Federal Court of Appeal Decisions

     A-285-96

CORAM:      HUGESSEN J.A.

     STRAYER J.A.

     DESJARDINS J.A.

B E T W E E N :

     INTERNATIONAL LONGSHOREMEN'S AND

     WAREHOUSEMEN'S UNION, LOCAL 502

    

     APPLICANT

A N D :

     RODNEY MCLEAN

    

     RESPONDENT

     Heard at Vancouver, British Columbia, Friday, September 20, 1996.

     Judgment rendered at Ottawa, Ontario, Thursday, September 26, 1996.

REASONS FOR JUDGMENT BY:      HUGESSEN J.A.

CONCURRED IN BY:      STRAYER J.A.

     DESJARDINS J.A.

     A-285-96

CORAM:      HUGESSEN J.A.

     STRAYER J.A.

     DESJARDINS J.A.

B E T W E E N :

     INTERNATIONAL LONGSHOREMEN'S AND

     WAREHOUSEMEN'S UNION, LOCAL 502

    

     APPLICANT

A N D :

     RODNEY MCLEAN

    

     RESPONDENT

     REASONS FOR JUDGMENT

HUGESSEN J.A.

     This is an application to review and set aside a decision of the Canada Labour Relations Board dated March 7, 1996. By that decision, the Board allowed a complaint filed by the respondent pursuant to section 69 of the Code¹ and directed that the matter be continued before it for further hearing on the question of the appropriate remedies.

     The applicant is a trade union which has a collective agreement to provide stevedoring services in the Port of New Westminster pursuant to which it dispatches "casual" workers to longshoring jobs as required.

     Only two points of any substance were raised by the applicant.

     The first has to do with the application of the limitation period enacted by subsection 97(2) of the Code:

97. ... (2) Subject to subsections (3) to (5), a complaint pursuant to subsection (1) shall be made to the Board not later than ninety days after the date on which the complainant knew, or in the opinion of the Board ought to have known, of the action or circumstances giving rise to the complaint.

97. ... (2) Sous réserve des paragraphes (3) à (5), les plaintes prévues au paragraphe (1) doivent être présentées dans les quatre-vingt-dix jours qui suivent la date où le plaignant a eu - ou, selon le Conseil, aurait dû avoir - connaissance des mesures ou des circonstances ayant donné lieu à la plainte.

     As previously indicated, the respondent's complaint was founded on an alleged breach of section 69. That section reads as follows:

69. (1) In this section, "referral" includes assignment, designation, dispatching, scheduling and selection. (2) Where, pursuant to a collective agreement, a trade union is engaged in the referral of persons to employment, it shall establish rules for the purpose of making such referrals and apply those rules fairly and without discrimination. (3) Rules applied by a trade union pursuant to subsection (2) shall be kept posted in a conspicuous place in every area of premises occupied by the trade union in which persons seeking referral normally gather.

69. (1) Pour l'application du présent article, sont compris dans le placement l'affectation, la désignation, la sélection, la répartition du travail et l'établissement des horaires. (2) Le syndicat qui, aux termes d'une convention collective, s'occupe du placement de demandeurs d'emploi pour l'employeur est tenu d'établir des règles à cette fin et de les appliquer de façon juste et non discriminatoire. (3) Les règles visées au paragraphe (2) doivent être affichées bien en vue dans tout local du syndicat où se réunissent habituellement des personnes qui se présentent en vue du placement.

     As the Board viewed the complaint, the respondent alleged non-compliance with both subsection 69(2) and 69(3). Subsection 69(2), in the Board's view, was breached by virtue the union having had in place until some date in 1994 a policy which was discriminatory and unfair because it gave favourable treatment to casual longshoremen who were close relatives of union members. Subsection 69(3) was breached because the Board found that neither the policy actually applied nor any other had been posted as required by that provision.

     The burden of the applicant's submission, as I understand it, is that the Board exceeded its jurisdiction and made a patently unreasonable finding when it held that the respondent's complaint filed May 5, 1994, had been made not later than 90 days after the date on which he knew or ought to have known of the circumstances giving rise to it. Since the evidence was that the respondent's position on the "casual boards" (lists of potential casual employees in order of seniority) had been fixed no later than 1988, and since he had filed a complaint with the Canadian Human Rights Commission in 1991 alleging that he was a victim of discrimination, the finding by the Board that the complaint filed in 1994 was timely was necessarily perverse. I do not agree.

     The Board's findings of fact were very specific:

The movement of union members up the various boards from "G" to "A" is crucial to a casual's job security and his aspirations to become a union member. The sooner a member moves through the boards to the top of the "A" board, the sooner he will be able to join the union and have his full-time employment secured. It is therefore important to ensure that the method by which people get onto the casual boards and the process by which they move up are accomplished fairly and without discrimination.

On October 3, 1991, the union promulgated a "Board Moves Formula" for the purposes of setting out the process by which members would move up and down the casual boards.

(Reasons for Decision, Applicant's Record, page 72)

     The "formula", set out in Exhibit 18 to the Board's proceedings, purported to require that the priority of casuals be fixed purely on seniority and average hours worked. The Board went on, however, to note other evidence:

Wilfred Belanger, the secretary-treasurer of Local 502 from 1984 to 1994, testified that prior to October 3, 1991, and - notwithstanding the terms outlined in Exhibit 18 - thereafter, while he was secretary-treasurer, the movement of casuals from board to board was essentially done on an ad hoc basis which, we believe, can be fairly categorized as being at the caprice of the Grievance and Credentials Committee or the general union membership. Belanger admitted that notwithstanding the provisions of sections 69(2) and 69(3), no formal referral policy was prepared, promulgated, put into place or posted until 1994: i.e., following McLean's complaint.

[Emphasis added]

(Reasons for Decision, Applicant's Record, page 73)

     And again:

The evidence of Kurt Penner discloses that the union's breach did not cease in 1988. Penner testified that he obtained union status in March 1988. By the end of that year he had moved to the "E" board. As indicated in Exhibit 14, by March 1989, Penner was ahead of one C. Andersen (#35642) on the "E" board. According to Belanger , the union's numbering system, instituted in May 1988, would ensure that members who preceded other members on the casual board - and maintained minimum hours - would keep their relative seniority positions in all subsequent moves up the casual boards. However, in his uncontradicted testimony, Penner told the Board that, notwithstanding the fact that he preceded Anderson in seniority on the casual boards as of March 1989, and that he maintained the union's annual work and hourly requirements to ensure his continued relative position on the boards, Anderson was, as at the date of Penner's testimony, on the "B" board while Penner was still on the "C" board. According to Penner, Anderson is related to a union member. He also testified that R. Kimmerly (#35696) who, according to Exhibit 10, did not work prior to 1988, also precedes him. Kimmerly according to Penner, is also the relative of a union member.

The union did not offer any explanation concerning the matters raised by Penner.

As indicated, following the filing of the present complaint, the union promulgated its 1994 referral rules (Exhibit 16). Belanger testified those rules were based upon and essentially reflected the union's referral policy as implemented over the period 1984-1994. That being the case, it is apparent that even the 1994 referral rules are based upon the file number system instituted in 1988.

...

We therefore conclude that the union, in establishing and administering its referral system during the period under review, was in flagrant breach of its public obligations under section 69 of the Code. This is so both in its failure to comply with section 69(2) to establish and administer fair and non discriminatory rules for the purpose of making its referrals, and to keep those rules posted in conspicuous places at the union hall pursuant to section 69(3).

[Emphasis added]

(Reasons for Decision, Applicant's Record, pages 94-95)

     In my view, these findings, which are squarely based on the evidence before the Board, are unassailable and are decisive against the applicant's position. The complaint filed by the respondent before the Human Rights Commission, which was put in evidence before the Board, did not and could not deal with the union's alleged referral policy for, as the Board found, such policy had not been promulgated or posted prior to 1994. Furthermore, it is at least arguable from a reading of the complaint to the Human Rights Commission that, while the respondent felt that he had been badly treated by the union and was the victim of favouritism, he thought that this was the result of the union's failing to follow its established policy rather than because the policy itself was discriminatory:

I grieved the removal of my name from "E" board; my grievance of February 8, 1988, was instrumental in having the boards unfrozen. However, at that time, my seniority date was listed as being effective from February 8, 1988, whereas other individuals who had been working less time than I, were given their seniority date as their original registration date with the I.L.W.U. The majority of those individuals are related to I.K.W.U. members.

I believe that I was unjustly removed from "E" board because of my disability, and when I was reinstated, I was not given an earlier date of seniority because I am not related to an I.L.W.U. member. Since my name was removed from "E" board, I have consistently grieved the removal. My last grievance was submitted April 5, 1991; however, the I.L.W.U. has consistently refused to redress this matter.

(Applicant's Application Record, page 55)

     There appears to be no dispute that the applicant union never posted its referral policy until 1994. In those circumstances it is difficult to see how a complaint which related to the content of that policy lodged by a person who had not been given a copy of it could possibly be said to be untimely prior to the time of such posting.

     The second point taken by the applicant has to do with an alleged breach of the rules of natural justice. In this regard, the applicant is supported by the intervenors, a group of casuals allegedly adversely affected by the Board's decision. Stated briefly the point is that the Board failed to give separate notices to all those persons who had obtained positions on the casual boards prior to the date of the decision under attack and who risked having their positions varied to their detriment as a result of the decision. It is said that the courts have enshrined that requirement of specific notice to affected employees in such cases as Hoogendoorn v. Greening Metal Products and Screening Equipment Company et al²; re Bradley and Ottawa Professional Firefighters Association³; Appleton v. Eastern Provincial Airways Ltd.⁴ and Okanagan Helicopters v. Canadian Helicopter Pilots' Association⁵.

     The short answer to this argument is that it is altogether premature. In its decision of March 7, which is the only decision here under attack, the Board dealt solely with the complaint against the union. The union alone was a party to those proceedings as respondent and it alone was placed in jeopardy by them. The Board's finding that there had been a breach of section 69, did not oblige it in any way to adopt any particular remedy or to affect the rights of the intervenors. In fact, as I have indicated, the Board in its decision granted no remedy but adjourned its hearing to a later date so that it could receive representations with regard to the appropriate disposition. The record before us reveals that the Board held such a further hearing on April 2, 1996 and issued a very detailed remedial order on April 26, 1996. We were informed that neither the applicant union nor the allegedly injured intervenors have attacked the latter decision and the time for doing so is now long past.

     There is more, however. The position adopted by the applicant and the intervenors is fundamentally misconceived. The decisions relied on are all cases where the union in question had adopted a position which was essentially adverse to some affected employee or group of employees and where the latter had not been given notice of the proceedings. In Okanagan Helicopters, supra, we said:

The issue is at bottom that of the representative role of a trade union as the certified bargaining agent for the members of the bargaining unit. As a general rule, the union acts for and binds the employees, who individually have no standing in collective bargaining relations with their employer. Without the support and participation of the union, an employee cannot pursue grievance procedures or even bring action before the courts for the enforcement of rights arising under the collective agreement.

As an exception to this rule, however, the courts have held that, where an employee has a patrimonial interest which is actually opposed to that of the union or of other members whose interests the union has chosen to espouse, such an employee has standing and is a necessary party to proceedings before the appropriate arbitral or other tribunal.

[Emphasis added]

[at page 65 ]

     There is nothing of that sort in the present case. The union's interest in defending the complaint against it was identical to that of the employees who had benefited from the discriminatory policy which was under attack. The union had both the right and the duty to represent such employees and, in fact by defending its interest before the Board, it was defending theirs as well. There has been no breach of the rules of natural justice.

     I would dismiss the application for judicial review.

     "James K. Hugessen"

     J.A.

"I concur,

     B.L. Strayer, J.A."

"I concur,

     Alice Desjardins, J.A."

     FEDERAL COURT OF APPEAL

     A-285-96

B E T W E E N :

     INTERNATIONAL LONGSHOREMEN'S AND

     WAREHOUSEMEN'S UNION, LOCAL 502

    

     APPLICANT

A N D :

     RODNEY MCLEAN

    

     RESPONDENT

     REASONS FOR JUDGMENT

__________________

¹      R.S.C. 1985, c. L-2

²      [1968] S.C.R. 30

³      [1967] 2 O.R. 311

⁴      [1984] 1 F.C. 367

⁵      [1986] 2 F.C. 56