Ontario Labour Relations Board
[1996] OLRB Rep. July/August 621
3658-95-U Dorington Smith, Applicant v. United Brotherhood of Carpenters and Joiners of America, Responding Party v. Carpenters and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor
BEFORE: M. A. Nairn, Vice-Chair.
APPEARANCES: A. M. Minsky for the applicant; David McKee and Torn Casey for the responding party; Jack J. Slaughter, Ucal Powell and Frank O'Reilly for the intervenor.
DECISION OF THE BOARD; July 22, 1996
This is an application under section 149(2) of the Labour Relations Act, 1995 (the "Act"). Section 149 of the Act, in its entirety, reads as follows:
(1) A parent trade union or a council of trade unions shall not, without just cause, assume supervision or control of or otherwise interfere with a local trade union directly or indirectly in such a way that the autonomy of the local trade union is affected.
(2) A parent trade union or a council of trade unions shall not, without just cause, remove from office, change the duties of an elected or appointed official of a local trade union or impose a penalty on such an official or on a member of a local trade union.
(3) On an application relating to this section, when deciding whether there is just cause, the Board shall consider the trade union constitution but is not bound by it and shall consider such other factors as it considers appropriate.
(4) If the Board determines that an action described in subsection (1) was taken with just cause, the Board may make such orders and give such directions as it considers appropriate, including orders respecting the continuation of supervision or control of the local trade union.
These provisions are of relatively recent legislative origin and this appears to be the first application relying on sub-section 149(2) which has proceeded to hearing. Much of the evidence was not seriously in dispute. The gist of the application is the allegation that the applicant was removed from the office of Business Representative of Local 27 of the Carpenters' union, by a decision of the International union taken without just cause. That decision determined that the applicant had failed to pay a fine within the time prescribed, and that as a consequence, he lost good standing in the union and was therefore ineligible to hold office in the union. I note that throughout this decision, the reference simply to the "union" is, for ease, a reference to that amalgamation of organizations including the responding party, the intervenor, and the Carpenters' District Council of Toronto and Vicinity, United Brotherhood of Carpenters and Joiners of America (the "District Council").
The responding party took the position that the Board has no jurisdiction in this matter. However, it was content to have the matter heard in its entirety rather than raising the issue as a preliminary matter, given it was a case of first impression. I therefore heard the parties' evidence and submissions on all issues. In light of the conclusion reached concerning the scope of section 149 of the Act I have summarized the events leading up to the application in less detail than covered by the evidence, but have included those facts in order to help inform the jurisdictional issue.
The applicant is a journeyman carpenter and has been a member of the United Brotherhood of Carpenters' and Joiners of America, Local 27 (or one of its predecessor locals) ("Local 27" or the "local")) since 1978. As such, he is also a member of the responding party (the "parent union" or the "International"). In 1986, the applicant was elected to the positions of Vice-President and Business Representative of the local. In 1988, he was also elected Vice-President of the District Council. The applicant held these positions until September, 1995. Throughout this period the applicant has also been elected or appointed to various committees or to act in a representative capacity in union affairs.
In January, 1994, the applicant was charged, by Local 27, under the International's constitution, with having violated certain articles of that constitution. Those matters eventually went before a Trial Committee, selected by the District Council, in accordance with the provisions of the International constitution. A trial was held. On July 14, 1994, the Trial Committee informed the applicant of its decision, finding him guilty of certain of the charges, and dismissing other charges. He was fined $300.00 and suspended from holding all offices except that of Business Representative. The position of Business Representative, although elected, is a full-time paid position of the local, and at all material times constituted the applicant's gainful work.
The applicant appealed the decision of the Trial Committee, depositing $50.00 in order to do so. The effect of commencing the appeal was to stay the decision of the Trial Committee. Under the constitution, that appeal is heard by the Appeals Committee of the International. The applicant received a decision of the Appeals Committee dated June 22, 1995 which everyone agreed was ambiguous. The District Council sought clarification of the ruling and advised the applicant that his position would remain "status quo" pending that clarification.
On August 1, 1995, the applicant received a letter from the General Secretary dated July 25, 1995, asking that he disregard the first decision of the Appeals Committee. A revised decision was enclosed, dated June 22, 1995. That decision concluded:
Accordingly, we sustain the penalty of $300.00 less the $50.00 already paid and the one year suspension from all offices except business agent.
At an Executive Board meeting of Local 27 on August 1, 1995 the applicant was informed that, pursuant to the Appeals Committee's decision he was being removed from the office of Vice-President of the local. On August 4, 1995 he was not allowed to attend a meeting of the Apprenticeship Committee. The applicant became aware that the view of the local and the District Council was that he was suspended from all offices or positions except Business Representative.
This included, for example, in addition to his appointment to the local's Apprenticeship Committee, his appointment to the National Apprenticeship and Training Advisory Committee. The applicant also learned this affected his position as delegate to the District Council and meant that he would not be able to attend the Carpenters' General Convention in September, 1995, although he had been elected as a delegate for Local 27. At a District Council meeting on August 10, 1995, he was told he could not attend because he was suspended. He sought clarification. The applicant was of the view that he was suspended from holding only constitutional offices. It was recommended to him that he seek clarification from the International General President as to which positions were affected by the ruling.
Under the constitution the General President has the authority and responsibility to interpret the constitution. On August 17, 1995 the applicant faxed a letter to Mr. Sigurd Lucassen, the General President, in Washington, D.C. asking for clarification of the verdict. On August 31, 1995 and prior to receiving an answer, the applicant contacted Mr. Lucassen by phone to inquire as to the status of his request.
There was some dispute in the evidence concerning this conversation and the content of earlier conversations between the two. It is clear that the applicant was aware of a thirty day time limit in which to pay the fine. It is also clear that the General President did not identify for the applicant when that thirty day period ran. The General President also understood that the applicant intended to pay the balance of the fine. As soon as his conversation with the General President was concluded on August 31, the applicant attended at the offices of the District Council and paid the $250.00 balance of the fine.
On September 1 and 2, 1995, elections were held by Local 27. The applicant attended and voted. (There was no dispute as to his right to vote). In addition, he had been nominated for the position of Business Representative and his name was on the ballot. Regardless of any other confusion, all were agreed that this position was not affected by the verdict against him. Sixteen candidates ran for the position. Six were to be elected. The applicant placed third. On September 5, 1995 the applicant attended a meeting of Local 27's Executive as newly-elected Business Representative.
By letter dated August 25, 1995 and received by the applicant early in September, the General President clarified the penalty. The letter supports, in part, the applicant's interpretation of the effect of the suspension imposed on him.
In the meantime, on September 2, 1995 the applicant received two letters from the local (identical in their content) dated August 30, 1995 informing him that he was no longer a member in good standing of the local and further advising him that failure to pay the balance of the fine within thirty days would result in the termination of his membership in the local.
Shortly after receiving the local's letter, the applicant received a letter from the District Council dated September 1, 1995, advising him that unless the balance of the fine was paid within thirty days, in accordance with the constitution, he would go out of good standing. This is the only communication received by the applicant that could be considered to constitute notice in writing of the time for payment of the fine and identifying what consequences would flow from a failure to pay within that time frame.
There was some dispute as to what the applicant understood from the letters. Ultimately it is of little consequence. Both letters are clear. Each, however, advises the applicant quite differently as to his status with the union. The applicant paid little attention to the letters as, in his view, the fine was paid and the matter closed in any event.
The applicant was due to be sworn into office at a meeting of the local on September 12, 1995. On September 8, 1995, Frank O'Reilly, writing as the local's recording secretary, wrote to the General President, requesting a ruling on whether or not the applicant had been eligible to run for office. The sequence of events that followed, and which led to this application, can be seen from a review of the correspondence between the various officials and the applicant. Mr. O'Reilly's letter provides in part:
A ruling is hereby requested on the status of Brother Dorington Smith in the election for Business Representative of Local 27. ... He failed to pay the balance of the fine within the constitutionally prescribed 30 day period, and on August 29th the District Council informed Local 27 that Brother Dorington Smith was Out of good standing. On August 30th, Local 27 sent notice by registered mail to Brother Smith advising him that failure to pay the required outstanding fine within thirty days would result in his membership being terminated.
Elections for Business Representative were conducted on September 1st and 2nd, 1995. Brother Smith's name appeared on the pre-printed ballot. However, with Brother Dorington Smith not being in good standing he would not be eligible to be elected. A ruling on this matter is therefore requested. An early response is required as the Business Representatives are to be sworn in at the Local 27 meeting of Tuesday, September 12th.
I note that according to this letter the District Council told the local that the applicant was already out of good standing, yet the District Council advised the applicant quite differently in its September 1 letter to him.
- The General President responded by fax dated September 11, 1995 as follows:
This is in answer to your letter of September 8, 1995 regarding the eligibility of member Dorington Smith under Section 31D of the UBC Constitution.
According to the information provided, Brother Smith failed to pay a fine within 30 days as required by the UBC Constitution. He has therefore lost "good standing", as stated in Section 45 0 of the UBC Constitution.
Under Section 31D of the Constitution, a member who loses good standing after being nominated or elected to a position ceases to be eligible to run for or hold offices and positions covered by Section 3 ID. Brother Smith, therefore, was and is now ineligible, and he should not be installed....
In accordance with that advice, the local informed the applicant for the first time, publicly, at the meeting on September 12, 1995 that he was not to be installed as Business Representative as he was ineligible to run for office, having been out of good standing with the union. Both Mr. O'Reilly's and Mr. Lucassen's letters were read out at the meeting. The applicant was not installed. The net result of that action was that the applicant immediately lost the full-time paid position which he had successfully maintained through elections since 1986. In addition, he became ineligible to run for any other office or position in the union which required him to have maintained his membership in good standing for a continuous period.
The applicant did not see Mr. O'Reilly's letter until these proceedings were underway. Mr. Lucassen acknowledged that he did not seek any comments from the applicant before responding to Mr. O'Reilly's letter and making his decision; that he accepted the contents of that letter as fact. The applicant received a copy of Mr. Lucassen's letter in the mail a few days after September 12. It is the decision of the General President set out in paragraph 19 that the applicant challenges in this application. The local agrees that it accepted and acted on the advice of the General President in removing (or not installing) the applicant as Business Representative.
The applicant subsequently wrote to the General President asking that he reconsider his decision. That letter sets out the sequence of events from the applicant's point of view; includes his explanation for the time for payment of the fine, identifies section 45 of the constitution as relevant, and informs the General President of the letters received from the local and District Council. He sets out the personal consequences of the President's decision and reiterates that he was re-elected. The applicant acknowledges that he did not accurately recount the contents of the local's letter to him.
The General President responded by letter dated October 3, 1995, in part, as follows:
You have presented no justification for reconsidering that ruling.
As you were told previously, you were required by the UBC Constitution to pay the fine promptly, or else lose good standing. That obligation was not in any way delayed or postponed by your correspondence asking for clarification of the other portion of the penalty in your case, the suspension from office.
By letter dated October 17, 1995 the applicant sought to appeal to the General Executive Board of the International. Again, he set out at length his view of events, particularly with respect to the issue of notice, advising the International that he would seek a remedy before the Board if necessary.
The General Secretary of the International responded by letter dated November 13, 1995. Evidence and argument concerning the letter received from the International's General Secretary is ultimately of little, if any, assistance. It appears there is normally a further appeal available to the International's General Executive Board, except in matters regarding nominations and elections, where the decision of the General President is final.
I heard evidence and argument as to when the fine was properly due, which is not referred to here. Although in dispute, in the responding party's view the fine appears to have been due on August 24. However, the union acknowledged that some leeway might be given of a day or two, and that at worst, the applicant was some six days late in paying the balance of the fine. Mr. Lucassen also testified that he has the authority to grant dispensation to members to allow late payment without penalty where, in his discretion, circumstances warrant. Examples of those kinds of circumstances generally involved the intervention of a third party or circumstances out of the control of the member which result in the member being unable to meet the strict time limit. Mr. Lucassen testified that he considered whether or not to grant such dispensation in this case as part of his reconsideration, but was of the view that there were no extenuating circumstances warranting such relief. He was of the view that the applicant was aware of the obligation to pay within thirty days and was the author of his own misfortune in failing to do so. He was also of the view that officers of the local were required to meet a high standard and set an example for the membership; that the applicant had fallen short.
It is the position of the applicant that he had thirty days from receipt of the letter on August 1, 1995 to pay the fine, and that he did in fact pay the fine on time. In the alternative, the applicant argues that he did not receive notice as to the time for payment as is required by the constitution and any late payment cannot be held against him. Finally, the applicant argues, even if he was late and bore the responsibility for that late payment, in the circumstances the Board ought to intervene because the responding party cannot show that it had just cause to remove him from office (or fail to swear him in) in the circumstances of this case.
There is no dispute that the International had nothing to do with the laying of the charges or with the trial proceedings. The Trial Committee makes a recommendation and the District Council decides what to do on the basis of that recommendation. It is the District Council that imposes the penalty. The Appeals Committee is a committee of the International. The applicant was aware that absent any pending appeal there was a thirty day time limit for payment. He knew that the consequence of not paying the fine was to lose good standing in the union with the attendant other effects. He was also of the view that the constitution required that written notice of that time period be provided indicating when the thirty days starts to run. Section 45(0) of the constitution provides:
All fines imposed and assessments legally levied including strike assessments, and working dues, dues checkoff, supplemental work dues or work fees duly established under Section 45C, shall be charged by the Financial Secretary to the memberfrom whom due, and the member shall be nonfied in writing that same must be paid within thirty (30) days to entitle the member to any privilege, rights or donations. If the member does not make payment within the time prescribed the member shall not be in good standing and he or she shall be notified in writing by the Financial Secretary that unless the amount owing is paid within thirty (30) days thereafter his or her name shall be stricken from membership, except in case of a fine where an appeal is pending. Notices shall be sent to the last known address of the member as reported by the member to the Local Union. In cases of fines, assessments or such dues or fees owed to a District Council, notice to the member by the District Council shall satisfy the requirements of this Section.
[emphasis added]
Much of the evidence was directed at this issue of whether the applicant should be held to have been the author of his own misfortune and therefore bear the consequences. I only note that inherent in that issue is the issue of notice. In order to be held accountable, one must be clear as to the nature of one's obligations. The International has held the applicant responsible for late payment in the absence of any notice to him of the union's view as to when that amount was payable (in circumstances where the local and the District Council apparently held differing views as to the time for payment). Perhaps most telling is applicant counsel's comment in argument that it would be impossible to believe that the applicant would knowingly jeopardize his full-time paid position for $250.00.
There can be no doubt that the consequences suffered by the applicant in respect of the late payment of the balance of the fine have been real and substantial, both financially and with respect to his standing in the eyes of the membership. The applicant engaged in inappropriate conduct for which he was penalized. That penalty pales in comparison to the penalty he suffered for the late payment of the balance of the fine.
It is the position of the responding party that the Board has no jurisdiction to deal with the matters raised by this application. Counsel argues that prior to the passage of Bill 80 the Board had no jurisdiction to deal with internal union affairs. To the extent that Bill 80 gave jurisdiction to the Board it was to review the relationship between a parent and its local unions, and does not go beyond that. It argues that the legislation's intent was to protect local union autonomy from inappropriate control by the parent. The International also argues that even if the words used in the statute are sufficiently "elastic" to evoke the interpretation pressed by the applicant, the Board should not become the "Court of Appeal" over every internal union decision.
The International accepts that the introduction of Bill 80 changed the Board's role. It argues however that the amendments were never intended to carry the Board into the realm contemplated by the applicant in this case. Rather, they were intended as a mechanism for maintaining local union autonomy in the face of unwarranted interference from the parent union. The responding party relied on the amendments as they were first introduced and were subsequently amended in committee or in passage. It argues that the amendments were introduced as a package of five interrelated sections designed to establish a standard of conduct required before a parent could interfere with a local union's autonomy.
On behalf of the applicant, counsel argues that the responding party fails to address the actual words found in sub-section 149(2). He notes that this section is not limited to actions of the parent but includes actions of a council. He agrees the overall context of Bill 80 was to deal with parent or council disputes with local unions but, rightly or wrongly, the language of sub-section 149(2) is not qualified or modified in any way. He asserts that the sub-section has created unqualified protection for members and officers not to be removed or penalized regardless of any dispute between parent and local. He argues that the responding party's argument amounts to reading down the section because of a context it asserts ought to prevail; the effect of which is to amend the legislation.
Both parties referred to the decision of the Board in International Brotherhood of Electrical Workers, [1996] OLRB Rep. Feb. 70 particularly paragraphs 82, 89, and 90:
Consequently, we reject the suggestion that under section 147, the Board should continue to avoid reviewing internal trade union matters. It is apparent that all of Bill 80, including section 147, evidences a legislative intent that the Board exercise a supervisory jurisdiction over internal trade union affairs which the Board did not previously have. It is also apparent that section 147 requires the Board to review and adjudicate upon internal union matters when they concern an alteration of a local trade union's jurisdiction by its parent trade union.
The nature of section 147 and the factors which the Board is directed to consider under it requires that the Board not limit itself to an examination of the parent union's conduct in the decision-making process, and the factors which it considered. It may be that a parent union can do everything wrong in that respect and still end up with a decision which is fair and reasonable in the circumstances. That is, the question is not: "Could a parent trade union, acting honestly and looking at the situation and circumstances as a whole, and weighing the interests of all concerned, have reached the conclusion and made the jurisdictional decision it did?" Instead, the question is: "Having regard to the evidence before the Board, does that parent union's decision yield a result which is fair and reasonable."
In a proceeding under section 147 the Board is limited to considering the four factors listed in subsection 147(3). The wording of section 147 taken as a whole also suggests that the Board's power is limited to determining whether there was just cause for the alteration of jurisdiction under scrutiny. The wording of the provisions stands in sharp contrast to that of subsections 149(3) and (4) (also part of Bill 80) which also require the Board to decide whether a parent trade union had just cause to interfere with the autonomy of a local trade union, or for removing local union officials from office, or changing their duties, but allows the Board to "consider such factors as it considers to be appropriate", and allows the Board to make whatever orders or directions it considers appropriate.
That decision deals with section 147 of the Act and does not address the extent of the application of section 149.
The Board has repeatedly and consistently held that it is not a watchdog over the internal affairs of a union. (see for example Frank Manoni, [1981] OLRB Rep. Dec. 1775; Michael Connolly, [19871 OLRB Rep. Feb. 193). To the extent that the Board has seen fit to review or consider internal affairs it has been in the context of what are now sections 74 and 75 of the Act, but only as that conduct may inform the issues addressed by the statutory provisions; that is, particulars of conduct concerning representation or referral matters that are alleged to be arbitrary, discriminatory or in bad faith. In addition the Board has reviewed internal union conduct in certain limited circumstances of allegations of intimidation and coercion (see Frank Manoni, supra.).
The Labour Relations Amendment Act, 1993 ("Bill 80") received Royal Assent on December 14, 1993. That statute added what are now sections 145 to 150 to the Act. That was the extent of its provisions. The provisions deal exclusively with the construction industry and have no application to trade unions operating outside the construction industry. The provisions need to be read in the context of the construction industry provisions of the Act, which recognize the relationships that exist between parent, council, and local unions in that industry, and which provide, most notably, for province-wide bargaining structures and the necessary representative parties. There are however few, if any, other guides to interpreting these provisions except the language of Bill 80 itself.
Section 145 is definitional. A "local trade union" is defined as one that is affiliated with, subordinate to, or directly related to the parent trade union, and includes a council of trade unions. A "parent trade union" is defined as a provincial, national, or international union which has at least one affiliated local union subordinate or related to it. "Jurisdiction" is defined to include geographic, sectorial and work jurisdictions. A "council of trade unions" is not defined by section 145.
Section 146 applies to employees in bargaining units in other than the ICI sector and acts to create bargaining rights for local unions where they did not exist before. The section contemplates that those rights would exist together with the rights held by the parent. Providing the local with such bargaining rights seems designed to give a local trade union, relative to its parent union, a greater or equal voice within its jurisdiction to direct its affairs in relation to bargaining. However, the section recognizes that where bargaining rights co-exist there is also opportunity for dispute. While the scope of sub-sections 146(2) and (3) may as yet be undetermined, sub-sections 146(4) and (5) provide a mechanism for resolving a dispute concerning collective bargaining. Sub-section 146(4) gives the Minister the power to require that a parent and a local union form a council of trade unions for collective bargaining purposes. The exercise of the Minister's discretion is premised on sub-section 146(4)(b) which provides:
(4) The Minister may, upon such conditions as the Minister considers appropriate, require a parent trade union and its local trade unions to form a council of trade unions for the purpose of conducting bargaining and concluding a collective agreement,
(b) if the Minister considers that doing so is necessary to resolve a disagreement between a parent trade union and a local trade union concerning conducting bargaining or concluding a collective agreement.
That sub-section contemplates the intervention of the Minister only where it is necessary to resolve a dispute in the trade between the parent and a local concerning bargaining or concluding a collective agreement.
Section 147 deals with what the responding party asserted was the "heart' of Bill 80. It prohibits a parent union from altering the jurisdiction of a local trade union except with just cause. Bill 80 initially proposed that the local union's consent would be required before a parent could change jurisdiction; a proposal that would have provided substantial control to the local. That standard was changed in the legislative process to a standard allowing an international to alter jurisdiction so long as it has just cause to do so. The section clearly gives the Board a supervisory authority over changes made in jurisdiction by a parent affecting a local union, and has been considered in international Brotherhood of Electrical Workers, supra.
Section 148 clarifies the extent of rights given to a local union in sections 146 or 147. Section 150 identifies different circumstances in which a local union is entitled to appoint trustees to administer multi-party benefit plans. The responding party argues that the thrust of the amendments did not change throughout the legislative process; they were, and continue to be directed to the regulation of affairs between a parent and local union.
Sub-section 149(1), in like manner to sub-section 147(1), creates a prohibition against certain conduct by a parent union. The parent is prohibited from assuming supervision or control of the local union, or otherwise interfering with the local union in such a way that the autonomy of the local union is affected, except with just cause. The usual method of supervision or control is the imposition of a trusteeship, a matter contemplated by many constitutions of parent unions and a matter over which the Board has had some limited supervisory role in the past (see section 89 of the Act). The sub-section clearly deals with broader kinds of conduct on the part of the parent and gives the Board a broader supervisory authority over that conduct than has been the case in the past. Like sub-section 147(1) the standard of review of the parent's conduct is one of just cause.
The applicant argues that sub-section 149(2) creates a right that is independent of subsection 149(1). The responding party argues that sub-section 149(2) must be read as explaining the kinds of conduct prohibited by sub-section 149(1); that it creates no right independently of sub-section 149(1).
The legislative history of Bill 80 is of little assistance. Section 138.5 (which became section 149) initially made no reference to "members" in sub-section 138.5(2) and only acted to protect local union officials. Sub-section 138.5(4) established what is commonly referred to as a "justice and dignity" clause; that is, the official would continue to receive their wages until the Board determined the matter. The reference to "members" appears in the second reading version of Bill 80 and sub-section 13 8.5(4) referred to above is deleted. These changes could arguably be interpreted to support either position taken before me. There was also an amendment in sub-section 138.5(3) concerning the appropriate reference to a union's constitution in deciding issues under the section as a whole. The bill then passed in that form.
Read in isolation, the words in sub-section 149(2) arguably support the applicant's contention. However the prohibition created by those words would be considerably broader than any prohibition found elsewhere in Bill 80. To appreciate the effect it must be recognized that virtually every constitution of a parent union in the construction industry provides some kind of appeal mechanism from actions taken by the local union or a council of unions. Those appeals are heard by the parent and become decisions of the parent. The language of the sub-section is extremely broad and includes not just actions of the parent against officials of the local, but includes, "a penalty... .on a member of a local trade union."
The interpretation asserted by the applicant would give the Board jurisdiction to review any decision taken by a parent union or a council of unions where it was alleged it imposed a penalty on a member of the local union without just cause, whether or not the action or conduct was initiated by the parent or the council. It would place the Board in the position of arbiter of virtually every action taken against a member by the local union, so long as it was appealed to the parent. That appellate decision would be subject to scrutiny by the Board. The kinds of issues could include matters ranging from fines or suspensions for late payment of dues, the issuing of travel or clearance cards, to discipline imposed on members for crossing a picket line. These are issues that have historically been dealt with internally through the unions' own appeal procedures and through the courts, if necessary, as matters arising under the bylaws and constitution of the union. There is nothing to suggest that that final forum and any usual remedies do not continue to be available, even in this case. The Board has had no role in these kinds of internal union disputes. In large part these matters also arise completely independently of any issue of retaining local autonomy in the face of action by the parent union.
1 note that the term "penalty" is much broader than, for example the term "discipline". If a member is denied a travel card or a clearance card for example, and that denial is confirmed by a council or parent, it would not be difficult for the member to argue that such denial constituted a penalty, in that it could adversely affect the member's work opportunities. On the applicant's view of sub-section 149(2) the member could complain to the Board and have the decision assessed on a standard of just cause.
In like fashion, a member could take issue with the local's application of the hiring hall rules. If the member charged the local Business Representative, and the Business Representative's decision was upheld by a decision of the council or the parent, would not the member be able to complain that he had been penalized by that decision in that his work opportunities had been adversely affected? The effect on one's work opportunities would likely be more direct or more obvious where the operation of the hiring hall was in issue compared to the issuing of a travel or clearance card. Yet section 75 already speaks to hiring ball issues. If sub-section 149(2) is as broad as the applicant asserts, surely a member could assert his preference to have the hiring hall decision assessed on the arguably broader standard of just cause rather than the standard set by section 75. It is not reasonable to interpret sub-section 149(2) in a manner that could create overlapping protections within the Act utilizing different standards of review.
The sub-section also refers to actions of both a parent and a council of trade unions. The applicant's argument, carried to its logical end, would mean that a member would have the right to challenge a decision taken by a council of trade unions and have that matter dealt with by the Board. In addition, the member could, under the union's constitution, pursue an appeal to the parent on the same issue. That decision could also then be subject to scrutiny by the Board. The facts in this case provide a case in point. The local union laid the original charges against the applicant. The District Council imposed the penalty. That decision of the District Council was appealed to the Appeals Committee of the International. On the applicant's argument, the Board would have jurisdiction to review the District Council's decision and the decision of the Appeals Committee. This interpretation of the legislation is impractical, and if not unworkable, certainly extremely cumbersome, both in terms of resources and potential results. It would also act to inject the Board's supervision into virtually every aspect of union affairs.
1 would note too, that such rights would only have been created for members of trade unions in the construction industry. The provision has no application outside that industry. Members of trade unions operating outside the construction industry would have the same rights as currently exist; to pursue a dispute concerning a penalty imposed on them in accordance with the terms of the union's bylaws and constitution, subject to the supervisory authority of the courts. No reason was advanced as to why members of construction unions should be singled out and provided with such extensive statutory protection from the Board.
It is arguable that the sub-section was intended to provide greater protection to members of construction unions because of the realities of work in that industry. Construction unions have a greater role and control over the distribution of work opportunities through both the fact of union membership and the operation of the hiring hall. As noted, section 75 of the Act provides certain protection against unwarranted actions of a union in respect of the hiring ball. Yet to the extent that one might seek to protect against other actions of the union which inappropriately affect union membership (and therefore work opportunities), one might reasonably expect clearer, and more specific, legislative direction. Such an intention is not clear from the language, particularly where that original and much more extensive individual protection is being asserted as part of a series of amendments that as a whole are specifically directed at issues of local union autonomy.
What then does one make of sub-section 149(2)? In my view it acts to identify or clarify the kinds of indirect conduct that are prohibited by sub-section 149(1). Sub-section 149(l) expressly prohibits "indirect" interference. Read with sub-section 149(1), sub-section 149(2) confirms that, for example, a parent union cannot effectively assume control of a local union by removing local officers or elected local officials and replacing them with individuals sympathetic to the parent's intentions. Nor could it act to penalize members in an attempt to intimidate them from challenging the parent's supervision. It is arguable that sub-section 149(2) is not necessary clarification and therefore its existence must mean something else. However, I am not persuaded that such an interpretation is consistent with the overall thrust of Bill 80. Section 149(1) speaks to issues of local autonomy, as do each of the other sections in some way.
Sub-section 149(2) also appears to give an opportunity to individuals (whether local officers or members) to initiate a complaint, challenging the parent's or council's action, independently of the right of the local union to also complain, even though matters of local autonomy are still the essence of the alleged problem. It makes some sense to provide, in essence, corollary protection in sub-section 149(2).
The applicant argued that the reference to council of trade unions in section 149 was reason to conclude that the scope of the section was broader than protecting local autonomy from unwarranted interference by the parent. To an extent, I accept that argument. As noted, council of trade unions is not separately defined in section 145. The definition of local trade union includes a council, and appears to recognize that, in relation to a parent union, a council of trade unions may be affiliated with, subordinate to, or related to the parent; that is, there may be issues of protecting the autonomy of a council from a parent union. However, the prohibition in section 149 is directed at conduct of either a parent or a council. That appears to recognize that there may be circumstances where a local trade union is subordinate to a council of trade unions and extends the protection of local autonomy accordingly. That relationship is recognized in the definition of "council of trade unions" in section 126 of the Act. In addition, section 146 contemplates the creation of a council of trade unions for bargaining purposes. The precise scope, relationship and interaction of these provisions remain to be determined.
Sub-section 149(1) is directed at conduct of a parent trade union or council of trade unions that affects the autonomy of the local trade union and which is conduct without just cause. On balance, I am persuaded that sub-section 149(2) does not create rights to protect an individual except as is necessary to protect the local union's autonomy. While there may well be situations where it is difficult to distinguish between issues of a member's individual rights and issues of local autonomy, no issue of local autonomy was advanced in this case. The issue was an internal union matter affecting an individual member. Regardless of my view of the actions of the General President in the circumstances, the Act does not give the Board the authority to enter into this inquiry. The application is therefore dismissed.