[1999] OLRB REP. NOVEMBER/DECEMBER 1053
3600-98-U Timothy G. Mitchinson, Applicant v. International Brotherhood of ElectriÂcal Workers, Local 303, Responding Party
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Timothy Mitchinson and Evi Mitchinson for the applicant; Michael D. Wright and Garry Sorley for the responding party.
DECISION OF THE BOARD; December 17, 1999
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging a violation of sections 74 and 75 of the Act.
Section 74 reads as follows:
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.
Section 75 reads as follows:
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.
This matter proceeded by way of consultation on October 15, 1999. I explained the consultaÂtion process. As there were no material facts in dispute, it was not necessary to hear evidence, and I proceeded to deal with the application on the basis of the parties' representations.
The applicant ("Mr. Mitchinson") was unrepresented, and accordingly I indicated at the outset that although there is no requirement that persons appearing before the Board retain legal counsel, this application was a legal proceeding affecting the rights, interests and obligations of all the parties involved.
Mr. Mitchinson was at all material times represented by the responding party, the InternaÂtional Brotherhood of Electrical Workers (IBEW), Local 303 ("the union"), one of a number of Locals which, through the IBEW Construction Council of Ontario, is party to a collective agreement ("the Principal Agreement"), with the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario. Currently Local 303 has approximately 400 members in the St. Catherines and Niagara peninsula area. Local 303 maintains what is known as an out-of-work list ("the list") from which contractors who are parties to the Principal Agreement or to other agreements with Local 303 are provided workers as required from time to time.
On January 9, 1998 Local 303 entered into a letter of understanding in respect of hiring with the Niagara Peninsula Electrical Contractors Association ("NPECA"), effective May 1, 1998 through to April 20, 1999. This letter of understanding permitted NPECA contractors and Local 303 to alternately select names from the list for available work. Previously, NPECA contractors had no choice, and the union supplied qualified workers based entirely on seniority. However, under the new arrangement, members of NPECA enjoyed practically unfettered discretion in fifty per cent of the assignments (I shall refer to this arrangement as the "50/50 system"). The sole restriction placed on members of NPECA was a prohibition against "abuse" of the selection system. In the case of "abuse", which is not defined in the letter of understanding, Local 303 had the right to revoke the arrangement with NPECA, and revert back to the previous method of referral. The duration of this new arrangement was for one year, from May 1, 1998 until April 30, 1999, renewable on mutual consent of the parties. As it turned out, the letter was renewed by the parties, the circumstances of which I shall return to later.
It was Mr. Mitchinson's assertion that Local 303 violated its section 74 and section 75 duties to him and other workers who from time to time found themselves without work, by entering into the letter of understanding with NPECA. Mr. Mitchinson alleges that Local 303 acted arbitrarily, in bad faith and in a discriminatory fashion vis-~-vis unemployed workers by agreeing to what Mr. Mitchinson contended was an unfair system of hiring. He requested that the alleged violation be remedied by the Board declaring the letter of understanding to be null and void, and of no effect.
Mr. Mitchinson argued that the letter of understanding should not stand because, among other things, it was not properly approved in accordance with the IBEW constitution. The constitution appears to require that the International President review and approve agreements of the kind contained in the letter of understanding, for the purpose of ensuring consistency with the constitution. It was not disputed that the International President did become aware of the letter of understanding, primarily as a result of Mr. Mitchinson filing his section 74 complaint with the Board. No disapproval has been expressed by the IBEW's International President. Mr. Mitchinson expressed the view that he should have received a written reply from the International President, although he could not point to any formal requirement to do so.
In respect of Mr. Mitchinson's submissions on the IBEW constitution, the Board finds no violations of sections 74 or 75. The Board generally does not inquire into internal trade union matters. Having said the, the purpose of this particular provision in the IBEW constitution appears to be to ensure that documents such as the letter of understanding do not run afoul of the terms, principles or spirit of the constitution. Even if the letter of understanding was found to be wanting in this regard, that fact alone does not constitute a violation of the Act. In any event, it is arguable that the IBEW's International President did approve the letter of understanding by making no known objection to it.
Mr. Mitchinson submitted that there were improprieties associated with a survey the IBEW commissioned in relation to the views of its members on a number of issues, including the issue of work assignments from the list. Local 303 relied upon the results of this survey as one of the factors influencing its decision to go with the 50/50 system. Mr. Mitchinson submitted that the union acted improperly in relying upon the survey results of only a small proportion - about 20% - of the total of 400 members. Furthermore, Mr. Mitchinson submitted that the IBEW owed it to all the members to explain that it was going to rely upon the results in considering whether to make changes of a fundamental nature to the work assignment process involving out-of-work members. Such a fundamenÂtal change, it was argued, required more than just a survey - it required full and thorough debate among the membership before becoming operative. At the very least, Mr. Mitchinson urged, the survey should have warned the participants of the possible outcomes. In this regard, Mr. Mitchinson asked the Board to consider the fact that Local 303 was the sole entity of all IBEW locals to act upon the results of the survey by instituting the 50/50 system.
In dealing with this submission the Board notes that Local 303's by-laws impart substantial authority on the Business Manager in relation to day-to-day dealings with the membership. Section 2 of Article VI of the By-laws, for example, confers the power to remove members from any shop or job for not complying with IBEW "laws and rules", or when the Business Manager decides such removal is in the best interests of Local 303. The exercise of this authority is subject to a right of review by the executive board of Local 303. Of even greater interest for our purposes is section 12 of Article XV, which provides:
Sec. 12. The handling of jobs for unemployed members shall be under the full supervision and direction of the Business Manager. The Business Manager shall devise such means as are considered practical and fair in the distribution of available jobs to qualified members. Members shall not violate such established rules or plans.
This section provides no right of appeal or review to a higher union authority. Secondly there is no requirement or suggestion that the consideration of what is practical and fair must be discussed or debated with the membership at large. In the absence of such an obligation, the Board concludes that the union acted lawfully in relying upon the survey results referred to above. It is also significant, in the Board's view, that the membership of Local 303 have since voted to continue with the 50/50 system. This expression of the membership is a strong indication of what it considers practical and fair.
Mr. Mitchinson submitted that the Local 303 Business Manager was influenced by extraneÂous and irrelevant considerations in entering into the letter of understanding with NPECA. There was no specific information offered by Mr. Mitchinson on this point, other than the unestablished assertion that NPECA was motivated in seeking the benefits of a 50/50 system by a desire to avoid having to hire certain problem employees. Mr. Mitchinson argued that by agreeing to the 50/50 system the union had legitimized contractor concerns which could have been addressed through less drastic means.
The Board is of the view that in the absence of reliable information to the contrary, Local 303 and the Business Manager were motivated by concerns for ongoing work opportunities for the membership rather than the alleged concerns of NPECA regarding problem employees. NPECA's motivation is not relevant to this application.
Mr. Mitchinson made two further related submissions: one, that the 50/50 system of work assignments is unfair on its face; and two, that the 50/50 system produces unfair results as it has been applied since inception.
The applicant's the first argument is that any arrangement entered into by a trade union that gives rise to the possibility the employer will make work assignment choices based upon improper criteria is itself evidence of unfair representation by a union of its members. The Board is not persuaded of the alleged inherent unfairness of the 50/50 system of work assignment. Virtually any arrangement entered into by employers and trade unions is vulnerable, to a lesser or greater extent, to manipulation and abuse. It is the good faith of the parties which determines whether such misconduct actually take place or not. Moreover it will be recalled that the letter of understanding itself provided the IBEW the necessary sanction in the event contractors abuse the system.
With respect to the second related submission, Mr. Mitchinson indicated that he had hoped to call evidence from NPECA officials that might prove the 50/50 system's flaws. However, when questioned as to what the nature of the evidence would be, it was apparent to the Board that Mr. Mitchinson was merely suspicious of NPECA contractors with respect to the basis upon which they made their work assignment selections from the list. Mr. Mitchinson contended that the list of assignÂments provided by Local 303 over the period from 1998 to 1999 was confusing and inaccurate, and that the Board should not rely upon these materials. However, he was not in a position at the consultation to provide any better information, or to call any evidence for that matter, which would assist the Board in drawing any conclusions with respect to the alleged inherent unfairness of the 50/50 system in its actual application to the membership. Even had he been able to demonstrate inequitable or unfair results, that alone would not constitute a violation of section 74 or section 75. It would be necessary to show that the IBEW knew about the abuses and did nothing to correct them, or that the IBEW was complicit in the abuse. There was no information before the Board to that effect.
Mr. Mitchinson's complaint with respect to Local 303's duty of fair representation under section 74 is that it failed to consult or improperly consulted the membership on an issue of fundamental importance to unemployed workers.
The information provided to the Board paints a different picture. The IBEW formed the view that a work distribution system more attractive to NPECA contractors might be advantageous to Local 303's long-term interests. It conducted a survey provincially on this issue, among others, and though the sample population responding to the survey was not large, the survey results provided an indication to Local 303's Business Manager that the 50/50 system would be received favourably by the Local membership. He exercised his authority under the by-law to change the method of work distribution based on what he considered fair and practical. And as it turned out the membership renewed the arrangement through a ratification vote a year later. The alleged failure of the International President to approve formally the letter of understanding does not change the fact that Local 303 did not act in bad faith or in an arbitrary or discriminatory fashion in its representation of the bargaining unit members, including Mr. Mitchinson.
Mr. Mitchinson also contends that the IBEW breached its duty of fair referral under section 75 by entering into an arrangement with NPECA that had the potential to be abused, and was allegedly abused by the contractors to the detriment of the unemployed workers.
The Board, differently constituted, made the following observations at paragraph 6 in Joe Portiss, [1983] OLRB Rep. July 1160, concerning the nature of a hiring hall and the reasons that led to the enactment of what is now section 75 of the Act:
The hiring hail is a significant component in the administration of employment in the construction industry. Before the advent of unionism employment in the constmction industry was not methodiÂcal, often being governed at the whim of employers and their personnel agents. Without the hiring hall employees, notably in the constmction industry and the maritime industries, were too frequently the victims of abuse and arbitrary treatment at the hands of employers. (See, generally Hearings On Hiring Halls in The Maritime industry. Sub-Committee On Labour Management Relations of Senate Committee On LabourAnd Public Welfare, 81st Cong. (2d) ses. 100-01 (1950) and Bastress, "Application of a Constitutionally Based Duty of Fair Representation to Union Hiring Halls[1982] West Virginia Law Review 31). If they are operated fairly hiring halls provide an equitable and efficient means to distribute jobs, particularly in industries where jobs are temporary and manpower needs fluctuate. In these situations the union is well suited to act as an employment agency.
The hiring hall offers advantages to both employees and employers. It saves the employee from the need to canvas numbers of employers in an often fruitless search for work, acting as a clearing house in which available jobs and available workers can be matched. Particularly in periods of high unemployment it also provides the worker with a rational and objective system for the more equitable distribution of work among all employees rather than to the privileged few. The employer gains to the extent that the hiring hall relieves him of the need to screen and recruit employees with adequate qualifications for short term jobs. The employer avoids the administrative cost he would otherwise bear as well as incidental costs which he might have to incur to retain a crew of workers through slow periods to insure available manpower in busier times. A well run hiring hall will give the employer a ready pool of labour from which he can draw on short notice with little or no administrative cost. Moreover, to the extent that the hiring hall dispatches the same members to different kinds of jobs for different employers, as is notably the case for labourers, it may engender a work force with greater experience and sophistication, which will also benefit the employer.
To the extent that the hiring hall functions as an employment agency it vests considerable power in the hands of union officers in charge of its management. Through the administration of hiring hall rules, including the determination of qualifications and classifications of employees, the union officer in charge of a hiring hall has a substantial degree of control over the employment opportuniÂties of union members. The hiring hall system effectively vests in those union officers' powers and prerogatives which were previously associated with an employer. Control over the employment opportunities of hundreds, and sometimes thousands, of union members involves the exercise of a considerable amount of power over their lives. By the enactment of section 69 [now section 75] of the Act the Legislature introduced certain minimal safeguards against abuse of that power.
The quoted section of the Portiss decision forms a useful backdrop to the instant case. What it makes clear is that the exercise of hiring hall work distribution decisions affecting the very livelihood of bargaining unit members is subject to close scrutiny.
The Business Manager of Local 303 appears to have broad authority in matters related to the distribution of work opportunities for those union members unemployed at any given time. That being said, the authority is not without parameters. The exercise of that authority cannot be arbitrary, discriminatory or in bad faith vis-a-vis any bargaining unit employee. Furthermore, the IBEW by-law itself requires that any method of work distribution must be grounded in considerations of fairness and practicality. The representatives of IBEW determined that a different method of work distribution might better ensure the commitment of the NPECA contractors to the use of Local 303 members for their projects, while still providing a fair distribution of work among qualified members. As the Board, differently constituted, noted at paragraph 21 of the decision in Maurice Berlin guette, [1986] OLRB Rep. February 194:
The trade union has a legitimate interest in maximizing the quantity and quality of its future work opportunities. ... The trade union also has a legitimate interest in ensuring that there is an equitable distribution of work opportunities among all those with the minimum qualifications for those opportunities.... Obviously, these interests conflict. Any set of hiring hall rules, procedures or guidelines will necessarily reflect a compromise which results from a balancing of those and other conflicting individual and group interests. From the perspective of the Labour Relations Act, the trade union is free to strike that balance as it sees fit, so long as it does not act in a manner which is arbitrary, discriminatory or in bad faith.
(emphasis added)
Mr. Mitchinson had no information to show that the IBEW unlawfully struck the balance it did in agreeing to the 50/50 system, other than the bald assertion that the IBEW was simply caving in to NPECA's alleged unhappiness with certain problem workers.
Finally, with respect to the duty of fair referral under section 75, Mr. Mitchinson could not demonstrate to the Board how his legal interest had been affected by any particular alleged wrongful referral. Nor was the Board provided with any information concerning the union's alleged wrongful involvement in any particular referral.
This application cannot succeed. Insofar as the section 74 allegations, the Board finds that the union did not act in bad faith or in a discriminatory or arbitrary manner in deciding to agree to the 50/50 system. The union formed an opinion on the merits of the 50/50 system, sought, through a survey, the membership's views on the matter, and provided the membership with an "out" in the event the experiment proved unsatisfactory. The membership eventually and unequivocally expressed its support for the initiative. With respect to the section 75 portion of the complaint, the applicant admittedly had no evidence ready to show the 50/50 system's inherent unfairness. Nor did Mr. Mitchinson have any information to place before the Board concerning the alleged unfair results to him produced by the 50/ 50 system of referral or concerning the union's awareness of and refusal to deal with the system's alleged failure.
After the consultation concluded, and after being given every opportunity to present his case, Mr. Mitchinson attempted to file further submissions in this matter on October 18, 1999. I reviewed these submissions solely for the purpose of determining whether to bring them to the attention of the union and invite further submissions from the union as to whether I should consider them, and if so, whether the union wished to respond to their substance. Following this review, I determined that there was no new material fact alleged or new submissions on the application of the law to the facts that could not have been dealt with during the course of the consultation. Moreover, I determined that the submissions were, for the most part, a reiteration of the applicant's position during the consultation. I therefore do not consider these submissions in reaching my decision in this matter.
For all of the foregoing reasons, the application is dismissed.