[1998] OLRB REP. JULY/AUGUST 719

3051-90-U Graham Smith, Allen Quellette and Charles Wilburn, Applicants v. inter­national Association of Bridge, Structural and Ornamental Iron Workers, Local 700, Responding Party

BEFORE: Bram Herlich, Vice-Chair, and Board Members J. A. Ronson and C. McDonald

APPEARANCES: Graham Smith, Allen Ouellette and Charles Wilburn for the applicants; S.B.D. Wahl, Fred Marr and Greg Michaluk for the responding party.

DECISION OF THE BOARD; July 23, 1998

1. This is an application filed pursuant to (what is now) section 96 of the Labour Relations Act, 1995 (the "Act") alleging that the responding party (also referred to as the "union" or "Local 700" or, simply the "Local") has violated (what are now) sections 74, 75, 76, and 87(2) of the Labour Relations Act, 1995 (the "Act").

2. These sections provide as follows:

3. 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.

4. 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.

5. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

87.. • •

(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.

3. After some 35 days of hearing in what has been described as the first phase of this case, the Board concluded, in a decision dated April 10, 1995, [1995] OLRB Rep. Apr. 418 (hereinafter referred to as the "Phase I decision"), that the union's hiring hall system was inconsistent with and contrary to the terms of section 75 of the Act. In that decision the Board had examined the systemic aspects of the hiring hall administration in relation to a number of representative jobs in a period of almost two years (from January 1, 1990 to November 18, 1991). Some 200 different referrals were examined in sometimes excruciating detail.

4. As might be inferred from the use of the word "systemic", the Board's approach in this first phase of the proceedings was limited (with at times greater or lesser success) to an analysis of the hiring hall system itself. Thus, for example, the complainants' frequent assertions that they were the specific targets of ill-will and discrimination in the operation of the hiring hall were not part of the matrix of evidence canvassed in the first phase of the proceedings. Neither did the Board, again in the first phase of the proceedings, deal with the specific allegations that the union, in conduct explicitly directed at the complainants, had committed further unfair labour practices beyond the unlawful operation of the hiring hall.

5. In our April 10, 1995 decision we remained seized with respect to both issues of remedy flowing from the "systemic" violations we had found and, of course, with respect to issues of liability and, potentially, remedy in relation to those (essentially motive based) alleged violations not yet adjudicated.

6. Pursuant to their written agreement, the scheduling of any further hearing dates was deferred to give the parties an opportunity to meet with a Labour Relations Officer in an effort to resolve all outstanding issues.

7. Those efforts continued, but were ultimately unsuccessful.

8. In February of 1996 after hearing and considering the parties' submissions on the point, a majority of the panel (Ms. McDonald dissenting) ruled as to how the hearings ought to proceed. Essentially, we directed that all outstanding issues were to be dealt with (i.e. all issues related to remedy flowing from the Board's April 10, 1995 decision; all of the outstanding allegations not yet dealt with by the Board; and all issues of remedy in the event any further violations were found). The Board made it clear to the parties that, contrary to its frequent practice, it was not intending to (further) bifurcate the proceedings by remaining seized with respect to remedy or even quantum of damages in the event further violations were found. Thus, the parties were advised to insure that each and every piece of evidence relevant to every aspect of the case be placed before us in the course of the ensuing hearing days.

9. Some 16 days of hearing followed in the period leading up to May of 1997. Final written legal submissions were due in July of 1997 (although some supplementary submissions were directed by the Board after that date).

10. It is unnecessary for us to review or repeat the general observations we made in the April 10 decision regarding the conduct of these proceedings or the parties' ability to cooperate even for the limited purposes of completing these hearings. Suffice it to say that there was no appreciable improve­ment in the levels of rancour, distrust and suspicion evident in the hearing room on a daily basis.

11. We shall deal first with the alleged violations of various sections of the Act other than section 75. These were specifically pleaded by the applicants and were the subject of evidence before us. Before we deal with these specific allegations, a few comments of a more general nature are warranted.

12. The Board has spent considerable periods of time at close quarters with all of the participants in this matter. That, coupled of course with the significant amounts of evidence we heard about the operation and functioning of the union, its members and officials, has provided us with a fairly unique vantage point to observe what might be described as the culture or ethos of the Iron workers trade in the Windsor area. It has been said that the industrial shop floor is not a debating society. This Board (differently constituted in Centro Mechanical Inc., [1996] OLRB Rep. Sept/Oct. 762 at paragraph 48) has had occasion to observe, in the context of a construction union organizing campaign, that

……construction job sites are neither tea parties nor labour relations laboratories, and ... it is unreasonable to expect that employees will not be exposed to various social and other pressures, perhaps even severe pressures...

13. The rough and tumble atmosphere which may be characteristic of the typical industrial or construction work site is easily matched in the settings about which we heard considerable evidence. Neither the union hiring hail nor its regular monthly or other meetings are good sources of formation in the skills of diplomacy, tact or courtesy. Indeed, much of the behaviour exhibited in those settings might be seen to resemble the strutting of roosters at the ready, appearing to be eager for the always imminent (but rarely materializing) cockfight.

14. As we noted in our April 10 decision, there is a considerable history and a long simmering political battle between the applicants and the controlling forces of the union. For the most part, as we also noted then, it is not generally the function of this Board to intervene in or otherwise mediate, govern or resolve internal trade union disputes. Having heard all of the evidence in this case, it is now abundantly clear to us that the most significant aspect of this case relates to the operation of the union s hiring hall.

15. The complainants have opposed the union's administration, both with respect to the hiring hall and other more general issues, in varieties of ways over a period of years. Their internal political efforts have been largely unsuccessful. It can come as no surprise to anyone that, in the course of those efforts to oppose both the administration of the union and the established manner of the operation of the hiring hail, the applicants have politically alienated themselves from both the leadership and significant portions of the membership of the union. There is, of course, nothing in the Act which requires union officials (or fellow union members) to be kind or polite or affectionate towards anyone, let alone towards persons understandably perceived as political enemies. Heated discussions, strenuous vocal opposition and, in the context of the Ironworker culture, utterances which perhaps can only charitably be described as unfortunate are hardly unexpected. So long as these sorts of exchanges, however charged and intense they may be, are essentially within the range of reasonably acceptable political battling and controversy, the participants cannot expect to call on the Board to provide support for one side or the other. However, where such conduct ventures beyond those limits and strays into prohibited areas (e.g. where penalties with clear employment related consequences are visited on a party because of a legitimate exercise of statutory rights), Board intervention can be expected.

16. As the dividing line between the types of permissible and prohibited conduct just described is not always crystal clear, it may be helpful to select examples taken directly from the allegations which are the subject of our current inquiry. Perhaps the most graphic example of conduct properly beyond the reach of this Board can be found in one of the complainants' allegations against Mr. Zucchet, the union's hiring hall dispatcher. On a day when the complainants, accompanied by counsel, attended at the union hall for the purposes of meeting with union officials and reviewing certain documents, it is alleged that Mr. Zucchet threatened to line them up against the wall and shoot them. The union did not seriously dispute that statement, or one reasonably similar to it, was, in fact made.

17. At first blush a threat of physical harm is one which the Board will certainly examine closely (though, of course, not all such threats - even if they may otherwise raise concerns of criminal law enforcement - are necessarily unfair labour practices). But the initial revulsion with which one may react to this specific pleading is certainly dissipated after a consideration of the evidence as a whole.

18. Perhaps most significant in this regard was Mr. Wilburn's candid concession that Mr. Zucchet could have been "poking a little fun" - as he put it - "we all know Mr. Zucchet."

19. There is little doubt that by this stage in July of 1991, the complainants were well known to Mr. Zucchet not only as dissidents within the local but also as litigants before this Board in this application. Indeed, Mr. Zucchet made his comments just shortly prior to the commencement of a meeting related to the hearing in this matter. The hearing was scheduled to continue within a matter of days after the meeting.

20. And while Mr. Zucchet's comments can hardly be interpreted as encouraging the complain­ants or supporting them in their cause, we are equally unpersuaded that there was any element of real threat or menace contained in those comments. The comments undoubtedly display Mr. Zucchet's (and perhaps even the union's) general opposition to the complainants and their cause. In the circumstances, we are satisfied, however, that Mr. Zucchet's comments were little more than a feeble attempt at humour and certainly do not constitute an unfair labour practice.

21. At the opposite end of the spectrum defined by the events detailed in the pleadings and the evidence, is the conduct of Mr. Poisson who, at the time, was president of the union.

22. This application was initially filed in February of 1991. At the March general membership meeting, Mr. Marr chose to read the application in its entirety to the assembled ironworkers' member­ship. At that same meeting, Mr. Poisson assured the membership that he would be charging all three complainants and "tossing them out" of the union.

23. Each of the complainants was subsequently advised, by letters dated April 1, 1991 from Mr. Poisson that they were being called to appear before the executive board of the union. The letters each complainant received were on union letterhead and were signed by Mr. Poisson in his capacity as president of the union. Each of the letters included the following:

Please accept this as notice that you are being charged for Violations of the Constitution of the International Association of Bridge, Structural and Ornamental Ironworkers.

I hereby order you to appear before the Executive Board on April 15th, 1991...

Failure to attend will attest to your guilt and you will be tried in absentia.

24. It appears that nothing concrete ever came of these "charges". Both Mr. Ouellette and Mr. Smith responded to Mr. Poisson, in writing, disputing the validity of the charges under the union's constitution. Sometime prior to the scheduled executive board meeting, the claimants received tele­phone calls from Mr. Poisson advising them to disregard the "charges". By April 15, 1991 the three complainants confirmed, in writing, that the "charges" or "allegations" against them had been with­drawn and that they were no longer required to appear before the union's executive board. Nothing further happened in relation to these "charges". Neither Mr. Poisson nor the union demonstrated the courtesy to formally withdraw the "charges" or to provide any kind of explanation as to what had transpired.

25. Mr. Poisson did not testify in these proceedings and we thus have no direct evidence from him regarding his motives in initiating this process against the complainants. Neither does the evidence of Mr. Marr or Mr. Michaluk shed much light on the matter. For while they both indicated some personal disapproval of Mr. Poisson's conduct, they both purported to know little about what Mr. Poisson had done or why he had done it.

26. In these circumstances we have no hesitation in concluding that Mr. Poisson's purported initiation of charges against the complainants was an unfair labour practice. In the absence of any other proffered explanation, the most, and perhaps the only, reasonable inference to draw from the essentially undisputed facts is that the union, through its president, was seeking to impose a penalty on the complainants because they had made an application under the Act. This conclusion emerges readily from the timing of the events - Mr. Poisson's letter of April 1st follows closely on the heels of his comments at the membership meeting at which the freshly filed complaint was read and discussed. It also is effected on the eve of the commencement of the hearing into the complaint (the first day of hearing in this matter was scheduled for and held on April 3, 1991 before a different panel of the Board). Again, in the absence of any other explanation, we are satisfied that there was a causal connection between the applicants' filing of their complaint and the purported initiation of charges under the union's constitution. This is precisely the kind of reprisal prohibited by section 87(2).

27. It may be useful to clarify one manner in which this specific violation may be distinguished from many of the other alleged violations which were the subject of this complaint. Following up on some of our earlier comments, conduct indicating opposition to the complainants and their cause may be distinguishable from unlawful conduct by which the complainants suffer reprisals or even the threat of reprisals as a result of their lawful exercise of statutory rights. The right of the union to, for example, defend its operation of the hiring hall (as it did, albeit unsuccessfully, in this case) is not necessarily dependent on the legality of the hiring hall operation. In other words, while the operation of the hiring hail may ultimately have been found to be unlawful, the union's defence of the hiring hail operation in the process which lead to that determination does not constitute an independent breach of the Act. On the contrary, just as the complainants have and have successfully exercised their rights to challenge the operation of the hiring hall, so too does the union have the right, at least until the Board makes its determination on the question (or makes a relevant interim order), to defend its manner of operating the hiring hail.

28. To return again to the dividing line between permissible and prohibited conduct in this case, not all union conduct in opposition to or demonstrating opposition to the applicants and their cause is, by simple virtue of that demonstrated opposition in interest, unlawful. So long as the union's opposition to or even dislike of the complainants did not lead to violations of statutory obligations (viz, the duties under sections 74 and 75) or to reprisals or intimidation aimed at penalizing or preventing the exercise of the complainants' statutory rights, the union was free to resist the applicants' political initiatives. The political climate and potential political change within the union are the more appropriate regulators of such activity.

29. With this context and background it is now possible for us to begin to review some of the other specific alleged violations in further detail. The applicants' pleadings disclosed in excess of twenty separate events, or series of events, which were alleged to constitute unfair labour practices and discrete violations of the Act.

30. With the full benefit of hindsight which comes from now having heard all of the evidence, the Board (had it been in possession of all of this information at the time) may well have proceeded differently in this matter. As will become evident, the force of many of the union's submissions about how we ought to have proceeded is now much more evident. At the time, however, the Board was faced with a significant number of alleged violations, many of which involved charges of extreme threats. At the end of the day, however, very few of these allegations have been proved. Further, in the relative scheme of things, the allegations which have been established are, at least relative to the "total package" of allegations, fairly marginal.

31. In the days leading up to the calling of evidence in relation to the final phase of the proceedings, there were some tentative indications from the complainants that they might not be proceeding in relation to all of the pleaded allegations. In view of that, the Board directed the applicants to advise the Board and the union as to which allegations would be pursued. In what may have been little more than an inability to "let go" or to make productive contributions to the adjudicative process (the latter being a disability which may have affected all of those who had the misfortune to participate in this case), the applicants, when the time came, simply advised that they were proceeding with everything. As a consequence, of course, the union (and obviously to a lesser extent, the Board) prepared to hear evidence in relation to all of the allegations. We have already indicated that few of those allegations have been proved. But while there were instances in which we have had to assess conflicting evidence in concluding that the allegations were not made out, there were a significant number of instances in which no evidence whatsoever was called to establish the pleaded allegations.

32. The pleadings alleged that the complainants were threatened with imprisonment; that Mr. Poisson threatened that there would be "dead bodies"; that other death threats were made by Mr. Poisson, Mr. Stewart and by a "large unknown" "biker"; that Mr. Marr threatened the applicants with a beating; that Mr. Zucchet displayed a firearm in an effort to threaten Mr. Wilburn; and that Mr. Michaluk made statements to the effect that he would devote his term in union office to "getting rid" of the applicants. These are grave allegations. The evidence, however, comes not even remotely close to establishing them. Indeed, in view of the general insufficiency of the evidence, only a small minority of all of the allegations pleaded warrant any significant attention on our part.

33. All of this is not to say that the applicants' allegations are utterly devoid of any merit. As will become clear, of the 20 or 25 alleged violations, we have found 3 instances (2 of which are arguably part of the same transaction) of unlawful conduct. As will also become clear, however, beyond declaratory relief, these violations add little to the remedial exercise which was already required as a result of our prior award.

34. In other words, both the parties and the Board may well be left with the unsettling sensation that much of the last 16 days of hearing and the consequent significant delay associated with same have contributed little of substance to the process and could easily have been avoided. To the extent that the parties (and particularly the applicants) may be frustrated by the delay in reaching a final conclusion in this matter (and there have been inordinate delays to which all of the participants - including this Vice-Chair - have contributed), there is considerable irony, though little comfort, in the observation that the final phase of these proceedings has been unduly protracted by the applicants' insistence that the matter proceed in relation to allegations they were largely unable (and, in some instances, apparently had no intention) to prove.

35. This brings us finally to the allegations about which sufficient evidence was called to warrant some further consideration. We shall deal with these in chronological order.

36. The complainants allege that on or about February 20, 1990, they were advised by their "representative", Mr. Frank Kutyma, that:

……Greg Michaluk would be calling the Workers' Compensation Board for the purpose of reporting Graham Smith to it as being available to work and not one who is entitled to compensation within the meaning of that legislation. Before leaving, Mr. Kutyma dropped a .38 calibre bullet on the floor in front of the complainants.

37. The evidence fails to establish any violation of the Act on the part of the union in relation to this allegation.

38. First of all, although Mr. Kutyma subsequently became a member of the union's Executive Board, at the time of these events he was not an official of the local and therefore his conduct at the time cannot be viewed as the conduct of the union. On the contrary, as both the pleadings and the evidence suggest, Mr. Kutyma was acting at the behest of and, at least to a limited extent, on behalf of the complainants. Thus, while allegations relating to firearms or even ammunition may attract a certain degree of scrutiny and attention, it quickly became clear that there was a much more benign quality to these events than one might first think. Indeed, even Mr. Ouellette essentially acknowledged that there were no sinister motives and he did not feel at all threatened.

39. Second, we are unable, on the basis of the evidence before us, to conclude that Mr. Michaluk has violated the Act in relation to this allegation. We heard no direct evidence from Mr. Kutyma; the only evidence we heard from the complainants was their own sometimes inconsistent multiple hearsay accounts of Mr. Michaluk's statements. The latter denied ever intervening or even saying that he would intervene with the Workers' Compensation Board in relation to Mr. Smith's benefits. Whatever Mr. Kutyma's warning to Mr. Smith may have been, we are not satisfied that it was either a message from the union or that it established any nefarious intention on the part of the local or anyone acting on its behalf.

40. This aspect of the complaint is dismissed.

41. In the latter part of March of 1990, the complainants attended a meeting at the union hall. This was an informal meeting held to discuss some of the complainants' concerns. Mr. Marr, the union s business agent at the time, was in attendance. The complainants allege that a number of the statements he made at the meeting constitute unfair labour practices. Although there is conflicting evidence about what exactly transpired at the meeting, it was not disputed that, at one point, Mr. Marr extended an invitation to Mr. Ouellette to "step outside" to the parking lot to further their fruitful exchange. The precise details and context of the invitation were the subject of some dispute. However, even on a version of the facts most favourable to the complainants' case, we are not persuaded that Mr. Marr's invitation, as irresponsible and ill-advised as it may have been, was a violation of the Act. First of all, unlike the classic situation of intimidation, there is no explicit suggestion of what advantage or other result was being sought through the vehicle of the threat (see the discussion on this point in the case of Stratford v. Lindley, [1964] 2 All E.R. 209 (C.A.) cited in Keith MacLoed Sutherland, [1983] OLRB Rep. July 1219). But even if one might be able or prepared to infer the result being sought and even to infer that it bears some relationship to the exercise of rights under the Act, we are, having considered the evidence as a whole, simply not persuaded that there was any real intended or understood threat of violence in Mr. Marr's comment. While one can and should certainly expect better of a responsible union official, loose and unrestrained talk are not, in this factual context, unlawful.

42. We come, however, to quite a different conclusion regarding another of Mr. Marr's state­ments at the same meeting. Although their specific versions varied marginally, each of the applicants testified that Mr. Marr threatened to have them charged if they looked into the union's finances. Although Mr. Marr was given the specific opportunity to deny these allegations, his response was somewhat equivocal - he preferred to say he didn't think he had said those things and to immediately move to a discussion of the efficacy of any efforts to charge a union member in those circumstances.

43. While perhaps not as severe as Mr. Poisson's conduct about a year later (in April of 1991, see paragraph 21 above), the nature and effect of Mr. Marr's statements are similar in kind. Further, at the time of the statements, the applicants had a pending matter before this Board regarding financial information they were seeking from the union (the application in Board File 1 754-90-M was filed in October of 1990 and was dismissed in a decision dated October 24, 1991 after the Board (differently constituted) determined that a settlement of the matter had been effected). Like Mr. Poisson's remarks, nothing concrete ever came of the comments. No formal charges were ever laid and no specific consequences followed on Mr. Marr's comments. Despite that, this Board must be concerned when union officials are prepared to invoke the threat of internal trade union discipline processes as a response to the legitimate exercise of rights under the Act.

44. In May of 1990 the complainants attended a meeting of the union's executive board. As Mr. Wilburn put it "we sort of invited ourselves". They were at the meeting for no more than 15 minutes before they were asked to leave. We heard the evidence of 5 eyewitnesses to this event. Their accounts varied dramatically, particularly with respect to the conduct of Mr. Michaluk at the meeting. We have found (as has often been the case in these proceedings) Mr. Wilburn's evidence to be the most reliable and are satisfied that his account (at least relative to the others) most closely reflects what actually transpired at the meeting.

45. At the meeting the complainants, Mr. Smith acting as their chief spokesperson, raised several issues. These included issues which they had unsuccessfully raised on the floor of the general membership meetings. Mr. Smith raised several matters and may well have raised the possibility of the imposition of trusteeship on the local, a suggestion which could hardly have endeared him to the assembled union leadership. In any event and whether or not any reference was made to trusteeship, Mr. Smith did take it upon himself, in what he may have seen as furthering his arguments, to read aloud from the union's constitution. This may have been the immediate catalyst for Mr. Michaluk's exasper­ated response. It was not disputed that he uttered words to the following effect directed at Mr. Smith: "stop this legal shit or I'll put my size 10s [a reference to his boots] up your ass".

46. Mr. Smith's account of the event included Mr. Michaluk's menacing advance and fist waving. We have found Mr. Smith's account to be exaggerated and his protests of fear of impending physical harm to be disingenuous. While Mr. Michaluk may well have engaged in some fist clenching, we are satisfied that he did not wave his fist in any menacing fashion in Mr. Smith's direction. Mr. Smith was able to respond with his own reference to firearms. This was another example of perhaps puerile exuberance exhibited by many of the participants. As Mr. Wilburn acknowledged, however, this was neither a life threatening situation nor one warranting the intervention of the police. It was more in the nature of political debate within the ironworker culture. It was not unlawful under the Act.

47. As already indicated, the complainants filed their application in Board File 1754-90-M in October of 1990. The next regular union membership meeting was held on November 6, 1990. The Minutes of that meeting disclose that the following motion, moved by Don Stewart and seconded by Terry Murphy, was carried:

That anybody wishing to pick up their initiation fee will be issued a cheque from this office in exchange for their membership card.

48. The motion was clearly aimed at the three complainants who, in view of their recent initiation of proceedings against the union, were being invited to withdraw from membership. Both Mr. Michaluk and Mr. Poisson spoke to the motion. Mr. Michaluk questioned the loyalty of members of the union who would partake in the kind of conduct in which the applicants had engaged. He went on to suggest that the applicants were not real members of the union and that they might wish to consider Mr. Stewart's invitation. Mr. Poisson escalated the debate to another level by suggesting that the applicants would be expelled from the union after they failed in their application.

49. With one possible exception, nothing concrete appears to have resulted from the motion or accompanying discussion.

50. However inappropriate or unproductive it may have been, the Board is not prepared to censure the conduct of union members involved in the discussion of this particular motion. It was not suggested that either Mr. Stewart or Mr. Murphy were, at the time, officials of the union or acting on its behalf. Their conduct cannot therefore result in a finding that the respondent union has violated the Act. (We take the opportunity to note that a similar conclusion is necessary in relation to another motion Mr. Stewart had successfully brought to membership at the April 1990 meeting - a motion about which we heard some evidence despite the absence of any reference to it in the pleadings.) Similarly, while Mr. Michaluk (who subsequently was elected president of the local and later became its business agent) was a member of the union's executive board at the time, we are not persuaded that his conduct was in an official union capacity or that it can be seen to have been the conduct of the union for the purposes of this application.

51. Mr. Poisson's conduct is another matter. Mr. Poisson was the president of the local at the time. In that capacity and at the time he made his contributions to the discussion he was running the meeting. As we have already seen this was not the last time Mr. Poisson would engage in thinly veiled threats directed at the applicants and following upon their attempt to vindicate their statutory rights. Indeed, we see this particular intervention as similar to and part of the subsequent equally unlawful threat made some five months later. This violation of the Act may be viewed as part of the same transaction which culminated in the written notices of "charges" forwarded to the complainants the following April.

52. Among the complainants allegations is the claim that the union, in or around July of 1991, violated its statutory duty to fairly represent its members by failing to advance two specific grievances on behalf of Mr. Smith.

53. The specific and intricate facts pertaining to each of these grievances were in dispute between the parties. The broad details of the relevant events, however, are reasonably straightforward.

We have not found it necessary to resolve all of the factual disputes in order to dispose of this portion of the complainants' claim.

54. In both cases, Mr Smith was referred to a job. In the first instance he commenced working at Niagara Riggers and Erecting ("NRE") on July 3, 1991; in the second he began working for General Riggers ('GR") on or about July 9, 1991. In both cases Mr. Smith's tenure with the particular employer was exceedingly brief. The reasons, circumstances and characterization of the severance of his employment relationship are, in each case, the subject of dispute between the parties.

55. Mr. Smith reported for work at NRE on the day following the 1991 union elections which had been held at the hiring hall. Mr. Michaluk had just been elected president of the local (having defeated Mr. Poisson by a margin of 154 to 97). (Also of note was the defeat of Mr. Wilburn by Mr. Marr for the position of business manager by a margin of 37 to 212 as well as Mr. Smith's inability to secure a position on the ballot, a matter to which we shall briefly return). Despite his recent election victory, Mr. Michaluk, for several months to follow, continued in his employment position as a working foreman with NRE. Indeed, it was with Mr. Michaluk that Mr. Smith had the bulk of his relevant interactions at the job site on July 3, 1991.

56. Mr. Smith left the job on that day and, without advising anyone of his decision, simply never returned. His view is that Mr. Michaluk assigned him duties which were beyond the scope of his medical restrictions. Indeed, it appears that this was the first work Mr. Smith had performed in the trade since sustaining an injury some three years earlier. However, we are less than persuaded that the precise nature of his subsisting limitations were known to Mr. Michaluk at the time. Indeed, while questions of Mr. Smith's WCB status and the precise nature of his limitations are matters to which we must return, we confess, despite the days and days of hearing in this matter and the voluminous amounts of material filed, that we are less than confident that we have been provided with a comprehensive presentation of all of the relevant facts.

57. In any event, and whatever prompted Mr. Smith's departure, it was not disputed that he quit (or, at a minimum is deemed to have done so by virtue of having neither reported to work nor contacted the employer for two subsequent working days).

58. The facts surrounding his brief tenure with GR bear some similarity. It would appear that his assignment was, at least initially, only for a two day job. After working for 2 days, however, Mr. Smith was asked if he could continue for another week. He replied affirmatively but advised that on the next day, July 11, 1991, he had a meeting scheduled with his lawyer (the meeting was in relation to the July 18, 1991 hearing date scheduled in this matter). The employer advised him that was fine and that he should come to work when he was done. Mr. Smith did not report for work the next day. Further, when he returned home from meeting with his lawyer, he received correspondence from union counsel advising that job referral documentation material dating back to February of 1990 would be available for the complainants to review at the hiring hall the following day, July 12, 1991. Mr. Smith attended at the hiring hall to review the documents and reported to work on the afternoon of July 12. From the time he left work on the 10th to his return on the afternoon of the 12th, Mr. Smith took no steps to advise the company either that his meeting with the lawyer had lasted the entire day or to provide any other explanation for his failure to attend at work on the 11th. Similarly, he provided no advance notice that he would not be at work until sometime in the afternoon on the 12th.

59. Upon reporting for work on the 12th, Mr. Smith was advised that he was being laid off. At his request, a notation to that effect was entered on his referral slip by Jim Moore, a foreman (and a member of the union's executive board) at the site. Mr. Smith inquired about his final pay and was told it would be mailed to him.

60. By July 15, 1991, Mr. Smith had not received his final paycheques from either NRE or GR. As a result he prepared two documents each of which he headed "Formal Grievance.." and filed them at the hiring hall. The documents set out what Mr. Smith viewed as the salient facts. In the grievance against NRE he claimed pay for the work he had done as well as waiting time at 8 hours per working day from July 12 (the date by which he asserted he should have been paid) until receipt of his final pay. The grievance against GR claimed pay for work done, a further 4 hours pay for the day of his lay off (since Article 6.1 of the collective agreement prohibits a lay off during the first 4 hours of a shift) as well as pay for waiting time.

61. Within a matter of days Mr. Smith received payment for hours actually worked and his records of employment from both employers. He did not receive any pay for waiting time or, in the case of GR, for 4 hours on the day of layoff.

62. By letter dated July 24, 1991, Mr. Marr advised Mr. Smith as follows:

I am in receipt of your complaints regarding General Riggers and Niagara Rigging and Erecting.

With regards to General Riggers, I met with your foreman on July 15, 1991 and then spoke to his general foreman by telephone on July 16, 1991. The position of the company is that you did ask for time off on the Thursday and you were expected to return to work on Thursday afternoon. You did not return until Friday afternoon to pick up your tools. The company is satisfied that you voluntarily quit the job.

With regard to Niagara Rigging and erecting, I met with your foreman on July 15, 1991 and informed him that regardless of your reason for quitting the job, they may owe you some waiting time if the cheque was not mailed by the proper date. On July 16, 1991 I drove to the job site to settle the matter. I was informed that you made no attempt to pick up your pay, or tell the company where to mail it. They have cheque writing capabilities on site, and they assure me that they would have paid you any time you wanted.

I am advised that you have been paid in full for the work you performed at both jobs, and I can see no justification for Local 700 to pursue these matters further, as the cost would outweigh the return in both dollars and this Local unions reputation.

Based on the information I have gathered, I feel our chances of success would be minimal.

63. Mr. Smith would have us conclude that the union acted in a fashion which was arbitrary, discriminatory or in bad faith when it failed to advance his grievances any further. There are several reasons why we find ourselves entirely unable to arrive at such a conclusion. Some of these relate to the apparent merits of Mr. Smith's claim and our conclusion that the union's assessment (i.e. that chances of success were minimal and that the costs of proceeding far outweighed the possible return) was reasonable in the circumstances. Others relate to Mr. Smith's conduct in these matters.

64. In assessing the claims Mr. Smith wished advanced to arbitration, one cannot lose sight of certain factors. First, it must be emphasized that, despite the conflicting evidence regarding the circumstances of the terminations (evidence, as we have already indicated, we have not found necessary to fully resolve or reconcile), the fact of the matter is that Mr. Smith never sought, either in relation to the employer, the union or before this Board, to claim reinstatement or any similar remedy. He did not and has not sought to challenge the fact of his terminations, but merely the consequences. In other words, the remedies he sought were at all times limited to damages in amounts which, in the general scheme of these proceedings, are relatively marginal.

65. In that regard and had these matters been referred to arbitration, it is entirely possible that the chief factor impressing the arbitrator might have been the sheer gall involved in advancing some of the claims. For example, assuming Mr. Smith was laid off from GR, his claim for four hours pay on the day of the layoff might be difficult to advance when he did not even turn up for work on that day until well after the four hours for which he now claims pay and during which a layoff is prohibited had elapsed (he wasn't at work to have the benefit of not being laid off). Similarly, it is not difficult to understand that the union might experience some pangs of trepidation in arguing that a member who simply never returned to work without notifying the employer of his intentions ought, whatever the collective agreement might say, to be paid waiting time while the employer determined that he had (or was deemed to have) quit. Similar equities (or lack thereof) arise in relation to Mr. Smith's absence from work at GR.

66. Other aspects of our assessment of this portion of the claim relate to Mr. Smith's conduct and his own motives. For example, we heard significant evidence relating to whether Mr. Smith had been laid off from or had quit his employment at GR (a fact which would be material to his claimed 4 hour protection from layoff). Mr. Smith testified that although his referral slip bore a notation indicating he had been laid off, the record of employment he subsequently received indicated that he had quit. He further testified that after he had begun his efforts to grieve the matter, a representative of the company told him that because he had sought to initiate a grievance ("filed paper") the employer had determined to alter its position. If that is true (and, again, it is unnecessary for us to determine), it would clearly have been a relevant fact for the union to consider. Indeed, in the face of such an allegation, the union (or, indeed, Mr. Smith himself) might have wished to consider the possibility of filing an unfair labour practice complaint against the company. In that context, we find it extremely curious that Mr. Smith made absolutely no effort to communicate this information to Mr. Marr who, as Mr. Smith was no doubt aware, would have been the union official directly charged with administering the carriage of grievances or Board matters.

67. Frankly, Mr. Smith's calculated withholding of information in this instance is consistent with his approach to these two purported grievances and his subsequent claim of unfair representation by the union. Mr. Smith sought to make much of his claim that Mr. Marr made decisions about his grievances without properly or fully consulting Mr. Smith and getting his version of all of the relevant events. But even if there is some truth to this claim, it is at least equally true that Mr. Smith studiously avoided providing information to Mr. Marr. Mr. Smith put his information in writing and filed it with the union and (apart from a passing conversation on one of the hearing days in this case) made no efforts to meet or speak to Mr. Marr about the grievances. Mr. Marr conducted his own investigation and made inquiries of company officials. He then communicated to Mr. Smith, in writing, his view that the chances of success would be minimal. However, while the view expressed by Mr. Marr in that letter was fairly unambiguous, there is nothing in it which explicitly indicates that some final and irrevocable decision had been made regarding the grievances. In any event, had Mr. Smith been persuaded that Mr. Man's conclusions were based on erroneous and distorted facts (or that at least one of the employers had acted out of questionable motives), there was nothing to prevent Mr. Smith from communicating that information. He chose not to.

68. It seems clear to us that Mr. Smith was more interested in maximizing his arsenal of allegations against the union than he was in advancing or resolving the issues arising in his purported grievances. His ability to tell this Board that Mr. Man acted in the absence of relevant information was apparently more important to Mr. Smith than insuring that Mr. Man did indeed have all of the relevant information in his possession.

69. Mr. Smith provided another example of that kind of tendency in his evidence about the grievances. When asked why he never returned to the NRE site even to simply pick up his pay, Mr. Smith claimed that he was deterred by an apprehension of physical contact with Mr. Michaluk; he didn't want any "size 10s up my ass". This response was a dramatically striking display of disingenu­ousness. There was absolutely nothing in anyone's evidence to objectively support any apprehension of any physical contact between Mr. Smith and Mr. Michaluk at the NRE site. We have already concluded that there was no real menace in Mr. Michaluk's unfortunate comment when it was made in May of 1990. And even if Mr. Smith may have felt differently about it at that time (a fact we frankly doubt), to dredge up and rely on the comment over a year after it was made and in the absence of any further suggestion of physical harm was little more than a desperate attempt to deflect attention from the question posed and did little to solidify our confidence in the motives of the witness.

70. In short and as regards Mr. Smith's efforts to advance grievances, we are satisfied that the union's decision to take no further steps in relation to those grievances was a reasonable one in the circumstances. There were disputed facts, the legal entitlements under the collective agreement were less than certain, the claims being advanced were relatively marginal (certainly when compared with either claims for reinstatement or the costs of proceeding). We are also satisfied that, in these circum­stances, Mr. Marr was properly entitled to consider the objective of maximizing local hirings by a non­resident contractor (NRE) on a significant job and his understandable desire to avoid unnecessarily alienating that employer.

71. In all of the circumstances we are not persuaded that the union's decision to not advance the grievances was a violation of the Act.

72. We have already briefly referred to the fact that elections to various union positions were held in July of 1991. Mr. Smith wished to stand as a candidate in that election. He was successful in securing a nomination. However, when the roster of members nominated for office was reviewed by the International, the local was advised that two members, Messrs Smith and Dumeh, were ineligible for office because neither met the technical requirements of 24 continuous months as members in good standing. It would appear that at least once in the relevant period Mr. Smith was late in paying his dues, thus interrupting his period as a member in continuous good standing.

73. Mr. Smith appears to have been well aware of his technical ineligibility. As early as March prior to the July 1991 election he began a series of correspondence and appeals to the International seeking relief from the technical requirements of the constitution and the requisite approval from the International regarding his candidacy. His request was considered by the General Secretary of the International, then by the General President and, finally, by the International's General Executive Board. This series of appeals and further appeals commenced in March of 1991 and culminated on the eve of the election in which Mr. Smith sought to be a candidate. His efforts were unsuccessful and his name did not appear on the ballot.

74. The complainants have alleged that officers of the Local refused to allow Mr. Smith to run for reasons that did not prevent Jean Godard from running in the same election.

75. We are not persuaded that these events and Mr. Smith's inability to stand for office constitute an unfair labour practice. First of all, it was not disputed that, on a strict application of the terms of the constitution, Mr. Smith was indeed ineligible. Second, neither was it disputed that the decision to relieve against the strict application of the constitution was in the hands of the International and not the local (and it is, of course, the local who is said to have violated the Act).

76. Finally, we do not find the evidence regarding Mr. Godard to be particularly helpful. It appears that Mr. Godard (whose initial ineligibility to run for office was for reasons comparable to Mr. Smith) sought and secured the local's assistance in seeking and obtaining approval from the Interna­tional for him to stand as a candidate despite his apparent ineligibility. Indeed, on directions from the local executive board, Mr. Man wrote to the International on Mr. Godard's behalf. In the result, Mr. Godard was permitted to stand for office. We are not persuaded, however, that Mr. Man's failure to write a similar letter on Mr. Smith's behalf was an act of discrimination or bad faith or otherwise improperly motivated. The simple fact is that neither Mr. Marr nor any other official of the local was ever asked by Mr. Smith to intervene in any fashion on his behalf. And while we may be prepared to accept Mr. Smith's evidence that he was unaware that any such option was available, we just do not see how it is possible, in the circumstances of these events, to find that the union has violated the act because Mr. Man failed to do something that no one requested that he do.

77. In summary with respect to all of the allegations other than those pertaining to the operation of the hiring hall, we are persuaded that Mr. Man's threats to "file charges" if the applicants looked into the union's finances and Mr. Poisson's similar threats (taken, in his case, somewhat further than Mr. Man) which attended the filing of the instant (as well as a previous) application were both unlawful instances of intimidation or coercion aimed at stifling the exercise of the applicants' statutory rights. As such the conduct in question was in violation of section 87(2) of the Act and we so declare. Insofar as all of the other allegations (other than those relating directly to the operation of the hiring hall), this complaint is hereby dismissed.

78. We are not, however, persuaded that, in respect of the violations of section 87(2), any remedy beyond a declaration is either necessary or appropriate. For while the conduct was undoubtedly unlawful, it is clear that no real or significant damage was caused. The complainants were not deterred in proceeding with either their efforts to secure financial information or the filing of this application. Had the complainants been successful in proving many or even some of their more grave motive-based allegations, the Board's approach to remedy in this case might have been different. The complainants have alleged that they have been the specific targets of the ill-will and bad-faith of the union and have suffered reprisals for having exercised their statutory rights. Subject to two marginal exceptions, they have failed to prove that theory of the case before the Board. In those circumstances, we are satisfied that (again apart from declaratory relief) the remedy provided in relation to the improper operation of the hiring hall (a matter to which we shall next turn) is adequate in respect of all violations found in this case.

79. There are significant disputes between the parties regarding the quantification of damages arising from the improper operation of the hiring hall. Indeed, the union's first position is that, notwithstanding the violation of the Act, damages are an inappropriate remedy in the circumstances of the case. Alternatively, the union advances several different arguments which, if accepted, would lead to a significantly reduced award of damages as compared to that sought by the applicants.

80. The union argues that the application has already served its purpose. It has now become clear that the union's longstanding manner of administering the hiring hall is "substandard". The union must therefore alter its referral procedures. It will do that. Indeed, the Board has heard some evidence that process was begun even before any violation of the Act was found. In those circumstances it would be inappropriate for the Board, by way of an award of damages, to "tax" the union which is simply the institutional representation of its membership. Put somewhat differently, given the applicants' largely unsuccessful efforts to change the hiring hall system through internal political means, the union should not suffer an award of damages for democratically giving effect to the will of its membership. Further, and in a related argument, the union asserted that the applicants have failed to establish the existence of any subjective ill-will towards them on the part of the union (a submission which, in view of the earlier portions of this decision, has been largely, though not entirely, vindicated). In that context, the applicants can have no unique claim to damages distinguishable from the claim of any other member of the union. In other words, to the extent that the applicants may have suffered any harm, it was as a result of the systemic deficiencies of the hiring hall. Those deficiencies would have impacted on all of the union's members, leaving the applicants with no special claim to monies which would come, ultimately, from the pockets of all of the people subject to the terms of the same hiring hall deficiencies.

81. We do not find these arguments to be persuasive. First of all, the union's assertion that its hiring hall practice is "longstanding" is something of an obfuscation. We do not wish to travel too far into territories already explored (cf. paragraph 157 of the Phase 1 decision) in our prior award. There may well be little doubt that self-solicitation is a practice of considerable vintage for which there have been generally high levels of historical support within the union and among its members. It was not, however, the mere existence of self-solicitation as a manner of referral which led to our finding that the union's administration of the hiring hall was unlawful. It was, rather, the extent of its usage. In that regard, we are not persuaded that there was (or was not) a correspondingly high level of support for its rampant and unbridled use. Further, even if the evidence demonstrated that unlimited self-solicitation was actively supported by an overwhelming majority of the union's members, this Board is loathe to insulate otherwise unlawful conduct under the veil of majority support. If such support cannot constitute a defence to a finding of liability, we see no reason why it should be permitted to shield the union from an award of damages.

82. There is perhaps some greater force to the union's argument that damages ought to be avoided where the effect of such an award will be to impoverish the union in a situation where all of its members (the people who will ultimately bear the liability) were subject to the same exigencies and deficiencies in the operation of the hiring hall. There are essentially two reasons why we find ourselves equally unable to accept this argument.

83. Although it may not be comprehensive (in terms of its application to all members), there is no shortage of data before us regarding referrals during the relevant parts of 1991 and 1992. It was neither suggested nor demonstrated to us that that data establishes that the union's unlawful practices had (even a relatively) equal impact on all of its members. Indeed (and we appreciate and will deal with the union's important submissions that there are various reasons for the disparity), when one compares the hours actually worked by the complainants with the average hours worked by all members, the latter outnumber the former by a factor in the range of 10 to 1.

84. Further, there is one (and likely only one) fashion in which the inordinate delay in the disposition of this matter actually assists our determination. The damages sought relate to events which transpired in 1990 and 1991. Of all of the members of the union, these 3 complainants are the only ones who are claiming damages in respect of the relevant time period. One might imagine the surreal quality that could attach to each and every member successfully claiming damages as a result of the unlawful administration of the hiring hall. Such claims could culminate in little more than multiple redistributions of money among the members resulting in little significant net change in the financial position of any individual member. It is, however, unnecessary to even contemplate such scenarios. While there is no formal limitation period on the filing of applications under the Act, it is virtually inconceivable that any other member of the union would be permitted, at this late date, to advance any claim in relation to the operation of the hiring hall in 1990 and 1991. Thus, the applicants' claim to damages is unique in at least one practical fashion - they are the only ones who have complained and successfully challenged the operation of the hiring hall.

85. We are satisfied that the applicants, to the extent that there is a causal connection between their paucity of hours worked during the relevant period and the unlawful operation of the hiring hall, are entitled to claim damages arising from the union's breach of the Act.

86. As will become clear, there are real difficulties in the quantification of damages owing to the complainants. The Board will not pretend that the assessment it is asked to perform is one which can be effected with any claim to pinpoint precision. Of course, the lack of a scientific model and the complete data necessary to quantify the damages in this case does not provide the Board with the option of declining to perform the assessment exercise. There are many reasons for the difficulties, including a lack of comprehensive and reliable detail relating to events which now approach their decade anniversary. There are also some real difficulties involved in quantifying some of the reductions in damages which, as will be seen, the union has persuaded us ought to be applied.

87. Despite all these difficulties, there was little real dispute between the parties as to the starting point for an assessment of damages. That point is to be found in the case of Joe Portiss, [1983] OLRB Rep. July 1160 where, at paragraph 14, the Board offered the following:

The Board recognizes that no formula is absolutely certain. It is satisfied, however, that the justice of the case is more likely to be assured by broadly determining the average earnings of the general membership of the local, and comparing them to the earnings of the complainant, with some allowance for his personal circumstances and his conduct, particularly as the latter reflects any failure to mitigate his losses. The substance of the section 69 [now section 75] complaint is that Mr. Portiss was discriminated against; the thrust of the remedy should therefore be to place him, as far as possible, in a position comparable to that of the general membership.

88. That approach, referred to as the "Portiss formula" was adopted and confirmed in the case of Luciano D'Alessandro and Donato Marianaro, [1986] OLRB Rep. Aug. 1058. Although we shall be required to make some modifications, as did the Board in the D 'Alessandro case, we too have taken the "Portiss formula" as our starting point.

89. Documents were filed by the union indicating, on a monthly basis during the relevant period, the amounts of field dues collected and the number of union members in the local. By dividing the total dues received by the hourly dues rate, it appears that in excess of 600,000 hours were worked by union members annually in each of the years 1990 and 1991. By further dividing the total number of hours worked by the number of (what the union described as) active union members, it appears that each active member worked an average of 1,052 hours in 1990 and 1,025 hours in 1991.

90. While essentially accepting the raw financial data giving rise to the calculations, the applicants challenged one aspect of the formula employed. In performing a similar calculation in the Portiss case, the Board applied a 10% discount to the number of union members to offset the fact that members who might have been inactive due to disability, employment in other industries, absence from the region or for other reasons were included in the total number of members, thus artificially deflating the figure for average annual earnings. In the D 'Alessandro case no such discount was applied, but we note that the formula for computation was based on the number of active members. The applicants assert that the 10% discount ought to be applied in the instant case. We do not agree. The calculations performed by the union have already excluded honorary members and members on pension from the computation of average earnings. Further, a perusal of the number of such members as a proportion of the total members indicates that the proportion of such inactive members is far in excess of 10%. In other words, the union's manner of calculation is more generous to the applicants than would be a calculation based on a 10% reduction of the total number of members. In those circumstances it would be inappropriate to apply any further reduction.

91. The union advances several reasons why, in its view, any damages payable ought to be reduced. Some of these apply to the applicants generally; others are specific to one or other of the applicants.

92. The union argues that any damages payable ought to be reduced by a factor of 50% because the applicants failed to engage in any self-solicitation. If self-solicitation is a recognized and legitimate manner of securing referrals to work, then the applicants have contributed to their own shortage of work hours by declining to engage in it. Further, if both the collective agreement and the Board's phase I decision seem to suggest that self-solicitation can account for up to 50% of all referrals, then that is the proportion by which damages ought to be reduced since the applicants, by not participating in any self-solicitation, have made that proportion of the work unavailable to them.

93. We are unable to give full effect to the union's submissions for a number of reasons. First, and perhaps foremost, the Board cannot help but recognize the inherent irony of the union's position. While the breadth of the complainants' case was always impressively wide, the Board has determined that the single most important and substantial issue raised in these proceedings relates to the role self-solicitation has played in the union's hiring hall processes. The complainants have successfully chal­lenged the legality of the use of that process. Now the union asks us to reduce their damages for not having participated in the very process the extent of use of which was the legitimate subject of the complaint before this Board. In these circumstances the Board may not leap to embrace such an approach.

94. There are, however, other reasons for our reticence in this regard. First, we note that the applicants did not accept that they made no efforts at self-solicitation. The evidence discloses that some (relatively marginal) number of efforts to seek work directly from employers were made by the applicants.

95. Further, even if we were to otherwise accept in principle that damages ought to be reduced for failing to engage in self-solicitation, it is not evident to us what the quantum of such a reduction ought to be. In the phase I decision, we were critical of the union for having failed to make any meaningful distinction between self-solicitation and employer name requests. By asserting the 50% figure, it may be that the distinction continues to elude the union. While a figure of 50% self-solicitation might not offend the collective agreement or the Act, that would only be the case if the corresponding figure for employer requests were zero. It is the sum of employer requests and self-solicitations which is to make up one half of the referrals. Thus the range for self-solicitation would vary from 0% to 50%. There is certainly no reason to assume that 50% of all work is properly generated through self­ solicitation. Further, even if 50% of all referrals were effected via self-solicitation, there is no reason to conclude that, as a consequence, 50% of all work would be so generated. There is simply no basis to conclude that there is any direct or predictable number of days of work associated with any given referral. And while the union for purposes of this argument might suggest that self-solicitation tends to give rise to longer term jobs, that argument is a sword with at least two edges. For if self-solicitation does tend to generate longer term jobs, then one might be able to conclude not only that the applicants may have abandoned greater work opportunities by not engaging in it, but also that they were deprived of disproportionately high number of work days through its unlawful use.

96. Finally, it is not clear to us that the hiring hall system, if properly operated, ought not to be able to reasonably accommodate a variety of different approaches and attitudes on the part of union members. There is simply no reason to conclude that members who may opt to rely on the collective agreement and the out of work list ought to assume that they will lose 50% of the work opportunities otherwise available to them. In theory, each time a member self-solicits, a corresponding opportunity for a referral off the list is generated. It may well be that the system can accommodate both those who choose to work by self-solicitation only and those who prefer to await referrals from the out of work list. Neither is there any obvious reason to either presume or doubt that the relative number of referrals or workdays generated by each approach will be the subject of gaping disparities.

97. In view of these considerations, we do not think it is appropriate to reduce the damages available to the applicants because they chose, by and large, not to engage in self-solicitation. Having said that, however, we should not be taken to have rejected the more general proposition (to which we shall return later) that the applicants have failed to take advantage of various work opportunities available to them and have thus, at least to some extent, failed to mitigate their damages.

98. The union argues that Mr. Ouellette ought not to be entitled to any damages for certain portions of the period in question. The union asserts that he was not entitled to hold his position on the out of work list for the relevant portions of the period.

99. Section 7 of Article XIX of the International union's constitution provides (in part):

Dues and assessments for each calendar month are payable on the first day of such month. A member who becomes more than (1) month in arrears with dues or assessment thereby breaks the continuity of the member's good standing...

100. The following paragraphs of Section 2 Out-of-Work List of Article XI of the local union's by-laws are also relevant:

(A) Only members in good standing shall hold their position on the Out-of-Work list, to be referred to work, and any members requested by an employer or procuring his own job, will not receive a referral slip unless he is good standing, that is not more than one (1) month in arrears in payment of dues.

(F) Any member who is in arrears with his dues when he is sent to work, or who is presently working, will be given up to his second pay day to come up with a payment of Ten Dollars ($10.00) per day for each day he works to apply towards his ledger account until he is placed in good standing.

101. It was not disputed that for the following periods Mr. Ouellette was not in good standing (i.e. his dues payments had been in arrears for a period in excess of one month):

August 1, 1990 to August 8, 1990 (inclusive)

February 1, 1991 to February 24, 1991 (inclusive)

May 1, 1991 to May 21, 1991 (inclusive)

August 1, 1991 to November 6, 1991 (inclusive)

102. While it might appear at first blush that a member who is not in good standing should simply not reasonably expect to receive any referrals through the out-of-work list, the applicants argued that Mr. Ouellette's "not in good standing" status should not impact on his entitlement to claim damages. In support of this position reliance is placed on the language of the Constitution and By-laws as well as on the practice of the union.

103. The applicants suggest the relevant by-law provisions are "about as clear as muddy water". It is true that while paragraph (A) does seem to suggest that a member who is not in good standing does not retain his position on the out-of-work list, paragraph (B) seems to suggest that such a member (or at least one who is merely "in arrears") may be "sent to work". We do not, however, see these two provisions as creating the kind of irreconcilable interpretive conflict suggested by the applicants. In any event, for our current purposes and without attempting to provide any comprehensive interpretation of the provisions and their application in all cases, we are satisfied that the "first blush" impression, the one advocated by the union, is a reasonable one i.e. a member, such as Mr. Ouellette during the enumerated periods, who is not in good standing should not expect to maintain his position on the out of work list or to be referred to work from it. That is not to say, however, that it is simply impossible for such a member to receive a referral from the hiring hall. Where that does happen (and such a member's claim to a referral, if such claim can even be said to exist, would obviously be subordinate to the claims of all other members on the out-of-work list) the by-laws contemplate that the member will use his earnings to restore his good standing within the period prescribed.

104. The applicants also assert that the practice within the union is to refer members not in good standing to work so as to provide them with the opportunity to repair their status. The union does not seriously dispute that such opportunities may be provided. Indeed (and although there may be some dispute about their number and quality), such opportunities were offered to and declined by Mr. Ouellette. The evidence provided to us does not allow us to arrive at any firm conclusions about the general practice of the union in the relatively residual and marginal category involved, namely referral practices in relation to members who are not in good standing. It follows, therefore, that it is impossible for us to conclude, as the applicants have urged, that Mr. Ouellette has been singled out for any special discriminatory treatment. We are satisfied that he, perhaps like others, was provided with some work opportunities despite his "not in good standing" status.

105. The applicants have complained generally that the work opportunities provided to them through the hiring hall were often short term undesirable jobs. In the specific context of Mr. Ouellette and his periods of not in good standing, we were never really provided with any further explanation for his work refusals (the precise number of which was in dispute). Perhaps even more so than in the general context, some explanation is warranted. Mr. Ouellette denied that he was aware at the time that he needed to be in good standing in order to receive hiring hall referrals. That denial rings somewhat hollow. Mr. Ouellette (and the other applicants) demonstrated his familiarity with the union's constitu­tion, by-laws and the collective agreement on an ongoing basis. In particular, he acknowledged and identified the article of the collective agreement (2.1(a)) which allows a business agent to remove a member who falls in arrears from the job. We find it highly unlikely that Mr. Ouellette was unaware that his continuing dues delinquency would have a negative impact on his entitlement to hiring hall referrals. In those circumstances, we find it difficult to understand why he would not accept whatever limited work opportunity that might present itself (even short term or otherwise relatively undesirable) simply to repair his status and thereby allow him to be eligible for referral to the jobs he might have preferred.

106. In view of the above, we do not think it appropriate for Mr. Ouellette to be permitted to maintain a claim for damages in relation to any periods during which he was not in good standing and therefore not entitled to hold his position on the out-of-work list.

107. During (and preceding) the period in question (i.e. January 1, 1990 to November 18, 1991) Mr. Smith received various forms and amounts of workers' compensation benefits related to an injury/ condition sustained and developed at work prior to 1990. The parties' attention for the purposes of issues relating to entitlement to and quantum of damages focused primarily on his receipt of total temporary disability ("ttd") benefits from January 1, 1990 until April 18, 1991 when, to use the language of the Workers' Compensation Board ("WCB") documents, his ttd benefits were "finalled". As of that latter date, Mr. Smith was assessed with an 11.5% permanent disability pension, which appears to have been subsequently and retroactively revised to 15%.

108. The union advances two different and alternative arguments in relation to Mr. Smith's receipt of ttd benefits. First, and put most simply, if Mr. Smith was totally disabled, as his WCB status suggests, then he could not have worked during the period and, consequently, suffered no damages as a result of the improper operation of the union's hiring hail. Alternatively, should the Board determine that damages are available, amounts received by way of ttd benefits ought to be deducted from any damages awarded.

109. We shall deal briefly with the second issue. Subsequent to the conclusion of the hearing in this matter, the union filed, without commentary, a recently released decision of the Ontario Court of Appeal in White et al, Executors of the Estate of Dowsley v. Viceroy Fluid Power International Inc. (1997), 1997 CanLII 3448 (ON CA), 34 O.R. (3d) 57. Not long after that decision was released, the Board (differently constituted) had occasion to reflect on the general issue in Torbridge Construction Ltd., [1997] OLRB Rep. July/ Aug. 751. Since neither of these decisions had been issued until after the conclusion of the hearing in this matter, we sought, received and considered the written representations of the parties regarding the relevance and applicability of the decisions to the instant case.

110. We are persuaded by the reasoning of the Torbridge case and by the proposition that, as a general matter, monies received by way of a no fault income replacement insurance plan (such as workers' compensation ttd benefits) ought to be deducted from any award of damages where such damages are assessed as a result of the loss of the same income replaced (in whole or in part) by the insurance scheme. To do otherwise would permit an applicant to recover for the same loss twice. Of course, to the extent that an income replacement mechanism does not provide full recovery, some damages might still be available. As in the Torbridge case, we are not persuaded that, for the purposes of this issue, there ought to be any meaningful distinction between damages awarded by way of a wrongful dismissal action and those which result from a finding that a discharge has been a violation of the Labour Relations Act, 1995. Further, neither does the fact that the instant application is one in which the union has violated its duty of fair referral (as opposed to one where an employee has been unlawfully discharged) alter our analysis. While the nature of the violation is obviously different from an unlawful discharge, the measure of damages is clearly equivalent. Nothing demonstrates that more graphically than the parties' common approach to the starting point for an assessment of damages in this case - it begins with determining the average earnings of union members as a vehicle for quantifying the applicants' loss. Obviously, while the nature of the improper conduct and the role of the offending party are different, the applicants' loss in this case (like those in wrongful dismissal cases or other unfair labour practices) is a loss of income from employment. And finally in relation to this issue, we are not troubled by the apparent difference in treatment as between workers' compensation benefits and unemployment insurance. In theory, both types of benefits ought to be deducted from damage awards. In fact, they are. It is only the mechanism which differs as a result of specific statutory provisions in the case of unemployment insurance. In the end both types of successful applicants will see their damages, at least effectively, reduced; in the one case because the actual amount of any award will be reduced, in the other because the applicant will be under a positive legal duty to repay the benefits "replaced" by the damage award.

111. We are thus satisfied that whatever damages Mr. Smith might otherwise be entitled to in respect of the period during which he was in receipt of ttd benefits, ought to be reduced by an amount equal to the benefits received. (We should also note in this regard that a proper computation of the appropriate deduction could require consideration of the parties' agreement that ttd benefits are not taxable. Such benefits might, consequently, have to be "grossed up" - in other words one dollar of ttd benefits might result in $1.10 or $1.25 (depending on the individual's marginal tax rate) being deducted from the damages which would otherwise awarded.) Despite our general conclusion regarding the deduction of ttd benefits, this is perhaps not the most significant obstacle to Mr. Smith's ability to claim damages for the period during which he was in receipt of such benefits.

112. Our review of the evidence regarding Mr. Smith's WCB status, his actual physical limita­tions, and the "system" (though we doubt it can be dignified by that appellation) the union has, or at least had, in place regarding the placement or accommodation of injured members returns us to many of the sentiments expressed in the phase one decision. Despite days and days of evidence, very little of it bearing directly on these issues, we are left with little overriding confidence in our ability to describe the relevant facts with anything approaching precision. We are of course required, however, to make our findings on the basis of the evidence that was placed before us.

113. Mr. Smith's limitations appear to have been described in WCB documents (we were provided with no other medical evidence) fairly consistently as a partial disability precluding any lifting in excess of 10 kilograms or any repetitive gripping, squeezing or strenuous use of hands. And while we were provided with little in the form of analytical tools to marry Mr. Smith's restrictions with the general requirements of the trade, it is evident that the WCB personnel attached to the file held little hope that Mr. Smith, so long as his disability persisted, would be able to return to the ironworker trade. Mr. Smith clearly did not share that view. The WCB documents disclose something of an ongoing struggle between Mr. Smith and his counsellors, the latter encouraging him to consider and set alternate career goals.

114. Mr. Smith made much in argument of his assertion that the union resisted efforts to assist him to find modified work suitable to his restrictions. But while there may well be a grain of truth to the assertion, it is also abundantly clear to us that Mr. Smith did little to insure that the union was aware of his desire to secure such opportunities. Mr. Smith points to continuing efforts made on his behalf by WCB personnel to contact the union hiring hall in search of suitable positions. It is true that the WCB documents suggest that there was a discussion between Mr. Smith's vocational rehabilitation counsellor and Ms. Seguin, the secretary at the union's hiring hall. At the risk of relying too heavily on a conversation about which no party provided any direct evidence, it appears that this conversation is the locus of all of Mr. Smith's assertions about the union's lack of cooperation. For while there are numerous references in the WCB material to communication between the WCB and the hiring hall, these appear to either be references to the one actual conversation which took place in April of 1990 or to the possibility of future interventions (none of which appear to have materialized). In any event, Ms. Seguin appears to have made it clear that the kinds of opportunities Mr. Smith may have thought feasible e.g. assignments as a foreman or other light duty positions are ones which only very rarely become available through the hiring hall. That evidence was echoed by other witnesses and there were few, if any, examples highlighted to us where members were referred to foremen or general foreman positions through the hiring hall (many companies would have permanent or long term employees filling such roles or, alternatively, could be expected to exercise their right to request the specific member they wished assigned to such a critical position).

115. We heard some limited evidence from Mr. Zucchet in the first phase of the proceedings about the manner in which members on WCB are dealt with insofar as their continuing status on the list or their ability to retain their relative position. The manner of dealing with those members was described at paragraph 129 of the phase I decision as follows:

……The system, to the extent one can be discerned, simply involves an injured member retaining his position on the list. Where an injury may persist for a lengthy period the dispatcher may, in what was presented as nothing more than pursuing the economy resulting from not having to copy a name from list to successive Out-of-Work list, physically delete that name from the Out-of-Work list Once the member is ready to be referred to work, he would resume his former position on the list. This is really a variation of the rule which provides a member with an unlimited right to refuse referrals without any negative impact on his placement on the list.

116. Little significant evidence was provided in the subsequent phase of the hearing to furnish us with any more profound understanding of the "system". Perhaps of greater concern is the fact that neither were we provided with much clear evidence on exactly how, when or why Mr. Smith's removal and subsequent return to the list was effected. The parties provided competing theories.

117. From the commencement of the period under review (January 1, 1990) Mr. Smith's name simply does not appear on the Out-of-Work list until March 19, 1991. It is perhaps not Mr. Smith's absence from the list which is difficult to explain so much as the timing of his return to that list. As Mr. Smith's WCB status was of considerable duration, it is perhaps consistent with Mr. Zucchet's account that, at some time prior to January 1, 1990, Mr. Smith's name was simply removed from the list. What occasioned his return to the list? We have no direct evidence describing the actual return. The union suggests that Mr. Smith must have, at some time around March 19, 1991, advised the union that he was ready to return to work and to resume his position on the list. Mr. Smith offers a different explanation -he suggests that it was the filing, in February, 1991, of the instant complaint impugning the integrity of the hiring hall system which caused the union, as a defensive measure in response, to return Mr. Smith to the list.

118. We prefer the union's theory. As we have already indicated Mr. Smith's ttd benefits were "finalled" as of April 18, 1991. From that point he was in receipt of a 15% partial disability pension. The WCB records disclose, however, that the recommendation for the pension status was actually made on March 19, 1991. Thus it appears that Mr. Smith's return to the list is virtually simultaneous with the WCB determination to terminate the ttd benefits and to institute the partial disability pension. The timing of these events persuade us that it was Mr. Smith, in response to the imminent change to his WCB benefits including the termination of his ttd status, who communicated with the union to effect the return of his name to its former position on the Out-of-Work list.

119. We also cannot help but observe that we heard little evidence (and certainly none was highlighted to us in argument) that during the period Mr. Smith was in receipt of ttd benefits he had any ongoing contact with the hiring hall for the purpose of inquiring as to why he was receiving (virtually) no calls about work. The applicants and Mr. Smith have demonstrated their persistent abilities to agitate for what they view as their legitimate entitlements. They exhibited little hesitation, even in the face of strong political opposition, in pursuing their grievances about the administration of the union and the hiring hall. In view of that we find it likely that if, while receiving ttd benefits, Mr. Smith felt he was capable of working and that suitable work was available for him in the trade, he would have communicated that clearly, effectively and consistently to the union.

120. In view of all of the preceding, we are satisfied that Mr. Smith understood that there was little, if any, work available to him within the trade that would have been suitable to his limitations. We are equally persuaded that he had no real expectation that the hall would be able to provide such work. Finally, we are satisfied that there was no reasonable objective basis upon which any such expectation could have been based.

121. Essentially we are satisfied that, while in receipt of ttd benefits, Mr. Smith was disabled to the extent that even had the hiring hall system been operating properly, he would have found precious little in the way of appropriate work opportunities. In other words, the primary cause of Mr. Smith's loss of employment income was his disability and not any pathologies associated with the operation of the hiring hall. Even if we were wrong in this conclusion, we are also satisfied that whatever earnings might have been available through the limited work opportunities which might or could have been provided would pale in comparison to the amounts received by way of ttd benefits. In other words (and even assuming such earnings would not simply have served to reduce Mr. Smith's ttd benefits), since the putative lost earnings would have been less than the ttd benefits actually received, the measure of damages would, at best, have been negligible.

122. We are thus satisfied that Mr. Smith ought not to be entitled to succeed in his claim for damages in respect of any of the portion of time during which he was in receipt of ttd benefits.

123. Perhaps the most difficult exercise in this phase of the proceedings pertains to the quantifica­tion of damages. In the peculiar circumstances of the case this question also includes an assessment of the applicants' duty to mitigate their loss. Indeed, the trade union has argued, in one fashion or another, that the applicants, despite the union's unlawful operation of the hiring hall, have suffered no appreciable economic loss or, in the alternative, had it within their own power to avoid any such loss by simply accepting the work opportunities that were afforded them.

124. We begin our analysis of this branch of the case by returning to our earlier discussion of the "Portiss formula". In attempting to quantify damages for lost work referrals resulting from the improper operation of the hiring hall, we find it necessary, for reasons which we now address, to resist the initially attractive approach which can be easily described as follows. If the Board can determine that an aggrieved member ought to have been referred to a particular job, then perhaps damages can be readily quantified by simply tabulating the earnings of the member who did receive the referral. One might even be tempted to look at that member's earnings for subsequent referrals on the theory that it represents the employment trajectory which the aggrieved member would/ought to have followed. In rejecting this approach, the Board, in the Portiss decision offered the following at paragraph 13:

The Board has equal concern with the alternative approaches advanced by the union. To compare Mr. Portiss to other members on a selective basis leaves much uncertainty. Determining the amount that an employee would have earned but for the wrongful application of fair hiring hall rules, is a speculative exercise at best. It cannot be said with any certainty that the complainant would have necessarily followed the pattern of employment for the entire year of any particular member referred ahead of him. Nor can there be any precise determination of whether he was in fact better off because a later referral might, for example, have brought him a longer assignment of a job with more overtime. When variables such as job shutdowns because of weather or loss of time due to accidents, illness, an employee's decision to quit and the time elapsed before he re-enters the hiring hall list are taken into account, it becomes virtually impossible to trace with any certainty the road not taken. In these circumstances we see little reliability in any formula for compensation that attempts to put the complainant in the shoes of any selected individual or group of members.

125. While we have already adopted the "Portiss formula" which emerged from the view of the Board as expressed above, we are compelled to return to some first principles in view of some of the union's arguments in this case.

126. The union asserts, as a general proposition, that the complainants were under a duty to mitigate their losses. It did not argue that any such obligation would have required the complainants to either work outside of the ironworkers trade or to work in a non-union setting. In other words, the union asserts that the applicants' duty to mitigate could have been entirely satisfied by their acceptance of the work opportunities that were provided to them through the hiring hall.

127. In support of its position, the union, through Mr. Michaluk, prepared documents it described as "mitigation charts". It was agreed that, although filed as exhibits, these were derivative documents and did not constitute independent proof of their contents. In large measure, however, the source documents which provided the basis for the compilation of the mitigation charts, were or had already been marked as exhibits in the proceedings. These included a number of types of records already described in our earlier decision; chief among them were the refusal book, the order books and the field dues assessment sheets.

128. The mitigation charts list the referrals accepted and consequent number of hours worked by each of the complainants. Also tabulated are the referrals which the union claims were offered to but refused by the applicants. This category of "refusals" is not limited to situations where one of the applicants explicitly refused a referral proffered by the hiring hall. It also includes instances where, for example, the union, despite some effort (usually in the form of a telephone call), was unable to actually contact the applicant(s) prior to the referral being offered to and accepted by another member. There is considerable dispute between the parties, at least with respect to some of these, about the specific characteristics of certain refusals. Indeed, there are a significant number of instances where the complainants deny any knowledge at all about certain entries in the refusal book.

129. The charts tabulate not only the hours actually worked by the applicants, but also the hours worked by other members as a result of accepting referrals the union asserts were first made available to the applicants. With the exception of Mr. Ouellette during the 1990 calendar year, these charts suggest, and the union asserts it is the case, that had the applicants accepted all (or even a significant majority) of the work opportunities made available to them through the hiring hall, their earnings would have matched or exceeded those of the average member for the relevant periods.

130. The union submits that the argument just described is not inconsistent with the "Portiss formula" or with the Board's reluctance (for the reasons set out in the previous citation), in cases of this sort, to try to put the complainants in the shoes of others in order to identify and quantify the "road not taken". We disagree. It is true that the union urges this approach on us in an effort, not to quantify damages per se but rather, to quantify the applicant's "failure" to mitigate their losses. Whether the nuances of difference between the two are subtle, we can point to one glaring example which highlights a similar type of inherent limitation associated with the approach suggested.

131. It is not disputed that Charles Wilburn worked for American Bridge in September of 1988. According to the charts prepared by the union, Mr. Wilburn quit the job shortly after commencing it and was replaced by Dan Fox (these facts are disputed and we have serious doubts about the accuracy of the union's claim, but for the present purposes we will accept the facts as alleged by the union). The union then goes on in its charts to tabulate hours worked by Mr. Fox for American Bridge in 1990 as well as the hours he worked for McCrindle Steel in 1991 when the latter employer reassembled the crew that had earlier worked for American Bridge on a related job. These hours are considerable. In fact, when totalled over the period in question they are very close to the total average hours earned by members of the union. The union asks us to deduct an amount equal to the wages associated with these hours from any damages owing to Mr. Wilburn. And while the results may not always be as dramatic, the union asks us to perform the same analysis in each instance which the union refers to as a "refusal". In each case an amount equal to the wages earned by the member who did accept the referral is to be deducted from any damages awarded to the applicant(s) who "refused" the referral in question.

132. What is the effect of such an approach? The answer in the undoubtedly extreme example of Mr. Wilburn and American Bridge is that the union is, effectively, relieved of any liability resulting from its unlawful conduct in 1990 and 1991 by virtue of Mr. Wilburn's decision to resign from a job in 1988. To place only a slightly more dramatic gloss on it, the union effectively asks that it be excused from its hiring hall obligations (or at least its liabilities) vis a vis Mr. Wilburn for 1990 and 1991 on the basis of the fact that Mr. Wilburn quit a job in 1988. In our view this is but another graphic illustration of the inherent shortcomings invariably associated with trying to identify the "road not taken". Just as the Board has been reluctant to allow complainants to point to a particular fellow member and to claim the equivalent of their earnings, so too must we view with some skepticism the union's efforts in this case to write the script of events which might have been. Quite apart from the apparent inappropriateness of effectively excusing the union from its statutory obligation, the approach simply contributes too much of a lottery texture to the exercise of quantifying damages. Union members ought not to be made to feel that decisions to turn down or quit a job will "disentitle" them from reliance on the hiring hall for a period equivalent to that which the job may last (be it a day or two years).

133. This is not to say, however, that we have concluded that the applicants' propensities to refuse job referrals are not relevant to their claim for damages. As indicated in our earlier decision, union members are not required (by any of the hiring hall rules) to accept any particular referrals offered to them. Indeed, unlike systems which may exist elsewhere, a member's position on the out of work list is unaffected by his refusal of a referral. We have also earlier described how after a referral to a short-term job (less than seven consecutive working days), a member is entitled to resume their former position on the out of work list. However, once a member's referral results in seven consecutive days of work, any subsequent return to the out of work list (whether after seven days or two years of work) will be to the bottom of that list. Thus, while we have eschewed any lottery model for quantification of damages, it is clear that there can be a lottery element to the manner in which members might approach referrals offered by the hiring hall.

134. From the point of view of placement on the out of work list, a member who pays attention to such things will wish to avoid the "short long term job" - i.e. short enough to provide little income but long enough to move the member to the bottom of the referral list. Such a member may opt to refuse a shorter term job in the hope of capitalizing on his preferred position on the list to secure a referral to a more desirable and/or longer term job. The risks associated with such a strategy are apparent. Other members may simply choose not to concern themselves with "playing the angles" of the hiring hall system. In an approach which may be aimed at maximizing income with less concern about the nature of specific referrals or their duration, they may opt to simply accept virtually every referral which comes their way. These choices are ones that individual members are free to make. Assuming, however, that the hiring hall is otherwise operating lawfully, it is not apparent to the Board that the union ought to be responsible for the risks that individual members subject themselves to in the attitudes and strategies they may adopt in relation to the hiring hall.

135. This point was graphically illustrated in one of the more significant moments of testimony in the case. In a series of questions put to him during his cross-examination, Mr. Wilburn, one of the few (and perhaps the only) witness who impressed the Board with his consistently forthright and candid approach to giving evidence, acknowledged some of the difficulties associated with the applicants' claims or at least their theory of recovery. Although the exchange began in reference to a specific referral he had declined, it became clear that Mr. Wilburn had some difficulty in refuting at least the potential or theoretical inequity which could result were the Board to award damages in respect of a given day when the applicant had explicitly declined the opportunity to work on that day. In general terms, we accept the union's submission that there is an unfaimess associated with requiring the union to pay a member for deciding to stay at home when a specific work opportunity was made available to and was declined by that member.

136. Where does all this leave us in our efforts to quantify damages? We have determined that we ought, in relation to each of the applicants, to establish a factor or percentage by which their damages ought to be reduced. In determining this factor, we have taken into account a number of common (and sometimes conflicting) considerations as well as others which are specific to individual complainants.

137. Among the common factors are the following. The mitigation charts undoubtedly suggest that significant numbers of work opportunities were declined by each of the applicants. We must, however, be cautious in the extent of reliance we place on the mitigation charts and the supporting documents upon which they are based (such as the refusal book). We note again that the union's definition of refusals included not only explicit refusals by the applicants but also situations where the union was unsuccessful in contacting them. Further, we were not presented with the tools and analysis which would be necessary to determine with any precision, how the the applicants' "rate of refusal" might compare with that of their fellow members (or more specifically, and in a context where a refusal has no impact on one's placement of the out-of-work list, how that "rate of refusal" might compare to that of the "average" member whose earnings are the starting point for the quantification of damages). Furthermore, the documents in question suffer from the very same limitations already described in relation to the union's record keeping. There was little direct evidence from the union in relation to many of the "refusals" and information in the refusal book was often the subject of challenge by the applicants. That is not to say, however, that we uniformly preferred or accepted the evidence of the applicants in all cases of conflict. There were, however, significant numbers of cases where the fact of a "refusal" was not disputed by the applicants although the precise circumstances or reasons for it may have been. We have also considered the fact that, as a general rule, little information was provided to the applicants about the likely duration of jobs being offered (although we accept the union's submis­sions that in many cases such information may simply not be available). In that context, we have also considered the fact that while some of the refusals were in relation to longer term jobs (indeed, in some cases to the very jobs identified by the parties in Phase I as the jobs in question), a very significant number of the refusals pertained to short or "short-long" term jobs.

138. In addition to these common factors, we have also considered aspects of the individual complainants' circumstances and approaches to referrals offered to them. It is clear to us that they each exhibited distinct patterns of selectivity in responding to referrals offered to them by the union. In Mr. Wilburn's case, there were instances where his lack of access to a car was relied upon to explain turning down a job and others where he appears to have entered into a delicate dance with Mr. Zucchet around welding qualifications. There also appears to have been more than one occasion upon which he declined referrals to the very jobs that were the subject of the Phase I decision. He exhibited other preferences related to what he understood the precise nature of the job (or employer) being offered. Having considered all of the evidence and, in particular, the nature and extent of Mr. Wilburn's personal propensity to decline referrals, we are persuaded that he could not realistically have expected to earn more than 65% of the wages earned by the average member even had the hiring hall been functioning properly. In other words his claim for damages ought to be reduced by 35%.

139. Mr. Ouellette exhibited similar kinds of preferences as well as others which are considerably less sympathetic in nature. For example, it was acknowledged that it "might be fair to say" that the only jobs he had accepted during 1990 and 1991 were those at automobile plants. Perhaps the most impressive part of his evidence regarding his personal selection criteria related to the information he would expect to receive from Mr. Zucchet. Mr. Ouellette was quite emphatic that unless Mr. Zucchet provided him with certain information at the time of the referral - including the "job description" and the duration of the job -. he was "going to refuse every time". Mr. Guellette then explained that he had "rights" in his position at the top of the out of work list.

140. Returning to a theme which has surfaced frequently during this case, it is not clear to us that, for present purposes, Mr. Ouellette's "rights", as he describes them, are significantly different depending on whether he is at the top or bottom of the out of work list. He has the right under the hiring hall rules to refuse a referral; his placement on the list will not be affected. He has the right under the hiring hall rules to refuse each and every referral; his placement on the list will not be affected. But while Mr. Ouellette may be entitled to attempt to exploit his position on the list by turning down referrals until he receives all of the particulars he seemed to require of Mr. Zucchet so as to land the "perfect" job, he should not be surprised if the adoption of such a strategy results in a diminution of his employment income. Indeed, it appears to us that, quite apart from any pathologies associated with the operation of the hiring hall, Mr. Ouellette's approach and attitude have served to significantly reduce his employment opportunities. Our approach might have been different had we been persuaded by the applicants' general claim that they were deliberately being offered only the less desirable and shorter term jobs. The evidence and argument mustered on this point falls short of persuading us that any systematic and deliberate conspiracy was in play. Indeed, as we have mentioned before, we are persuaded that the dispatcher would frequently simply not know the expected duration of a job being offered to a member. The evidence also disclosed that Mr. Oudilette refused long as well as short term jobs (including referrals to two of the very jobs which were the subject of the Phase I decision). While he was and is entitled to adopt and maintain his attitude toward referrals, Mr. Ouellette should understand he can have no reasonable expectation of earning a level of wages equivalent to that of the average member.

141. Having considered all of the evidence and, in particular, the extreme and dramatic nature and extent of Mr. Ouellette's personal propensity to decline referrals, we are persuaded that he could not realistically have expected to earn more than 50% of the wages earned by the average member even had the hiring hall been functioning properly. In other words his claim for damages ought to be reduced by 50%.

142. Our assessment m relation to Mr. Smith is slightly more problematic. First of all, in view of our earlier conclusions regarding the effect of his receipt of ttd benefits up to April 18, 1991, Mr. Smith's claim for damages can only be asserted for the period April 18, 1991 to November 18, 1991. We should note that although there was a significant change in Mr. Smith's WCB status after April 18, 1991, it was never made clear to us that there was any significant alteration to his physical capacity or the extent of his disability. Presumably in view of his change in WCB status and, in particular, the end of his classification under that scheme as "totally disabled", the union did not take the position that Mr. Smith was physically unable to work after April 18, 1991 and therefore suffered no loss as result of the union's improper operation of the hiring hall. There can be no doubt, however, that Mr. Smith's physical limitations continued to reduce his reasonable employment expectations, but the precise extent of that impact is difficult to measure. In the peculiar and specific circumstances of the D'Alessandro case (supra at paragraph 87), the Board translated a 10% partial disability benefit into a conclusion that the employee in question (a labourer) would likely not have earned more than 30% of the earnings of the average labourer. One might be tempted to suggest that Mr. Smith's expectations might be even lower given that his disability has been rated at 15% rather than 10%. The facts, however, do not support such a conclusion. During the period April 18, 1991 to November 18, 1991, the average member would have worked approximately 600 hours (our calculations will be set out in a little more detail below); Mr. Smith worked 218 hours.

143. Thus, for the period in question and despite his disability and the improper operation of the hiring hall, Mr. Smith did manage to work over 35% of the hours worked by the average ironworker member. We are satisfied that had the hiring hall been functioning properly, Mr. Smith would have had a realistic expectation of securing more referrals than he did. At same time, however, we are also persuaded that his continuing physical limitations would have reduced the breadth of jobs he could accept. Indeed, it is quite clear that there were some referrals offered to Mr. Smith (including at least one to Niagara Riggers) which he felt constrained to decline as a result of his physical limitations. Despite this, however, we cannot ignore the fact that even when compared to his co-applicants, it emerges that Mr. Smith worked almost as many hours in the 7-month period from April to November, 1991 as either of the other two complainants did in the entire period (almost two years) under review. As with many facts in this case, this is capable of competing explanations. On the one hand, it may suggest that the other two applicants suffered greater losses as a result of the unlawful operation of the hiring hall. Alternatively, it suggests that Mr. Smith's propensity to refuse work opportunities, notwithstanding his physical limitations, was not as dramatic as his colleagues. For the purposes of establishing a percentage by which to reduce damages, we prefer the latter explanation.

144. Having considered all of these factors we are persuaded that Mr. Smith's claim for damages ought to be reduced by factor of 25%.

145. We now proceed to an assessment of the precise amounts owing to each of the complainants by way of damages calculated in accordance with the foregoing.

146. We have already indicated that the union's members worked an average total of 1052 hours in 1990 and 1025 hours in 1991. We have thus calculated that over the period in question the typical member would have worked an average of 20 hours per week. The period we are concerned with (January 1, 1990 to November 18, 1991) consists of 98 weeks, a period which would therefore correspond to 1960 hours.

147. We begin with Mr. Wilburn. We have already indicated that his claim is to be reduced by a factor of 35%; thus the claim for 1960 lost hours is reduced to a claim for 1274 hours. Mr. Wilburn actually worked a total of 237 hours (205 hours in 1990 and 32 in 1991) in the period. That further reduces his claim to 1037 hours. Up until May 1, 1991 the hourly rate under the collective agreement (wages and vacation & holiday pay) was $24.58; the agreement also contemplated a further hourly payment of $3.47 as pension. As of May 1, 1991 the corresponding amounts were $25.97 and $3.80. We shall therefore assess Mr. Wilburn's hourly rate in proportion to the amount of time each rate was in force. The "1990 rate" (i.e. the one in place until May 1, 1991) was in place for approximately 70 of the 98 weeks in question (or approximately 70%). We shall therefore assess 726 (i.e. 70% of the 1,037 hours) owing at the 1990 rate. Accordingly Mr. Wilburn is to be compensated as follows:

(a) Wages

726 hours (@ 1990 rate) x $24.58 = $17,845.08

311 hours (@ 1991 rate) x $25.97 = $ 8,076.67

TOTAL WAGES $25,921.75

(b) Pension contribution:

726 hours @ $3.47 $ 2,519.22 311 hours@$3.80 $ 1,181.80

TOTAL PENSION $ 3,701.02

148. Mr. Ouellette's calculation proceeds as follows. During the 98 week period in question Mr. Ouellette, as set out above, was not in good standing and therefore not eligible to claim referrals for a total of 21 weeks bringing that total down to 77 weeks. We have also determined that his claim ought to be reduced by a factor of 50% thereby further bringing the claim down to 38.5 weeks or 770 hours. During the period in question, Mr. Quellette actually worked for a total of 283.5 hours, bringing his claim to its final total of 486.5 hours. We shall treat these hours in the same 70/30 proportion for the purpose of applying the hourly rate. Thus Mr. Quellette is to be compensated as follows:

(a) Wages

340.5 hours (@ 1990 rate) x $24.58 = $ 8,369.49

146 hours (@ 1991 rate) x $25.97 = $ 3,791.62

TOTAL WAGES $12,161.01

(b) Pension contribution:

340.5 hours @) $3.47 $ 1,181.53

146 hours @ $3.80 $ 554.80

TOTAL PENSION $ 1,736.33

149. Mr. Smith's claim for damages can be made only in relation to the period April 18, 1991 to November 18, 1991, a total of 30 weeks or 600 hours. We have determined that Mr. Smith's claim ought to be reduced by a factor of 25% thus reducing the claim to 450 hours. Mr. Smith actually worked for 218 hours during the period reducing the total amount of damages to 232 hours. Since all but a few of the days in Mr. Smith's period were days on which the 1991 rates were in place, we shall use those as the basis for our calculation.

Wages: 232 hours @ $25.97 = $ 6,025.04

Pension: 232 hours @ $ 3.80 = $ 881.60

150. The union is hereby directed to pay to each of the applicants the amounts set out above plus interest. Interest on the amounts owing is to be calculated at the prevailing relevant Bank of Canada rate calculated and compounded annually as at December 31st of each year commencing with 1992 and continuing until 1998 (prorated for the 1998 year to the date of this decision).

151. Unless the union and the individual applicant concerned agree otherwise, the above amounts (plus the interest thereon) identified as pension contribution are to be paid by the union to the Ironworkers Ontario Pension Fund on behalf of and for the credit and benefit of the individual applicants in the amounts set out above.

152. Although we have considered all of the arguments and submissions of the parties, we have not set them all out in intricate detail. To the extent we have not explicitly granted any of the other requests for relief advanced by the applicants, those requests may be considered to have been rejected by this Board. While not necessarily exhausting the list, those requests included submissions that damages include a 25% wage bonus for foreman's work, that the Board award costs and that the Board grant its consent to the prosecution of the responding party trade union. Although each of these claims are distinct, we are of the view that they do share the common characteristic of being so totally unwarranted in the circumstances of this case that they bear no further elaboration or examination.

153. With respect to any other remedial issues regarding the operation of the hiring hall, while it may be difficult to envision the extreme circumstances which could warrant such extreme intervention, we note that even the applicants have not sought the interference of the Board in the actual and specific reshaping or restructuring of the hiring hall rules of operation which may have to be implemented to comply with this decision. Accordingly, we limit ourselves to our finding that, for the reasons set out in the Phase I decision, the operation of the union's hiring hall has been contrary to the requirements of section 75 of the Act. We therefore direct the union to forthwith take whatever steps are necessary to insure the the operation of the hiring hall complies with the requirements of section 75 of the Act as described in the Phase I decision.

154. The applicants did request that members of the union be provided with some form of notice of these proceedings. While there may not have been agreement on the methods for effecting that notice, the trade union did not oppose such a measure in principle.

155. We do not think it is necessary or appropriate to direct that the union provide all of its members with copies of this and the Phase I decisions. We do, however, think it would be appropriate to provide each member with a brief summary of the outcome of these proceedings in the manner described below. We also direct that the union, upon the request made by any member within 6 months of the date of this decision, furnish such member, at the union's expense, with a copy of this and/or the Phase I decision. Accordingly, we hereby direct that the union forward a copy of the attached Appendix "A" "Notice to Members of Local 700" (the "notice") to each of its members. The notice is to be forwarded to members promptly following receipt of this decision and may, if convenient for the union, be appended to the next "INFO-700" or similar union publication provided that is issued within 45 days of this decision. In addition, the union is directed to post a copy of the notice at each of its hiring hall locations. The notices are to be posted in prominent locations where they are likely to come to the attention of union members. The notices are to remain posted for a period of 60 consecutive days. Finally, the union is directed to read a copy of the notice to all of the members in attendance at the union s next regular monthly membership meeting.

156. In summary, we have found and have declared that the union violated the Act through the threats imposed on the applicants by Mr. Man and Mr. Poisson as described above. All other claims by the applicants that the union has violated the Act (with the exception, of course, of the violation of section 75 found in the Phase I decision) have been dismissed.

157. We have also ordered that the union pay the following amounts plus interest as described above:

(a) To Mr. Wilburn $25,921.75 in lost wages and $3,701.02 in lost pension contributions.

(b) To Mr. Ouellette: $12,161.01 in lost wages and $1,736.33 in lost pension contributions.

(c) To Mr. Smith: $6,025.04 in lost wages and $881.60 in lost pension contributions.

Appendix "A"

The Labour Relations Act, 1995

NOTICE TO MEMBERS

OF IRONWORKERS

LOCAL 700

Posted and distributed by order of the

Ontairo Labour Relations Board

AFTER MANY DAYS OF HEARING EVIDENCE OVER A PERIOD OF YEARS

THE ONTARIO LABOUR RELATIONS BOARD HAS CONCLUDED THAT

ASPECTS OF THE MANNER IN WHICH LOCAL 700 OPERATED ITS HIRING

HALL DURING THE YEARS 1990 AND 1991 WERE UNLAWFUL

THE UNION HAS AND WILL CONTINUE TO MAKE CHANGES, AS

NECESSARY, TO INSURE THAT THE HIRING HALL IS OPERATED IN A

MANNER WHICH IS NOT ARBITRARY, DISCRIMINATORY OR IN BAD FAITH

THE UNION HAS ALSO BEEN ORDERED TO PAY DAMAGES TO THE

APPUCANTS IN THIS CASE TO COMPENSATE THEM FOR THE LOSSES THEY

SUFFERED AS A RESULT OF THE UNLAWFUL OPERATION OF THE HIRING

HALL

THE BOARD HAS ALSO FOUND THAT THE UNION VIOLATED THE LABOUR

RELATIONS ACT BY THREATENING TO IMPOSE PENALTIES ON THE

APPLICANTS. MORE SPECIFICALLY, THE UNION WAS FOUND TO HAVE

ACTED UNLAWFULLY IN MARCH OF 1990 WHEN FRED MARR THREATENED

TO HAVE THE APPLICANTS CHARGED IF THEY LOOKED INTO THE UNION'S

FINANCES. SIMILARLY, THE BOARD FOUND THAT THE UNION VIOLATED

THE ACT WHEN THEN PRESIDENT POISSON (IN APRIL OF 1991 AND

SHORTLY AFTER THE APPUCANTS HAD FILED THEIR COMPLAINT WITH

THE BOARD) GAVE THE APPLICANTS WRITTEN NOTICE THAT THEY WERE

BEING CHARGED FOR UNSPECIFIED VIOLATIONS OF THE CONSTITUTION.

THE BOARD CONCLUDED THAT THESE WERE BOTH EXAMPLES OF

UNLAWFUL REPRISALS IMPOSED ON THE APPLICANTS FOR THE EXERCISE

OF THEIR RIGHTS UNDER THE ACT

SHOULD YOU BE INTERESTED IN READING THE BOARD'S DECISION(S) IN

THIS MATTER. COPIES CAN BE PROVIDED TO YOU. ON REQUEST, BY THE

UNION

This is an official notice of the Board and must not be removed or defaced.

DATED this 23rd day of July, 1998.