3741-99-U Herwig Gayer, Applicant v. National Association of Broadcast Employees and Technicians, Association of Film Craftsmen, Local 700, Communications, Energy and Paperworkers Union of Canada, Responding Party.
0843-00-U Herwig Gayer, Applicant v. National Association of Broadcast Employees and Technicians, Association of Film Craftsmen, Local 700, Communications, Energy and Paperworkers Union of Canada, Responding Party.
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Don McKay, Herwig Gayer for the applicant; Micheil Russell, Alex Kavanagh and Conor O’Sullivan for the responding party.
DECISION OF THE BOARD; September 15, 2000
The style of cause is hereby amended to reflect the correct name of the responding party: “National Association of Broadcast Employees and Technicians, Association of Film Craftsmen, Local 700, Communications, Energy and Paperworkers Union of Canada”.
Board File No. 3741-99-U is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party (referred to as the “union”) has violated section 74. Board File No. 0843-00-U is an application under section 96 of the Act alleging a violation of section 75.
The basis of the applicant’s complaint under section 74 was that the responding party had failed to proceed with his grievance with respect to monies owing to him for a production he worked on in August 1999. However, at the consultation held on August 29, 2000, the parties agreed that that arbitration had been held and they were awaiting a decision. The Board does not find that there was anything inappropriate in the delay in bringing the grievance to arbitration in the circumstances. There are no remaining facts which could support a claim that the union has violated section 74 of the Act and the application in File No. 3741-99-U is therefore dismissed.
The following are the facts with respect to the remaining application. The union is an organization of technicians who work in the television and movie industry. The applicant has been a member of the union since 1994. He was listed in the boom operator category when he initially joined the union. In 1996 he was added to the sound mixer/recording list as a second category. Thus, when the union sent a list of its members who are boom operators, to a production company, Mr. Gayer’s name would appear on that list. If the union sent a list of sound mixer/recordists his name would also appear but with a note that it was his second category. In September 1999, Mr. Gayer requested that he be changed to the sound mixer/recording category first and the boom operator category second. Sound mixer/recordist is the key job in the sound department on a production. A trusteeship was imposed upon the union on October 1st. Mr. Gayer subsequently contacted the union again and asked for the category change. He was directed to put his request in writing to the person in charge of membership issues which he did on October 13, 1999. Mr. Gayer claims that he was entitled to have his category change made upon request as the union had decided he was qualified in both categories when he was placed on both lists. However, Mr. Gayer was not placed on the sound mixer/recording list as a first category until May, 2000 after this application was filed. In fact he was removed from the sound mixer/recording list altogether. As a result, he claims that he missed opportunities for sound mixer/recording work in the summer of 2000. The Board must decide if Mr. Gayer’s name was removed from the sound mixer/recording list in violation of section 75 of the Act.
As noted above, the local was placed under trusteeship by its parent in the fall of 1999. Another union was actively seeking to sign up the union’s members at the time. Mr. Gayer supported the executive which was removed from office and he claims that he was removed from the sound mixer/recording list in retaliation. He points out that although he was a steward and repeatedly asked to see copies of the lists he was not given one until March, 2000. He asks the Board to order that he be given compensation for not having the opportunity to be hired by a production which used a non-member sound recordist in the summer of 2000. He says that the production would only be permitted to use a non-member sound recordist if there were no member sound recordist available. If he had been on the list therefore he could have been hired.
The union responds that Mr. Gayer was not removed from the sound mixer/recording list for any unlawful reason. It claims that when the trustee was appointed it was impossible to access the local’s computer records. Conor O’Sullivan, who was appointed by the trustee and is now the business manager, therefore had to put together lists using the categories that members normally worked in or were currently working in. Furthermore, the data base the union was building at the time could only accommodate one category for each member. That has now been expanded to accommodate two or more categories. At the time the trusteeship was imposed, Mr. Gayer was working on a production as a boom operator. He continued to work on the same production in the same capacity until June, 2000. It appears that as a result of the process used by the union to build the list, some people may have ended up on lists which were their second category if they happened to be working in that capacity at the time. The union claims that Mr. O’Sullivan explained to members how he was building the lists during a number of meetings held in the fall of 1999. Mr. Gayer denies that it was mentioned at those meetings. The union also indicates that it was trying to devise a system so the lists would show availability dates as the old lists contained people who were working and the production companies had complained about that. Mr. Gayer replies that the old lists were out of work lists. The union also states that it was trying to come up with a procedure for members to change categories. Eventually it was determined that the Vice-president of each department on the executive committee would review such a request with the executive and make a decision. That procedure was in place by April, 2000 and it was then applied to Mr. Gayer. The Vice-president from the sound department agreed that he could be placed on the sound mixer/recording list. Mr. Gayer complains that he should not have had to even go through that process as the union had already decided that he was qualified as a sound mixer/recordist by placing him on that list as a second category in 1996.
The union explained its relationship with the production companies. It signs agreements with production companies who must then apply the terms of the union’s collective agreement as a minimum to the technicians it hires. The production companies then negotiate deal memos with the individual employees which frequently contain better terms than the agreement. Once they sign an agreement, the production companies are entitled to receive the union’s member lists to staff their productions. They are not required to choose individuals from the lists and members often seek work independently. The union indicates that the production companies are not even required to use union members. It says that a motion which would have required production companies to use members from the lists was put to membership in the autumn of 1999 and rejected. Mr. Gayer says the motion that the members voted on was whether out of work members should be able to bump “permitees” (i.e. non-members) off of a production. Mr. Gayer advises that prior to the trusteeship, production companies which were signatories to an agreement with the union were required to use union members unless granted a permit (no one disputes such permits were fairly easily obtained). The sound mixer/recordist is the key sound position on a production and a sound recordist will already have a boom operator with whom she or he wants to work. Mr. Gayer says that therefore there are more referral opportunities for a sound recordist than a boom operator.
Decision
Section 75 of the Act provides 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.
The union (no one takes the position that the responding party is not a union) claims that it does not have a hiring hall and is therefore not subject to section 75. The Board finds that the union is clearly “engaged in the selection, referral, assignment, designation or scheduling of persons to employment” and is therefore subject to the requirement under section 75 not to act arbitrarily, discriminatorily or in bad faith. The union decides whether individuals are qualified to have their names placed on lists which are then referred to potential employers. Being placed on such a list can have a direct effect on an individual’s employment. That is the purpose of such a list. The fact that an employer does not have to hire from the list or that members can seek work independently does not detract from the fact that the union has a “hiring hall” in that it selects and designates its members for referral. That is one of the ways that they get employment and the union must therefore comply with the requirements of the Act. However, in this case the Board does not find any violation of section 75.
It is not surprising that the applicant is concerned about the removal of his name from the sound mixer/recording list right after he asked for the category change. It is also not surprising that he was suspicious about this change when he was a known supporter of the old executive. However, the Board can see no reason not to accept the union’s explanation of the circumstances. No doubt the union should have been in better communication with Mr. Gayer. However, it was a time of upheaval, new people were brought in to administer the union and there was little continuity. It is true that the union had a continuing obligation throughout that period not to violate the Act but the Board must consider the circumstances in which events took place. The decision to place people on the list for the category in which they were currently working was not an arbitrary one nor does it appear that it was applied discriminatorily or in bad faith with respect to the applicant. The decision to have subsequent requests for category changes reviewed by that category’s member on the committee was also not arbitrary. The fact that Mr. Gayer did receive a category change and was placed on the list shows there was no discrimination or bad faith operating against him at that point. It is true that the applicant remained on the boom operator list until April or May, 2000. However, he was working as a boom operator until June, 2000. The Board understands Mr. Gayer’s complaint that he lost the opportunity to be on the list for summer production work as a sound mixer/recordist. However, the Board does not find that that was the result of any violation of the Act but rather of the confusion which naturally resulted from the imposition of the trusteeship.
For all of the above reasons this application is hereby dismissed.
“Laura Trachuk”
for the Board