0831-00-U Giancarlo Cesaroni, Applicant v. United Association of Journeymen and Apprentices of The Plumbing and Pipefitting Industry of the United States and Canada Local 46, Responding Party.
BEFORE: Timothy W Sargeant, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.
DECISION OF THE BOARD; August 11, 2000
This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party has breached section 74 of the Act.
As part of its response the responding party submits:
For Section 74 of the Act to be invoked in an Application alleging its violation, it must be alleged and demonstrated that UA Local 46 continued “…to be entitled to represent employees in a Bargaining Unit…”, and that the Applicant was an employee in that Bargaining Unit. The Applicant has neither alleged nor demonstrated this to be the case and in fact such was not the case. Therefore there can be no complaint under Section 74 of the Act. The Responding Party requests therefore that the Application be dismissed without Consultation of Hearing, as provided for in Rule 46 of the Board’s Rules of Procedure.
The applicant in essence alleges that he should have been referred to a project with Bannister Pipelines in the capacity of “work-side spacer”. The applicant alleges that the union failed to dispatch him to the project as it should have done. The applicant alleges that the decision of the responding party that he was not qualified to work as a “work-side spacer” was arbitrary and capacious and contrary to section 74 of the Act.
In relation to the submission of the responding party that there can be no complaint brought under section 74 in these circumstances, the applicant alleges that he is a member of the bargaining unit and that “it should not be necessary to point out to the respondent that every unemployed pipeline journeyman is a potential employee of any pipeline project and is thereby necessarily a party to the bargaining unit”.
DECISION
Section 74 of the Act states:
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.
A similar issue was considered in the decision of Arthur Joseph Roberts [1974] OLRB Rep. March 169. At paragraphs 12 and 13 the Board set out the issue as follows: (note section 60 referred to in the following paragraphs is now section 74, section 79 is now section 96 and section 58 is now section 72)
The issue before this Board is whether in the administration of the hiring hall a trade union is subject to the duty of fair representation as described under section 60 of the Act with respect to the filling of job vacancies by rank and file members. Or, more precisely, does the language of section 60 in that it speaks in terms of "employees in a bargaining unit" ipso facto preclude the Board from granting relief to members or other persons who are not employees in the event of a finding of arbitrary, discriminatory or bad faith conduct by the union in the implementation of its "hiring hall" procedures?
Clause (a) of subsection (4) of section 79 of the Act
provides that if the Board is satisfied that upon the complaint of a person that person has been refused employment… discriminated against.. .or otherwise dealt with contrary to this Act as to his... opportunity for employment...by any employer or other person or a trade union, it shall determine what, if anything the employer, other person or a trade union shall do or refrain from doing with respect thereto, and such determination may include the hiring… ..of the person concerned with or without compensation or compensation in lieu of hiring.. .for loss of earnings... In short, if section 60 applies to the circumstances delineated by the complaint the Board is quite satisfied that the Legislation contemplates the granting of relief to an aggrieved prejudiced by such unfair conduct. The key phrase, however, in section 79(4) is the words "contrary to this Act". And in this regard must a member for purposes of section 60 be an employee" in order to claim such relief?
The Board then went on to find:
The Board has canvassed other unfair labour practice provisions of the Act with a view to ascertaining the type of circumstance contemplated before relief (as expressed under section 79(4) and as described in paragraph 13 herein) will be accorded an aggrieved where he has been the object of unfair practices contrary to the Act with respect to hiring or being engaged in employment. For example section 58 of the Act provides;
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
By these provisions the Act proscribes conduct by an employer with respect to discrimination in employment or opportunity for employment because of union activity. In short, imposition by an employer whether directly or indirectly of conditions restraining union activity as a term of the employment contract is quite clearly prohibited. And in this regard it is important to note that the sections quoted speak in terms of 'persons" and not just "employees". More particularly, clause (b) of section 58 provides that no employer shall impose a condition in a contract of employment that seeks to restrain an employee or persons seeking employment from becoming a member of a trade union. In short, the Legislation anticipates that during the hiring process unfair, discriminatory activity contrary to the purpose of the Act might be inflicted upon persons seeking employment and provides for such contingencies.
Furthermore under section 58(a) a person once hired cannot be discharged for union activity. And in this regard the Legislature preserves the employment status of such discharged persons for purposes of seeking relief under the Act. Under section 1(2) "for purposes of the Act, no person shall be deemed to have ceased to be an employee... by reason of his being dismissed by his employer contrary to this Act or to a collective agreement." Thus a discharged person for the limited purpose described herein preserves his employment status until he is otherwise found to be discharged for reasons not contemplated plated by the Act. In this regard counsel's argument with respect to the suspect status of aggrieved persons discharged contrary to the Act or the terms of a collective agreement to seek redress is without foundation.
Would the Board therefore be on a sound footing in granting relief to persons who are not employees for purposes of section 60 of the Act? In this regard the Board has come to the conclusion that it would do violence to the intent of the Legislature if it presumed that members of a trade union affected by a union hiring hall are ''employees in a bargaining unit'' for purposes of supervising the operation of that hiring hall through the union's alleged duty of fair representation.
We are satisfied that it was the intention of the Legislation to restrict the scope of a trade union's duty of fair representation to employees in a bargaining unit. It would be a forced interpretation of the word employee in section 60 for the Board to presume the contrary where the Legislature permits parties to the collective bargaining relationship under section 38(1)(a) of the Act to determine through negotiation the very conditions upon which the employer—employee relationship may be established. It is the Board's opinion that if the Legislature intended the scope of the trade union's duty of fair representation to extend beyond employees in a bargaining unit it would have done so in the clearest of language. The Legislature has given the Board a clear mandate with respect to granting relief against discriminatory hiring practices based on trade union activity. It has not done so for purposes of section 60.
With respect to the above paragraph we do not wish to leave the impression that had the word "person" been contained In lieu of or in addition to the word "employee" in section 60 the Board would thereby have been on a sound jurisdictional basis to proceed with the instant complaint. (see; Barbara Jarvis v Associated Medical Services et al 64 CLLC¶ 15,511 (SCC) per Cartwright J. at p845). Rather, it may very well be that in order to hold a trade union accountable (through the duty of fair representation) with respect to the administration of the hiring hall the word "member" would be more appropriately inserted. (see; Canadian Pittsburgh Industries v H. Orliffe et al (1961) OWN 223; 61 CLLC¶15,373 at p330 (per McRuer C.)
The Board therefore holds that under section 60 a trade union's duty of fair representation does not extend to members in good standing who are not employees in a bargaining unit. The Board therefore finds it is without jurisdiction to proceed and accordingly terminates these proceedings.
Subsequently what is now section 75 of the Act was passed by the Legislature to deal with situations arising in a hiring hall context.
In these circumstances the Board agrees with the finding in the Arthur Joseph Robert decision and therefore dismisses this application alleging a breach of section 74 of the Act. In his reply the applicant concedes that at the time of the alleged failure of the union to refer him to Bannister Pipelines he was an unemployed journeyman and not an employee. As such the applicant is not an employee in a bargaining unit and therefore the Board is without jurisdiction to consider a complaint alleging a breach of section 74 of the Act. However, the Board understands that the applicant has raised this same issue in Board File No. 0830-00-U alleging a breach of Section 75 of the Act. This decision does not in any way affect that application.
“Timothy W. Sargeant”
for the Board