The minutes of the April 2nd meeting clearly indicate that Mr. Galiatsos requested to be allowed to remain at the Cumberland but that the decision of the business representative, confirmed by the Executive Board, that he be removed from the Cumberland was put to the membership for information only. Why, when it was so clear that Mr. Galiatsos wanted an opportunity to address the membership, make a plea for his case, and have the membership vote and decide his fate did the union not give him that opportunity? It is very self serving to say that Mr. Galiatsos could have raised his request under new business at end of the meeting when clearly he had been led to believe that his case would not be discussed further. That is why he left the meeting. While I agree that the situation at all three theatres was voted on, this vote was on a question different than that which Mr. Galiatsos sought to raise. For example, he was never allowed to seek the approval of the general membership to remain at the Cumberland and work 13.3 hours a week.
As was pointed out by counsel for the union in Dufferin Aggregates, supra, the Board made the following observations:
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.
The union, never put forward any justification, let alone an objective justification, as to why it put the Executive Board's decision concerning Mr. Galiatsos before the membership on April 2, 1991 on an "information" only basis. There was no dispute that the complainant had the right to refer the decision reached by the Executive Board to the membership and if he could obtain a vote in his favour, reverse that decision. I do not accept the union's reasoning that Mr. Galiatsos could have raised his request under new business had he not left the meeting. Given that his request had already been dealt with on an information only basis it does not make sense for him to try to raise it again. In refusing to allow the complainant to present his request to remain at the Cumberland to the membership for a vote, the union acted in an arbitrary manner contrary to section 70 of the Act.
In Gerald Lecuyer, [1985] OLRB Rep. July 1099 the Board outlined concerns that placing a matter before the membership for decision may not always ensure compliance with the Act. After observing that the Act was intended to protect minority interests from the tyranny of the majority the Board went on to say:
Compliance with the duty of fair representation created by section 68 [now section 69J requires that beads be used and not merely counted. The group vote must satisfy the same test as any other form of decision-making: neither the substance of the decision nor the procedure taken to arrive at it may be arbitrary, discriminatory or in bad faith. (See The Corporation of the Town of Oakville, [1984] OLRB Rep. May 731 for an example of a membership vote found to violate section section 68.) As with any other kind of decision, a decision taken by vote at a meeting of members can be no more reliable than the information on which it is based.
The Board's objective in exercising its remedial discretion is to place the complainant, as far as is possible, in the same position he would have been in had the Act not been violated. Although considerable time has passed, I feel that it is still appropriate to provide Mr. Galiatsos with the opportunity to place his case before the membership for its decision. On numerous occasions during the hearing Mr. Galiatsos asserted that if he had been given a fair opportunity to put his case to the membership and have them vote on it he would have accepted the result. In final submissions he did not raise any concerns that to do so now would be problematic.
I therefore direct the Executive Board of the union to provide Mr. Galiatsos with the opportunity to put before the membership and have the membership vote on, the question as to whether he should have been entitled to remain at the Cumberland Theatre in March, 1991 on the basis that he share equally in the 60 available hours. If that arrangement is not acceptable to the membership then Mr. Galiatsos shall be given the opportunity to present to the membership for decision the arrangement whereby he will be entitled to remain at the Cumberland and work 13.3 hours a week (plus his share of any additional hours that arise).
To ensure that Mr. Galiatsos be given the fair opportunity to present his case all members of the union shall be notified in advance that the issue is to go before the membership. A copy of this decision is to be posted in the union's office and copies are to be provided by the union to those members who request it. Mr. Galiatsos is to be allowed a fair opportunity to put his case to the membership but it does not mean that he is entitled to any special treatment or that the members of the Executive Board cannot express their opinion. Should Mr. Galiatsos be successful in obtaining the necessary support from the membership to return to the Cumberland on a steady basis, he is not entitled to demand relief work to supplement his hours as if he were on the unions "A" list. This would be unfair to those members who do not have any steady hours and are dependent on relief work.
Until the results of the membership meeting are known it cannot be ascertained whether Mr. Galiatsos is entitled to any monetary relief. As the employer was in no way responsible for Mr. Galiatsos removal from the Cumberland, it cannot be held liable if Mr. Galiatsos is found to have suffered any monetary loss.
If the parties have any difficulty in implementing this award, I will remain seized with regard to the issue of relief.