Michael A. Rankin v. Local 721 of the Bridge, Structural and Ornamental Ironworkers of America, 1993 CanLII 7892

[1993] OLRB Rep. July 644

3913-91-U Michael A. Rankin, Applicant v. Local 721 of the Bridge, Structural and Ornamental Ironworkers of America, Responding Party

BEFORE: Susan Tacon, Vice-Chair.

APPEARANCES: Ernie D. Coetzee and Michael Rankin for the applicant; B. Chercover and Stan Arsenault for the responding party.

DECISION OF THE BOARD; July 23, 1993

1. This is a complaint filed pursuant to section 89 [now section 91] of the Labour Relations Act in which the complainant (Mike Rankin) alleges that the respondent trade union (also referred to as "Local 721") contravened section 69 [now section 70] of the Act in its refusal to issue a refer­ral slip in response to a requested name hire of Rankin by Ryco-Alberici ("Ryco") on March 9, 1992.

2. This matter occupied some sixteen days of hearing; eleven witnesses testified and con­siderable documentary evidence was filed. The Board has considered the credibility of the wit­nesses according to the usual criteria, including their ability to resist the tug of self-interest in giv­ing their testimony. In reaching its findings of fact, the Board has weighed the testimony of the witnesses, including their relative credibility, in the context of the documentary material and what is reasonably probable in the circumstances. The events in question cover a period of several years. The Board, in setting out its factual conclusions, has not attempted to recount that evidence in detail but, rather, has focused on those matters considered relevant to the issues raised in the com­plaint.

3. It is useful at this point to comment briefly on the question of credibility. Much of the testimony was not in dispute. One witness, Richard Bedard, was called in reply by counsel for the complainant. In its decision, the Board has given no weight to that evidence given that the testi­mony was hearsay in nature or not relevant or helpful in resolving the issues or would have consti­tuted a "splitting" of the complainant's case. With respect to the other witnesses, the Board is of the view that, generally, the individuals were testifying to the best of their recollections. Many of the conflicts in the testimony were minor and need not be resolved. However, there were some dis­crepancies in the accounts of witnesses with respect to several critical events. In such instances, the Board accepts the evidence of Rankin as more accurate than the recollections of White, for exam­ple. The Board makes further comments with regard to credibility at the appropriate junctures in the decision. One additional comment is merited at this point. White testified with respect to three conversations with Jim Bachelor, general foreman for Ryco at the Bramalea plant job. Those con­versations were of considerable importance in the defence of the trade union that Rankin had not been treated improperly. Given the contradictions in the testimony of Rankin and White, if Batchelor's testimony had corroborated White's version, that would have assisted the trade union s defence. However, Batchelor was not called and the Board is prepared to draw a negative infer­ence from the failure to produce Batchelor as a witness, particularly since the union did call Bob Boatner, general superintendent on the project, to testify. The Board's comments on this aspect should not be construed as an assertion that the failure to call Batchelor was the deciding factor in the case. In the Board's view, as the reasoning infra makes clear, White's proffered explanations for his conduct were inconsistent with the documentary evidence and not logical in the circum­stances.

4. In the above context, the Board next sets out its findings of fact.

5. The complainant, Mike Rankin, has been an ironworker and member of Local 721 for approximately twelve years. Immediately prior to the union's 1990 elections, Rankin was a mem­ber of its executive board. The events which give rise to the instant complaint commenced in the Summer of 1989. At that point, Rankin was working for Robert Globe Mechanical and was the ironworker steward on site. The foreman, also an ironworker, was Jan Jacobsen. In late June, an ironworker by the name of Clarence Cole was dispatched to the site. Cole claimed he was injured on his second day at work and submitted a worker's compensation claim. The bonn fides of the claim were questioned by the company. Jacobsen, as foreman, wrote a letter which was submitted to the Workers' Compensation Board (WCB) outlining the sequence of events, including Cole's apparent initial assertion that he had aggravated an old injury, subsequent assertion that he suffered a "new" pulled muscle injury and his repeated refusal of light duty which Jacobsen offered, in order to go on compensation. Jacobsen's letter, which was filed with the Board, adds that Jacob­sen did not witness the injury nor did Cole inform Jacobsen on June 28 that he had been injured. The Board is not drawing conclusions of fact based on the letter as to the veracity of the injury claim. Jacobsen's letter is relevant, however, in view of the subsequent events.

6. Rankin was asked by Jacobsen if he had witnessed the alleged injury. Rankin was angered by Cole's claim. In Rankin's opinion, the employer would have preferred to bring in iron-workers from the Hamilton local rather than Local 721. For Rankin, the Cole incident might well lead to the utilization of Hamilton ironworkers on site, to the prejudice of job opportunities for Local 721. Rankin testified that he saw the question as one of protecting Local 721's jurisdiction. Rankin called the union hall and spoke to Stan Arsenault, the Business Manager, and another union officer. Rankin's evidence that both officers were not surprised at the Cole incident and the claim for compensation was not shaken on cross-examination or contradicted. While it is not neces­sary to resolve the details of those conversations, their thrust was that Rankin was to assure the contractor that Local 721 would dispatch good ironworkers to the site forthwith. Rankin, however, agreed to write a letter as requested by Jacobsen outlining the incident from his perspective. It is useful to reproduce that letter [verbatim] herein.

July/6/89

TO WHOM IT MAY CONCERN;

I was working with Clarence Cole the day that he was "supposedly injured". At around 1:25 p.m. on June 29th Clarence had told me he had a doctors appointment at 2 p.m. and he had to leave. First of all I thought it was strange that he never told us earlier of his appointment and secondly, what the appointment was for. However he left to go to his doctor and left the gang shorthanded. The next day Clarence came in and told us his "story".

In my personal opinion their was no injury, and if there was he should have told us, I don't know Clarence that well, but I think it was a lie, a fake, and an insult to our trade. Its guys like that who ruin our image as responsible tradesmen.

I am embarrassed of him and he should be ashamed of himself.

Confidentially Yours,

Mike Rankin

Ironworker Steward

Robert Globe Mechanical

Triple M. Metal Jobsite

7. In approximately April 1990, Rankin went to work for State Contractors as a name hire. (Rankin remained at State until mid January 1991). A name hire or request is, as the term implies, the employing of an ironworker selected by the contractor. It was not in dispute that the relevant collective agreement stipulates that an employer must maintain a 50:50 ratio of "requests" to "list", that is, of those employed because they were name-hired by the contractor and those referred or dispatched to the site by the Local. Those dispatched to the project are those highest on the out-of-work list who are appropriately qualified. Not surprisingly, in "boom" times, the out-of-work list is short and may even be meaningless where there are more jobs than qualified workers. In tough economic times, in contrast, the list may swell to many hundreds of union mem­bers. Of note, as well, is another ratio, also 50:50, between ironworkers and millwrights. Both matters are relevant to this case.

8. Some time in the Summer of 1990, Cole approached Arsenault for assistance with respect to his WCB claim which had been denied. Arsenault reviewed the file with Herb MacDon­ald, the union officer responsible for assisting members with such claims. Only the Jacobsen letter was found. However, it appears that Cole insisted Rankin had also written a letter. Arsenault sub­sequently examined the file again, unearthed and removed the Rankin letter; Arsenault indicated to Cole that the WCB claim would be appealed. Arsenault's opinion was that Herb MacDonald had known of and concealed the Rankin letter. Whether or not that belief was accurate is not for this Board to resolve.

9. By this point, campaigning for the October 1990 elections was well under way. In that election, two slates vied for support. One slate was led by Arsenault, who had held the position of Business Manager since 1986; the other was headed by John Donaldson, the Local President from 1978 to 1990, who was challenging Arsenault for the key post of Business Manager. Rankin was running for the position of Business Agent as part of the Donaldson slate. It is apparent that the election was hotly contested and constituted a clash of strong personalities. In the midst of the campaign, at the October executive board meeting, Rankin was asked by M. Coleman about the Cole letter; Coleman suggested that Rankin give his explanation to the executive or at the next general membership meeting. Rankin indicated that he would deal with that issue at the next gen­eral membership meeting, also in October and about ten days prior to the election.

10. Arsenault testified that, just prior to the general membership meeting, his wife received a telephone call from Cole's wife expressing concern that Cole had signed two letters that day but adding that Cole was illiterate. Arsenault's wife communicated that information to Arsenault moments before the commencement of the meeting. Not unexpectedly, the Rankin letter was raised at the membership meeting. Rankin and another ironworker, A. J. O'Brien, proceeded to read two letters dated October 17, 1990. One, by Rankin, essentially stated that he was on the job site with Cole and no one had witnessed Cole's injury. The other was purportedly signed by Cole and read:

I feel that Mike Rankin was just telling the truth about the accident. We were the only two on the job and didn't work together that day and we were hundreds of feet apart so he couldn't wit­ness it. I have no hard feelings about Mike Rankin and I hope nobody else does.

11. At that point, Arsenault yelled that Rankin was a liar and that Cole couldn't read or write. Arsenault proceeded to read out the Cole letter (written by Rankin in 1989: see paragraph 6 above) which he happened to have in his pocket. Whether or not that was by coincidence may well be another interesting question in the rich tapestry of events and personalities which comprise this case but need not be determined by the Board. The meeting continued with a heated -exchange of views on the issue.

12. On the day of the election, a brochure was handed out to the members which utilized the format of campaign literature which had been circulated earlier by the Donaldson slate but which might best be characterized as mudslinging against the members of the Donaldson team. Of significance for this complaint is the reference to Rankin. Beside his picture is a line drawing of a rat and the Rankin letter from July 1989 regarding Cole is attached to the document. Those mem­bers of the Arsenault team who testified all denied involvement in the production or distribution of the brochure. While the Board need not decide the specific authorship, it is reasonable to con­clude, in the circumstances and given its content, that the pamphlet originated with one or more persons on the Arsenault slate. Whether or not the others embraced such tactics, the brochure was not repudiated by that team.

13. The Arsenault slate was elected. That team included Arsenault as Business Manager, Jim Power as Local President, Gary White as one of the Business Agents, all of whom testified in

these proceedings. In November, the new executive board was sworn in. Shortly thereafter, Ran-kin and O'Brien received letters requesting that they appear before the executive board at its Janu­ary 1991 meeting. Rankin informed the executive by telephone that he could not appear on that day due to illness. O'Brien did appear and was questioned about the October 17 letters. O'Brien assured the executive that he had acted as a witness on both letters and that Cole was clearly aware of their contents. That explanation was apparently accepted as no further action was taken by the executive against O'Brien. Of interest, is the reference in the minutes of the meeting to the execu­tive's view of O'Brien as a "dupe" in an attempted "cover-up" by Rankin. Evidently, O'Brien was not pleased at having to come before the executive board and demanded an apology. Apparently, a shouting match ensued over the point between O'Brien and one of the executive board members. Others intervened to defuse the confrontation. The executive board decided to again request that Rankin appear at their next meeting in February.

14. Rankin learned of the events at the January meeting from O'Brien. However, on advice of counsel (not counsel appearing at the hearing), he requested by letter to the executive board that they be more specific with respect to the reasons he was to appear. Neither Arsenault nor Power provided that information; in their view, Rankin knew the reason he was asked to appear. Rankin declined to appear at the February meeting. Rankin testified that he felt intimidated, that friends had been beaten up at the union hall and he would not come before the executive board without additional information. At that next meeting in March, the executive board concluded that their "credibility was being challenged". They demanded that Rankin appear and passed a motion charging Rankin under the constitution. Rankin was notified by mail of the charges and that, should he not appear, the trial would proceed in his absence.

15. The charges read: Article XIX section 10, page 50; Article XXVI, section 18 and 19, page 105; Section 28 of the general working rules, page 11. Corresponding to each item was the notation: (1) Failed to assist a member while acting as a steward; (2) Failed to assist Executive Committee with their investigation; (3) While acting as a Union Steward, (Rankin) wrote a letter against another member of Local 721 (the Cole letter). The first and third items related to the Cole incident; the second to the failure of Rankin to appear before the executive board.

16. Jacobsen was not charged over the letter he wrote regarding Cole. Further, Jacobsen apparently testified on behalf of the company in Cole's WCB hearing. In the view of the union executive board, the Jacobsen letter was not damaging because Jacobsen just "stated the facts" and had not witnessed the alleged injury. Rankin did not testify at the Cole hearing and there is no evidence as to whether or not his letter was before that tribunal or whether it was given any weight. To the union executive board, however, Rankin had an obligation as steward to "assist" Cole and, rather than assist, had slandered Cole. Thus, Arsenault, for example, opined that the union could win the case for Cole "on the evidence" notwithstanding Jacobsen's letter and testi­mony but that the Rankin letter was hurtful to their position.

17. Rankin did not appear at the March executive board meeting because he felt he would not receive a fair trial. The trial did proceed in his absence and the executive board unanimously found Rankin guilty. An excerpt from the minutes of the executive board meeting reads:

The resolve of the ensuing discussion was that Rankin had shown no remorse, had tried to cover up his actions according to the two letters he had written after the first one, and had ample time to respond to the charges.

The penalty was then discussed. Several motions were moved and defeated: to fine Rankin $10,000; to expel him from the union; to fine him $200.00 with a ban on running for office for two terms; to fine him $500.00 for his actions, $500.00 for failing to appear before the executive board and ineligibility to stand for election for six years. What was carried was a fine of $5,000.00 or his actions, $500.00 for failing to appear before the executive board and ineligibility to run for office in Local 721 for six years. According to Arsenault, Rankin was punished for the initial Cole letter, the "cover-up" letters of October 1990 and for failing to appear before the executive board as directed.

18. It is appropriate to note at this juncture that some evidence was introduced with respect to the quantum of fines imposed by the executive in other cases. The usual range of financial pen­alties appears to run from $25.00 to $300.00 The only fine which the union could point to greater than the range mentioned was one imposed on a Tony MacDonald in the amount of $2,500.00 apparently for misconduct which included harassment of the union secretaries and dispatcher. The details of MacDonald's offences were not clear nor are they particularly relevant. What is notewor­thy is that Tony MacDonald was permitted to apologize for his misconduct and the fine was waived.

19. Rankin was notified of his conviction and penalty by letter dated March 18, 1991 from Jim Power, the Local President. The letter also indicated that Rankin had a right of appeal under the International constitution.

20. Rankin filed a complaint in March 1991 against the Local with the Labour Relations Board. That complaint was dismissed by the Board without a hearing on the ground that the com­plaint did not state a prima facie case in that it dealt with internal trade union affairs.

21. Rankin did exercise his right to appeal his conviction to the International. Rankin also requested of Power a copy of the minutes of the trial by the executive board. He was informed by Power that the documentation would be available from the International following its investiga­tion. It appears, however, that Rankin never did receive a copy of the trial transcript from either the Local or the International. An investigation was conducted by J. Phair on behalf of the Inter­national. Evidently, Phair questioned Rankin and others about the events. In December 1991, the International informed Rankin and Local 721 that the conviction was sustained but that the penalty was reduced to $300.00 in total and without any restriction on standing for election for union office. Rankin was also to apologize to Cole at a regular monthly membership meeting.

22. During the period of the appeal, Rankin continued to pay union dues and did not pay the fines initially imposed, as was his right under the constitution. In May 1991, Rankin was nomi­nated for election as a delegate to the next union convention in August of that year. Power ruled that the constitution permitted Rankin to stand for election as a delegate; Rankin, however, was not so elected.

23. In April 1991, Rankin was "name-hired" by Calorific Construction and he sought a referral slip from the union hall. The dispatcher, Jim MacDonald, initially refused to issue the slip. Rankin spoke with Gary White, another Business Agent, whom Rankin regarded as a friend. White responded that Rankin's request put him (White) "between a rock and a hard place" but agreed to intercede with MacDonald. In White's view, he was able to persuade MacDonald to approve the referral because the foreman on the job had been of assistance to Local 721 in hiring additional ironworkers. Several days later, a referral slip, signed by MacDonald, was issued to Rankin and delivered to the job site by White. Keith Fowler was the steward on the Calorific job. After checking with the union hall, he permitted Rankin to start work on the site pending the reso­lution of the referral slip issue.

24. Between the Calorific hiring and the release of the International's decision regarding the appeal in December 1991, Rankin testified against White in a criminal case. Following Rankin's testimony, White pleaded guilty to assault. White testified before the Board that this event in no way changed his view toward Rankin. Rankin believed that it was his testimony which turned White from a "friend" to part of the "enemy camp" and directly led to the incident on the Ryco job which triggered this complaint. In the Board's view, it is not reasonable to conclude that White would regard Rankin with equanimity following Rankin's testimony against him in the criminal trial. This assessment is buttressed by the explanations proffered by White for his actions regarding the Ryco request for Rankin. That issue is further discussed later in the decision.

25. As noted earlier, Rankin continued to pay union dues pending the disposition of his appeal and was "paid up" to January 1992. If a member falls into arrears with respect to dues pay­ments, the member is no longer "in good standing" and, for example, could not attend monthly membership meetings. As well, the union steward on the job site could request that a member show a current dues receipt in order to commence or continue working on site. In fact, it appears that a six month "grace period" was allowed with respect to dues payments. If a member fell more than six months into arrears, he was "suspended" from membership in the union; to be reinstated, payment of $800.00 in addition to dues arrears was required. During the period of suspension, as a non-member, the individual could not be referred to job sites or be name-hired.

26. The International's decision upholding the conviction but reducing the penalty to a $300.00 fine and requiring Rankin to apologize to Cole was released in early December 1991. The fine was required to be repaid at a rate of $20.00 per day based on a five day work week. The exec­utive, however, did not contact Rankin with respect to repayment until March 1992. By that date, Rankin had also fallen into arrears with respect to his dues.

27. Rankin was laid off in late February 1992. In January and February, Rankin was not asked to show his dues receipt on site. On receiving his layoff slip, Rankin went to the union hall to register on the out-ofwork list; at that point, a secretary in the union hall issued a "certificate of good standing". Rankin then forwarded to the union a cheque for the equivalent of three months' dues. A notation of the outstanding fine had been entered on the computer against Rankin's name. When the secretary received the cheque, she asked Power how to proceed. Power contacted Ran-kin by letter dated March 2, 1992 indicating that the fine and apology had not been discharged and were due as Rankin had not filed a notice of further appeal. The March 2 letter was not received by Rankin for several days; Power testified that his decision in this regard was made prior to the issue of the referral to the Ryco job arose. It was also communicated to Rankin in a telephone call by the secretary that Power had indicated that the monies sent to the union would be first applied against the fine and could not be accepted as dues. Rankin then demanded his cheque be returned, as it was, a few days later.

28. Rankin testified that he was disturbed at having to pay a fine at all for, in his words, "telling the truth". He testified that he never stated that he refused to pay the fine and apologize, just that he was not prepared to do so at that point. Rankin did not feel any apology was needed as he and Cole had talked the matter over and resolved the issue between them. Rankin also thought that there might be another level of appeal open to him following the December decision of the International and was seeking legal advice in that regard. A belief in the right of a further appeal within the International, to the next convention, was also held by Power, the Local President. By letter dated March 9, 1992, Rankin did lodge a further appeal to the International. That body informed Rankin by letter of March 11, 1992, that no further appeal was possible under the consti­tution. Further, it is required that a financial penalty, if imposed, be satisfied before monies may be accepted toward dues payments.

29. It is necessary to briefly sketch the dispatch system before proceeding to outline the events of March 9 which form the core of this complaint. As mentioned, members may solicit work and be "name-hired" by contractors or are dispatched to job sites through the union hall. If a member is requested by a contractor, the member must obtain a referral slip from the union before commencing work. According to the dispatch guidelines, the slip is to be marked "R" (for "re­quest"). Likewise, if a member is dispatched, the member must first obtain a referral slip. Gener­ally, no notation is marked on "list" referrals, although, rarely, an "L" might be noted. At the rel­evant period, one of the Business Agents rotated through the dispatch office each week. Business Agents also are assigned a specific geographical area for which they are responsible. At the rele­vant time, the rotation consisted of White, Aaron Murphy, Power, Tony Almeida. All slips are to be signed by the dispatcher on duty that day. The slips indicate the contractor, job location, date to start and other such data. One copy is kept by the union in its records. The individual presents one copy to the union steward on site. One copy is provided to the company for its records.

30. It was not in dispute that, in practice, a member need not always appear in person at the union hall to pick up the referral slip. A member could call in to the union and make alternate arrangements. For example, if a number of slips are issued to persons on the same job site, one of the crew might pick up the slips for everyone. Another ironworker on site could drop by the union hall and obtain a referral slip for a fellow member. Or, the Business Agent for the geographical area in which the project is located may bring the slip(s) to the site on his next visit. On occasion, a referral slip may be faxed to the job site where, for example, the individual lives near the job site and at some distance from the union hall. There is no doubt that an individual who works without a referral slip violates the union's regulatory scheme and may be subject to internal union disci­pline. However, it was acknowledged by the union officials who testified that a member might commence work on occasion without previously obtaining a referral slip provided arrangements to obtain the slip (by fax, delivery by the Business Agent or other member, etc.) had been made and communicated to the steward on site. Indeed, it was conceded that, in an emergency situation, for example, where an ironworker was called in to work on a weekend and could not contact the union hall or a Business Agent/Business Manager prior to starting, it was acceptable to start work and obtain the appropriate documentation on the following Monday. The home telephone numbers of the Business Manager and the Business Agents are not posted in the union hall but are known to many members and those officials are frequently contacted at home.

31. Local 721 has promulgated various "Dispatch Guidelines" over the years. The current guidelines, which need not be referred to in detail, contain a number of provisions regarding the operation of the dispatch system but also preserve a considerable discretion in the dispatcher with respect to the implementation of those guidelines. The guidelines establish a Dispatch Committee to investigate problems a member might raise with respect to the dispatch system or a specific referral.

32. On Friday, March 6, 1992, Rankin called the union hall seeking a referral slip as a request hire at State Contractors. Rankin spoke to White who refused to issue a slip. White explained that State had just laid off several ironworkers who had recently been dispatched to the job. The company was no longer in compliance with the 50:50 ratio of requests to dispatch. In White's view, those persons had to be recalled before a request hire would be approved. The "boom times" in construction had ended for some time and, by March 1992, the out-of-work list ran to many hundreds of members. Rankin accepted that explanation without objection. No refer­ral slip was issued.

33. The next day, Saturday, Rankin contacted a fellow ironworker, Merv Lane, who was then working for Ryco at the Chrysler plant in Bramalea about the possibility of work. Ryco had asked Rankin to work for them while Rankin was still employed at the Calorific job in November 1991; Rankin had declined. It should be noted that Keith Fowler had also worked on the Calorific job; he requested a layoff from Calorific on November 30, 1991 in order to accept a job at Ryco in Bramalea commencing December 3, 1991. That request referral was approved and Fowler was the ironworker steward on the Ryco job.

34. Rankin went to the Ryco site on the Saturday and met Joe Culham, an ironworker fore­man, and Bob Boatner, the general superintendent. Boatner indicated Ryco had just hired two millwrights and was not hiring any ironworkers right then. However, Rankin was telephoned by Culham that evening and asked to work the next day, Sunday, as he (Culham) had been injured and an emergency situation had arisen wherein Ryco needed another ironworker. Rankin replied that he was not sure he could start work without a slip; he tried to contact the union hall that eve­ning but without success. Rankin testified that he did not try to contact the Business Manager, Arsenault, or the Business Agent for the site, White, at home because he did not have their home phone numbers. Whether that reason was the sole motivation for not trying to reach the officers at home is not necessary to determine given that Jim Batchelor, the general foreman, obtained the approval of the assistant union steward on site, Larry Porter, to have Rankin start work on the Sunday without a referral slip. Porter, who acted as steward in the absence of Fowler (who was not at work on the weekend), indicated that Rankin was to call the union hall on the Monday morning to obtain the necessary referral slip.

35. Rankin did work that Sunday. He was approached by Fred Sleiman, the ironworker steward for Comstock, another contractor at the Bramalea Chrysler site, but whose work area was quite distant from the Ryco location. Sleiman, a friend of White, was aware of Rankin's fine and conviction and that Rankin had testified against White in the criminal trial. Sleiman knew Fowler was not at work that day but stated he did not know Porter, as assistant steward, was acting in Fowler's stead. Sleiman asked for Rankin's referral slip and dues receipt. Sleiman testified that Rankin assured him that White had personally approved the referral. The Board does not accept that testimony and prefers the account of Rankin that he told Sleiman that Ryco had requested he start Sunday and that the slip would be sorted out the next morning. The Board regards that account as more probable in the circumstances, particularly given the evidence of Porter.

36. On Monday morning, Porter informed Fowler that Rankin had worked on Sunday with his (Porter's)approval; Fowler did not express any concerns at that point regarding Rankin's pres­ence on site. Fowler met Rankin and Batchelor and asked for the referral slip. Rankin stated that he had spoken with Murphy and the slip was coming. Fowler contacted Murphy at the union hall and, in Fowler's words, once he had done so, it was "out of his hands", notwithstanding that there was, as yet, no referral slip on site.

37. Rankin, in fact, had called Murphy, who was the dispatcher for that week, at 7:00 a.m. before starting work. Rankin outlined the situation. Murphy indicated Rankin could start work but that Batchelor should contact the union right away. Murphy was aware of Rankin's conviction and fine but was not a member of the executive board. Murphy stated that he did not foresee any diffi­culty in getting the request approved provided the 50:50 ratio was satisfied. Rankin asked whether the company could fax the request and the referral could be faxed back to the site. Murphy reiter­ated that Batchelor should call and that the question would be straightened out. Murphy wanted the request from Ryco to be in writing and on file because of the high number of unemployed union members. By the time Rankin arrived on site, Batchelor had already spoken to Murphy and faxed the request for a referral slip for Rankin. Murphy and Batchelor discussed the 50:50 ratio; Batchelor apparently stated that there were slightly more lists than requests on site at that point. Murphy informed Batchelor that he would check with White but did not anticipate any problems. Murphy updated White on the situation and left it for White to resolve.

38. When the fax from Ryco arrived, White telephoned Arsenault for advice. Arsenault indicated that Ryco was a fair employer, that White should try and have Ryco take an ironworker from the list as well as Rankin but that Rankin should come in to the union hall and be issued a referral slip. White raised the question of the dues arrears and fine; Arsenault responded that the referral slip was a separate issue and that the "dues and fine" would take care of themselves, t.e., Rankin would eventually "go suspended" if the monies were not paid.

39. In his testimony, Arsenault stated that he did not anticipate a problem would develop over the issue; i.e., Rankin would appear at the union hall and be issued a referral slip. Arsenault agreed that special arrangements could be made for faxing or delivery by the Business Agent, White, of the slip to the site. It was Arsenault's understanding that no such special request had been made, that Rankin simply refused to come to the hall to obtain a slip and that Rankin had no intention of complying with the requirement that a referral slip be obtained. In fact, as noted, Ran-kin had requested of Murphy that the slip be faxed because his home was close to the work site in Bramalea. The Board will return to this question.

40. White then faxed the following letter to Ryco:

I am in receipt of your fax dated March 10th 1992. I must inform you that you are in violation of our collective agreement, more particularly, Article 2.1(a) - Union Security.

Whereby, Mr. Rankin has not been issued a valid referral slip from this Local Union, Mr. Ran­kins (sic) must immediately attend at this office 1604 Bloor St. West, Toronto. If this request to you is not honoured this union will charge Ryco-Alberici under Section 124 of the Ontario Labour Relations Act.

If you require any additional information, please do not hesitate to contact me.

Article 2.1(a) deals with a number of items, including a requirement that an employer only hire persons who present referral slips, the right of an employer to "name-hire" and the limitation of those name-hires to no more than 50% of the workforce.

41. White testified that Batchelor telephoned him upon receipt of the fax. White apparently demanded that Rankin appear at the union hall immediately and asserted that Batchelor was "fooling around" with the ratio of name-hires to list referrals. The Board has further comments on this and other ostensible conversations between Batchelor and White infra. Later that afternoon, White contacted Fowler at the Ryco job and asked Fowler to send him a list of ironworkers on site and marked as dispatch or request. Fowler did so and that document was filed with the Board. White testified that he did not think Fowler's list was entirely correct.

42. Rankin was informed by Batchelor that there was a problem with his presence on site and that Rankin should get the matter straightened out. Rankin called the union hall and spoke with Power as White was out of the office. Before leaving for lunch, White had told Power that Rankin had gone to work at Ryco on the weekend without a referral slip, that there were enough referrals on the site already and, if Rankin called, have him call back so that White could speak with him.

43. There were some differences in the accounts of Rankin and of Power as to their conver­sation. According to Power, Rankin was emotional and Power merely emphasized that Rankin should come to the union hall and pick up a referral slip. Power added that Rankin should straighten out the problem of the fine and dues when he was at the hall, as well. Power acknowl­edged that Rankin stated that Murphy had approved the referral provided that the 50:50 ratio checked out. Rankin's recollection was that the bulk of the brief conversation dealt with the fines

and dues issue and the 50:50 ratio was not raised until the close of the call. Rankin indicated he would file a complaint at the Labour Relations Board if the referral slip was refused. In the Board's view, it is more reasonable to conclude that there was reference to the dues and fine issue, particularly given the fact that Power had just returned Rankin's dues cheque and sent a letter to Rankin indicating that the fine had to be paid before dues would be accepted and Rankin should do so forthwith so as not to "go suspended." Beyond this finding, the Board need not resolve the finer details of the conversation.

44. Rankin then called back and spoke with White. The conversation was heated. Accord­ing to Rankin, White said that he would not be issued a slip unless the dues and fine were paid and that Murphy had made an error in approving the referral because Murphy was not familiar with the ratio of lists to requests on site. Rankin denies there was any reference to White's interest in pulling Rankin off the job in order to get another ironworker dispatched to the site. White denies any reference to paying the fine and dues first. White described Rankin as paranoid and that Ran-kin did not want to understand White's concern that, if Rankin came into the hall, White might be able to get another ironworker dispatched to Ryco. The Board understands that a person's recol­lection of events is subject to the pull of self-interest and, when the events in question take place in an emotional context, the likelihood of accurate recall is further diminished. With respect to this conversation, the Board is satisfied that there was reference to the dues and fine payment in rela­tion to the issuance of the referral slip for reasons which will be dealt with infra. The 50:50 ratio did surface in the conversation in the context of Rankin's assertion that Batchelor said the ratio was fine and White's response that Batchelor might be lying in giving that assurance.

45. Rankin did not obtain a referral slip; his Record of Employment, issued By Ryco, indi­cated "union interference" as the reason for the termination of his employment. White testified that Rankin would have received a referral slip had he appeared at the union hall. Further, White testified that, in a conversation with Batchelor the next day, Batchelor commented that Rankin's departure did not matter as Ryco was laying off men anyway. Again, White's credibility is dealt with infra. In any event, Rankin filed this complaint with the Labour Relations Board on March 10, 1992.

46. Given the number of hearing days, witnesses and exhibits, each counsel filed, in writ­ing, a factual distillation of the evidence to facilitate the Board's understanding of their respective submissions. The parties' representations are next set out in highly abbreviated form. There was no dispute that there was a collective agreement between the union and Ryco at the relevant period, that the union did operate a hiring hall to supply workers to Ryco, either by request or from the list, and that the complainant was a person within the meaning of [now] section 70 of the Act.

47. Counsel for the complainant reviewed the evidence with respect to the trial, penalty and appeal process and concerning the request hire by Ryco of Rankin in March 1992. It was con­tended that the union's witnesses, other than Murphy, Boatner and Porter, should not be found credible. Counsel argued that the union records of those dispatched or name-hired at the Ryco job did not support the explanation offered that there were too many requests on site. Further, it was submitted that there was no plausible explanation, given the union's practice of alternative delivery of referral slips to job locations, for the union's insistence that Rankin physically attend at the union hall in order to obtain a referral slip. Counsel reviewed the standard implicit in the duty of fair referral, as outlined in the jurisprudence. In counsel's view, the union's decision was arbitrary in that the union officers did not direct their minds to the merits of Rankin's request, did not enquire into or act on the available evidence, considered irrelevant factors and displayed an indif­ferent attitude. Given the history of Rankin's relationship to the executive, it was asserted the union's denial of the referral slip constituted a bad faith decision. Finally, counsel contended the

decision also breached the duty not to discriminate in that others were not so treated. Counsel reserved his right to argue for costs, should the complaint be upheld and the parties be unable to resolve the issue of the quantum of damages. Counsel, as well, asked that the Board remain seized with respect to remedy if that could not be resolved between the parties. Cases referred to in sup­port included: Joe Portiss, (1983), 4 CLRBR (NS) 69 (OLRB); John Cooper, [1984] OLRB Rep. Jan. 6; John Bellenger, [1984] OLRB Rep. Aug. 1039; Thomas Beck, [1985] OLRB Rep. Jan. 14; Ron Lawrence, [1986] OLRB Rep. Sept. 1241; Michael Alfred Jones, [1988] OLRB Rep. April 403; Sack & Mitchell, Ontario Labour Relations Board Law and Practice, 1985 (excerpts).

48. Counsel for Local 721 extensively reviewed the relevant jurisprudence and the evidence in support of his submission that the complaint should be dismissed. Counsel asserted that the fact that Rankin had outstanding dues and a fine was a relevant concern of the union officers but that the union did not suggest that the unpaid monies were the reason Rankin had to come into the union hall to obtain a referral slip. Counsel reviewed the evidence with regard to Rankin's trial and appeal but submitted that the Board's caselaw established the proposition that the Board refuses to intervene in internal union affairs. White's insistence that Rankin appear might be characterized as an error in judgement but did not contravene the duty of fair referral. Counsel argued that the issue was not one of fair referral but a layoff, that the collective agreement had not been complied with and Rankin was refusing to comply with his obligations to pick up a referral slip. With respect to credibility, counsel submitted that Rankin was not a credible witness. In summary, counsel con­tended that White had taken into consideration the relevant factors in requiring Rankin to attend at the union hall and that the issue arose from Rankin's refusal to comply with the union's reason­able conditions. Cases referred to: John Cooper, supra; Kazik Pawlak [1984] OLRB Rep. Nov. 1597; Antoine A. Plennevaux, [1990] OLRB Rep. Dec. 1314; Thomas Beck, supra; Ontario Hydro, [1980] OLRB Rep. July 1039; John Craddock, [1987] OLRB Rep. Dec. 1488; David A. Spackman, [1991] OLRB Rep. Aug. 1006; Joseph E. Habib, [1987] OLRB Rep. Dec. 1501; Michael Alfred Jones, supra; TNT Railfast, [1985] OLRB Rep. May 760; Beckett Elevator Limited, [1986] OLRB Rep. Nov. 1493; Wilco-Canada Inc., [1983] OLRB Rep. June 989; Rudy Piluso, [1985] OLRB Rep. Feb. 313; Donald McConvey, [1986] OLRB Rep. June 758.

49. This complaint essentially alleges an abuse of the hiring hall system, that Rankin was denied a referral slip despite a request for his name hire by Ryco because of an arbitrary, discrimi­natory or bad faith decision by Local 721. It is useful, therefore, to begin with reference to the oft-quoted passage from Joe Portiss, supra, commenting on the nature of the hiring hall system:

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

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

52. To the extent that the hiring hall functions as an employment agency it vests considerable power in the hands of union officers in charge of its management. Through the administration of hiring hall rules, including the determination of qualifications and classifications of employees, the union officer in charge of a hiring hall has a substantial degree of control over the employ­ment opportunities of union members. The hiring hall system effectively vests in those union officers' powers and prerogatives which were previously associated with an employer. Control over the employment opportunities of hundreds, and sometimes thousands, of union members involves the exercise of a considerable amount of power over their lives. By the enactment of section 69 of the Act the Legislature introduced certain minimal safeguards against abuse of that power.

53. Then section 69, now section 70, of the Act stipulates that:

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.

There is no dispute, as noted, that there was a collective agreement between the union at Ryco at the relevant period pursuant to which Local 721 operated a hiring hall to supply workers to Ryco, either dispatched from the out-of-work list or name hired by the employer, and that Rankin was a person to whom the obligation in the statute applied.

51. In fleshing out the concepts of arbitrariness, discrimination and bad faith, the Board has, not surprisingly, incorporated the analysis and reasoning first developed in the related obliga­tion in section 68 [now 69] of the Act, commonly referred to as the duty of fair representation, albeit within the context of the hiring hall. The Board has regarded as hallmarks of "arbitrariness" the failure to direct one's mind to the merits or to conduct an appropriate investigation, decision-making which ignores relevant factors or is influenced by the irrelevant, or an attitude reflective of caprice or indifference. Such culpable conduct is distinguished from that which is merely negligent or the product of an honest error which circumstances have been held not to contravene the statu­tory obligation. Discrimination, as that term is utilized in the statutory provision, encompasses dis­tinctions among persons to whom the obligation is owed on grounds which are overtly improper, such as race or religion, or otherwise without cogent foundation in the legitimate interests of the trade union in question. Indicia of bad faith have included hostility or ill-will directed to the com­plainant, conscious misrepresentation and similar misconduct. These principles have been articu­lated and elaborated upon in the jurisprudence over the years, including that cited by counsel, and need not be set out herein in detail. Indeed, the standards developed by the Board were not the subject of debate between the parties in the instant case; what was vigorously contested was whether the circumstances in question fell afoul of those criteria.

52. The Board first deals with the events surrounding the Cole letter and the Rankin con­viction at the executive board. The Cole letter was written by Rankin in July 1989 but did not become public until the October 1990 election campaign. The sequence of events leading to the disclosure of the letter is ultimately irrelevant to this complaint. What is of note is the use to which the letter was put. At the general membership meeting just prior to the election and in the election literature directed against the Donaldson slate which was distributed on election day itself, the Cole letter was utilized to discredit Rankin amongst his fellow union members. The sketch of a "rat" beside Rankin's photograph in the election day brochure dramatically conveys the intended message. The Board is not naive about the "rough and tumble" of trade union elections or election propaganda. Nor does the Act impose an obligation of politeness or comradeship. But, the Cole letter, following the election of the Arsenault slate, continued to haunt Rankin. The issue did not end with the election and it is those further events which do concern the Board in the context of the duty of fair referral.

53. Almost immediately upon the swearing in of the new executive, Rankin was requested to appear before the executive board to explain his conduct. Rankin declined to appear at the Jan­uary meeting. O'Brien, who had also been summoned, did so. Despite references in the minutes of the executive board meeting to O'Brien playing the role of a "dupe" in an attempted "cover-up" by Rankin, the executive board did accept O'Brien's explanation that Cole fully understood the contents of the October 17 letters.

54. The executive board proceeded, following Rankin's non-appearance at the February meeting, to charge him. The charges, noted in paragraph 15 above, focus on the Cole incident and Rankin's failure to attend before the executive board. Rankin was then convicted, in absentia, at the March meeting. The decision to proceed with the charges, in the circumstances, does raise a suspicion of hostility or ill-will directed against Rankin personally. Power, in testifying, acknowl­edged that there was nothing in the Cole letter which was incorrect and that the letter merely expressed Rankin's opinion. Power also agreed that, if a member faked an injury, it would hurt Local 721. It was suggested before the Board that the Jacobsen letter simply stated the facts and, thus, would not negatively effect Cole's application to the WCB, in contrast to the Rankin letter. In the Board's view, that is a difficult proposition to accept. The recitation of facts in the Jacobsen letter is much more damaging to an adjudicator's conclusion as to the bona fides of Cole's claim than the opinion of a fellow worker who did not witness the event in question. The Board is not suggesting that Jacobsen should have been charged; the union properly acknowledged that Jacob­sen, as foreman, was under an obligation to his employer to document the incident to the best of his ability. Nor is the Board condoning Rankin's decision not to appear at the executive board as requested. However, at the point the executive proceeded to convict Rankin, the executive board also had before it the October 17 letters, wherein Cole expressed no rancour or assertion that Ran-kin was lying in the Cole letter of July 1989 and Rankin's confirmation that no one witnessed the alleged accident, and O'Brien's affirmation that Cole understood the contents of the October 17 letters was accepted. To proceed to convict Rankin suggests that the Cole matter was pretextual, that the executive, indeed, was "out to get" Rankin.

55. Such suspicions are only reinforced when one has regard to the penalty imposed: a $5,500.00 fine and a bar against standing for Local elections for six years. As noted above, the trade union's usual range of financial penalties appears to run from $25.00 to $300.00 and, apart from the $5,500.00 fine imposed on Rankin, the only fine which the evidence indicates exceeded that range was a $2,500.00 fine which was subsequently waived when the transgressor apologized for his misconduct. It was argued that the penalty reflected the executive board's displeasure and frustration with Rankin's failure to appear before it. The difficulty with this proposition is that the penalty expressly stipulates that only $500.00 is attributable to the "failure to assist the executive committee in their investigation". Quite simply, the quantum of the penalty imposed on Rankin, given the usual range of fines and the single exception just noted, is redolent of discrimination and bad faith. The Board is not here formally striking down the conviction or penalty; that would con­stitute improper interference with internal trade union affairs in the absence of statutory jurisdic­tion to do so. What the Board may properly do, however, is look to such internal trade union processes in assessing whether subsequent conduct affecting a complainant in his/her employment con­text is the product of bad faith and/or discrimination.

56. The penalty imposed by the executive board was appealed and, following the investiga­tion by a representative of the International, the conviction was upheld, the fine was reduced to $300.00 in total and the bar against standing for Local office lifted. The dramatic reduction in the fine, to approximately 5% of the initial level, underscores the Board's concerns with the executive board's initial decision. The decision of the International, however, does not "cleanse" the original conviction and penalty. The Board has no evidence as to the reasoning or motivation for the Inter­national's decision. Further, the $300.00 fine was to be paid at the rate of $20.00 per day, based on a five day work week. Until the fine was discharged, Rankin could not pay dues and, thus, was at risk of "going suspended" where he would lose the right to obtain referral slips and would be sub­ject to a significant reinstatement fee. The instant facts do bear a resemblance to those in Ontario Hydro, supra, and the Board returns to this issue when dealing with the appropriate remedy.

57. It is important to emphasize that the acrimonious relationship between Rankin and the incumbent union officials, of itself, is not the concern of the Board pursuant to its statutory author­ity unless that relationship is manifested in the refusal of the union to issue a referral slip to Ran-kin. In such circumstances, the Board examines the reasons for the refusal measured against the standard set out in the Act that the decision not be arbitrary, discriminatory or in bad faith. For the reasons given, the Board has concluded the executive expressed "hostility" or "ill-will" toward Rankin in the conviction and penalty already described. However, that "hostility" or "ill-will" remained "in the air", as it were, until March 1992. The decision to refuse the referral slip was made by White. White was not a member of the executive board which convicted Rankin. Indeed, it appears that White had earlier interceded with Jim MacDonald on Rankin's behalf in order to obtain a referral slip for Rankin for the Calorific job, as outlined in paragraph 23. Subsequent to the Calorific referral slip incident, Rankin testified against White in criminal proceedings wherein White then pleaded guilty. The Board, as noted, rejects White's assertion that this had no effect on his view of Rankin. For reasons given below, the Board need not determine whether White, in refusing to issue the referral slip for the Ryco job, was acting entirely for his own reasons or was acting as surrogate for the union executive. The Board has concluded that the reasons proffered for White's conduct do not withstand scrutiny.

58. White offered several, often contradictory, explanations for his actions on March 9. The Board intends to deal with each. At one point, White testified that Ryco had more requests than list workers on site at the relevant time. The evidence does not support that conclusion. The num­bers appear to comply with the 50:50 ratio. When confronted with that, White stated that he con­sidered those workers who had been employed by Ryco on the "truss" job at the Bramalea plant but were transferred to the "mechanical" side as "requests". White conceded that there was no support in the dispatch guidelines, constitution or bylaws for such a conclusion. Indeed, no referral slip is needed or issued to members who are transferred by the employer from one site to another. Moreover, that proposition runs directly counter to the objective of the union to maximize the number of "lists" on site wherever possible. Simply put, if an employer is free to select amongst those workers retained and those who initially were dispatched are to count as "requests" if trans­ferred, there is a disincentive to retain the original "list" workers in favour of "requests". White testified that Batchelor acknowledged, in the week prior to March 9, that there were more requests than list workers. Batchelor was not called to corroborate this testimony and, given the other con­tradictions in White's evidence, this explanation is rejected as self-serving and lacking credibility.

59. White testified extensively about how the business agent for the geographic area would be in a better position than the dispatcher to know about the 50:50 ratio on any particular site and how notes would be left by the outgoing dispatcher to keep the replacement in any week updated. White also testified that the steward on the project was best placed to assess the numbers. White testified about the predilection of employers to manipulate the hiring hall system to maximize the number of requests. Even if all that is accurate, it is of no assistance to White in the instant case. For example, White did not request that Fowler fax the list of ironworkers on site, marked as "list" or "request" until after he sent his "ultimatum" to Ryco. White stated that he contacted Fowler to confirm the accuracy of the fax to Ryco. To check with Fowler following the faxing of the ultima­tum is itself suspicious when it is Fowler who, according to White, is supposed to possess the most accurate information. Further, when Fowler's markings did not support White's calculations, White asserted that Fowler was in error. To give another example, Fowler stated that he kept White up to date with the 50:50 ratio, that there had been no problem with that ratio two weeks before March 9 when Fowler had sent a similar list to White and that the numbers had not changed since then. Murphy, as well, testified that White had expressed no concerns prior to March 9 about the 50:50 ratio at the Ryco job. White had been the dispatcher in the previous week and, yet, did not indicate to Murphy, as would be expected when Murphy took over the rotation, that a problem with the ratio existed at Ryco. It is difficult not to conclude that there was no problem with the 50:50 ratio at Ryco; the only difference was that, on March 9, Ryco sought to name hire Rankin.

60. This conclusion is reinforced by the testimony of Power and Arsenault that Ryco had a reputation as a fair employer and that Ryco was not one of the "manipulators". Beyond that testi­mony, the documentary evidence is dramatic: the referral slips indicate that, of all the ironworkers employed by Ryco at the Bramalea plant, only approximately sixteen of sixty were requests. When confronted with those numbers, White responded that the referral slips might be inaccurate in that the requests were not so marked. That is not plausible given the importance of the 50:50 ratio, the importance of accurate referral records, the dispatch guidelines which require such notations and the experience of the dispatchers as business agents who have their own geographic areas to moni­tor and therefore understand the value of making the requisite notation.

61. The usual sequence of events which a business agent or dispatcher would follow in deal­ing with an employer who had more requests than list workers was not followed in this case. It was recognized that, at times, the requests would exceed the numbers who had been dispatched. The business agent would contact the company and seek to rectify the imbalance. The means chosen would reflect the merits of each individual case. For example, where the contractor was continually trying to manipulate the ratio in favour or requests, the employer might be told that no further requests would be approved until the ratio was restored or that the next three or four persons had to be from the list. With another employer, State Contractors, the ratio of requests to list reached 18:1 before White filed a grievance against the contractor. None of the witnesses recalled a circum­stance similar to that with Ryco wherein a union official sought to pull a man off the job where the company was in non-compliance with the 50:50 ratio. Nor could any witness recall seeing a letter couched in the terms of the fax to Ryco that Rankin had to leave the site immediately to obtain a referral slip or the union would file and refer a grievance against Ryco to the Labour Relations Board. The dispatcher Murphy, for instance, testified that he would never tell a company to pull an employee off the job especially in tough economic times, that he had never seen a letter like that sent to Ryco and that if there was a problem with the ratio, the union's recourse was against the company, not the individual worker. White also conceded that Fowler had expressed concerns the previous week about the ironworker:millwright ratio at the Ryco site and that Rankin's pres­ence helped that ratio from Local 721's viewpoint. This factor, as well, does not support White's conduct on March 9.

62. The text of the fax to Ryco is somewhat ambiguous in its reference to article 2.1(a) of the collective agreement which deals both with the requirement that there be a 50:50 ratio of requests to list workers and the requirement that a member must present a referral slip before commencing work. At the hearing before the Board, the union asserted that Ryco had violated the 50:50 ratio and that Rankin had acted improperly in starting work on the Sunday without a referral slip. Much was made of the apparent failure of Rankin to telephone Arsenault or White on the weekend for approval. And, it was contended that the real problem was Rankin's refusal to come to the union hall to pick up a referral slip rather than a refusal by White to issue the slip. In the Board's view, those assertions are not sustainable on the evidence. The Board has already dealt with the fact that Ryco was not in violation of the 50:50 ratio and turns to the referral slip issue.

63. When Rankin was asked by Ryco to work on the Sunday, Rankin testified that he called the union hall without success. As noted earlier, whether Rankin could or should have called Arse­nault or White at home on the Saturday evening is irrelevant since Ryco obtained the approval of the acting steward on site, Porter, for the Sunday start. That Rankin worked on the Sunday with­out a referral slip was not improper. Indeed, the evidence indicated that, on occasion, persons did commence work without a slip where prior approval had been obtained. Rankin then telephoned the union hall at 7.00 a.m. Monday morning to obtain a slip. Rankin candidly informed Murphy, the dispatcher that week, of the circumstances in which he started on Sunday and that Ryco was requesting a name hire. That, too, was the proper course of conduct for Rankin. Murphy, whom the Board regards as a credible witness, indicated that Batchelor should contact him directly but that he did not anticipate a problem if the ratio was satisfied. Murphy testified that he had no diffi­culty with Rankin working on the Monday pending resolution of the referral slip issue. For Mur­phy, it was important to have a written request for the name hire on file given the unemployment situation. Murphy agreed that Rankin asked that the request by Ryco and the referral slip be faxed to and from the union hall. Rankin lived close to the work site in Bramalea and at a distance of forty kilometers from the union hall. Such arrangements were acknowledged to have occurred in the past in similar circumstances. Arsenault testified that it was his understanding that Rankin had not requested a special arrangement in lieu of picking up the referral slip in person. In this, it appears that Arsenault was misinformed. Rankin did make such a request and, according to the union s own practice, there would be no bona fide reason for not complying with that request in the circumstances.

64. White testified that he wanted to have Rankin attend at the union hall to pick up a referral slip in order to generate leverage with Ryco to persuade the company to take another worker from the list as well. That explanation is not credible. The fax to Ryco does not suggest in any way that the referral slip for Rankin would be issued if the company took another ironworker from the list. Moreover, it is not plausible that, if that was White's real motivation, forcing Rankin to come to the hall would accomplish the purported objective. According to White, if Rankin had appeared at the union hall, he would have been issued the referral slip. That would not have resulted in the dispatch of an additional worker. What White appears to be suggesting is that, if Rankin attended at the hall, White could then telephone Ryco with a message along the lines of "Rankin is here, if you want him, you must take another from the list". There is no persuasive evi­dence to indicate why Rankin would have to leave the site in order to deliver that message. Fur­ther, White acknowledged that Arsenault's instructions were that Rankin was to be issued a slip even if Ryco would not take a worker from the list. The "leverage" argument is, in the Board's opinion, a red herring. This is not to suggest that the pairing of a name hire and list worker does not or should not occur. Indeed, where there is a 50:50 ratio, such pairing may well be the simplest means of maintaining the ratio. Boatner, the superintendent for Ryco at the time, testified that is generally what occurs in such circumstances. What the Board has concluded in this instance, how­ever, is that the desire to persuade Ryco to take an additional worker from the list was not the motivation for insisting Rankin appear in person at the union hall to pick up a referral slip.

65. It is also worth noting that, in White's conversation with Rankin, White did not expressly assure Rankin that, if he came into the union hall, he would receive a referral slip. It must be remembered that, only the previous week, White had refused to approve a name hire referral of Rankin to State Contractors; Rankin had accepted White's explanation that the com­pany had just laid off list workers. Rankin would be understandably agitated at the apparent refusal to approve the name hire for Ryco, especially following his discussion with Murphy that morning. The Board is satisfied that the conversation on March 9th did deal with the fine and dues arrears, particularly since White had raised this very matter with Arsenault prior to sending the fax. Power, as well, in his conversation with Rankin had adverted to the fine issue. It is unneces­sary to determine White's true motivation for insisting that Rankin physically appear at the union hall in order to obtain a referral slip. It suffices for the Board to conclude, as it has, that the prof­fered reasons are not plausible.

66. The Board is satisfied that White's insistence on Rankin's physical attendance at the union hall and, indeed, White's entire handling of the Ryco referral request contravenes the duty of fair referral imposed by the Act. The Board concludes that the conduct was in bad faith and dis­criminatory within the meaning of the statute. In the Board's view, had the name hire not involved Rankin, the request would have been approved and the referral slip would have been faxed to the site or delivered by White on his next regular visit. White acknowledged that several request hires were approved for Ryco just a few weeks after the March 9 events. The Board is persuaded that the hostility and ill-will evident in the executive's treatment of Rankin and which resulted from Rankin's testimony against White in the criminal proceedings found expression in the manner in which the Ryco request to name hire was dealt with by the union. The Board is not suggesting that every member of the Arsenault slate was "out to get" Rankin, to use the vernacular. But a union can only act through its officers and other officials and, in this instance, the union's conduct clearly contravened the Act.

67. The Board is also satisfied that the union's actions were arbitrary. White sent a fax, the like of which had never before been seen, to a company which had a reputation as a fair employer, before confirming with the steward on site his ostensible belief (which the Board regards as unfounded) that the 50:50 ratio was violated. Even a cursory examination of the union records would have demonstrated that there was no excess of referrals over list workers. White exhibited, at best, an uncaring and indifferent attitude toward Rankin, whose employment was thereby placed in jeopardy, in the manner in which White responded to the name hire request. White did not bother to check with Murphy, the dispatcher on duty that week, with respect to the Ryco request until after he sent the fax. Had he done so, as he acknowledged to the Board, he would have learned that Rankin had called the hall that morning before starting work, that the acting steward had approved the Sunday start and that Murphy approved Rankin's working on the Mon­day pending resolution of the referral slip request. White's insistence that Rankin appear at the union hall was likewise arbitrary. The union's practice sensibly provided flexibility in delivery of the referral slip to the site (by a fellow worker, by fax or by the business agent) where the worker in question would have had to travel some distance to pick up the slip and at the cost of at least part of a day's pay. White was aware that Rankin lived close to the Bramalea site and about forty kilometers from the union hall. To deny Rankin's request to fax the slip to Ryco in the circum­stances violated the duty of fair referral.

68. For the above reasons, the Board finds that the union contravened section 70 [formerly section 69] of the Act. The complainant is entitled to be compensated for the losses flowing from that violation. Some evidence was introduced as to when Rankin, had he received a referral slip, would otherwise have been laid off from Ryco. The Board indicated that its usual practice is not to hear evidence going to the quantum of damages until the Board has reached its determination on the merits of the case. The Board also indicated that the parties generally are able to resolve the issue of damages between them. In this regard, while counsel for the complainant reserved his right to argue that compensation should include legal fees, without ruling on the issue at this junc­ture the Board would note that its uniform practice has not been to award costs as a head of dam­ages.

69. The Board also considers it useful, in directing the parties to try and resolve the quan­tum issue, to comment on the fine assessed against Rankin. The Board noted earlier that the instant complaint bore some resemblance to the circumstances in Ontario Hydro, supra. The fol­lowing excerpt from the decision sketches the Board's concerns:

70. In the case at hand the Board is not dealing with a question of improper referral, including failure to refer, to employment from the Local 506 hiring hall, rather it is dealing with the removal of the complainant's eligibility to be on the out-of-work list. The removal of his eligibil­ity has resulted from internal procedures under the respondents' constitutions. While this Board has no specific authority under the Act to undertake any sort of watch-dog role over a union's internal processes under its constitution and by-laws, the Act clearly gives it authority to deter­mine whether a union had breached its section 60a [now 70] duty. This in turn may require the Board to examine the union's conduct under its constitution and by-laws. While the Board is reluctant to invade the internal procedures of a trade union, it does so when it becomes essential to the exercise of the Board's authority and responsibility under the Act. See for example, the Board's decision in George Zebrowski, [1977] OLRB Rep. Mar. 143, in which the Board reviewed the procedures followed by the trade union under its "Constitution and Laws" in expelling the complainant from membership in the union, as a consequence of which the com­plainant was discharged from his employment. Another example of the Board finding it neces­sary to review a trade union's internal procedures is found in the Board's decision in Rupert S. Martin, [1977] OLRB Rep. Oct. 671. The Board in that case, in order to determine whether sec­tion 60a [now 70] of the Act had been breached, reviewed the internal decision-making process by which the respondent trade union decided not to refer the complainant to any employers who were seeking to employ members of the respondent through its hiring hall. In that same decision the Board dealt also with a question of whether one officer of the trade union had authority to make the decision not to refer the complainant to employment. In dealing with that issue, the Board acknowledged that it "..., does not have the authority to police union constitutions and by-laws." and then stated:

"This is not to say, however, that where a union's constitution or by-laws have been deliberately flouted or where certain steps have been taken notwithstanding a chal­lenge that they might be in violation of the constitution or by-laws, that those actions might not be a relevant factor in determining whether or not a breach of section 60a [now 70] has occurred."

In a like manner, the Board finds it essential in the circumstances of the instant case to review how the complainant was dealt with by Local 506 under its constitution and by-laws in order to determine whether there has been a breach of section 60a [now 70] of the Act.

16. The facts in this case as outlined above reveal that officers of Local 506 refused to accept the complainant's dues and to put him on the out-of-work list without advising him of the reasons for these actions. (It was only when the complaint triggered by the actions led to the hearing into this matter that the complainant learned of them.) Then Gargaro, upon learning that his actions were contrary to the constitution, filed the aforementioned charges against the com­plainant on grounds wholly unrelated to the reason advanced at the Board's hearing for the ini­tial refusal to accept his dues and to put him on the out-of-work list. The charges were filed and proper notice of them and of the hearing into them was given to the complainant, all in accor­dance with the constitutions. The complainant declined the opportunity to attend the hearing and be heard.

17. While the officers of Local 506 may have had good reason for not filing charges against the complainant under its constitution as a result of the fraud issue and for waiting eight months after his alleged misconduct for which he was charged, none were given to the Board. In the absence of any reasons or explanation for these circumstances, the Board is left to conclude that the two actions were related and had the single purpose of removing the complainant's right to be referred to employment through the Local 506 hiring hall. In other words, when Gargaro could not make the dues refusal stick, he looked around for some other way to achieve the same end and filed the charges referred to above. Had the Local 506 Trial Board not decided to rescind its decision with respect to the complainant's two earlier section 60 [now 69] complaints before this Board, that decision would have been the basis for finding a violation of section 71(2) [now 82(2)] of the Act. With that element of the charges against the complainant removed, there remains only the two "slander" charges. At the time the insults and accusations were directed at Gargaro by the complainant they could well be viewed as a proper cause of action under the constitution. With the passage of time, however, it seems to the Board that the injurious effect of the complainant's actions are lessened and eight months later one wonders what injury remains; in the Board's view it would be little and strengthens the conclusion that the real reason for the charges was to remove the complainant's good standing status. The Board therefore finds the filing of the charges after an eight months delay to be arbitrary and a bad faith exercise of the respondent's powers under their constitutions. Consequently, the Board finds that the respondents have acted arbitrarily and in bad faith in removing the com­plainant's eligibility for referral from the Local 506 hiring hall and therefore have acted in a manner that is contrary to the provisions of section 60a of the Act.

18. The Board, therefore orders and directs the respondents to forthwith rescind the remaining fines and restore the complainant's "good standing" status as a member of Local 506 and the international union and with it the same rights, duties and privileges which apply to any other member in good standing of Local 506 and the international union. Reinstatement is to be effec­tive from the date when the complainant's good standing status was withdrawn.

19. The Board is not suggesting that the instant case is on all fours with Ontario Hydro. Local 721 apparently followed the proper procedures in Rankin's trial and conviction. The Board, however, is satisfied that the penalty imposed is so at variance with the norm that the bad faith is patent. The reduction in the level of fine, while dramatic, does not cure that bad faith as Rankin is still required to discharge that fine before dues may be accepted, under threat of suspension from union membership, as described above. While, for the reasons given in Ontario Hydro, supra, the Board does not interfere in internal trade union affairs, per se, the Board may well be required to do so where those decisions are in bad faith and directly impinge on the member's rights encom­passed in the duty of fair referral. A trade union cannot do indirectly, through a bad faith decision to impose fines as part of its internal processes, what it cannot do directly, that is, exercise its hir­ing hall responsibilities in a manner which is arbitrary, discriminatory or in bad faith. Thus, Local 721 and the International cannot lawfully rely on the fine imposed on the complainant to visit neg­ative employment consequences on Rankin including, for example,, the refusal to accept union dues or the refusal to approve name hire requests or to dispatch Rankin from the list if he tenders the usual dues or is otherwise entitled to a name referral or dispatch.

20. The Board emphasizes that these comments are made in order to assist the parties in resolving all remaining issues between them without a hearing on the quantum of damages and in preventing further litigation over the status of the fine. The Board would add that, whatever the merits of Cole's WCB claim, Rankin expressed his regret at writing what he termed an "unwise" letter and stated he in no way intended to harm Cole. The Board regards those sentiments and the Board's comments as useful to the parties in resolving the quantum issue and finally putting the entire matter behind them.

21. For the foregoing reasons, the Board finds that the respondent contravened section 70 [formerly section 69] of the Act. The respondent is directed to compensate the complainant for the losses flowing from that breach. Board Officer James Bowman is appointed to meet with the par­ties to assist them in attempting to resolve the compensation issue. The Board retains jurisdiction to deal with any matters arising out of the interpretation or implementation of this decision, includ­ing compensation, should the parties be unable to reach agreement.