Maurice Doyon v. International Brotherhood of Electrical Workers, Local 1788, 2000 CanLII 8777

4073-97-U Maurice Doyon, Applicant v. International Brotherhood of Electrical Workers, Local 1788, Responding Party.

BEFORE: Harry Freedman, Vice-Chair.

APPEARANCES: Craig Morrison and Maurice Doyon for the applicant; Mark Wright, Lisa Triano and Harold Tomsett for the responding party.

DECISION OF THE BOARD; February 22, 2000

1. Maurice Doyon was, at all material times, a member of the International Brotherhood of Electrical Workers (“IBEW”), Local 1788, (“Local 1788”) who believed that Local 1788 contravened section 75 of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended (the "Act") when it referred other members and not him to be dispatched by Local 1739 of the IBEW, which has jurisdiction in the Barrie and Alliston areas, to work at the Honda assembly plant in Alliston. Mr. Doyon filed this application under section 96 of the Act seeking compensation for not having been dispatched by Local 1788 when he was the one who should have been referred to work there. The Chair of the Board authorized me to sit alone to hear and determine this matter pursuant to section 110(14)(a) of the Act.

2. Local 1788 had sought to have this application dismissed on a number of grounds prior to it being scheduled for hearing. Local 1788 submitted that the application did not disclose a prima facie case on the basis that the referrals about which Mr. Doyon complained were not made pursuant to a collective agreement. Local 1788 asserted that if the referrals to employment are not made pursuant to a collective agreement, section 75 of the Act has no application to the referrals. The Board (differently constituted) dismissed Local 1788’s motion to have the application dismissed on that basis (decision dated May 5, 1998, unreported) and the matter was scheduled before me for a consultation. I determined in the course of the consultation that in light of the factual and legal issues raised by the parties, this matter should be dealt with at a hearing. I ruled that the despite the Board’s earlier decision dismissing the motion to dismiss the application for not disclosing a prima facie case, the legal issue with respect to the scope and applicability of section 75 of the Act to Mr. Doyon’s circumstances was a matter that should be determined by the Board at a hearing, as that issue had not been fully argued before the panel which had dismissed the motion to dismiss the application. Furthermore, the defence on the merits raised by Local 1788 (that the referrals of its members to be dispatched by Local 1739 were done in accordance with Local 1788’s rules for referral and in any event, Mr. Doyon would not have been referred to Local 1739 because there were other members ahead of him on the out of work list) required the determination of a number of factual issues. In my decision dated February 15, 1999, unreported, following the consultation, I defined the issues for determination at the hearing as whether section 75 of the Act applied to the circumstances of this application and whether Mr. Doyon would have been the person referred to Local 1739 for dispatch even if the actual referrals that had occurred been improper.

3. Local 1788, at the times material to this application, had collective agreements with Ontario Hydro. It represented its members with respect to their employment at Ontario Hydro and operated a hiring hall for that purpose. Local 1788 did not have collective agreements with employers in respect of work outside of the electrical power systems sector. Indeed, Local 1788, since the decision was made by the IBEW to limit the jurisdiction of Local 1788 to employees of Ontario Hydro, could not have collective agreements with any employers other than Ontario Hydro. (See International Brotherhood of Electrical Workers, [1996] OLRB Rep. Feb. 203.) Local 1788 was therefore not a party to or bound by the ICI Provincial Agreement by which other locals of the IBEW in the province of Ontario were bound. Thus, Local 1788 could only dispatch its members to jobs with Ontario Hydro. It had no collective bargaining relationship or collective agreements with any other employer. If Local 1788’s members were referred to jobs with any other employer, the ultimate responsibility for such referrals rested with the local of the IBEW that had jurisdiction in respect of that employer’s jobs.

4. The work in issue in this application arose at the Honda assembly plant in Alliston. Local 1739 of the IBEW had the responsibility to refer its members to work at that plant, pursuant to the ICI provincial agreement. Local 1788 established an out of work list for its members in order to refer them to available work, both at Ontario Hydro and through other locals of the IBEW, both inside and outside of Ontario. Article XVI, section 10 of Local 1788’s by-laws authorized the Business Manager of Local 1788 to establish a process for the distribution of available jobs to qualified members. The referral procedures established by the Business Manager of Local 1788 were amended from time to time as circumstances warranted. For example, when the changes to the unemployment insurance program were introduced, the length of time a member could remain on the out of work list changed. There was no issue taken with respect to the creation or adoption of the procedures used for the referral of members to work. Rather, Mr. Doyon alleges that the procedures in place were not followed and therefore he was deprived of the opportunity to work at the Honda plant in Alliston.

5. Counsel for Local 1788 made a substantial preliminary objection to the application, which was fully argued before me by the parties. Counsel asserted that section 75 of the Act was specific and limited to the conduct of a union in referring members to employment pursuant to a collective agreement. It was not a section that created a “special status” for unions engaged in the selection or referral of persons to employment so every action they take can be challenged as being arbitrary, discriminatory or in bad faith contrary to section 75 of the Act.

6. Section 75 of the Act provides:

“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.”

Section 75 could be interpreted as imposing a duty on those trade unions which “engage in the selection, referral, assignment, designation or scheduling of persons to employment” pursuant to a collective agreement not to act in a manner that is arbitrary, discriminatory or in bad faith. Reading that section of the Act in that way would, therefore, permit any decision or action taken by that kind of trade union to be reviewed to see if it was “arbitrary, discriminatory or in bad faith”. In other words, the conduct of the trade union that is subject to scrutiny need not be restricted to the selection, referral, designation or scheduling of persons to employment pursuant to a collective agreement. It could relate to any decision of a trade union that came within the scope of section 75 of the Act. Mr. Doyon did not claim that section 75 extended that far. Rather, counsel for Mr. Doyon submitted that where the work to which the employee is referred is being done under a collective agreement, then the referral to that work is subject to scrutiny under section 75 of the Act. The job in issue was subject to the ICI Provincial Agreement. Local 1788 and other locals of the IBEW had travel card arrangements permitting members from one local to be dispatched for work through another local. The dispatch by Local 1739 to the Honda job was under a collective agreement. Local 1788 engaged in the selection and referral of members to work pursuant to a collective agreement. There are travel card arrangements between the local unions and members with travel cards are dispatched under a collective agreement. Therefore, counsel submits that all types of referrals arising under any collective agreement are subject to review to ensure that the action taken by the local union referring its members with travel cards to another local union does not act in a manner that is arbitrary, discriminatory or in bad faith.

7. There is nothing in the collective agreements by which Local 1788 was bound that dealt with the referral of its members to other locals of the IBEW to be dispatched to jobs within the jurisdiction of those other locals. Furthermore, there was nothing in the constitution of the IBEW or in the by-laws of Local 1788 that dealt with the referral of members to other locals of the IBEW. Counsel for Local 1788 submitted that the arrangement for the referral of members on travel cards between locals was an informal understanding between the business managers of the local unions. It was clear that it was the local union which had the jurisdiction over the jobs to which the dispatch was made that was ultimately responsible for the dispatch of a member to work. Counsel submitted that the purpose of section 75 was to regulate the manner in which a trade union referred its members to employment pursuant to a collective agreement. If other sorts of opportunities for work arose that were not under a collective agreement and the union referred its members to those opportunities, then the manner in which the union referred members to those non-collective agreement work opportunities was beyond the reach of section 75.

8. Section 75 of the Act was introduced into the legislation in July, 1975 (The Labour Relations Amendment Act, 1975, S. O. 1975, c. 76) to address the gap in what is now section 74. The Board in Arthur Joseph Roberts, [1974] OLRB Rep. March 169 pointed out the limits of section 74 of the Act at page 175:

“…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.”

Union members who are referred to employment through a union hiring hall are clearly not employees in a bargaining unit until they are hired and employed by the employer to whom they were referred for work. Their ability to assert that their union has acted in a manner that is arbitrary, discriminatory or in bad faith in respect of circumstances arising before or after they are actually employed by an employer must, in my view, relate to conduct proscribed by section 75 of the Act, since section 74 of the Act does not apply because that section limits the union’s duty to its “representation of any of the employees in the unit”.

9. The scope of section 75 was addressed by the Board in Lawrence Aluminum Incorporated, [1975] OLRB Rep. Nov. 885 shortly after what is now section 75 was added to the Act. In that case the complainant had thought he was working pursuant to a collective agreement when in fact his employer was not bound by a collective agreement. Rather, the union and the employer had an informal arrangement by which the employer would abide by the collective agreement without being bound to it. As a result, when a legal strike took place against the employers who were bound by the collective agreement, the complainant also went out on strike. A number of the union’s members did not engage in a strike against the complainant’s employer. The complainant had wanted to go back to work or get strike pay. He was unable to return to work and was not eligible for strike pay. He complained that the union had violated sections 60 and 60a [now sections 74 and 75] of the Act by reason of his being called out on strike improperly and being denied benefits during the strike.

10. The Board at page 888 of Lawrence Aluminum Incorporated, supra explained the purpose of section 75 of the Act in the following way:

“In other words, the person who was the victim of the unfair administration of ‘the hiring hall’ was without a remedy under section 79 [now section 96] of the Act. By amendment to the Act, the Legislature has attempted to cure what appeared to be an obvious shortcoming in the nature of the duty of fair representation by extending its scope to include unfair treatment accorded ‘a person’ ‘where, pursuant to a collective agreement,’ a trade union is engaged in the selection, referral, assignment, designation or scheduling of employment.”

The Board in that case emphasized the requirement under what is now section 75 that the subject matter of the complaint must relate to a referral pursuant to a collective agreement. The Board also wrote in that case at pages 888-89:

“…the grievor [complainant] has not established, having regard to the admissions of fact, that he is a ‘person’ who ‘pursuant to a collective agreement’ has been treated contrary to the respondent’s duty under section 60a [now section 75] of the Act. The respondents allegedly were parties to a loose arrangement whereby the respondent union agreed to supply the employer with union members provided the latter adhered to the terms of ‘The TCA Agreement.’ However cavalier and amoral this type of relationship may have appeared to the grievor, we are constrained to the conclusion that the term ‘pursuant to a collective agreement’ was not intended by the Legislature to be interpreted in a manner inconsistent with the definition of ‘collective agreement’ under the relevant provisions of The Labour Relations Act…. In the absence of the binding collective bargaining relationship between the employer and the trade union as the exclusive bargaining agent on behalf of persons affected by ‘the collective agreement’ we cannot find that a duty is owed the grievor under section 60a [now section 75] of the Act. To hold otherwise would compel the Board to entertain complaints pursuant to ‘any’ collective agreement irrespective of the absence of a legitimate collective bargaining relationship between the trade union and employer parties thereto. In our view the duty was not intended to have so wide an application under section 60a of the Act.”

A similar view was expressed by the Board in Jorge Menacho, [1979] OLRB Rep. July 675 where the Board wrote at page 677:

“8. A reason for the reference to a collective agreement in section 60a [now section 75] of the Act is because the terms of a collective agreement with respect to hiring through the union concerned may contain conditions governing the selection, referral, assignment, designation or scheduling of persons to employment. The application of section 60a is thus not universal and does not confer upon the Board the general jurisdiction to inquire into the internal arrangements or administration of the union with respect to its hiring hall practices, except where these may be conditioned by the terms of the collective agreement between it and the employer concerned.

9. The Board finds that effect must be given to the words ‘pursuant to a collective agreement’ as meaning a collective agreement current at the time the incidents occurred. That being the case, it is incumbent upon the applicant under section 60a to prove the existence of a collective agreement applicable to the situation and containing provisions governing the selection, referral, assignment designation or scheduling of persons to employment in order to sustain allegations of a breach of section 60a.”

See also Blue Line Taxi Company Limited, [1983] OLRB Rep. Feb. 192 at 193; Luciano D’Alessandro, [1985] OLRB Rep. Dec. 1708 at 1718.

11. The collective agreement between Local 1788 and Ontario Hydro filed at the hearing of this matter does, at section 801 A (ii), make reference to members of the IBEW working on travel cards. There is nothing, however, in that collective agreement, nor would one expect to find anything, related to Local 1788 referring its members to other locals of the IBEW so that they can be dispatched by those locals (presumably on travel cards) to jobs within the jurisdiction of those local unions. That circumstance was the focus of the issue in this complaint. Mr. Doyon seeks a remedy in respect of Local 1788’s failure or refusal to refer him to another local of the IBEW so that the other local would dispatch him to a job pursuant to the collective agreement by which that other local was bound.

12. In my decision in this matter dated February 15, 1999, I noted that Local 1788 had sought the dismissal of this application on the grounds that the Board did not have the jurisdiction to enquire into this complaint on the grounds that the complaint was based on referrals that were not made pursuant to a collective agreement. In dismissing the motion made by Local 1788, the Board, differently constituted, in its May 5, 1998 decision in this matter, unreported, wrote:

“I disagree with the interpretation suggested by the union of the words contained in section 75 of the Act. There can be no doubt from the materials before the Board that Local 1788 operates a hiring hall, for which its members are dispatched to perform work. It would appear that the hiring hall structure is established through the collective agreements that the union has with Ontario Hydro. Given this, Local 1788 clearly engages in the referral of persons to employment ‘pursuant to a collective agreement.’ To adopt the interpretation of the union would be to eviscerate the rights established by section 75. If the union could justify entirely inappropriate referrals by pleading that they were effected by a ‘side deal’, the protections outlined by the provision would be meaningless. The Act requires a trade union to act in a certain manner when it operates a hiring hall referral system under a collective agreement. That is what Local 1788 does, and its referrals must be able to meet the statutory standard. Accordingly, I dismiss this preliminary argument.”

If the Board meant by that decision that any referral made by Local 1788, whether or not pursuant to a collective agreement, was subject to the obligation imposed by section 75 of the Act, I must, with respect, disagree, particularly in light of the Board’s interpretation of that section in the several decisions made since that section was introduced into the Act in 1975 not referred to in that decision. In my view, the Board, when it said in its May 5, 1998 decision:

“The Act requires a trade union to act in a certain manner when it operates a hiring hall referral system under a collective agreement.”

was correct. It is clear to me that section 75 does not apply to any form of referral, whether by reason of a “side deal” with other business agents that does not relate to referrals pursuant to a collective bargaining relationship or by reason of an informal arrangement with an employer who is not bound by a collective agreement with the union, when the referral is not pursuant to a collective agreement for the reasons expressed by the Board in Lawrence Aluminum Incorporated, supra and Jorge Menacho, supra. Section 75 does however clearly apply to the referrals made by a union when it is engaged in the selection, referral, scheduling or designation of its members pursuant to a collective agreement. That is, section 75 applies to the selection, referral, or dispatch of members by a trade union whether the collective agreement sets out in detail how the referrals are to be made or simply requires that the employer must employ only persons who are referred to employment by the trade union. In this case, the referrals by Local 1788 of its members to Local 1739 were not made pursuant to a collective agreement. Indeed, Local 1788 was neither a party to or bound by the collective agreement pursuant to which the members of Local 1788 were dispatched by Local 1739. Therefore, even if the referrals to Local 1739 by Local 1788 to which this application relates were made in violation of the hiring hall rules of Local 1788 (which, in any event, has not been established) they were not made pursuant to a collective agreement. On that basis alone, this application should be dismissed.

13. Counsel for Local 1788 also submitted, whether or not the referrals were pursuant to a collective agreement, Mr. Doyon had no legal interest in the matter as he would not have been referred to work in any event. Mr. Doyon’s complaint rests, in large part, on the assertion that there were three members of Local 1788 who were referred to work through Local 1739 ahead of him. He asserts that those three members should have been placed lower on the out of work list because they had worked a sufficient number hours to qualify for unemployment insurance benefits. It was clear that two of the three persons about whom Mr. Doyon complained had been referred improperly ahead of him were, in fact, properly ahead of him on the out of work list. There was no breach of the procedures established for the referral of out of work members to in relation to those two persons. It was unclear whether there had been a violation of the procedures in relation to Mr. Doyon and the third person about whom he complained. Local 1788 submits that even if there had been a mistake with respect to one or even two of the referrals to Local 1739, Mr. Doyon, who was well down the list, would not have been referred in any event. In effect, Local 1788 submits that Mr. Doyon did not have any standing to complain since if the procedures had been followed precisely, he would not have been referred and therefore he would not be entitled to compensation since he had lost nothing by reason of the improper referral, even if a referral had been improper, which Local 1788 denied.

14. Counsel for Mr. Doyon submits that there was an improper referral and the fact that no one above Mr. Doyon on the out of work list complained is irrelevant. If no one else who might be entitled to relief sought a remedy for the improper referral, then their failure to complain does not deprive Mr. Doyon of his status to either bring this application or obtain relief by way of compensation. In other words, if Local 1788 had made one improper referral ahead of Mr. Doyon, the fact that no one on the out of work list between him and the person who was improperly referred filed a complaint should not deprive Mr. Doyon of a remedy.

15. Counsel for Local 1788 asserted that the out of work list clearly showed that Mr. Doyon would not have been the member referred even if one, two or all three of the referrals that had been made to Local 1739 who ultimately dispatched those members to the Honda plant had been referred incorrectly by Local 1788. Thus, Local 1788 submitted as a result, Mr. Doyon does not have standing to even bring this application. Counsel for Local 1788 relied on the Board’s decision on that issue in Walter Sladich, [1985] OLRB Rep. June 1167. In that case, the complainant asserted in part III of his complaint that two persons below him on the out of work list were referred to work and then after being refused employment were returned to the same position (below the complainant) on the out of work list. The complainant in that case also acknowledged that the referral in issue required a skilled form builder/setter and that he did not possess those skills. The Board accepted the union’s preliminary objection with respect to that aspect of the complaint. At page 1169 of Walter Sladich, supra the Board set out the union’s submission that “…the complainant was not entitled to challenge referrals which had no effect on the complainant’s entitlement to referral.” In accepting that proposition the Board wrote at page 1171:

“The Board, though, does not regard item III as a matter which the complainant can properly challenge. The positions to which [the two members] were referred required skills as a form builder/setter; the complainant is not so qualified. Moreover [the two members] were below the complainant on the out-of-work list and were returned to a position below him. The referrals of these men, then, did not affect the complainant’s statutory rights. The duty owed by the respondent to the complainant under section 69 [now 75] of the Act is not a springboard enabling the complainant to challenge referrals except those in which he has a legal interest. The complainant may be well be dissatisfied with the respondent’s executive, by-laws, procedures, etc. The Board, however, is not the forum for dealing with those dissatisfactions. In short, the complainant's entitlement to be referred to positions for which he was qualified is not affected by the return of [the two members] to the positions on the out-of-work list they had occupied before the company refused to hire them. The Board, then, will not deal further with these allegations.”

16. Counsel for Mr. Doyon submitted that in this case Mr. Doyon is in no different position than an employee who seeks to enforce a provision of a collective agreement requiring the equitable distribution of overtime. In Federal White Cement, (1981), 1981 CanLII 4390 (ON LA), 29 L.A.C. (2d) 342 (Rayner) the board of arbitration held that an employee who is a member of a class of employees entitled to an overtime assignment is entitled to both file a grievance and obtain compensation even if he would not have been the employee actually entitled to the overtime assignment had it been done correctly. The board in Federal White Cement, supra wrote at page 346-7:

“When the employee files his or her grievance, no new right is created. Rather, that right of distribution amongst the class is being enforced. In our view, at that point in time, the right crystallizes. It should not be open to the company to say that the grievor, who brings the matter forward to the attention of the union and, indeed, perhaps the company, should not be entitled to enforce his right in a meaningful way. Once the grievance is filed, it is our view that it is then too late for the company to say that the matter will be corrected by payment to another person. It may take that position before the filing of the grievance but, after the filing of the grievance, in the absence of any clear language to the contrary in the collective agreement, the grievor is the aggrieved employee and is entitled to a remedy that would enforce the collective agreement in a meaningful way.”

The board in that decision also issued a declaration at page 348 by which it declared that:

“…where only one person files a grievance because of improper allocation of overtime outside the class, that person is entitled to payment and that payment may not be denied on the basis that the company wishes to pay the person with the lowest number of accumulated hours in the class at the time the allocation was made.”

17. Counsel for Mr. Doyon also relied on the Board’s decision in Joe Portiss, [1983] OLRB Rep. Sept. 1554 (“Joe Portiss No. 2”) for the proposition that even though Mr. Doyon might not have been the person entitled to the referral if it had been done correctly, he does have standing to bring the application and obtain a remedy. The Board in Joe Portiss No. 2 noted at page 1555:

“The evidence does not confirm that an adherence to the hiring hall rules in conformity with section 69 [now 75] of the Act would have resulted in the referral of Mr. Portiss to the job in question. It appears that other members qualified as foremen who stood ahead of Mr. Portiss were also passed over in favour of Cicchini, and would have been entitled to that referral in preference to Mr. Portiss.”

In Joe Portiss No. 2 the Board had determined that there had been several violations of the Act in respect of the complainant in that case. In my view, the Board in that case was not prepared to calculate the quantum of compensation payable to the complainant based on the referral of someone else to a position ahead of him. It developed a remedy in that case based on more than just putting the complainant in the shoes of a person ahead of him on the out-of-work list. There were a number of factors the Board took into account when it assessed the damages it would award to the complainant. The Board did not, in my view, determine that Mr. Portiss could still bring the complaint even though there were others ahead of him on the out-of-work list and he would not have been referred in any event. The Board, to the contrary, specifically found that the complainant was entitled to specific referrals to jobs to which others below him on the out-of-work list had been referred. In Joe Portiss, [1983] OLRB Rep. July 1160, the Board concluded that there were a number of jobs to which the complainant should have been referred. (See pages 1167 to 1169.) Thus, there is no basis for concluding that the Board in Joe Portiss No. 2 had permitted an application alleging a violation of what is now section 75 of the Act to proceed when the applicant did not have direct interest in a particular referral.

18. I am of the view, for the reasons expressed by the Board in Walter Sladich, supra that an applicant alleging a violation of section 75 of the Act must assert that he or she had been deprived of a specific work opportunity by the conduct of the union against whom the application is made. If the responding party can demonstrate that the applicant would not have been entitled to the referral on a proper interpretation of the hiring hall procedures used to refer members to employment pursuant to a collective agreement, then, in my view, an application seeking damages for a violation of section 75 of the Act must fail. The Board is not a policing agency charged with ensuring that trade unions engaged in the selection and referral of persons to employment pursuant to a collective agreement always adhere to the rules the union has put in place for referring its members to employment pursuant to a collective agreement. The Board neither investigates or conducts audits of union hiring halls. Rather, it decides applications commenced by persons who allege they have been adversely affected by the trade union’s conduct. A person who has been prejudiced or adversely affected by the decision to refer someone else to employment has the legal right to bring an application alleging a violation of the Act. If, however, the applicant alleging a violation of the Act has not been directly affected by the impugned referral because some other member would have been entitled to it had the referral been done correctly, then, in my view, that applicant does not have standing to pursue a claim for damages.

19. An applicant must allege and subsequently prove that he or she was deprived of a work opportunity by conduct of the union that was arbitrary, discriminatory or in bad faith in order to obtain damages for a violation of section 75 of the Act. If that were not the case, any union member could allege a violation of section 75 of the Act and require a review of all of the records maintained by the union to ensure that all of its referrals were proper and perhaps find some errors. To allow persons not directly affected by the alleged violation of a union’s hiring hall rules to both bring a claim and recover damages would simply encourage applications in the nature of fishing expeditions, filed in the hope that some error would be uncovered and damages would be awarded.

20. In this case, Mr. Doyon was well down the out-of-work list maintained by Local 1788. Even if the one or two of the referrals in issue were improper, (and I have not made that determination) I am satisfied that Mr. Doyon would not have been the person referred. There were several other members of Local 1788 above Mr. Doyon on the out-of-work list who would have been referred to Local 1739 for dispatch to the Honda plant in Alliston. Thus, this application should be dismissed on this basis as well.

21. As the referrals to which this application relates were not made pursuant to a collective agreement and as Mr. Doyon has failed to establish that he would have been the member of Local 1788 who should have been referred to Local 1739, this application is dismissed.

“Harry Freedman”

for the Board