Steven Sheppard v. Brian Christie, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 463, 1993 CanLII 7849

[1992] OLRB Rep. June 555

1431-92-U Steven Sheppard, Applicant v. Brian Christie, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 463, Responding Parties

BEFORE: G. T. Surdykowski, Vice-Chair.

APPEARANCES: Gail Crossman for the applicant on September 24, 1992, Gail Crossman and

Edward Spong for the applicant on January 12, 1993, Edward Spong for the applicant on January

13 and 14, 1993; A. J. Ahee and B. Christie for the responding parties.

DECISION OF THE BOARD; June 22, 1993

I Introduction

1. The name of the responding party "U.A. Local 463" is amended to "United Associa­tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 463".

2. This is an application, under section 91 of the Labour Relations Act, in which the appli­cant complains that Brian Christie and the responding trade union ("Local 463") treated him in a manner contrary to sections 69 and 70 of the Labour Relations Act.

3. The applicant complains that Local 463 improperly referred other members instead of him to employment with Harold R. Stark Division of William Stark Group Inc. ("Stark") at a con­struction job site on the Canadian Armed Forces base at Trenton; that is, that Local 463 referred members who were below the applicant on its welders out-of-work list to this employment without first offering it to him, contrary to the working rules of the hiring hall in that respect and the provi­sions of the Labour Relations Act. The applicant claims damages for lost wages and benefits, including unemployment insurance benefits.

II Preliminary Matters

4. Several preliminary matters had to be disposed of before the hearing proceeded on the merits of the application.

5. First, the responding parties moved that Brian Christie be removed as a party or, in the alternative, that the application should be dismissed as against him. The applicant opposed this motion. Counsel argued that section 103 of the constitution of the United Association of Journey­men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada imposed the duty of care on Christie, Local 463's Business Manager at all material times, akin to a fiduciary duty to the applicant, and further, that Christie in any event owed a common-law duty of care to the applicant. Counsel also referred to section 5 of the Statutory Powers Procedure Act, sec­tion 9 1(4) of the Labour Relations Act and section 79 of the Board's then Rules of Procedure (since amended effective January 1, 1993) in support of her submissions that Christie was a proper responding party and should not be either removed or have the application against him dismissed without a hearing on the merits.

6. As pleaded, the applicant alleged breaches of section 69 and 70 of the Act. These sec­tions provide that:

7. 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.

8. 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.

Section 103 of the constitution of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada provides that:

SEC. 103. The Business Agent and/or Business Manager meets in daily contact with the public and with employers, becoming the trustee of the welfare of the members of the Local Union. It is his solemn duty and obligation to vigilantly protect the trade jurisdiction of the United Associ­ation in the plumbing and pipe fitting industry of his locality; also to compel employers to observe and respect collective bargaining agreements, adjusting all grievances between mem­bers of his Local Union and their employers with justice and fairness, as well as fostering and promoting employment for the members of the Local Union.

Section 5 of the Statutory Powers Procedure Act provides that:

Section 5

5. The parties to any proceedings shall be the persons specified as parties by or under the statute under which the proceedings arise or, if not so specified, persons entitled by law to be parties to the proceedings. 1971,c.47,s.5.

Section 91(4) of the Labour Relations Act provides:

91.-(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting, the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or

acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of;

(c) an order to reinstate in employment or hire the person or employee con­cerned; with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally; or

(d) an order, when a party contravenes section 15, settling one or more terms of a collective agreement if the Board considers that other remedies are not sufficient to counter the effects of the contravention.

Section 79 of the Board's then Rules of Procedure provided that:

79. The Board may direct that any person be added as a party to a proceeding or be served with any document, as the Board considers advisable.

80. In essence, section 69 of the Labour Relations Act imposes on a trade union a duty to fairly represent, in employment related matters, employees for whom it is the bargaining agent (that is, a duty of fair representation). Section 70 requires a trade union which is involved in the placement of persons in employment to act fairly in that respect (that is, a duty of fair referral). The primary application of the duty of fair referral is to the administration by a trade union of what is commonly referred to as a "hiring hall" in the construction industry. In short, it is an unfair labour practice for a trade union to act in a manner which is arbitrary, discriminatory or in bad faith in the representation in employment matters or referral to employment of persons it repre­sents.

81. Like a corporation, a trade union acts through its officers and representatives, but it is the trade union which holds collective bargaining representation and administration rights and obligations, not its individual officers or representatives. Consequently, it is well settled that it is the trade union, not its officers or representatives, to which sections 69 and 70 apply, although the trade union is bound by and responsible for the acts or omissions of its officers and representatives. In this case, Christie could not himself be found in breach of either section 69 or section 70. It is Local 463, not Christie, which owes the duties of fair representation and fair referral to the appli­cant.

82. Further, section 5 of the Statutory Powers Procedure Act does not give a party the right to name whoever else it wishes as a party to a proceeding. If a person's presence as a party is not necessary to the proper adjudication of the dispute, or that person's rights, obligations or interests will not be affected by the proceeding, s/he is neither a necessary nor a proper party and can nei­ther be required nor is entitled to be a party to the proceeding. Potential witnesses, whether actors in the material events or not, are neither necessary nor proper parties, regardless of how important their evidence might be, unless they also have a legal interest in the proceeding.

83. Section 91 of the Labour Relations Act in general, and section 91(4) in particular, pro­vides a mechanism for bringing an alleged breach of the Act before the Board, and for obtaining relief with respect thereto. It is a procedural provision, not a substantive one. Similarly, section 79 of the Board's (then) Rules of Procedure did no more than specify a power which the Board enjoyed in any event; that is, to add any person as a party to a proceeding as the Board considers advisable.

84. Further, the Board is a statutory tribunal. As such the Board has only such jurisdiction or powers as have been conferred upon it by or under the Labour Relations Act or other legislation (see, for example, The Colleges Collective Bargaining Act, The Hospital Labour Disputes Arbitra­tion Act, The Occupational Health and Safety Act). This complaint concerns the responding trade union's duties and obligations under sections 69 and 70 of the Labour Relations Act and the Board's jurisdiction is limited to considering whether the responding trade union has breached either of those sections as alleged by the applicant. While evidence of Christie's duties, responsibilities and conduct as a representative of Local 463 in that respect may well constitute relevant evi­dence, neither his duties under the United Association's constitution, nor any common-law duty, as such, can constitute the basis of the Board's jurisdiction. The Board's jurisdiction in this matter is rooted in the Labour Relations Act, not in the trade union's constitution or the common law. While Christie's and Local 463's duties under the constitution or the common law may be relevant to the Board's consideration of the complaint that sections 69 and 70 have been breached, the forum for litigating a claim rooted in the constitution or the common law is other than the Board.

85. In the result, I was not satisfied that Christie was either a necessary or a proper party to this proceeding and I therefore dismissed the application as against Christie in an oral ruling given at the hearing.

86. Second, Stark was identified by Local 463 as an entity which might be affected by this complaint. The applicant did not seek to have Stark made a party. Nor did he seek any relief which might affect Stark. Accordingly, I saw no reason to make Stark (which is not represented at the hearing) a party to the complaint.

87. Third, Local 463 asked that this application be dismissed on the basis that it failed to disclose a prima facie case. The applicant conceded that section 69 of the Act does not apply. I therefore dismissed the application to the extent that it alleged a breach of section 69. However I was satisfied that a prima facie case for a breach of section 70 had been pleaded and I ruled that the application should proceed.

88. Fourth, Local 463 asserted that the applicant's allegations lacked particularity. How­ever, Local 463 agreed to proceed with the hearing subject to its right to make objections or seek adjournments as it considered appropriate, at which time the Board would deal with this specific objection or request on its merits. As the hearing unfolded, it became necessary to adjourn the hearing to accommodate the production of documents by Local 463 and of further particulars by the applicant. In that respect, Local 463 was to produce documents to the applicant's counsel who was to keep possession and control of them. Further, I found it appropriate to direct that any docu­ments or information exchanged between the parties or their counsel not be used for purposes unrelated to this proceeding.

III The Merits

16. Local 463 operates a hiring hall, common in the construction industry, for the purpose of referring out-of-work members to employment. The hiring hall responds to requests for employ­ees by employers bound by the provincial collective agreement between The Mechanical Contrac­tors' Association Ontario, and The Ontario Pipe Trades Council of the United Association of Jour­neymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada. A contractor bound to that collective agreement which requires employees is obliged to contact the hiring hall and specify the number and kind of employees it requires. In that respect, Local 463 maintains four separate out-of-work lists: one for journeymen plumbers, one for jour­neymen steamfitters (for purposes of the Labour Relations Act the term "steamfitter" and "pipefitter" are synonymous - D.E. Witmer Plumbing and Heating Limited, [1987] OLRB Rep. Oct. 1228), one for welders, and one for apprentices. An out-of-work member's name can appear on only one out-of-work list at a time, which the member can select subject to having the appropriate qualifications. As one would expect, members are referred to employment by Local 463 according to their position on the relevant out-of-work list. Members' names appear on an out-of-work list in reverse order to the number of days they have been out of work. That is, the name of the member who has accumulated the greatest number of out-of-work days pursuant to the working rules appears at the top of the out-of-work list s/he is on and that member is supposed to be referred to employment first. Members of Local 463 can only obtain employment through the hiring hall. They are not permitted to solicit work for themselves or to work outside of the union's jurisdiction.

17. The working rules which govern the operation of this hiring hall provide as follows:

U.A. LOCAL 463

"THE LAKESHORE LOCAL"

26 Caristrap Street, Unit #3

Bowmanville, Ontario, L1C 3Y7

(416) 623-1666

WORKING RULES

AMENDED JANUARY 26, 1977 AT REGULAR MEETING

1. A member who becomes unemployed must report to the Union Office, and his name will be placed on the Out of Work List, under one classification of his choice, if gov­ernment qualified. (A member with two or more classifications must decide which list he wishes to be placed upon, and member must also sign book.)

2. For each working day he is upon the list, he will be credited with one day.

3. When a job becomes available in the area, the man with the most number of days to his credit in the classification required, will be called for the job.

4. A member turning down two jobs will lose twenty-five credit days, on each refusal after the first one, until he accepts a job.

5. A member fired for a justifiable reason will lose all his credit days.

6. When a member is called for a job and is not home, providing the message is given to a responsible person, and member does not return the call, this will be classified as a refusal.

7. A member who returns to Local 463 to work, for each day he works, one day will be deducted from the number of days he has accumulated. (This would eventually work out the list and would also prevent a man who has been working for a year in the area, form being on top of the list when he is again laid off.)

8. A member who becomes ill while unemployed will still be classed as unemployed.

9. In the case of a lock-out or strike, although a member has a job to return to at the ter­mination of the lock-out or strike, he shall be classed as unemployed and may be referred to other employment providing he qualifies and there are no other members available.

10. In order to change or amend the working rules, it will be necessary to have a called meeting, and shall require a two-third majority. Except when notice of motion has been given at a previous meeting, then majority vote will rule.

11. A member on a temporary lay-off will be allowed to return to his former employment providing the lay-off is no longer than ten consecutive standard working days. A member on a temporary lay-off will not accumulate credit days, but will be eligible for SUB, provided he qualifies.

12. A foreman list will be maintained. When a company requires a Foreman, the man out of work with the greatest number of days will be called, with no penalty for refusing.

13. A member on Travel Card will have the option to freeze his days, and will not be called for work or accumulate days until he returns to his home Local, at which time his days will be re-activated.

These working rules have been established by Local 463's membership. Any changes to them must be approved by a vote of the members. In that respect, the membership has approved an exception to the working rules such that members whose unemployment insurance benefits are running out can be referred to short-term employment without regard to their position on the applicable out-of-work list.

18. The hiring hall, the working rules and the out-of work lists are maintained and adminis­tered by Local 463's Business Manager and its Business Representatives.

19. In the case of the welders' out-of-work list, members must generally pass a welding test which pertains to the job for which an employer has requested workers. They are offered the opportunity to test for a job according to their position on the welders' out-of-work list. These welding tests are conducted at the hiring hall (except for Ontario Hydro which has its own testing facilities) by an Ontario Government inspector under the Boilers and Pressure Vessels Act R.S.O. 1990, Chpt. B.9. If the member passes the test, the inspector issues a time-limited certificate, com­monly called a "ticket", to him/her and the member is referred by Local 463 to employment to fill the employer's request.

20. The applicant is a journeyman steamfitter. He has been a member of Local 463 since January 1, 1983. He was a member in good standing at all material times and, as such, was eligible for all the benefits of membership, including referrals to work.

21. Local 463 concedes that its hiring hall working rules were not followed for the Stark job in Trenton. More specifically, Local 463 concedes that the applicant was not offered employment or the opportunity to test for employment on that job, and that two members whose names appeared after the applicant's on the welders' out-of-work list were referred to employment with Stark on that job without the referral to such employment or the opportunity to test for it first being offered to the applicant.

22. Local 463 asserts that it was justified in departing from the working rules because the Trenton job presented a special situation. What made the Trenton job different or special, says Local 463, is that it required welders who could weld using the "downhand" technique. Previously, a non-union contractor had been the successful bidder for the same kind of work on the same job site. During the bidding process for the contract for the second phase of that work, Local 463 dis­covered that the earlier work had been performed using the downhand welding technique. This welding technique is generally considered to be faster than the "uphand" technique traditionally used on this kind of job. The evidence also reveals that there is a sense, which is not shared by everyone in the industry, that the downhand welding technique is also more difficult to master than the uphand technique. Brian Christie, Local 463's Business Manager, immediately advised union contractors which were interested in the job that they could bid it on the basis that the welding work would be performed using the downhand technique. On the evidence, this significantly reduced the bid submitted by Stark, a union contractor bound by the collective agreement referred to in paragraph 16 above. In the result, Stark's bid was the lowest and it was awarded the job. Not only would Stark not have been the lowest bidder if it had not bid the job downhand, but the con­tract would have been awarded to a non-union contractor.

23. In responding to Stark's subsequent request for welders, Christie and Larry Cann (Local 463's Business Representative and Training Co-ordinator) unilaterally decided not to apply the working rules for the Trenton job. Instead, they decided to refer out-of-work members who they felt could perform the work well, on the basis of their personal knowledge of the member's abilities, their sense of which members had shown an interest in downhand welding, either by taking the downhand course which Local 463 had offered at its hiring hall or otherwise, and the out- of-work list, without going through the names on the welders' out-of-work list in order. They did not contact the applicant at all with respect to the Trenton job.,

24. Local 463 suggests that it had to send welders who could perform well in order to dem­onstrate that such work could be done properly using union labour. Christie testified that he was concerned about the job being lost to Local 463's members if Local 463 was not "flexible" in the order in which members were referred to work. On the other hand, Local 463 conceded, and the evidence establishes, that the purpose of its out-of-work lists and working rules is to prevent any kind of unfair or preferential treatment to out-of-work members, that members who had been out of work the longest would normally have been allowed to test for the Trenton job, and would have been referred to it if they had passed the test, that the unemployment insurance short-term job exception did not apply, and that Christie and Cann did not have personal knowledge of the skills, qualifications or interests of all Local 463 members, or, more specifically, the applicant. I am not satisfied that the normal hiring hall process for welders was inadequate for the Trenton job, or that Local 463 was otherwise justified in departing from it.

25. As the Board has observed in other cases, the operation of a hiring hall can be a com­plex matter and can require the individuals charged with the responsibility for administering it to exercise some judgment and discretion. In John Cooper [1984] OLRB Rep. Jan. 6, the Board observed that:

26. Neither the fact of discretion nor its exercise are, per se, illegal. Discretion is inevitable in the circumstances. The business manager must balance a number of factors in determining which of the available out-of-work members should be sent to a particular job at a particular time. In so doing, he may well make an honest mistake. But the question is not whether the business manager (and, vicariously through him the union) may have erred in some way or made a decision of which this Board, with hindsight disapproves. 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, 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.

(See also, Thomas Beck, [1985] OLRB Rep. Jan 14. Antoine A. Plennevaux, [1990] OLRB Rep. Dec. 1314).

26. As the Board's decision in John Cooper, supra demonstrates, honest mistakes, innocent misunderstandings and mere errors in judgment will not, of themselves constitute arbitrary on dis­criminatory conduct within the meaning of section 70 of the Labour Relations Act. A trade union has a kind of "right to be wrong" in that respect. Terms such as "implausible", "so reckless as to be unworthy of protection", "unreasonable", "capricious", "negligent", and "demonstrative of a non-caring attitude" have been used to describe conduct found to be arbitrary and therefor in breach of a trade union's duty of fair representation or referral. While such strong words are apt in the more obvious cases, they do not capture the entire range of conduct which can be arbitrary. Similarly, the term "discriminatory" in both section 69 and section 70 has been interpreted broadly to include all manner of cases in which a trade union has distinguished between or treated members differently. Consequently, whether particular conduct is arbitrary or discriminatory will depend on the circumstances.

27. In this case, I accept that Christie and Cann were entitled to exercise some judgment and discretion in administering Local 463's hiring hall. However, they were not entitled to ignore the working rules and they did not have the discretion which they purported to exercise in referring Local 463's members to employment with Stark at the Trenton job. I find that Local 463, through Christie and Cann, contravened its own hiring hall working rules and section 70 of the Labour Relations Act by failing to advise the applicant of the employment opportunity and by failing to give him the opportunity to test for it. I am unable to find any justification or satisfactory explana­tion for this improper conduct. Even assuming that it was in the best interests of Local 463 and its members for them to act as they did, and in my view it was not, there simply was no basis for the assertion that anyone's interests would have been compromised if Christie and Cann had followed the working rules. Nor does the evidence establish that any legitimate interest was advanced by referring either of the two members whose names appeared after the applicant's on the welders' out-of-work list instead of the applicant.

28. Local 463's Business Representative and Business Manager referred out-of-work mem­bers to the Trenton job on the basis of their subjective knowledge and personal opinions of mem­bers' qualifications, abilities and interests. The applicant has years of welding experience, including experience using the downhand technique, and was interested in employment of the kind available with Stark at the Trenton job. If Local 463's representatives had taken the trouble to ask him, as they were obliged to do, they would have discovered that. On the evidence, I am satisfied that the applicant should have been informed of the employment opportunity with Stark, that he should have been given an opportunity to test for that employment opportunity on July 24, 1992, that he would have tested for it, that he would have passed the test and obtained the requisite ticket, and that Local 463 should have referred him to employment with Stark on the Trenton job beginning July 27, 1992. I am also satisfied that there is no reason why the applicant could not have been offered or would not have taken this employment, and that he would in fact have accepted it.

29. In the result, I find that Local 463, through its Business Manager and Business Repre­sentative, acted in a manner which was arbitrary and discriminatory in the manner in which it referred or, in the case of the applicant, failed to refer members to work with Stark at the Trenton job, contrary to section 70 of the Labour Relations Act. I further find that the applicant lost the wages and benefits he would have earned or accrued had Local 463 acted properly and referred him to that employment.

IV Disposition

30. The Board therefore:

(a) declares that the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 463 has breached its duty of fair referral to the applicant, contrary to section 70 of the Labour Relations Act; and

(b) orders the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 463 to compen­sate the applicant for all damages he has suffered as a result of its breach of the Labour Relations Act.

31. The issue of the quantum of damages is remitted to the parties to resolve if they can. I will remain seized with that issue for a period of six months from the date hereof. If the parties are unable to resolve the issue of damages, the Board will, upon request in writing of either party, schedule a hearing to deal with it.