[1999] OLRB REP. NOVEMBER/DECEMBER 1018

3176-98-U Delroy P. Jarrett, Applicant v. International Alliance of Theatrical Stage

Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 873, Responding Party

BEFORE: David A. McKee, Vice-Chair.

DECISION OF THE BOARD: November 25, 1999

1. This is an application under section 96 alleging a violation of section 75 of the Labour Relations Act, 1995, S.O. 1995, c.1, (the “Act”). The applicant is a member of the Motion Picture Studio Technicians, Local 873, International Alliance of Theatrical Stage Employees (“IATSE”) who holds a classification in the union’s Electrical Department. IATSE is a trade union which represents employees engaged in theatrical, moving picture, and television production. IATSE also operates a hiring hall. While employers may “name-hire” a certain number of employees, if the employer calls IATSE for employees to staff a particular production, IATSE refers its members in the proper job classifications to employment with that employer.

2. IATSE’s hiring hall rules are different from most union hiring halls. All members have “union seniority” date, i.e. the date on which the member became a member of IATSE or entered a particular classification list. The members’ positions on the list do nto change. That is, a member does not regisiter as an “out of work” member, start at the bottom of the list, and progress to the top of the list before being referred out. A member with longer union seniority will be placed abouve a person who has less seniority regardless of the length of time each of them has been unemployed or the order in which each registers on the out of work list. Thus employees with lengthy (i.e. higher) union seniority will spend less time on the out of work list than those with shorter (i.e. lower) union seniority. At the extreme ends of the list, a member who stands at number one on a particular classification list will rarely find himself unemployed involuntarily. The member standing at the bottom in the same classification list will obtain considerably less work from the hiring hall.

3. This type of hiring hall is not common, but it is also not unheard of. The international Union of Elevator Constructors also operates a hiring hall on basically the same principle. Virtually all craft trade unions which represent persons engaged in an industry where short-term, project-centered employment is the norm, operate a hiring hall. The hiring hall is in reality simply a mechanism by which members of a union agree on a manner for the allocation of scarce employment opportunities among themselves. It is able to do so because employers in a particular industry wish to benefit from the existence of the hiring hall as a reliable supply of skilled employees. The basic rules for how these scarce employment opportunities are allocated is an internal matter for the members of a trade union to determine. Provided such rules are not unlawful in the sense of offending the general public law (e.g. allocation based on prohibited grounds of discrimination) the Board’s only concern is that hall be operated in a manner which is not unfair, discriminatory, or arbitrary.

4. Union seniority in IATSE is obtained when the member joins the union or when he or she obtains standing in a particular classification. It is lost only in a few circumstances: when the member voluntarily resigns, is expelled or suspended after due constitutional process, or is suspended for non-payment of dues. The applicant’s case concerns a loss of union seniority for the non-payment of dues.

5. The income of a union depends on its members’ dues. Unions cannot function without adequate financial resources. No member is entitled to take the benefit of union representation, a union collective agreement, and union wages, without paying dues. Similarly a union is entitled to enforce sanctions against those who do not pay their dues provided such sanctions are properly approved the union and are not in themselves unreasonable. In this context “unreasonable” would denote something extreme and bordering on activities which are otherwise unlawful. It is not up to the Board to set the standards by which a union enforces internal discipline on such a basic matter.

6. IATSE’s constitution provides the following with respect to non-payment of dues:

ARTICLE THIRTEEN

GOOD STANDING

Section Three DELINQUENTS

A member not in good standing shall be denied admittance to all meetings of this Local, except when permission is granted by this Local in meeting assembled.

He shall not be permitted to engage in any work under the jurisdiction of this organization unless he applied for and receives permission from the Executive Board of this Local. The Secretary-Business Agent shall grant temporary permission until the next meeting of the Executive Board. Permission may be granted only on the condition that the member concerned shall arrange to pay off his obligation to the Local while presently employed. Failure to comply with this arrangement shall result in immediate revocation of the permission granted. Any member thus affected shall not be permitted to again engage in any work under the jurisdiction of this Local until he has placed himself in good standing.

Any member who is six (6) months in arrears be suspended. He/she be notified by registered mail by the Treasurer. If he/she remains suspended one more quarter, he/she shall be expelled and his/her insurance with the Local will be terminated. Any member, while under suspension and before being expelled, may make application to the Executive in writing for an extension and the extension will be granted provided the reasons offered are acceptable to the Board.

ARITICLE FOURTEEN

CHANGE IN MEMBERSHIP STATUS

Section One SUSPENSION

Any member suspended for non-payment of dues shall be reinstated upon the payment of all back dues, provided that this payment is made prior to the date of expulsion for non-payment of dues. Any member suspended for non-payment of dues twice within a five (5) year period, shall have his classification seniority changed to the date of his second reinstatement.

The applicant was suspended by letter dated May 1998. He has been suspended in 1997 and since this was his second suspension in five years, he lost his union classification seniority. He paid his dues immediately, in fact before picking up the registered letter which advised him of the suspension. Upon reinstatement he was added to the bottom of the Electric Department’s seniority list but at number 92 rather than at number 42 where he had previously stood. This decision was upheld by the union Executive Board on appeal by the applicant. He complains to this Board that this action on the part of IATSE is a violation of section 75.

7. I do not find that the process set out in the IATSE constitution is per se objectionable. It is clear both from the evidence we heard and the briefs filed that the penalty of suspension and removal of union seniority was the subject of a debate within the union one year prior to the applicant suspension and that he was aware of that debate. The results of a loss of union or classification o seniority are quite severe. They are, however, the consequences agreed upon by members of the local union and it is not the Board’s function to decide for a trade union the rules by which it will operate. However, the severity of the consequences demand a corresponding degree of attention on IATSE’s part to a consistent, clear and precisely communicated application of the rules and processes which invoke these consequences. It is the level of consistency of communication by IATSE to the applicant that raises an issue in this case.

8. The first issue is whether the applicant received the notice of suspension in 1997. That was the first of the two suspensions in a five-year period which caused him to lose his union seniority. He denies that he received it, or indeed a similar suspension in 1992. On this point I was unable to determine the issue based on the briefs filed and I heard evidence from the applicant, his spouse and Gerald Arends of Canada Post, and Rosemarie Morgan, the Treasurer of IATSE. I find as follows. As required by its constitution, IATSE sent out a notice by registered mail of the suspension to the applicant. This was sent by registered mail but IATSE did not engage the process whereby a proof of delivery card is returned to it. It assumed, quite reasonably, that if registered mail was not returned that it had been delivered. The applicant served a summons on a representative of Canada Post (Mr. Arends) who testified that Canada Post does not keep the records of the delivery of registered mail for more than two years. Notwithstanding this general policy he did search for records of delivery of the particular piece of mail but unable to find any. Counsel for IATSE made much of the fact that the issue of the non-delivery 1997 letter was not raised by the applicant until more than two years after the date of the posting of the letter. Given that neither party knew of Canada Post's two year limitation before this hearing, and the fact that the applicant's first pleadings were drafted without the benefit of counsel, I do not find this significant. The applicant and his spouse testified that mail delivery where they live is very poor. They reside on the outskirts of Pickering. Mail is delivered to a "superbox" and mail is picked up by their children. When registered mail is sent to the applicant's home address, only a notice of registered mail is delivered to the mail box; the item itself must be picked up at a local postal outlet. The box has in fact been broken into once or twice. However, if a notice of registered mail had been lost, Canada Post would, in the normal course of business, have returned the letter to IATSE as being undeliverable. It did not do so. Mr. Arends evidence was that the chance of a piece of registered mail being lost without any record or trace was very small.

9. As indicated, I heard from three witnesses, the applicant, his spouse, and Rosemarie Morgan. Having regard to the demeanor of the witnesses, the manner in which they gave evidence, their ability to recall clearly and their ability to resist the pressure of self-interest, I find that the applicant did receive the 1997 notice of suspension. I do not find that he was attempting to mislead me. He has however managed to mislead himself. I conclude that upon receiving either the suspension notice, or a notice of registered mail, the applicant promptly paid his dues and dismissed the matter from his mind. I conclude that the entire incident became in the applicant's mind simply one more bothersome bill which he paid when the creditor began to complain too vociferously. Once the matter was settled he simply forgot about it.

10. I do agree with counsel for IATSE that the applicant simply does not wish to accept the consequences of seriousness of his own behaviour. Unfortunately IATSE's desire not to enforce the strict letter of its by-laws has enabled the applicant to persuade himself that he can escape the consequences of his own behaviour for an indefinite period of time. The applicant's record of paying dues is atrocious. No union could survive financially if all of its members treated their dues obligations so carelessly. He was suspended for not paying his dues in 1992 and 1997. On the other hand he could have been suspended, but was not, in 1993, 1994, 1995 and 1996. In May of 1992, in order to lift the suspension imposed on him at that time he paid some dues. However the amount he paid at the time ($450.00) was not sufficient to bring his dues account into good standing. In May of 1992 he ought to have paid $600.00. In fact he did pay the last $150.00, being dues for the second quarter of 1992 (due April 1, 1992) sometime in June of that year. Nonetheless, IATSE permitted him in May to pay less than the full amount of dues owing in order to lift a suspension and be returned to the hiring hall.

11. Further, IATSE does not enforce certain provisions of Article 13. The reasons for doing so are not unreasonable. In practice, IATSE does not enforce the first two steps in article 13 section 3. It was the uncontradicted evidence of Rosemarie Morgan that the reasons for not doing so are as follows. It is difficult to secure a quorum at membership meetings. Barring a member who was in arrears in his dues might result in a loss of quorum for that meeting or might tend to discourage members from attending in the future. (I heard no submissions about the effect of the validity of any motion passed at a meeting where the quorum included persons who were not entitled to attend the meeting). Similarly, refusing to refer to work members whose dues are in arrears might force the union to send out persons on a "permit" basis who would be less qualified than IATSE members (I note the same is true of carrying out the suspension sanction). Notwithstanding that the reasoning behind these decisions appears somewhat flawed, it is entirely within the right of any union to make such decisions.

12. As indicated above, the application of the suspension sanction has not been rigorous in Mr. Jarrett's case. He could, for instance, have been suspended any time between June 30 and November 1993, June 30 and September 1994, June 30 and November 1995, and June 30 and August 1996. These are all periods of time where he was more than six months in arrears as indicated on the record of dues payment filed by IATSE. On the two occasions on which the applicant was suspended, IATSE's communication of potential further consequences is less than clear. It was IATSE's evidence that it was the practice of IATSE (which Ms. Morgan assumed was followed in the applicant's case) to attach to a notice of suspension a copy of Articles 13 and 14 of the constitution with Article 14, section 1 highlighted in yellow highlighter. If this is intended to convey to a member that Article 13, section 1 is not enforced in respect of the first two paragraphs, but will be in respect of the third paragraph and that Article 14 section 1 will be enforced if IATSE does decide to suspend his membership once again within five years, this is a rather cryptic way of doing so. Words in the English language are more likely to convey a clear meaning. Yellow highlighting without further explanation is inherently ambiguous.

13. IATSE was also helpful to the applicant in a way which enabled him to put his own incorrect spin on events. In May of 1997 Rosemarie Morgan sent him a letter indicating that he would be suspended from membership if he did not pay his outstanding arrears of dues shortly. This was a helpful and thoughtful act on her part. However in the context of by-laws which are not consistently and clearly enforced (even where, as here, this is done for good reasons) and where the consequences of the suspension are so severe, this letter led the applicant, not unreasonably, to conclude that his union would always give him one last waming before invoking the ultimate sanction. Indeed it is hard to resist the conclusion that, when he received the notice of registered mail from IATSE in 1998, he assumed it was about his long overdue dues and went to pay them promptly before he even picked up the letter.

14. The Board does not wish to be overly critical of IATSE's practice. It is both a humane and a common sense approach to the administration of a trade union not to enforce the strict letter of the law at all times. Acting out of a concern about a lack of income during downturns in the economy, or even a concern over the individual circumstances of a member, is of benefit to the individual and is in the long term interests of the entire membership. It is however, important to communicate clearly when the by-laws will and will not be applied.

15. The importance and function of a hiring hall has been recognized by the Board for many years. In 1995 the Board described "hiring halls" and the Board's approach to section 75 as follows in Graham Smith, [1995] OLRB Rep. April 418:

16. The hiring hall function as well as the rationale for some limited statutory guidelines for its operation has been commented on by this Board in the Portiss case, supra, at paragraph 6 and following:

17. The hiring hall is a significant component in the administration of employment in the construction industry. Before the advent of unionism employment in the construction industry was not methodical, often being governed at the whim of employers and their personnel agents. Without the hiring ball [,] employees, notably in the construction industry and the maritime industries, were too frequently the victims of abuse and arbitrary treatment at the hands of employers [citations omitted]. 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.

18. The hiring ball offers advantages to both employees and employers. It saves the employee from the need to canvass large 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 the employees rather than the privileged few. The employer gains to the extent that the hiring hail 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 hail 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 noticeably the case for labourers, it may engender a workforce with greater experience and sophistication, which will also benefit the employer.

19. To the extent 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 the hiring hall has a substantial degree of control over the employment opportunities of union members. The hiring hall system vests in those 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 70] of the Act the Legislature introduced certain minimal safeguards against abuse of that power.

20. The advantages of the hiring hall system and the potential for their abuse were well summarized by Professor Bastress in the following passage [of "Application of a Constitutionally Based Duty of Fair Representation to Union Hiring Halls"[1982] West virginia Law Review 31] at page 31:

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

10. Unfortunately Canadian labour relations have not been without some degree of abuse, albeit exceptional, in the hiring hail system. (See, Robert Cliche, Brian Mulroney, Guy Chevrette, Report of the Commission on the Exercise of Union Freedom in the Construction Industry Quebec, (1975); Waisberg, Report of the Royal Commission on Certain Sectors of the Building Industry, ("The Waisberg Report") Ontario, (1974) at pp. 326-28; see also the recent decision of the Supreme Court of Canada in Nauss v. Haltfax Longshoremen's Association, Local 269. «83 CLLC para 14,022 (S.C.C.)).

11. Although the consequences of a poorly administered hiring ball system can be harsh or even draconian in relation to individual members, the Act contemplates limited instances of Board intervention in only the most egregious of cases. At the most general level of description there is a substantial identity between the approach the Board takes in administering both sections 69 and 70. Just as section 69 does not provide disgruntled bargaining unit employees with unlimited rights to seek the advancement of grievances or the enforcement of (their interpretations of) the collective agreement, so too section 70 does not provide unhappy union members with an unlimited opportu­nity to seek redress in respect of some apparent or even admitted departures from established hiring hall rules. Similarly, section 70 cannot be seen as an open invitation to dissident union members to seek to have the Board rewrite hiring hall rules. To the extent that the Board is required, under either section, to interpret the provisions of a collective agreement, it will view that task quite differently from a Board of Arbitration whose primary task is the interpretation of that agreement. The Board's primary task is to determine whether the union has acted in a manner that is arbitrary, discriminatory or in bad faith. In that context, the Board will generally not be called upon to pronounce on the correctness of a union's interpretation of a collective agreement. While in a given case the Board may well disagree with the union's interpretation of a collective agreement and prefer the interpretation of the applicant, so long as the union's interpretation of the collective agreement cannot be characterized as arbitrary, discriminatory or in bad faith, the Board will be loath to intervene. Similarly, where the Board is asked, as in (at least this phase of) the present case, to assess the very foundation of the hiring ball system in place, the Board simply does not view this as an invitation to construct the optimal hiring hall system. While the Board may be less than impressed with various aspects of the hiring hall system in place and while even the most untrained eye might easily be able to suggest significant improvements, so long as the system or any part of it cannot be characterized in some fashion as arbitrary, discriminatory or in bad faith, the Board will not (at least in this phase of the proceedings) find that there has been any violation of the Act.

12. As indicated above, it is not for the Board to determine the appropriateness of particular sanctions used by IATSE for ensuring the payment of dues. No matter how draconian they seem (and frankly they do not appear unreasonable to me) so long as they are approved by the membership of the Local, and are not otherwise unlawful, such rules will rarely be a violation of section 75.

13. That is not to say, however, that the Board will not be concerned about the manner in which such rules are applied. It is important that the rules of a hiring hall be applied clearly and uniformly (see Rudy Piluso, [1985] OLRB Rep. Feb. 313). A failure to apply the rules clearly and uniformly may, depending on the circumstances, be found to be arbitrary. Further, what constitutes clear and uniform communication and application of the rules is dependent on the context in which those rules operate. In this case the consequences to the applicant of a second suspension in five years are enormous. This hiring hall does not operate on a rotating basis. Access to job opportunities is directly related to a members' position on the list. To drop from roughly the half-way point in the electrical department to close to bottom of the list cannot but have a major impact on the applicant's work opportunities. While IATSE's submissions are contradictory as to the extent to which the applicant has in fact received work through the hiring hall, on the evidence it is clear from the applicant and Ms. Morgan that during the last major downturn in the industry, the applicant virtually "lived" in the union office waiting for work. When the consequences are as severe as they are in this case, there is a correspondingly high duty on the union to communicate both the rules and the timing of the application of those rules.

14. In the context of the applicant's second suspension, the process was not sufficiently clear. IATSE's practice enabled the applicant to persuade himself that there was always one more chance to be had. To impose the suspension and consequent loss of seniority without a final waming that he faced that consequence very soon was, in the circumstances of this case, arbitrary. The object of Article 14 is surely to ensure the payment of dues rather than to punish members. A final waming to the applicant was required to communicate clearly to him the consequences the risk he ran. Certainly the 1997 suspension, which came after a waming letter from Ms. Morgan, was entirely justified.

15. It is important to stress that this decision is based on the individual circumstances of the applicant, not the overall process adopted by IATSE. In addition, it appears that this problem is largely historical. I was advised at the consultation that IATSE now produces computer-generated quarterly dues statements, and that members can pay dues by way of pre-authorized withdrawals from a bank account. If the statements can be programmed to indicate the date after which continued nonpayment of dues will lead to a suspension and loss of union seniority, no member could ask for more.

16. The question of a remedy is difficult. The applicant wisely does not seek damages but merely reinstatement of his union seniority. I have found that IATSE acted in an arbitrary manner. I find it most emphatically that it has acted in good faith throughout, that there has been no discrimination towards the applicant nor is there any suggestion in the evidence that he has been singled out for a special treatment in any way. Further, the applicant is to a great extent the author of his own misfortune. He has not paid dues he knows he should have paid. Given the importance of the hiring hall in relation to his opportunities for employment, this should be his first bill to be paid not his last. Further he has displayed a great tendency to mislead himself, to accept the less likely interpretation of an event when the more likely interpretation is difficult, to avoid facing unpleasant facts, and to generally fail to be responsible for his own actions. Even after filing this complaint he remained in arrears in his payment of dues. In fashioning a remedy for IATSE's breach of Local 75, the Board should do nothing which would reward or encourage such behaviour.

17. I find therefore that the appropriate remedy is to declare that IATSE has violated section 75 and to direct IATSE to reinstate the applicant's union and classification seniority to the position it stood immediately before the 1998 suspension, effective October 1, 2000.