2312-98-U John H. Helfrich, Applicant v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128 and Local 555, Responding Party.
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Ted Scollie and John Helfrich for the applicant; J. James Nyman, Steve Silversides and Ron Groulx for the responding party.
DECISION OF THE BOARD; August 30, 2000
1This is an application filed by John H. Helfrich (the “applicant”) under section 96 of the Labour Relations Act, 1995 (the “Act”). The application as originally filed alleged that the responding party, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128 and Local 555 (the “union”) has violated sections 75, 76 and 87(2) paragraphs A and B of the Act. Counsel for the applicant, however, advised the Board at the outset of the consultation in this matter that the applicant was withdrawing his claim that the union violated section 76 and 87 of the Act.
2The applicant’s complaint is that the union violated section 75 of the Act in this case when it refused to allow him to sign an apprenticeship contract as originally planned. In essence, the applicant submits that the union acted “arbitrarily, discriminatorily or in bad faith” within the meaning of section 75 of the Act when it reconsidered entering into a contract of apprenticeship with him following the applicant’s return from the Estevan job site in Saskatchewan. The union did so after receiving reports from a number of the applicant’s co-workers at the Estevan job site that Mr. Helfrich was smoking marijuana both on his own time including on his way to work and at the job site and after questioning Mr. Helfrich about these reports. At the consultation in this matter, Mr. Helfrich maintained that he did not smoke marijuana on the job site as alleged. He did admit, however, that he had smoked marijuana on his own time both before and after his scheduled shift while in Estevan, Saskatchewan.
3At the outset of the consultation, the Board confirmed that the parties understood the consultation process and then heard from both the applicant and the union with respect to both the facts and their positions. After hearing the parties’ representations, the Board determined that it was necessary to hear sworn evidence concerning certain facts in dispute. These areas of dispute involve discussions between Mr. Helfrich and Mr. Steve Silversides, the union’s business representative. The Board therefore also heard brief sworn testimony from both Mr. Silversides and Mr. Helfrich concerning these discussions.
FACTS
4In or around 1996, Mr. Helfrich decided that he wanted to become a boilermaker and as a consequence he made application to the union to enter the boilermakers’ trade. Shortly thereafter, he passed certain aptitude tests administered by the union and was also interviewed by Mr. Steve Silversides and Mr. Rosaire Roussin, the union’s welding instructor located in Thunder Bay.
5During the course of this interview, Mr. Helfrich was asked whether he was “bondable”. In response, Mr. Helfrich told Mr. Silversides and Mr. Roussin that he had a prior criminal record involving assault for which he was convicted and sentenced to jail. Mr. Helfrich also advised Mr. Silversides and Mr. Roussin that the incidents leading to his conviction had occurred over ten (10) years’ prior and that he had since changed his lifestyle. According to Mr. Silversides, Mr. Helfrich also discussed his prior drug use at the interview in response to this question. Mr. Helfrich, however, denied having said anything about his prior drug use at the interview, but did admit having used drugs in the past including at or around the time the criminal charges were laid against him.
6The Board notes that Mr. Silversides’ evidence that Mr. Helfrich raised his past lifestyle involving drug use during this interview is consistent with Mr. Silversides’ written notations made at that time on the interview questionnaire. Mr. Silversides made a notation “drugs jail?” on the interview questionnaire beside the question “bondable?” and also made a further notation “drugs?” at the end of the questionnaire under the heading “interviewer’s assessment”. Mr. Silversides’ evidence concerning the statements made by Mr. Helfrich at that interview are also consistent with Mr. Helfrich’s own evidence that he did, in fact, have a lifestyle which included using drugs at or around the same time as the incidents leading to the criminal charges. In all of the circumstances, the Board accepts Mr. Silversides’ evidence that Mr. Helfrich did, in fact, raise his prior drug use at the time of his initial interview as being more credible than Mr. Helfrich’s denial that this issue was discussed.
7Shortly after this interview, Mr. Silversides contacted Mr. Helfrich to advise him about his “first dispatch”. Mr. Silversides maintains that he specifically warned Mr. Helfrich at that time that the evaluation process would commence and that any return to Mr. Helfrich’s previous lifestyle including the use of drugs would jeopardize his future in the program. While Mr. Helfrich denied having been warned about the use of drugs, he confirmed in evidence that he, in any event, understood that he could not work under the influence of drugs, since the job of a boilermaker is extremely safety sensitive. Mr. Helfrich also indicated that he felt that zero tolerance is an appropriate standard in these circumstances.
8Mr. Helfrich was dispatched by the union to various jobs thereafter. These jobs generally took place during company shut down periods. Although there is no dispute that Mr. Helfrich had not yet signed a contract of apprenticeship with the union, he nonetheless believed that he was considered to be an “apprentice” and a member of the union during this period. The union, however, takes the position that Mr. Helfrich was merely a “permitted” employee and, as such, he was neither an apprentice nor a member of either the local or the international union.
9The union explains that persons who apply to become members of the boilermaker trade are not enrolled initially as apprentices, nor are they accepted as members of the union. They are, instead, initially dispatched to jobs working at the rate of first year apprentices on a “permitted” basis. This period of time is meant to give the individuals involved an opportunity to see what it is like to work as a boilermaker and to provide others with an opportunity to assess the individual’s potential as a journeyman. This initial phase generally lasts a maximum of 1650 hours, at which point the individual must then enter into a contract of apprenticeship with the local apprenticeship committee if accepted as a member of the trade.
10The union was fully prepared to enter into a contract of apprenticeship with Mr. Helfrich upon his return from the Estevan job site until it heard reports about Mr. Helfrich’s use of drugs while working at that job site. More specifically, Mr. Silversides received reports from various apprentices and a journeyman named Mr. Donovan the same day that Mr. Helfrich was due to come in to the union office to sign a contract of apprenticeship. These individuals had returned to the union hall that day from the Estevan job site in order to register for additional work. The union states that two apprentices who did not work with Mr. Helfrich on the job site advised Mr. Silversides that Mr. Helfrich had used marijuana on off-duty hours including on his way to work. Mr. Donovan also advised Mr. Silversides that he had observed Mr. Helfrich on the Estevan job site using what appeared and smelled like marijuana.
11When Mr. Helfrich arrived at the union hall to sign his contract of apprenticeship, Mr. Silversides questioned him regarding these allegations. According to Mr. Silversides, Mr. Helfrich simply responded “everyone was doing it”. While Mr. Helfrich did not dispute having responded “everyone was doing it”, he testified that he had then gone on to make clear to Mr. Silversides that he had only used marijuana on his own time.
12In assessing the conflicting evidence on this point, the Board has considered the demeanour of the witnesses, the clarity of their evidence and what seems most probable in all of the circumstances. The Board observes that the application filed by Mr. Helfrich after the meeting in question is more consistent with Mr. Silversides’ evidence than with Mr. Helfrich’s evidence. In his application, Mr. Helfrich indicates that he believed Mr. Silversides “misunderstood my confirmation of what really happened”. The application filed by Mr. Helfrich dated August 25, 1998 reads as follows:
Upon arrival from Estevan, SK, I was placed in the “out of work” list and a message was left with Ms. Kemp from Mr. Silversides’ to tell me to “come in and sign my apprenticeship contract.” Information has come to light that just prior to my coming in to sign, a fellow union member went in and informed Mr. Silversides of my conduct during the last job. (Marijuana use on the job.) Of course this was untrue, and Mr. Silversides misunderstood my confirmation of what really happened. He immediately and once again denied my contract rights as well as removing my name from the “out of work” list. The union reps are trying to avoid….
[emphasis added]
The Board notes that Mr. Helfrich does not suggest here that Mr. Silversides simply refused to accept Mr. Helfrich’s claim that he had only used drugs on his own time. He states instead that “Mr. Silversides misunderstood his confirmation of what really happened”, which could presumably relate to an alleged misunderstanding concerning a simple response that “everyone was doing it”.
13In all of the circumstances, the Board is not persuaded that Mr. Helfrich was as clear in his denial that he used drugs while on the job during his meeting with Mr. Silversides as he indicated that he was in testimony. His evidence in this regard appears to the Board to be more consistent with what he wishes he had said rather than with what he did, in fact, say at the time.
14At this meeting, Mr. Silversides refused to allow Mr. Helfrich to sign the apprenticeship contract as originally anticipated. He advised Mr. Helfrich that he would discuss the matter with Mr. Groulx, a union representative located in Toronto. Thereafter, Mr. Silversides discussed the matter with Mr. Groulx, who also subsequently spoke to the apprentices in question about their allegations. Having regard to the information before them including Mr. Helfrich’s own response to the allegations, Mr. Groulx and Mr. Silversides concluded that Mr. Helfrich had used drugs while in Estevan, Saskatchewan either on the job or shortly before his scheduled shift. As such, they determined not to offer Mr. Helfrich a contract of apprenticeship at that time.
15The union notes, however, that Mr. Helfrich’s application to the apprenticeship program has not been rejected altogether. The union has simply made a decision not to enter into a contract of apprenticeship with Mr. Helfrich at this time.
DECISION
16The issue in this case is whether or not the union’s decision to reconsider entering into a contract of apprenticeship with Mr. Helfrich and to remove his name from the “out of work” list constitutes a violation of section 75 of the Act. Section 75 of the Act 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.
17The union argues that section 75 of the Act does not cover the decision of the union not to enter into a formal contract of apprenticeship with an individual, but rather addresses the referral of persons to employment. The union, however, submits that even if the provisions of section 75 of the Act do apply in this case, the applicant has failed to establish that the union acted in a manner that is “arbitrary, discriminatory or in bad faith” within the meaning of the Act.
18In Graham Smith, Allen Ouellette and Charles Wilburn [1995] OLRB Rep. Apr. 418 at p. 451, the Board observed that section 75 of the Act contemplates limited instances of Board intervention, since it is not the Board’s function under that provision to assess the correctness of the union’s decision:
Although the consequences of a poorly administered hiring hall 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 [74] and [75]. Just as section [74] 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 [75] 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. …The Board’s primary task is to determine whether the union has acted in a manner that is arbitrary, discriminatory or in bad faith. …
The scope of discretion accorded to union officials in generally shaping the parameters and specifically administering the operation of the hiring hall is readily apparent from even a cursory review of some of the above noted cases. In the Cooper case, supra, the union’s own by-laws conferred wide discretion on the business agent. The Board, at paragraph 38, observed:
Neither the fact of discretion nor its exercise are, per se, illegal. Discretion is inevitable in the circumstances. The business manager must balance a number of factors in determining which of the available out-of-work members should be sent to a particular job at a particular time. In so doing, he may well make an honest mistake. But the question is not whether the business manager (and, vicariously through him the union) may have erred in some way or made a decision of which this Board, with hindsight disapproves. Business agents, being human, will make mistakes or errors in judgement and may even appear to be inconsistent from time to time as they respond to the circumstances of the moment, and perhaps, subjective pleas for special consideration. The question is whether that discretion has been abused - for example, to benefit family or friends, or to punish political enemies (see Joe Portiss, supra). Obviously nepotism and patronage have no place in the hiring hall system, nor should the Board condone reliance upon obviously extraneous factors. But where a union official honestly turns his mind to the circumstances at hand, and without malice or any improper intent makes a sincere effort to assess the situation and balance competing claims before dispatching employees, we do not think we should readily infer that the decision was "arbitrary" and illegal. The term "arbitrary" in section [75] was intended to denote a decision making process that is reckless, cursory, consistent with a non-caring attitude or influenced by totally extraneous and irrelevant considerations.
The Board’s task is therefore to determine whether or not the union’s decision can be characterized as “arbitrary, discriminatory or in bad faith”. The terms “arbitrary, discriminatory or in bad faith” have been defined by the Board as follows:
“arbitrary” – that is, flagrant, capricious, totally unreasonable or grossly negligent (see, for example, ITE Industries Ltd., [1980] OLRB Rep. July 1001); or
“discriminatory” – that is, based on invidious distinctions without reasonable justification or labour relations rationale; or
“in bad faith” – that is, motivated by ill will, malice, hostility or dishonesty.
19The Board notes that there is no suggestion on the facts before it that representatives of the union harboured any ill-will towards the applicant or that the union singled out Mr. Helfrich for different treatment from other “permitted” employees or from other “apprentices”. By all accounts, the union was fully prepared to enter into a contract of apprenticeship with Mr. Helfrich until the allegations concerning his drug use while in Estevan, Saskatchewan surfaced. There is therefore no suggestion of any bad faith on the part of the union or that Mr. Helfrich was subjected to differential or discriminatory treatment as compared to other similarly situated individuals against whom allegations of drug use while on a job site had been made.
20The question is therefore whether or not the union may be said to have acted in a manner that is “arbitrary” within the meaning of the Act when it determined not to enter into a contract of apprenticeship with Mr. Helfrich as previously planned. There is no dispute between the parties that the work of a boilermaker is safety sensitive and that the consequences of impairment on the job are potentially serious in terms of the safety of the worker, co-workers and others, including the public. The union’s concern about allegations of drug use by an individual dispatched to employment through the hiring hall is therefore legitimate and serious in nature.
21Mr. Silversides and Mr. Groulx’s conclusion that Mr. Helfrich had been under the influence of drugs while on the job was based on reports of three (3) separate individuals, two of whom indicated that Mr. Helfrich used marijuana both on his own time and also on his way to work. The third individual, Mr. Donovan, claimed to have seen Mr. Helfrich using marijuana on the job itself. While Mr. Helfrich advised the Board about reasons why Mr. Donovan may have been motivated to lie to the union about him, Mr. Helfrich did not suggest that he had advised Mr. Silversides about this at the time Mr. Silversides confronted him about the allegations. In addition, Mr. Helfrich provided no reason why the other two individuals would lie about the fact that Mr. Helfrich had used drugs on his way to work.
22Mr. Silversides did not act simply on information from one individual who may or may not have had a grudge against Mr. Helfrich. The union had reports from three (3) different individuals, which suggested that Mr. Helfrich was using drugs in a manner that could impair his performance while on the job. As noted above, the question before the Board is not whether or not the union’s decision was correct, but rather whether or not the union made it arbitrarily within the meaning of the Act. Given the information from these individuals and Mr. Helfrich’s response to those allegations, the Board is unable to find that the union acted in a manner that was arbitrary when it reconsidered its decision to enter into a contract of apprenticeship with Mr. Helfrich at that time. In reaching its decision, it considered only relevant information.
23Assuming without deciding that section 75 of the Act applies to the circumstances of the present case, the Board is not persuaded that the union arrived at its decision in a manner that was arbitrary, discriminatory or in bad faith within the meaning of the Act. This application is accordingly dismissed.
“Caroline Rowan”
for the Board