John Cheresna v. Sheet Metal Workers' International Association, Local 47, 1999 CanLII 20186

[1999] OLRB REP. NOVEMBER/DECEMBER 976

0043-99-U John Cheresna, Applicant v. Sheet Metal Workers' International Association, Local 47, and Sheet Metal Workers' International Association, Responding Parties

BEFORE: David A. McKee, Vice-Chair.

APPEARANCES: John Cheresna appearing on his own behalf; J. Raso and Ross

Mitchell for the Sheet Metal Workers International Association, Local 47; Patrick Riley

for the Sheet Metal Workers International Association.

DECISION OF THE BOARD; November 30, 1999

1. This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1 ("the Act") alleging a violation of section 75 of the Act. The applicant alleges that the Sheet Metal Workers' International Association, Local 47 ("Local 47") and the parent body of Local 47, the Sheet Metal Workers' International Association ("the International Union" or "the IU") have violated section 75 in a number of ways. At the commencement of the hearing into this matter, both Local 47 and the applicant brought motions with respect to the pleadings.

2. The applicant sought to add to the pleadings an allegation that Local 47 (although not the International Union) had violated section 87 as well as section 75 in taking the actions as alleged in the complaint. This was opposed by Local 47. However, since the applicant stated he did not wish to add any additional facts to his complaint, and that the argument with respect to section 87 was simply a different perspective on those same facts, I permitted the amendment.

3. Local 47 sought to have almost all of the pleadings struck on grounds of delay. Counsel argued that the substance of the complaint dealt with events which occurred between three and five years prior to the date on which the application was filed, and that those events ought not to form the subject matter of any application before this Board. Following the submissions of the parties, I ruled orally as follows:

The motion is allowed in part. Most of this complaint is with respect to incidents and events which happened too long ago to be the subject matter of the complaint in April of 1999. The Board's jurisprudence is clear. The limit on the length of time the Board will permit an applicant to delay filing a complaint "should be measured in months rather than years". See City of Mississauga, [1982] OLRB Rep. Mar. 420 at paras. 20-22 and Robert Dumeah, [1994] OLRB Rep. June 655 at paras. 4 1-42. One example may make this clear. In paragraph 3(e) of the complaint it is alleged that Ross Mitchell, the Business Manager of Local 47, referred his son to employment ahead of the applicant. This was alleged to have occurred sometime in late 1994 or early 1995. If we were to hear this complaint and find that such a violation had occurred, the remedy would be to attempt to place the applicant in the same position that he would have been in had the violation not occurred. This would have involved retracing all referrals to employment from Local 47 for some four and a half years and to reconstruct what should have happened and what did happen and to try to assess that in the background of the applicant's personal circumstances what his losses would be. It is simply unfair to request the union to become engaged in a task of such monumental proportions that would affect virtually every member of the Local. The applicant was aware of his complaint and the possible remedy for it in 1995. He pleads only that he lacked the funds to pursue the matter at that time. The lack of funds is not an exceptional circumstance which will cause the Board to extend the time for filing a complaint. Therefore, all of the allegations contained in paragraphs 3(a) to (3)(g) are struck in their entirety, so is paragraph 3(k).

Similarly, I have great difficulty with respect to paragraphs 3(h) to (3)(j). The circumstances surrounding the litigation against HGB Inc. do not raise the same issues with respect to recreating a hiring hall list, but the events still date back to 1996. If anything, these are allegations of a violation of section 74 which the applicant specifically stated he was not relying on and, even then, do not appear to make out a prima facie case of a violation of that section. However, these facts underlie the dispute between the parties with respect to the readmission of the applicant to the union. Accordingly, while I will not accept evidence about those events as proof of a violation of the Act which is alleged to have occurred in 1995-96, I will hear evidence of these facts as the historical basis of the current dispute. On that basis, those facts are relevant to that portion of the complaint that I will hear.

The applicant's complaint is, essentially, about the payment of dues and benefit contributions required as a condition of reinstatement. Local 47 and the IU have made it plain that they will permit him to rejoin if he pays these monies. Arguably, access to employment is available to him through the union provided only that he pays certain monies. That is, his employment, or more exactly his access to employment, is suspended only because of a demand for the payment of dues. To that extent, the issue is an ongoing one and is as alive in April of 1999 when this application was filed. However, there will be a limit on any remedy issued. The issue before the Board is only a question of whether or not the applicant should be permitted to rejoin the union without paying the dues and the health and welfare and pension payments. If any violation is found, no remedy will pre-date the filing of this application. Secondly, the applicant alluded in argument to legal advice that he had received that he might well be barred from filing an application under section 75 when he was not a member of the union. I propose to hear argument on that point and certainly do not at this point decide whether or not the applicant has the ability to bring this complaint at all.

4. Essentially, the applicant's complaint is that he was a member of Local 47 and he now seeks readmission. He let his membership lapse by failing to pay dues, due to difficult economic circumstances, and not as a result of any internal disciplinary process. The union is prepared to permit him to become a member, provided he pays certain monies to the union. These are as follows:

(a) monies which were paid to the applicant by HGB Inc. after the successful completion of the complaint under section 50 of the Occupational Health & Safety Act which were, in effect, monies that would have been paid to a "Union Promotion Fund" and to the health and welfare and pension fun s of Local 47;

(b) the reinstatement fee of 100 hours multiplied by the minimum journeymen rate under the provincial collective agreement binding on Local 47;

(c) three months' dues in advance.

5. It is not at all clear that a dispute over the terms of admission to a union between the union and a prospective member can be the subject of an application under section 75, or under the Labour Relations Act, 1995 at all. Typically such disputes are determined in civil proceedings in the Superior Court of Justice, see, for example, E. J. Hardy v. Sheet Metal Workers International Association, Local 397, [1999] OJ 2221 (Wright J.). However, since the parties proposed to argue the merits of this matter in this application, I will assume, without in any way finding, that the Board has jurisdiction to deal with the substance of this application.

6. The two sums of money arising from the litigation against HGB Inc. arise as follows. In 1995, the applicant was a member of Local 47. He was referred to employment with HGB Inc. HGB Inc. was not bound to a collective agreement but, for commercial reasons, was obliged to employ only members of building trades unions on a particular job in Ottawa. HGB Inc. discharged the applicant. He filed a complaint under section 50 of the Occupational Health & Safety Act. Although he feels that Local 47 could have done more for him (and it appears initially that perhaps it could have done more), he was ultimately represented by counsel employed by the Ontario Sheet Metal Workers Conference (of which Local 47 is a member), who was instructed to represent the applicant by Local 47.

7. The applicant was successful in his complaint. The Board awarded damages which reflected wages that HGB would have paid had it not discharged him. This included certain amounts for the union's "Promotion Fund" and for the health, welfare and pension contributions on his behalf. The total owing to the union's Promotion Fund was $551.46. Contributions to the health, welfare and pension funds totalled $2,668.83. These amounts were part of a total damages award of $14,264.32. HGB Inc. paid the full amount by a single cheque payable to the Ontario Sheet Metal Workers Conference and the applicant. The Conference endorsed the cheque, while at the same time indicating that certain amounts ought to be paid to Local 47. The applicant did not pay these amounts to Local 47. Local 47 now requires that these amounts be paid before readmitting him to membership.

8. The applicant states that Local 47 is acting in a manner which is arbitrary and in bad faith in doing so. He believes the union did nothing for him with respect to his complaint against HGB. He objects to paying the "Union Promotion Fund" (as these supplemental dues are called) since, in his view, Local 47 did nothing to "promote" his case. Regardless of how Local 47 may have regarded his case, and no matter how unenthusiastic it appeared to him to be at the time, it did supply him with the services of a lawyer employed by the Provincial Council. The value of these services no doubt exceeded $551.46. The applicant wisely did not try to suggest that he could have won the case without counsel. Payment of dues in these circumstances is more than reasonable. Had he been employed by HGB Inc. during the relevant period of time, the Local would have received those dues in any event.

9. Payment of the contributions to the health, welfare and pension fund are also required reasonably by Local 47. We heard no evidence about the terms of the benefit plans, although it is not unusual in a pension plan to base benefits on a formula which has, in part, some reference to years of membership in the union. In any event, all members who are beneficiaries or members of a trust fund which provides certain benefits must participate fully in it. As is the nature of most health insurance plans, some members will contribute their premiums and get nothing in return as their health remains good. One might say the same thing with respect to the payment of union dues: not every member requires the services of a lawyer for the purposes of litigating a claim before the Labour Relations Board. It is not open to the applicant to pick and choose the times when he chooses to participate in the various benefit funds. Otherwise, the funds would be unable to operate in an efficient manner, and would indeed run the risk of providing benefits for the applicant when in fact no contributions have been received for him.

10. Local 47 and the International also require him to pay as an initiation fee 100 times the basic journeymen rate, or more specifically, $2,706. This payment is required by Article l0(2)(b) of the Constitution of the International Union and by section 12(d) of Local 47's by-laws. These payments are uniformly applied to all persons seeking to become members of the Local except during certification drives. At one time the Local offered to allow the applicant to pay this amount over an extremely long period of time. The union is entitled to set its own initiation fees. It is not up to the Board to determine what the appropriate amount is. No union can function without the payment of dues and initiation fees. There is nothing unreasonable in the International Union and Local 47 insisting that initiation be paid as a condition of reinstatement. It is also worth remembering that the applicant ceased to be a member of the union because he had not paid his dues. This loss of membership occurred after the Local had itself paid his dues (along with other out of work members) out of its own funds for some time prior to his suspension and expulsion. The applicant's explanation of why he believed the Local was responsible for his impecunious state at the time is unconvincing. In any event, his complaints arise from events which I ruled at the commencement of this hearing were too far in the past to be the subject of a complaint under section 74 or section 75 at this time.

11. At the hearing the applicant agreed that the three months dues, payable in advance, was a reasonable requirement. Upon being advised that these dues payments would in fact be credited to his dues owing for the three months following reinstatement, he stated that he had no objection to paying those dues.

12. The applicant also alleged that the International Union had participated in Local 47's wrongdoing in the manner in which it investigated his complaint to the International President. On the basis of the documents filed by the applicant and the responding parties (which the applicant specifically did not dispute), I find that there was nothing improper or unreasonable about the investigation conducted by the International Union. The fact that it did not produce the result that the applicant was hoping for is not evidence that it was unfairly or improperly conducted.

13. Therefore, I find that there was no violation of section 75 of the Act by either Local 47 or the International Union.

14. The applicant also alleged that Local 47 only had violated section 87. That is, he alleges that the motives of Local 47 and its business manager were tainted by a desire to impose a pecuniary or other penalty on him because he made an application alleging a violation of sections 74 and 75 against Local 47 in 1995.

15. I heard the evidence of the applicant. Local 47 called no evidence. Based solely on the

applicant's evidence, I find, on the balance of probabilities, that Ross Mitchell was not motivated by any such desire. The applicant's evidence simply does not reveal any fact which could underlie such a finding. The applicant relies chiefly on a letter addressed to him by Mr. Mitchell dated January 6, 1999. A portion of that letter states as follows:

"John, I know you have a problem in dealing with me, but it is your own attitude that you need to look at. I have done many things to assist you while you were a member of Local Union 47, even though you have given me a hard time at union meetings, when you visit the office and even filing an unfair labour practice for duty of fair representation by a Trade Union at the Ontario Labour Relations Board".

16. I do not read this letter as an admission of improper motivation. Mr. Mitchell is saying that, notwithstanding a number of things which one might expect would prejudice him against the applicant, he has in fact consistently attempted to help him on many occasions. I find, therefore, that there was no violation of section 87 on the part of Local 47.

17. For these reasons, this application is dismissed in its entirety.