3372-00-U; 3373-00-U Dan Perry, Carl Severin, and Evan Siegel, Applicants 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: Laura Trachuk, Vice-Chair.

APPEARANCES: Alexandra Tinmouth, Dan Perry, Carl Severin and Evan Siegel appeared on behalf of the applicant; Bernard Fishbein and Paul Harding appeared on behalf of the responding party.

DECISION OF THE BOARD; October 12, 2001

1The style of cause is hereby amended to reflect the correct name of the responding parties in Board File Nos. 3372-00-U and 3373-00-U: "International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada Local 873".

2The style of cause has also been amended to reflect Kevin Brown's decision not to participate further in this application.

3Both applications are filed under section 96 of the Labour Relations Act, 1995 (the "Act"). In Board File No. 3372-00-U the applicants allege that the responding party (referred to as "IATSE" or "Local 873") has violated section 74 of the Act. In Board File No.3373-00-U, the applicants allege that IATSE violated section 75. A consultation was held with respect to these matters and the parties had a full opportunity to make submissions to the Board.

4The following are the relevant facts. The applicants perform transport work in the film and television production industry. Prior to the fall of 1999 they were members of the National Association of Broadcast Employees and Technicians, Local 700 (referred to as "NABET"). IATSE is a rival trade union to NABET for work on film and television productions. It operates a hiring hall for transport workers. Under the IATSE agreement, the productions are entitled to four name hires (for films) and hire the rest through the hall. Members who are available for work, call in and register the day before. After approximately 6:00 p.m. the Local goes down the list and offers the available jobs. The members at the top of the list get first pick providing that they have the qualifications. The Local then goes down the list and offers whatever jobs are left. It is not a revolving list, the most senior available person always gets first pick of the jobs for which he or she is qualified.

5In the fall of 1999 IATSE decided to embark on an aggressive organizing drive directed at NABET members as well as at "permittees". Permittees are individuals who are permitted by the trade unions to work on productions although they have not yet been admitted into membership. IATSE's constitution and by-laws contain relatively onerous requirements for membership. Normally membership requires a three step process beginning with screening qualifications by a committee, followed by a trade exam and a vote by the membership prior to initiation as a member. As part of the fall 1999 membership drive, the members of IATSE passed a resolution that NABET members who joined IATSE from September 20, 1999 to January 1, 2000 would be automatically approved for membership. Permittees would still have to be screened but the process would be expedited. It was also agreed that NABET members who signed "proof of membership" cards during the relevant period could finish their NABET projects and be initiated into membership once they were finished. In other words, they could take advantage of the opportunity to join without the usual onerous provisions even if they were not going to become full members until after January 1, 2000. It was also decided that if more than one person was initiated into membership on the same date, the date they signed their proof of membership card would be used to determine their order of seniority. The person who signed the proof of membership on the earliest date would appear above the person who signed later on the seniority list if they were initiated on the same day. People who wish to become members of IATSE sign "proof of membership" cards when they apply but under the constitution they do not start to accumulate seniority until they are initiated into membership.

6IATSE hired a company called Playter Strategies to conduct the organizing campaign. It set up a headquarters separate from the Local 873 offices. As part of the organizing strategy, Playter Strategies hired organizers to go out to the NABET work places and try to persuade people to join IATSE. Some of these organizers approached the applicants. The organizers told them that the date upon which they signed their proof of membership card would be their seniority date and that they could finish their NABET projects. The applicants say they were told they should finish their projects. The applicants all joined IATSE on the understanding that their seniority date would be the date they signed their proof of membership cards and they did finish their NABET projects. The organizers submitted seniority dates to the Local 853 office consistent with the date the applicants signed proof of membership cards. Those were the dates that appeared on the January 2000 seniority list. However, the membership had never agreed that seniority dates would be anything other that the date of initiation into the union as provided in the constitution.

7The Local 853 executive became aware that there was a problem with the seniority dates of some members in December 1999. It started receiving complaints from members who said that people who had been initiated on the same day were appearing above them on the seniority list. Local 853 investigated and discovered that the organizers had misrepresented the effect of signing the proof of membership card to some of the former NABET members. Paul Harding, the Local's president, advised the membership of the problem on January 11, 2000. He advised that the matter was being investigated. Eventually he contacted his legal counsel for an opinion and was advised that in the circumstances he should follow the constitution i.e. all of the members' seniority should be from the date of initiation not the date upon which he or she signed the proof of membership card. That advice was confirmed by IATSE's Director of Canadian Affairs. Mr. Harding then directed that the February seniority list be revised to reflect all of the new members' initiation dates. He received the legal opinion in writing on March 2, 2001. He reported that advice and the action he had taken to the Executive Board at its meeting on March 7, 2000. The Executive Board ratified his decision. The membership was advised of the decision at the general membership meeting on March 14, 2001. The applicants moved down between 90 and 150 places on the list as a result of the Local's decision.

8The applicant, Dan Perry, contacted Paul Harding in September 2000 to complain about the matter. Mr. Harding indicated that he would not change his mind. Mr. Perry then contacted the Canadian president and the international president of the union who both advised that it was a local matter and that they would not intervene. His last contact was with the international president in November, 2000. These applications were filed on February 16, 2001. The applicants say they did not file the applications until then as it took a year to determine the detrimental effect the change in their seniority has had on their incomes. They say that the effect has been significant.

9The applicants say that if they had known their seniority date would be their initiation date not the date they signed their proof of membership cards they would either not have joined IATSE or they would have quit their NABET projects and been initiated immediately.

Decision

10Section 74 and 75 of the Act provide as follows:

74. 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.

75. 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.

11There are no factual allegations that can support the claim that Local 875 represented the applicants arbitrarily, discriminatorily or in bad faith vis a vis any employer. The applicants' argument with respect to section 74 is that the union's actions with respect to the seniority list affected their access to work with employers. However, that cannot form the basis for a finding that the union violated section 74. The applicants have asserted a more persuasive case under section 75. However, after considering the matter, the Board finds that Local 875 has not violated that section either.

12Local 875 is certainly responsible for the representations of its agents. It should have ensured that the Playter Strategies employees were not misrepresenting the effect of the proof of membership card date. However, there is no reason to believe that those representations were anything but a mistake. The organizers who signed up the applicants did forward their proof of membership dates as their seniority dates so they obviously thought that was the correct date. Unfortunately they were wrong and the union's constitution dictates otherwise. There are no facts alleged to support any claim that the organizers made the representations about seniority arbitrarily or in bad faith or for any discriminatory purpose. The Board has said on numerous occasions that the fact that a union has made a mistake does not, on its own, mean that it has acted arbitrarily, discriminatorily or in bad faith. In I.T.E. Industries Limited [1980] OLRB Rep. July 1001 the Board stated as follows:

19. It is clear that in order to establish a breach of section 60[now 74], a complainant must do more than demonstrate an honest mistake or even negligence. The union must have committed a "flagrant error" consistent with a "non caring attitude", or have acted in a manner that is "implausible" or "so reckless as to be unworthy of protection". In other words, the trade union's conduct must be so unreasonable, capricious, or grossly negligent, that the Board can conclude that the union simply did not give sufficient consideration to the individual employee's concerns. Honest mistakes or innocent misunderstandings are clearly beyond these parameters and do not attract liability.

13The union's response to learning about the error was reasonable. It was faced with a situation in which many of its transport members would be affected if it allowed the incorrect seniority of the applicants and others in their situation to stand. The union would be imposing seniority dates which were not consistent with the constitution. In those circumstances it was appropriate to take the advice of its counsel and apply the constitution even though it meant adjusting the seniority dates of the applicants. This is an unfortunate situation for the applicants. But it arose from an error. The Local had to make a hard choice between the competing interests of its members and chose, appropriately, to follow its constitution. In these circumstances the Board does not find that the responding party violated the Act and the application is dismissed.

"Laura Trachuk"

for the Board