Robert Dumeah v. International Association of Bridge, Structural and Ornamental Ironworkers, 1994 CanLII 9944

[1994] OLRB Rep. June 655

3292-93-U Robert Dumeah, Applicant v. International Association of Bridge, Structural and Ornamental Ironworkers and International Association of Bridge, Structural and Ornamental Ironworkers Local #700, K.E.W. Steel Fabricators Ltd., Responding Parties

BEFORE: Robert Herman, Vice-Chair.

APPEARANCES: Graham E. Smith, Robert C. Dumeah and Charles Wilburn for the applicant; A. M. Minsky for Ironworkers and Ironworkers Local 700; Stephen A. McArthur and Michael Tucsok for K.E.W. Steel Fabricators Ltd.

DECISION OF THE BOARD; June 14, 1994

1. This is an application under section 91 of the Labour Relations Act, in which the appli­cant, Robert Dumeah, alleges that the responding unions, the International Association of Bridge, Structural and Ornamental Ironworkers and International Association of Bridge, Structural and Ornamental Ironworkers Local #700 (hereinafter, "the union", "Local 700", or "the Ironwork­ers") have breached sections 13, 47(2), 69, 70, 71, 82(2), and 148(2) of the Act, and that the responding company,, K.E.W. Steel Fabricators Ltd. (hereinafter, "K.E.W."), has breached sec­tions 82(1) and 148(2) of the Act. This decision considers the issue of delay in filing an unfair labour practice complaint about work in the construction industry.

2. Mr. Dumeah asserts that numerous actions constitute breaches of the Act, and these events occurred over a seven year period, the most recent taking place on March 16, 1993, or shortly thereafter. The instant complaint was filed in December, 1993. The responding parties allege that the complaint, in its entirety, is untimely as Mr. Dumeah waited too long after the events to complain to the Board, and therefore, the Board ought to dismiss the complaint on grounds of undue delay.

3. Part of the union's argument in this respect is based upon the assertion that the con­struction industry is "different", and accordingly the Board ought to exercise its discretion in delay issues in a manner that recognizes the construction context and the way in which the industry works.

Preliminary Matters

4- I sat alone as a single Vice-Chair hearing this matter, pursuant to the authority of the Chair to so authorize a Vice-Chair, under to the provisions of section 104(12) of the Act. The rele­vant statutory language reads as follows:

104. (12) Despite subsections (9), (10) and (11), the chair may sit alone or may authorize a vice-chair to sit alone in any of the following circumstances to hear and determine a matter and to exercise all the powers of the Board when doing so:

105. In the case of a matter respecting section 11.1, 69, 70, 73.1, 73.2 or 92.1, subsection 92.2(1) or (6) or section 94, 95, 126 or 137,

i. if the chair considers it advisable to do so, or

ii. if the parties consent.

2. In the case of any other proceeding,

i. if the chair considers that the possibility of undue delay or other prejudice to a party makes it appropriate to do so, or

ii. if the parties consent.

(12.1) For the purposes of subsection (12), if the chair is absent or not able to act, the alternate chair may act in his or her stead.

5. Both the union and the Company objected to my conducting this proceeding as a Vice-Chair sitting alone, on the basis that they had not had any opportunity to have input into the Chair's decision, nor had they been provided with any information about how or why the decision was made.

6. After hearing their submissions, I ruled that I could properly hear the complaint in the circumstances. Although not explicitly characterized as an objection going to the Board's jurisdic­tion, I have assumed it to be so for purposes of my decision. If the objection sought to attack the appropriateness of the decision of the Chair, it is not apparent that such assertion could be made before me, rather than to the Chair directly.

7. The statutory scheme set out in subsections 104(12) and (12.1) of the Act grants to the Chair (or Alternate Chair) a discretion in determining the composition of the Board in a particular proceeding. The exercise of this discretion is an executive act, made on a purely administrative basis.

8. The instant complaint relies upon numerous sections of the Act, which fall under differ­ent parts of section 104(12). Under section 104(12)1, applicable to proceedings brought in respect of sections 69 and 70, amongst others, the Chair is given the authority to sit a Vice-Chair alone where the Chair considers it advisable to do so, or if the parties consent. In the case of any other proceeding (section 104(12)2), the Chair's discretion can be exercised where the Chair considers that the possibility of undue delay or other prejudice to a party makes it appropriate to do so, or if the parties consent. It is common ground that the parties did not here consent.

9. There may be occasions where scheduling problems or other difficulties in constituting a tripartite panel can lead to undue delay or other prejudice to a party. One purpose of these new legislative provisions was to deal with this problem, to provide the Chair with the ability to ensure that Board hearings proceeded expeditiously, consistent with the truism that "labour relations delayed is labour relations denied". It would be inconsistent with that purpose if the Chair had to afford an opportunity to parties to a proceeding to participate in the decision as to whether a single Vice-Chair sits alone or not. Parties would have to be given adequate notice of the decision of the Chair that she might exercise her discretion, a meaningful opportunity to participate in the process, and arguably, reasons for the Chair's eventual decision. To read the statutory scheme as requiring such a process would undermine the very purpose of the scheme. Hearings would inevitably be fur­ther delayed if the Chair considered exercising her powers to reduce delay.

10. Section 104(12)1 limits the Chair's discretion to where the "Chair considers it advis­able". This is a general, unrestricted discretion which in essence depends upon the Chair's opinion. And it is only the "possibility" of undue delay or prejudice which need be present under section 104(12)2. The powers in this subsection are thus dependent, if at all, upon the opinion of the Chair as to whether a possibility of undue delay or other prejudice is present. It is the mere possibility that triggers section 104(12)2, and it is solely the Chair who is to consider this possibility.

11. When the particular language is considered, in the context of the overall scheme for constituting panels, and in light of the purpose of the Board and of section 104(12), the decision exercised by the Chair, pursuant to section 104(12), is properly characterized as purely administra­tive in nature. The Chair need not provide an opportunity to the parties to the proceeding to par­ticipate in this decision, nor is the Chair required to issue written reasons justifying the exercise of her discretion. To require either of these actions would effectively defeat the very purpose of the statutory amendment. Accordingly, I ruled at the hearing that the case would proceed before me.

12. The complaint as filed, including supporting documents, is approximately 150 hundred pages in length, and includes correspondence between individuals and other institutions or tribu­nals, and a transcript from another proceeding. In response, the union asserted that the complaint was not sufficiently focused and the union was not able to file a proper response while it remained so. It asked for further particulars and other related relief. In the result, a hearing was held to deal with the sufficiency of the particulars, and the other preliminary matters raised by the union. Those matters included the objection that the matter ought to be dismissed on a preliminary basis as it failed to disclose a prima facie case, and, in any event, that the complainant had delayed too long in filing the complaint. Further, as Mr. Dumeah had previously filed a complaint with the Ontario Human Rights Commission, the union and the company both asserted that the complain­ant had effectively elected to have his complaint against K.E.W., and against the union insofar as his employment at K.E.W. was concerned, dealt with elsewhere. They submitted Mr. Dumeah was now precluded from complaining in the instant proceeding about these same matters.

13. The Board explained to the complainant that the hearing would first consider the objec­tion that the complaint had been filed too late, and ought to be dismissed on the grounds of delay, and then the objection that the complaint failed to disclose a prima facie case. The nature of both objections was explained by the Board to the complainant. The Board asked Mr. Dumeah to explain what had happened, to set out all the facts he considered relevant. The Board also explained that all facts he wished to refer to had to be stated, or he could not later rely upon them. While he was free to assert facts not set out in his written materials, and was advised to do so if he wished to rely on them, Mr. Dumeah was told that the facts should relate to the matters of which he had complained. Mr. Dumeah, through his representative, went through a description of what had occurred, and which events he asserted constituted breaches of the Act. Several times, the Board specifically asked why the filing of the complaint had been delayed. The other parties were able to agree on the facts, asserted by Mr. Dumeah, on the basis that they were so agreeing only for purposes of dealing with the preliminary objections. They do not accept that the recital of facts that follows is accurate; only that the Board can assume so for purposes of dealing with the prelimi­nary objections.

14. When all the facts had been agreed to, for purposes of the preliminary objections, the

complainant specifically identified six sets of circumstances which he asserted constituted breaches of the Act. The matter was adjourned, on the basis that the Board would hear the submissions of the parties with respect to the delay argument at the next hearing day, and if time permitted, their submissions on whether a prima facie case existed.

15. There was a gap between the first and second hearing day, and during this period Mr. Dumeah filed further particulars. The responding parties objected to the attempted expansion of the proceeding through the filing of these new particulars. At the continued hearing, the Board ruled that Mr. Dumeah could rely upon the further particulars only to the extent that they related to the six matters asserted previously to be breaches of the Act. To the extent that the new particu­lars asserted different breaches of the Act, or material facts relevant only to those different breaches, they could not be relied upon, as it was by then too late to raise new matters.

The Facts

16. Mr. Dumeah was a properly certified ironworker who was unfortunately seriously injured on the job, on August 18, 1986. As a result, he was off work for a considerable period, and when finally able to return to work, he was not able to pefform all the tasks typically required of an ironworker.

17. In early 1991, some of his fellow ironworkers were involved in a dispute with their local, Ironworkers Local 700, over the operation of the hiring hall. That dispute eventually led to the fil­ing of a complaint before this Board (Board File No. 3051-90-U), a complaint which is still pending before the Board and which has involved dozens of days of hearing. A membership meeting of the local was held on March 5, 1991, and one of the topics of discussion was this other complaint before the Board. Mr. Dumeah openly and actively spoke on behalf of the complainants in that proceeding. One of those complainants, Graham Smith, appears in the instant proceeding as Mr. Dumeah's representative, just as Mr. Dumeah acted as Mr. Smith's principal advisor in his com­plaint.

18. The first of the six matters complained of by the complainant occurred, in his submis­sion, because of his conduct at that membership meeting. Shortly after the meeting, around April 1, 1991, Mr. Dumeah, along with several others, received a letter from the union charging them with various membership infractions. Mr. Dumeah asserts here that these charges were brought against him as retaliation for his supporting his fellow ironworkers in their complaint against the local, and as such constituted a breach of section 82(2) of the Act.

19. The hearings in the other proceeding began around April 3, 1991. Those hearings con­tinued throughout 1991. One of the hearing days was on December 5, 1991. During a break in the proceeding that day, a union official made clear to Mr. Dumeah, through remarks and threatening gestures, that Mr. Dumeah would in some manner pay for his helping those complainants in their case. These threats are the second event said to constitute a breach, again of section 82(2) of the Act.

20. Throughout 1991, Mr. Dumeah was referred to a number of jobs through the union's hiring hall. Because of his injury and continuing physical problems, he was unable to perform some of the jobs. Other referrals were of relatively limited duration.

21. In May, 1992, Mr. Dumeah went to the Local 700 offices to go through the hiring hall records. It is not clear whether he was motivated solely by concern over his referrals, or as well by concern over referrals related to Mr. Smith's complaint, in which he continued to assist. In any event, while speaking to the person in charge of the referral list for Local 700, he and that individual became agitated and got into a physical fight over access to the referral list, and over Mr. Dumeah's request that he be allowed to copy or take copies of the materials. Mr. Dumeah asserts that the union officer physically assaulted and injured him, without provocation, but that he did not assault the other person. Criminal charges were laid by Mr. Dumeah and the union official against each other. Charges were filed under the union constitution against Mr. Dumeah, but the union would not accept the charges Mr. Dumeah sought to file.

22. This is the third sequence of events said to breach the Act. Mr. Dumeah asserts that the union committed the breach by not allowing him to go through the referral list documents, or take copies of them, and by its refusal to allow Mr. Dumeah to have the union officer charged under the union's constitution.

23. The charges under the constitution against Mr. Dumeah proceeded. Around June 2, 1992, Mr. Dumeah was advised by the union of his right to attend the Executive Board meeting on June 15, 1992, at which time the charges against him would be considered, and at which time the union would provide Mr. Dumeah with an opportunity to present his side of the story. By this time, Mr. Dumeah had retained a criminal lawyer to defend him against the criminal charges laid by the union official. His counsel advised him not to attend the Executive Board meeting, so he did not.

24. During this period, the summer and early fall of 1992, Mr. Dumeah was having a prob­lem with his job referrals and he raised his concerns with the union.

25. On September 21,1992, Mr. Dumeah was officially expelled from the union, and his name was to be removed from the referral list. Although he had written to various union officials expressing his version of events surrounding the hiring hall fight, he had not as yet appeared in per­son at any meeting or hearing where the charges against him were being considered. Again, his counsel continued to advise him not to. His expulsion set in motion internal union appeals avail­able to a member. The union advised its officials not to change in any manner referrals for Mr. Dumeah, and to continue to refer him to jobs where appropriate to do so, until his appeal was con­cluded.

26. In October, 1992 the criminal charges against both individuals were withdrawn by the Court, at the request of the Crown. Mr. Dumeah objected to the withdrawal of the charges he had laid against the union official.

27. In September, 1992 and following, Mr. Dumeah was referred by the hall to several short term jobs at Flint Riggers. His most recent layoff from Flint, due to shortage of work, was on October 28, 1992. Around November 16, 1992, another Flint Riggers job (the third phase) com­menced. Mr. Dumeah was not referred again to Flint, but he felt he should have been. This improper referral constitutes part of the fourth matter asserted by Mr. Dumeah to be a breach of the Act. Even though he remained on the referral list following his expulsion from the union in September, 1992, he submits that his expulsion led the union not to refer him to Flint in Novem­ber, 1992. Mr. Dumeah submits that the union has breached sections 69, 70, and 148(2) with respect to this referral.

28. Mr. Dumeah also raises other objections to his representation by the union with respect to his employment at Flint. He filed various grievances arising out of his work at Flint during ear­her phases. The union did not assist him with any of these grievances, and Mr. Dumeah asserts this too was a breach of sections 69, 70 and 148(2) of the Act. These complaints comprise the fourth area of his concern: his non-referral to Flint for the third phase, and the union's refusal to assist him with his Flint grievances.

29. In February, 1993, Mr. Dumeah was referred to a job at K.E.W. Steel Fabricators Ltd. ("K.E.W.") the employer responding party. Shortly after he started work there, around March 1, 1993, the appeal of his expulsion was denied by the General Executive Board of the union. At this point, his name was removed from the hiring hall list. This is the fifth matter complained of by Mr. Dumeah: his removal from the list because of his expulsion from the union constitutes a breach of section 70. Mr. Dumeah immediately appealed this decision to the General Executive Council.

30. On March 16, 1993, Mr. Dumeah was discharged by K.E.W. He asserts in the instant complaint (but did not at the time of his termination) that his discharge was orchestrated by the company and the union, and constituted a breach of sections 47(2) and 69 by the union, and sec­tion 82(1) by the company. This is the sixth and final matter of which he complains.

31. On March 19, 1993, Mr. Dumeah approached the Ontario Human Rights Commission, complaining that his discharge from K.E.W. had been because of his physical disability, resulting from his workplace accident in August, 1986. The Commission conducted an informal investiga­tion, phoning both the company and the union about Mr. Dumeah's complaint. Also on that day, March 19, 1993, Mr. Smith (Mr. Dumeah's representative in the instant proceeding) spoke directly with the President of K.E.W., and asserted on Mr. Dumeah's behalf that it was improper for the company to have used Mr. Dumeah's injuries as an excuse to remove him from the job. This con­versation was followed up by a letter from Mr. Smith to the company.

32. Around June 17, 1993, Mr. Dumeah caused to be filed with the Ontario Human Rights Commission a formal complaint about his discharge, alleging that his discharge was in contraven­tion of the Ontario Human Rights code.

33. The company was notified of the complaint, and filed its response on September 24, 1993. It was only when he received this response, Mr. Dumeah asserts, that he realized that the company and the union had somehow conspired to have him discharged, and that the union had been involved in any way in his discharge. This led to his filing the instant complaint.

34. These are the basic facts agreed to by the parties at the first hearing day, for purposes of the delay issue. When the hearing resumed the next hearing date, after dealing with a number of other matters (not here in issue), the Board heard submissions on delay from counsel for the union and counsel for the company. Those submissions addressed the significant periods of unexplained or unjustified delay.

35. After hearing the opposing parties' submissions on the delay objection, the complainant sought, over the other parties' objections, to introduce new facts explaining the delay. He asserted that on June 1, 1993, he again needed to have surgery, because of his 1986 injury, and he had to be off his legs for approximately eight weeks. Shortly thereafter, he put too much weight on his heal­ing legs and suffered a stress fracture, with the result that he was off his legs for a further period. Practically speaking, he asserted, he was immobilized from the beginning of June, 1993 until Octo­ber, 1993. He also acknowledged that he had been unavailable for work of any kind from June 1, 1993 until approximately January, 1994, shortly after the instant complaint was filed.

36. Since these additional facts do not alter the Board's decision in any respect, they have also been considered by the Board.

37. This complaint was filed on December 2, 1993. (Technically, the complaint was filed on December 17, 1993; however, the complainant attempted to file it on December 2, 1993, and the Board returned it because Mr. Dumeah had used the wrong Board Form. For purposes of this decision, the Board has treated the earlier date as the filing date.)

38. In January, 1994, the General Executive Council of the union rejected Mr. Dumeah's appeal from his expulsion. Mr. Dumeah has not been on the list or referred to a job since March, 1993.

The Decision

39. The statutory provisions relied upon by the complainant reads as follows:

40. The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or other administration or has contributed financial or other sup­port to it or if it discriminates against any person because of any ground of discrimination pro­hibited by the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms.

41. (2) No trade union that is a party to a collective agreement containing a provision mentioned in clause (1) (a) shall require the employer to discharge an employee because,

(a) the employee has been expelled or suspended from membership in the trade union; or

(b) membership in the trade union has been denied to or withheld from the employee,

for the reason that the employee,

(c) was or is a member of another trade union;

(d) has engaged in activity against the trade union or on behalf of another trade union:

(e) has engaged in reasonable dissent within the trade union;

(f) has been discriminated against by the trade union in the application of its membership rules; or

(g) has refused to pay initiation fees, dues or other assessments to the trade union which are unreasonable.

(3) Subsection (2) does not apply to an employee who has engaged in unlawful activity against the trade union mentioned in clause (1) (a) or an officer, official or agent thereof or whose activity against the trade union or on behalf of another trade union has been instigated or pro­cured by the employee's employer or any person acting on the employer's behalf or whose employer or a person acting on the employer's behalf has participated in such activity or contrib­uted financial or other support to the employee in respect of the activity.

69. 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.

70. 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.

82.-(1) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,

(a) refuse to employ or continue to employ a person;

(b) threaten dismissal or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condi­tion of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that the person may testify in a proceeding under this Act or because the per­son has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

(2) No trade union, council of trade unions or person acting on behalf of a trade union or coun­cil of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condi­tion of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person.

because of a belief that the person may testify in a proceeding under this Act or because the per­son has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

148.-(2) On and after the 30th day of April, 1978 and subject to sections 141 and 147, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargain­ing agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.

40. In submissions, Mr. Dumeah withdrew his assertion that section 71 had been breached.

41. This decision considers whether any or all aspects of the complaint ought to be dis­missed on grounds of delay. Perhaps the classic expression of the approach the Board brings to delay issues can be found in The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420, where the Board wrote, in part, as follows:

42. It is by now almost a truism that time is of the essence in labour relation matters. It is univ­ersally recognized that the speedy resolution of outstanding disputes is of real importance in maintaining an amicable labour-management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once crystallized, could exist indefinitely in a state of suspended animation and be revised to become a basis for litigation years later. A collective bargaining relationship is an ongoing one~ and all of the parties to it -including the employees - are entitled to expect that claims which are not asserted within a rea­sonable time, or involve matters which have, to all outward appearances, been satisfactorily set­tled, will not reemerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negoti­ate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecu­tion of untimely claims. (See Re C.G.E. 3 L.A. C. 980 (Laskin); and Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited [1966] 18 LAC. 51 (Ar­thurs)).

43. In recognition of the fact that it is dealing with statutory rights, the Board has not, hereto­fore, adopted any rigid practice with respect to the matter of delay - holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is established. However, whatever the merits of this approach, the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties' current collective bar­gaining relationship - quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board's view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.

44. A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged stat­utory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailabil­ity of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or they are overriding public policy considerations, that limit should be measured in months rather than years.

45. Since Mississauga, there have been hundreds of opportunities for the Board to consider its approach to delay in unfair labour practices, and its application to particular facts. As the Board has gained more experience in this area, the Board has concluded that shorter periods of delay may be sufficient to lead the Board to decline to hear the merits. Our jurisprudence has come to give meaningful content to the admonition in Mississauga that the delay ought, generally speaking, to be measured "in months rather than years." With the current poor economic conditions, the downsizing, closings, and reduced construction that result, and in light of the absence of a general discretion to award costs, there has been and continues to be a proliferation of complaints by employees against their unions. These complaints carry with them a disruption of an ongoing col­lective bargaining relationship. They also place significant financial burdens on unions and employ­ers forced to respond, and heavy burdens on the Board's publicly funded resources. The commit­ment of our resources here means they are unavailable elsewhere. Primarily because of the interference these complaints cause to the collective bargaining relationship, the Board has been loathe to allow unreasonably tardy complaints to proceed. In this respect, see, for example, John Kohut, [1991] OLRB Rep. Dec. 1367, and the cases cited therein.

46. All these disputes arise in specific contexts. The construction industry itself provides a specialized backdrop in which to assess the problems of delay. In the construction industry, as a general proposition, individual trades people work for a particular employer for only a short time, usually referred to the employer by the union, through its hiring hall. It is the transitory and tem­poral nature of employment, and the reality that the key employment relationship is between member and union, not employee and employer, that distinguishes construction from other types of work. A brief description of the hiring hall system is helpful. In Ontario Hydro, [1983] OLRB Rep. Jan. 99, the Board wrote:

47. The other approach, and the one we prefer, is to recognize that this collective agreement was negotiated in the context of the construction industry and that the words of the collective agreement in issue pertain to one of the hallmarks of the construction industry, the hiring hall. The nature of a hiring hall is to a large degree a function of two labour relations realities in the construction industry. The first is the fact that this collective agreement and others in the con­struction industry generally pertain to “certified tradesmen or journeymen". The word 'jour­neymen" is said to have originated in the railroad industry where a journeyman was considered a totally competent craftsman who could take his tools and apprentice and travel to remote parts of a railroad to perform his work as a skilled craftsman essentially on an unsupervised basis. A "journeyman" or "tradesman" need not be described as a "skilled journeyman" or “skilled tradesman" because the word journeyman or tradesman already denotes the highest level of skill in a trade. In short, the term journeyman or tradesman refers to a person who can work with little or no supervision and who represents the highest level of proficiency in a craft. See Swinerton and Walberg Company (1977), 68 L.A.C. 940 (Schedler). The notion of "certifica­tion" pursuant to legislation requiring the training and certification of tradesmen is today a fur­ther guarantee of proficiency. Thus, persons who constitute certified tradesmen or journeymen and who are referred to an employer by way of a hiring hall provision cannot be considered untested and untried potential hires "from the street" as in a manufacturing or service context. Because journeymen and tradesmen are expected to have a minimum level of proficiency, an inference that the employer has agreed to fetter its hiring discretion, or subject it to arbitral review, is not prima facie an unreasonable conclusion.

48. The second point giving rise to the nature of a hiring hall is the peculiar relationship between employer and employees in the construction industry as was discussed in the case of R M Hardy and Associated Limited and Teamsters, Local Union 213, [1977] 2 Can. L.R.B.R. 357 where the chairman, Professor P.C. Weiler, observed the following:

Most of the workmen in the construction industry are skilled tradesmen, usually hav­ing obtained tradesmen's qualification certificates after years of apprenticeship. Each of the distinctive trades has its own craft union, which may have a century-old tradi­tion of representing its members in collective bargaining with the contractors who employ members of that trade. But most building trade unions have another role besides the customary representation of employees in collective bargaining: the hiring hall function. The reason is the highly cyclical nature of employment in the construc­tion industry - stemming both from the rhythm of individual projects and the intermit­tent and erratic pattern in which major construction investments are brought on stream. In response to that pattern, contractors - whether general or specialty con­tractors - normally do not maintain a regular work force. They may retain a nucleus of key employees, but the bulk of their workmen are recruited as and when they are needed for a specific project for which the employer has obtained a contract. Where do they get these tradesmen? Through the union which represents that craft. The union office keeps a list of available tradesmen; the contractor phones the union office for certain kinds and numbers of workmen; and the crew is then dispatched through the union hiring hall to the job site, in effect, the trade union performs the basic personnel function in the construction industry, by allocating jobs among the members of the work force. Any one tradesman may be employed by a number of contractors in a number of areas in any one year. Besides paying the immediate take-home wages to the tradesmen on the job, the contractor also forwards directly to the union hourly contributions for health and welfare, vacation, and pension benefits, and these funds are administered by the union for its members. And the consequence is that the primary and enduring relationship in construction is between craft unions and tradesmen-members, not between employer and employee.

[our emphasis]

34. It is against the background of these observations that one must consider the various cases dealing with the effect of hiring hall provisions on employment status. It has been clearly estab­lished that persons in a hiring hall and not yet in the active employ of an employee can seek relief under a collective agreement and be awarded damages for the breach of a union hiring hall provision. See Re Blouin Drywall Contractors Limited and United Brotherhood of Carpen­ters and Joiners of America, Local 2486, 1975 CanLII 707 (ON CA), [1975] 57 D.L.R. (3d) 199 and McKenna Brothers Lim­ited and Plumbers Union, Local S27 (1975), 1975 CanLII 2128 (ON LA), 10 L.A.C. (2d) 273 (Shime). See also Eton Con­struction Limited, [1981] OLRB Rep. July 872. It has also been held that the refusal of a local union to refer tradesmen can amount to an unlawful strike of such tradesmen even though they are not in the active employ of the employer in question. See Local 273, International Long­shoremen's Association v. Maritime Employers Association, [1979] 1 F.C.R. 120. On the other hand, we note the apparent need of the Legislature to enact section 69 of the Act in order to create a duty of fair representation for those in the hiring hall but not yet employees within the meaning of section 68. But whatever the legal significance of section 69, the court cases do sug­gest that in the construction industry and in like industries, there is in law, and without specific contractual wording to the contrary, a very close relationship between being in a hiring hall and having employment status. Precisely, how close will depend on the circumstances of any particular case.

35. In Joe Portiss, [1983] OLRB Rep. July 1160, the Board wrote:

36. 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 as an employment agency.

37. 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.

38. To the extent that the hiring hall functions as an employment agency it vests considerable power in the bands 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 systems 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.

39. The advantages of the hiring hall system and the potential for their abuse were well summa­rized by Professor Bastress in the following passage at page 31:

The union hiring hall has been one of the major developments in twentieth century labor relations. It has provided many industries with a means of efficiently matching unemployed workers with job vacancies and has replaced a system of haphazard, unjust, and corrupt employment practices. Yet it has also developed substantial prob­lems of its own. A hi ring hall is fraught with potential for abuse, and, indeed, that potential is all too frequently realized. The largely unreviewable discretion of union business agents and inadequate protection for workers can combine to make hiring halls a mixture of whim, nepotism, prejudice and irrationality.

45. The operations of the hiring halls operated by the different trades vary greatly, but they are all characterized by the "referral" or "out of work" list. Members of the union seeking work are placed on the list, in a position or order set by the particular union, and then referred to employers upon request. The referral through the hiring hall of a particular tradesman to a particu­lar job must necessarily mean that someone else on the referral list did not get referred to that job. One's place on the list, and thus opportunity for work, is of paramount importance in the current economy, where trades have hundreds or thousands of unemployed members currently registered on the list. Where there are substantially fewer opportunities than workers, and long periods before one might be referred to another job, it is critical that referrals are properly made.

46. It is also critical that any objection to a referral be made expeditiously. An attempt by a disgruntled member to challenge a decision that referred another member to a job cannot help but have immediate ramifications for both the member or members who were referred to the job in question, and more importantly, for all other members who have been referred to other jobs in the intervening period. For that matter, it will also affect members who were not referred to jobs, but who are registered on the list. The entirety of the hiring hall, its list, its rules, its practices, together is an interrelated web of structures and mechanisms. In challenging a particular referral, a member challenges the union's performance of one of its key duties, and potentially challenges referrals of other members.

47. A challenge to a referral, if upheld, will pose difficult remedial problems. Many refer­rals will have been made while the dispute remains outstanding. Virtually everyone on the list will have changed their position on it, and thus their entitlement to new job requests, and many will have been referred to jobs that a complainant claims. A remedy seeking to change a particular referral will affect many, not only the complainant, the union, and the employer.

48. Delay in construction is critical. Complainants challenging specific referrals must move quickly to do so, at risk of the Board declining to hear the merits of their complaint. This is not to suggest that the Board will not consider factors other than the passage of time in deciding how to exercise its discretion. It will still look to, for example, when a complainant became aware of the particular violation, the nature of the remedy claimed, the intervening events, the explanation for the delay, and so on. But in construction, particularly where complaint is made about the hiring hall and particular job referrals, the Board's suggestion in City of Mississauga, supra, that timeli­ness ought generally to be measured in "months rather than years" has particular resonance.

49. Much of this complaint focuses upon the provisions of sections 47(2) and 70 of the Act. Mr. Dumeah complains that he was improperly expelled from the union, and his problems with job referrals and discharges were a direct result of this expulsion. But his expulsion, per Se, is an inter­nal union matter. In the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787, OLRB File No. 0148-93-U, April 20, 1994, (as yet unreported), the Board wrote as follows:

50. Under the Labour Relations Act a trade union can become the exclusive collective bargain­ing agent for a group of employees in a defined bargaining unit either by voluntary recognition or by showing that the majority of employees wish to be represented. Once the union has acquired the right to represent those employees, they can no longer bargain individually with their employer, nor can any other trade union bargain for them. Dealings with their employer must be channelled though the union, and their conditions of employment are regulated in accordance with the negotiated terms of the collective agreement. In the construction industry, the typical collective agreement requires employees to be members of the union, and requires employers to meet their personnel requirements by hiring out of work union members, who are directed to employment by the union through the local ~'hiring hall".

51. In a unionized setting, then, an employee no longer bargains on his own behalf. He must bargain collectively and deal with his employer through the union. However the union's status as exclusive bargaining agent, carries with it a concomitant responsibility to fairly represent all employees in the bargaining unit for which the union has bargaining rights - whether or not they are members of the union. Since the employee cannot bargain with the employer on his own, and must rely on the trade union for this purpose, the statute requires the union to represent employees in the bargaining unit in a manner that is neither "arbitrary, discriminatory, or in bad faith".

52. A similar standard is applied to the operation of the hiring hall. The union must operate this job allocation mechanism in a manner that is not "arbitrary, discriminatory or in bad faith". Section 70 was added to the Act because section 69 is limited to employees in bargaining units, and unemployed union members - while perhaps "prospective" employees - would not fall within the ambit of section 69. Section 69 deals with the rights of employees, while section 70 deals with the rights of potential employees.

53. Under section 69, therefore, the union has a statutory obligation to fairly represent employ­ees in the bargaining unit in their dealings with their employer. But section 69 does not regulate trade union organizations, as such, nor does it regulate all of the activities in which a trade union might be engaged. In particular, section 69 does not deal with what might be described as "inter­nal union affairs".

54. Matters such as the qualifications for membership, the rights of members vis-a-vis the union or each other, elections, union meetings, the powers of union officers, general decision-making processes of the union, and so on, are not regulated by the Labour Relations Act at all. It is the union's constitution which governs the internal workings of the organization (see the analysis of the Court of Appeal in Astgen v. Smith, 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129, and see generally G. W. Adams Canadian Labour Law at chapter 14). In this respect, a union is like a club, church or other vol­untary association. The rights and duties of members, including qualifications for membership and expulsion from membership, are set out in the organization's constitution.

55. This is not to say that a trade union is "above the law" or immune from legal regulation. The trade union's constitution is a kind of "contract" which can be enforceable by Courts at the instance of the member, in the same way as any other contract. Similarly, a union may have obligations under health and safety legislation, human rights legislation, pension regulations, and at common-law. If a trade union owns or administers property, directly, or in trust, the use or disposition of that property may be subject to a variety of legal restrictions or fiduciary obli­gations. And so on. But the internal affair of unions are not generally regulated by the Labour Relations Act.

56. If a union member believes that his rights have been denied, he may seek relief through the process and in the forum created by the legal framework (contractual, common-law or statu­tory) that creates the "right" in the first place. That is what Mr. Moore did when he sued the union, its officers, and, inferentially, his fellow members whose dues money would provide the funds from which any recovery would be paid. Mr. Moore claimed that the defendants had breached their common law or contractual obligations to him, and he went to court to get a rem­edy. In the same way, a union member who claims that the union constitution has not been properly applied, or that his rights as a member have been infringed, may pursue any dispute settlement mechanism provided in the constitution then apply to the Courts for further relief. That is what happened here, in part. Certain aggrieved union members took action against Mr. Moore under the union constitution because, they said, the timing or content of Mr. Moore's allegations were in breach of the constitution and inconsistent with Mr. Moore's obligations as a union member. Those allegations were considered in the forum provided by the constitution for that purpose. Whether the charges were properly considered under the constitution, we do not, of course, decide.

57. In summary, then, the union, its officers, and members, are subject to a multi-faceted legal framework of which the Labour Relations Act is only a part. The Legislature has not given the Board a general power to regulate trade unions as such, or everything that trade unions do. Nor has membership in a particular trade union being converted into a general "statutory" right. And where the legislature has chosen to protect employees from the consequences of a loss of union membership, it has done so explicitly. Thus, section 47(2) reads as follows:

(2) No trade union that is a party to a collective agreement containing a provision mentioned in clause (1) (a) shall require the employer to discharge an employee because,

(a) the employee has been expelled or suspended from membership in the trade union; or

(b) membership in the trade union has been denied to or withheld from the employee, for the reason that the employee,

(c) was or is a member of another trade union;

(d) has engaged in activity against the trade union or on behalf of another trade union:

(e) has engaged in reasonable dissent within the trade union;

(f) has been discriminated against by the trade union in the application of its membership rules; or

(g) has refused to pay initiation fees, dues or other assessments to the trade union which are unreasonable.

The focus in section 47(2) is the protection of an individual's employment, not his right to membership in the union; however the very presence of section 47 indicates a legislative recogni­tion that union members may occasionally be expelled from membership. Nothing in the Act explicitly regulates or prohibits such expulsion.

33. Union membership, as such, is not a protected statutory right nor is a union prohibited from expelling someone from membership - although in some circumstances an employee may be pro­tected from the consequences of the loss of union membership, and there may be limitations on actions taken to compel membership in a union or discourage someone from joining a union. Similarly, if a loss of union membership means the loss of access to employment through a hir­ing hall, the circumstances might be considered under section 70 (See: Ontario Hydro, [1980] OLRB Rep. July 1039). And, of course, just as the union constitution may set qualifications for membership, the expulsion from membership must follow the procedures prescribed in the Con­stitution. The fact that a matter is not covered by the Labour Relations Act does not mean an aggrieved union member is without remedy.

34. As we have noted, quite a number of matters do not fall within the ambit of the Labour Relations Act, nor within the particular purview of section 69. That section is limited to the way in which the union, as bargaining agent, represents employees in a bargaining unit vis-a-vis their employer. If the conduct complained of does not fall under that umbrella, there is no remedy under section 69 - although there may well be a remedy under some other section of the Act, or some other legislation, or at common-law, or in some other forum. Similarly, if the conduct complained of does not fall within the ambit of section 71 there is no relief from the Board -although, again, there may be remedies elsewhere.

35. In Ontario Hydro, [1980] OLRB Rep. July 1039, the Board wrote as follows:

36. 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 [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. 671. The Board in that case, in order to determine whether section [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 [70]a 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 [70]a of the Act.

And see, for example, Michael A. Rankin, [1993] OLRB Rep. July 644.

51. It is in the statutory and policy framework in the construction industry described above that the Board assesses here the consequences of delay.

52. The first two events complained of occurred in April and December, 1991. Mr. Dumeah asserts they constitute breaches of section 82(2) of the Act. The nature of the alleged breaches, that Mr. Dumeah was somehow threatened or coerced because of his participation in a Board proceeding or the exercise of his rights under the Act, is such that the Board expects a party so complaining to move expeditiously in filing a complaint. A complaint about coercive activity that interfered with the ability of the complainant to exercise his rights under the Act has little material content when the complaint is not filed expeditiously, and, as here, is filed years, and numerous hearing days, after the allegedly threatening behaviour. No good reason has been offered for the delay in complaining about these activities. A period of approximately two years is far too long. These two matters are dismissed in their entirety on grounds of delay.

53. The third matter complained of finds its genesis in the physical altercation that took place in the union hall in May, 1992, which in turn led to criminal charges being laid by each of the combatants against the other, and to the union charges being laid against Mr. Dumeah. The alleged breach by the union lies in its failure to allow Mr. Dumeah reasonable and fair access to the hiring hall documents, and by the union preventing Mr. Dumeah from filing charges, under the union constitution, against his assailant. These events similarly occurred too long before the com­plaint was filed for the Board to now entertain an allegation that they breached the Act. Again, no good reason has been raised for the delay in filing the complaint, here a delay of approximately one and a half years. Mr. Dumeah sought access to the lists in order to challenge particular refer­rals, whether affecting him or Mr. Smith. If he wished to complain about being denied proper access so that he could complain about improper referrals, he ought to have done so considerably earlier.

54. The same is true of his complaint that he was not allowed to lay charges against a fellow member. Charges against a member, as this case illustrates, are extremely serious and can lead to serious consequences. Had he wished to pursue this complaint, he should have done so long before the passage of over a year and a half. To allow such complaint now, long after the events in ques­tion, long after criminal charges were filed and pursued, would be prejudicial and unfair to both the union and the union official involved in the incident with Mr. Dumeah. These aspects of the complaint are also dismissed.

55. The fourth matters complained of concern the Flint Riggers project. Mr. Dumeah filed grievances with respect to work at Flint before November, 1992 and also complains that he should have been referred again in November, 1992. The Flint referrals in question took place over a year prior to the filing of this complaint. During this period there would likely have been hundreds of referrals to jobs, emanating out of this hiring hall. The many other members who might have been referred to jobs during the intervening period would have been unaware of his objection. Their rights might be affected should he be successful, as the remedial relief requested would affect the position of other employees on the referral list, and the order of their referral to future jobs.

56. It may be true that challenge to a particular referral will lead to limited ramifications for other members, if the only order that issues is an order reinstating the member to the top of the referral list. Even so, all other members will still be bumped one place down the list. And even so, the complaint is challenging the manner in which the hiring hall has been administered by the union. As time passes, it becomes more and more difficult to attempt to reconstruct how the hall should have been operated, and whether the complainant suffered any loss, and what remedial cor­rection is necessary in order to properly compensate the complainant, without harming other mem­bers.

57. As well, employers in the construction business must be able to obtain workers quickly, efficiently, and reliably. The hiring hall system exists in part to ensure this. While challenges to particular referrals will always occur, they must be made expeditiously. Otherwise employers will constantly be litigating the question of the proper composition of their workforce. This will in turn prejudice their ability to manage the construction project proficiently. They will not be confident that they can retain their current employees, or that others will not replace them. The purpose of the hiring hall system will be undermined.

58. The delay here, of approximately 13 months, is too long, given that the assertion is that

a particular referral (or non-referral) was in breach of section 70 of the Act. This part of the com­plaint is also dismissed.

59. Similar concerns over delay exist with respect to Mr. Dumeah's complaint that the union would not assist him with the grievances he filed arising out of his employment at Flint. He has waited thirteen to fifteen months (depending on the particular grievance) to assert that his union should have taken his work-related grievances to arbitration. These grievances deal with his referral to the particular job and matters that occurred at the job. This delay is too long, given that this referral and employment arises in the construction industry. This part of the fourth matter complained of is also dismissed.

60. Jumping ahead, the sixth aspect of the complaint is Mr. Dumeah's assertion that his dis­charge by K.E.W. in March, 1993 was unlawful. He asserts that both the company and the union breached the Act. Mr. Dumeah's immediate response to the discharge was to pursue a complaint before the Ontario Human Rights Commission. Although he was himself effectively immobilized from the beginning of June until October, 1993, his representative, Graham Smith, continued to actively assist him during this period. Mr. Smith phoned individuals on behalf of Mr. Dumeah, and filed complaints on his behalf. The complaint before the Ontario Human Rights Commission was filed on June 17, 1993, less than three weeks after the surgery that Mr. Dumeah relies on to justify his delay in filing this complaint. In these circumstances, the Board does not accept that the sur­gery, and Mr. Dumeah's subsequent stress fracture, provide any reason for his delay in filing the instant complaint.

61. As with his complaint over his Flint employment, Mr. Dumeah has waited too long. The facts do not clearly disclose the duration of the job at K.E.W. However, given the limited type of work that Mr. Dumeab was physically able to perform, the construction industry context, and the typical referrals he had received before, it is not likely that the job would have lasted long beyond March, 1993. Mr. Dumeah concedes he was unavailable for work as of the beginning of June, 1993. Mr. Dumeah waited approximately eight months after his discharge to file the com­plaint. Employers in the construction industry must know quickly if challenge is to be made about the operation of their business. Unions must know quickly if a member is going to assert his refer­ral to or discharge from an employer was improperly managed or instigated by the union. Eight months is too long to wait. Work in the industry is too fluid and occasional to impose on parties an industrial standard of "delay". In construction, both employer and union need to know where they stand, and to move on. To sanction disruption months after the event would be significantly dis­ruptive to their relationship and unduly expensive and obstructive. This aspect of the complaint is also dismissed on the grounds of delay.

62. All that remains is the fifth matter (chronologically speaking), that Mr. Dumeah, in breach of section 70 of the Act, was improperly struck from the hiring hall referral list because of his improper expulsion from the union in September of 1992. Mr. Dumeah immediately appealed his expulsion, effectively notifying the union of his challenge to its actions and of his pending removal from the list. Again, although expelled then, the union did leave his name on the list, and continued to refer him, until March 1, 1993, when his appeal was denied. Because the removal was due to his expulsion, he cannot get back on the list. However, he could not have alleged a breach of section 70 (on this basis) until actually removed from the list at the beginning of March. The delay is therefore one of nine months.

63. In an industrial setting, when an employee is discharged, s/he loses his or her employ­ment with a particular employer. S/he is free to seek employment elsewhere from other employers. In construction in Ontario, the vast majority of construction work and employment is unionized. Union representation, work, and work opportunities are generally divided on a "trade" or "craft" basis. For the most part, the bargaining agents are international unions, each of which effectively controls the exercise of a particular trade or craft within the Province. Indeed, because of their international scope, they effectively control work in the craft throughout Canada and the United States. For a member to be expelled, and struck from the list, is effectively to say to that individual that his or her work opportunities in the craft are severely restricted, if not totally circumscribed.

64. Although the complaint about his removal from the list does not challenge a particular referral, Mr. Dumeah's challenge does have ramifications for how the hall was administered in the period before he filed his complaint, and the remedial relief sought will have much the same effect as challenges to particular referrals. In effect, Mr. Dumeah seeks remedies that will reinstate him to the position he would today have on the referral list, but for his improper expulsion, and that will compensate him in damages for lost job opportunities because of his expulsion. He thus seeks, as with challenges to particular referrals, to overturn the decision not to refer him, to reclaim his proper (as he asserts) position on the list, and damages for the improper non-referrals. As with challenge to a particular instance of non-referral, he questions potentially all the referrals made since his removal from the list, asserting he should have and would have been referred but for his improper expulsion and consequential improper removal from the list.

65. For these reasons, a section 70 complaint asserting improper removal from the hiring hall list ought to be brought in quick fashion, just as a challenge to a specific referral or series of referrals. Both types of complaints object to the administration of the hiring hall by the union. Both types of complaints seek remedies that require the parties and the Board to attempt to recon­struct the series of referrals that have occurred since the impugned referral or removal from the list. In both, a complainant seeks remedial relief that will reinsert him/her on the list, in the posi­tion they would be but for the breach, and compensation for missed referrals.

66. Nevertheless, this aspect of the complaint will not be dismissed on grounds of delay.

67. There are a number of reasons for this decision. Primary among them is the significance of the decision removing an individual from the hiring hall list, as expressed above. The impact of such a decision mitigates in favour of a less stringent standard of timeliness than in the case of chal­lenge to a particular referral or referrals, notwithstanding the increasing prejudice to a union as time passes without challenge to the removal decision. The Board is not prepared to say that nine months is too long when the effect of the decision is so dramatic.

68. Although the internal union appeal involves consideration of a different matter than the instant section 70 complaint, in a practical sense the two overlap. The nature of the inquiry in each revolves around the facts leading to the expulsion and the justification for the expulsion. Little of the evidence in either proceeding will deal with the detail of being removed from the hiring hall list, since this generally and routinely follows from the decision to expel from membership. Given this extensive overlap, if not virtual identity, in evidence, an internal union appeal of the expulsion decision by a member, as occurred here, can reasonably be said to effectively put the union on notice of the challenge to its decision, and the probability that it will have to justify its decision to expel. While a union will rightly assume that the matter is to be dealt with through internal union process only (until a complaint at the Board is filed), the prejudice of witnesses and evidence becoming unavailable, and fading recollections, is minimized. The union will be on notice of the need to preserve the evidence and to be prepared to produce witnesses. Only the forum will have changed.

69. As well, the reality is that individual members are under significant pressure not to file complaints at the Board. Indeed, some union constitutions make it an offence for a member to raise complaints outside the union. Even without such a requirement, members can be effectively ostracized if they raise complaints about union activity outside the union. Thus there are practical reasons which delay the filing of complaints, while members seek other less confrontational ways to obtain redress. Too short a period for filing a complaint may therefore place unrealistic burdens on members. Nor should the time be so short that members don't continue to try to work out their problems internally.

70. These factors lead the Board to conclude that a delay of nine months, even without rea­sonable excuse, is not so long as to cause the Board to decline to hear the complaint, and accord­ingly it will proceed, but solely on the aspect that the union breached section 70 when it struck Mr. Dumeah from the hiring hall list, because of his expulsion from the union in September, 1992.

71. This matter will be relisted for hearing, to consider the submission of the union that the remaining aspect of the complaint fails to disclose a prima facie case, and for all other issues.

72. K.E.W. no longer appears to have any interest in the proceedings and accordingly, it is removed as a party.

73. It may be that the delay will affect remedial relief that might otherwise issue, if the com­plainant is successful. However, this matter is best considered at the end of the hearing.