Ontario Labour Relations Board
2323-00-U; 2324-00-U Michael Wade Anderson, Applicant v. Millwright & Machine Erectors Local Union 1244, Responding Party.
2327-00-U; Richard William Anderson, Applicant v. Millwright & Machine Erectors Local Union 1244 and Ryco-Aberici Ltd., Responding Parties.
2328-00-U; Richard William Anderson, Applicant v. Millwright & Machine Erectors Local Union 1244 Responding Party.
BEFORE: Timothy W. Sargeant, Vice-Chair.
APPEARANCES: Michael Wade Anderson and Richard Anderson for the applicants; Harold F. Caley and Richard Lumley for the responding parties; Stephen A. McArthur, J. Cameron Nolan and Kim Farrington for the intervenor.
DECISION OF THE BOARD; May 14, 2001
Decision
1The style of cause is amended to reflect the correct name of the responding party "Millwright & Machine Erectors Local Union 1244"
2Board File No's. 2323-00-U and 2324-00-U are applications filed by Michael Wade Anderson ("M. Anderson") pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (the "Act") alleging that the responding party has breached sections 74 and 75 of the Act respectively. These applications were filed on November 7, 2000.
3Board File No. 2327-00-U is an application filed by Richard William Anderson ("R. W. Anderson") pursuant to section 96 of the Act alleging that the responding parties have breached section 74 of the Act. Board File No. 2328-00-U is an application filed by R. W. Anderson pursuant to section 96 of the Act that the responding party has breached section 75 of the Act. These applications were filed on November 7, 2000.
4Dealing first with Board File No. 2327-00-U the dispute arose over work at a project at the Essex Aluminum Plant contracted for by the responding party Ryco-Alberici Ltd. (the "Company"). R. W. Anderson had been assigned to the project as a steward. He was subsequently laid-off on or about January 9, 1999. Mr. R. W. Anderson was employed as a millwright at the project There were no millwrights employed during the week January 16, 1999 at this location. Subsequently work was again commenced at the Essex Aluminum Plant, and a different steward was requested. Mr. R. W. Anderson felt he should have been assigned to this work. The Company took the position that the original project Mr. R. W. Anderson had been assigned to had ended and that the Company was perfectly within its rights under the Collective Agreement to request a new steward to the new project. Mr R. W. Anderson disagreed with this interpretation and asked that a grievance be filed. The Union, though it agreed internally with the Company's position, did take the matter forward to the Grievance Board composed of Management and Union personnel. Mr. R. W. Anderson was unable to attend such meeting. At the meeting the grievance was not successful. The Union did not pursue the matter further though urged to do so by Mr. R. W. Anderson, as it felt the decision of the Grievance Board was correct.
5The terms "arbitrary", "discriminatory" and in "bad faith" have been considered by the Board on a number of occasions. The Board has stated that only conduct which can be described as implausible, so reckless as to be unworthy of protection, unreasonable, suspicious or negligent will amount "arbitrary" conduct. The term "discriminatory" has been interpreted to refer to the disparate treatment of bargaining union members without cogent reasons. "Bad faith" has been interpreted to refer to actions or decisions motivated by hostility, ill-will or other improper considerations.
6On these facts, without dealing with the argument that the matter should not be heard as being untimely, the Board sees no merit in pursuing the issue further. The interpretation of the Collective Agreement by the Union is a reasonable interpretation. The Board finds that the pleadings do not raise any justification for a finding that the Union has acted arbitrarily, discriminatorily or in bad faith contrary to section 74 as those terms have been interpreted by the Board. In regards to the Company, under the Board's jurisprudence, a company may not be found to be in violation of section 74.
7For all these reasons Board File No. 2327-00-U is dismissed.
8Board File No's. 2323-00-U, 2324-00-U and 2328-00-U essentially deal with the same issues.
9Basically it is alleged by both Mr. M. Anderson and Mr. R. W. Anderson, that because of ill feeling between themselves and Mr. Rick Lumley, the Business Manager of the responding union that since 1994 to date the Union has been deliberately by-passing then on the hiring list in referring them to jobs. There are also allegations relating to Local 2125 and Maintenance Plus.
10The Union contends that it has always treated both Andersons in the same fashion as any of its other members. The Union submits that, while the Andersons may have different views as to the interpretation of the Collective Agreement and the by-laws, they have been treated no differently in regards to hiring hall procedures than any other members on the hiring hall list.
11The difficulty with the pleadings of the applicant is that outside of the broad assertions that they have been by-passed on the hiring list, the applicants do not plead any specific times, places or persons that have been lower on the hiring hall list and who have not legitimately been assigned by the Union, in instances where the Andersons were prepared to work. It should be noted that pursuant to the Collective Agreement in certain instances an employer may either name hire or request a specific individual.
12As the Board stated in Maurice Doyan [2000] OLRB Rep. January/February 55 at paragraphs 18 & 19:
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.
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.
13I am in agreement with such statements.
14Moreover, in any event in relation to these matters the allegations are that improper assignment has been occurring since 1994. In a case of an obligation of improper practices in relation to a hiring hall assignment there is a duty on the applicants to bring forward such complaint in a timely manner which was not done in this instance.
15In regards to the allegations surrounding Local 2125, such Local disbanded November 1, 1999. The Board is not persuaded that the pleadings establish a breach of section 74 or 75 in regards to Local 2125 of the Maintenance Plus in assignments, which are covered by a separate collective agreement. Again there just are no specifics as to times, places or persons who have been assigned to Maintenance Plus in preference to the Andersons and contrary to appropriate procedures.
16For all the above reasons, the Board exercises its discretion under section 96 of the Act and dismisses the applications in Board File No's. 2323-00-U, 2324-00-U and 2328-00-U.
"Timothy W. Sargeant"
for the Board