May 1, 2007 Directed to: Ian Hunt, Eric Klyne, McGown Johnson - W.J. Johnson, Q.C.

, Local Union 424, International Brotherhood of Electrical Workers - Jim Watson / Dave Handley / Gord Spackman / Darrel Taylor / John Dolhagaray / Jonathan MacNeil / Dave Anderson RE: An Unfair Labour Practice complaint brought by Ian Hunt affecting Local Union 424, International Brotherhood of Electrical Workers, Jim Watson, Dave Handley, Gord Spackman, Darrel Taylor, John Dolhagaray, Jonathan MacNeil and Dave Anderson Board File No. GE-05025

OUR VISION The fair and equitable application of Albertas collective bargaining laws. MISSION To administer, interpret and enforce Albertas collective bargaining laws in an impartial, knowledgeable, efficient, timely and consistent way.

[1] Mr. Hunt complains Local Union 424, International Brotherhood of Electrical Workers, (Local Union 424 or the Union) and its representatives Jim Watson, Dave Handley, Gord Spackman, Darrel Taylor, John Dolhagaray, Jonathan MacNeil and Dave Anderson violated section 26(c) and (d) of the Labour Relations Code by expelling him from membership in the Union without affording him a full and fair hearing. Further, Mr. Hunt alleges the Respondents violated section 152(1) (a) and (b) by applying in a discriminatory manner the standards of discipline of IBEW 424 and by expelling him in a discriminatory manner with which the membership rules were applied. [2] Following receipt of the complaint, each party made submissions to the Board. In its response, the Union asks the Board to summarily dismiss the complaint pursuant to section 16(4) (e) of the Code. All parties agreed to have the file brought before a panel of the Board for documentary review. In accordance with the Boards usual practice, the parties were invited to provide any further written submissions with respect to the complaint. The file was then referred to a panel of the Board (Asbell, Basken and Flannery) for review to determine if a hearing was warranted into the matter or whether the complaint should be summarily dismissed. Having reviewed the matter, the Board is satisfied the applications should be summarily dismissed. Our reasons for doing so follow. [3] Leading up to the subject matter of this complaint, Mr. Hunt was a member of Local Union 424. While the background of this complaint is unclear (nor is it necessary to know this information for this Decision), it appears Mr. Hunts name allegedly wrongly appeared on the Unions out-of-work list. The Complainant was charged with violating a number of articles of the IBEW Constitution and Local Union 424 Bylaws. He was ordered to appear before a

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trial board of Local Union 424 to answer the charges filed against him. The original hearing date was subsequently amended. As was his right, the Complainant retained the services of another member to act on his behalf. This individual, in turn, raised some preliminary issues affecting the timeliness and jurisdiction of the trial board. On April 21, 2006, the trial board proceeded with the hearing and rendered its decision on May 17, 2006. Among other findings, the trial board ruled the charges were not late ruling that the knowledge of the violation only came to light in December 2005 well within the stated time for filing charges as set out in the IBEW Constitution. The trial board also found the Complainant had misled the membership of Local Union 424 by falsely stating on his membership application he had never been a member of the IBEW when evidence from the International Union pension department and another IBEW local showed he held an IBEW membership in Halifax for a period of time. The trial board ruled his membership in Local Union 424 should be revoked and a status of permit be placed on his file. The trial board also stated he could make a new application as a former member after a period of six months from the date of the decision. The trial board also referred the Complainant to the appeal process in the IBEW Constitution. [4] The Complainant disputes the findings stating the Union knew about the alleged violation as far back as May or June 2005 and did not file charges against him in a timely fashion. Further, he argues, the trial board had no jurisdiction to reschedule his hearing due to a clerical error. Also, the trial board had no evidence before it to find he caused anyone economic harm. Decision [5] The Complainant filed two complaints before the Board. The first, under section 152(1), alleges Local Union 424 applied the standards of discipline of the Union to him in a discriminatory manner and expelled him wrongfully. The second, under section 26(c) and (d), alleges the Union expelled him from membership in the Union without affording him a full and fair hearing and imposed an inappropriate and illegal penalty on him. Local Union 424 asks the Board to summarily dismiss both complaints at this juncture pursuant to our power under section 16(4) (e) without going through a full hearing as the complaints are without merit. [6] The sections read:

16(4) When a complaint is made under subsection (1), a reference is made under subsection (3) or any other application to the Board is made under this Act, the Board may do one or more of the following: ... (e) where the Board is of the opinion that the matter is without merit, or is frivolous, trivial or vexatious, reject the matter summarily. ... 26 No trade union shall expel or suspend any of its members or take disciplinary action against or impose any form of penalty on any person for any

3 reason other than a failure to pay the periodic dues, assessments and initiation fees uniformly required to be paid by all members of the trade union as a condition of acquiring or retaining membership in the trade union, unless that person has been (c) afforded a full and fair hearing, including the right to be represented by counsel, and (d) found guilty of the charge or charges, and if a monetary penalty has been imposed, fails to pay it after having been given a reasonable time to do so. 152(1) No trade union or person acting on behalf of a trade union shall (a) expel or suspend a person from membership in the trade union or deny membership in the trade union to a person by applying to the person in a discriminatory manner the membership rules of the trade union; (b) take disciplinary action against or impose any form of penalty on a person by applying to the person in a discriminatory manner the standards of discipline of the trade union. (2) The Board has no jurisdiction to hear a complaint made under subsection (1)(a) or (b) unless the complainant establishes to the satisfaction of the Board that (a) the complainant presented an appeal to the trade union in accordance with the appeal procedure established by the trade union, and (b) the trade union failed to deal with the matter within 6 months of the date the complainant made that appeal.
[7] With respect to section 152(1) the Complainant argues it is clear he has been wrongfully expelled by the Union. In response, the Union argues we need not consider any of the evidence as we have no jurisdiction to hear this complaint. In this regard the Union points to section 152(2). This section stipulates the Board has no jurisdiction to hear a complaint made under section 152(1) unless the Complainant has appealed his matter through the Unions appeal process and the Union refused to deal with the matter within six months. The Complainant does not deny he did not file an appeal but states, in his defense, such an appeal was a foregone conclusion. First, he points out, the trial board stripped him of his membership and, as such, he no longer enjoys the benefits of being a member as he is no longer a member. As only members can appeal he has no ability to file an appeal. Secondly, the Complainant is under no obligation to exhaust internal remedies where the original decision was a nullity or where the internal remedies are illusory, unreasonable or impractical.

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[8] Having reviewed the materials and the trial boards decision we are satisfied the trial board had appropriate jurisdiction to make the decisions it did. The IBEW Constitution clearly empowers the trial board to address timeliness issues and the trial board dealt with this issue appropriately at the beginning of its decision. While the Complainant may not agree with the decision, the trial board first noted the appropriate section and then ruled the knowledge of the violation became clear upon discussions between Brother Doug Oscar and Local Union 424 Representative Brother Dave Anderson at the December 2005 Unit 1 meeting. Therefore the filing of the charges on February 2, 2006 meets the time lines set forth in the IBEW Constitution. Thus, the trial board was satisfied the charges against the Complainant were brought within 60 days of the time the charging party first became aware, or reasonably should have been aware of the alleged act. While the Complainant may disagree with this ruling, the trial board clearly looked at the issue of timeliness and acted within its authority as set out in the Constitution. As such, the decision of the trial board is not a nullity. [9] The Complainant also argues he could not file an appeal of the trial boards decision as he was no longer a union member. Under the terms of the Constitution, he argues, only union members may access its protections. As the trial board ruled he was no longer a member, he could not access the Constitutions appeal mechanisms. Through this argument, the Complainant purports to place himself in a Catch-22 scenario: were it not for the trial boards decision he would still be a member and be able to access the appeal provisions, but because of the trial boards decision, he is no longer a member and cannot access the appeal rights. Because he cannot access his appeal rights, he argues, he cannot overturn the trial boards decision and he is therefore stuck without another remedy. [10] We are not persuaded by this imaginative argument. First, the Complainant presupposes the Unions response without even appealing the decision of the trial board. Secondly, he adopts the judgment of the trial board (revoking his membership) and uses this rationale for not filing an appeal while at the same time saying the trial board is wrong. It is the very decision of the trial board revoking his membership he seeks to overturn. If the Complainant was correct, any penalty imposed, no matter what, would have to be either served or monies paid before an appeal could be heard. That is not how the IBEW Constitution reads. The appeal mechanism is set out in Article XXV, Section 12. It reads: Any member, who claims an injustice has been done him by any L.U. Trial Board, or by any System Counsel, may appeal to the I.V.P. any time within forty-five (45) days after the date of action of the L.U. Trial Board or System Counsel. [11] The Constitution does not mention or require that an individual must first serve the penalty or pay the fine before filing the appeal. We believe the Complainant has placed an interpretation on the Constitution that is unsupportable. As such, and relying on this Boards earlier decision in Robert Hoover v. IBEW 254, [1992] Alta. L.R.B.R. 681 we find we have no jurisdiction to hear the complaint under section 152(1) as the Complainant has not presented an appeal to the trade union in accordance with the appeal procedure established by the trade union. The application under section 152 is therefore dismissed summarily pursuant to our power set out in section 16(4) (e) as being without merit. [12] Moving to the complaint under section 26(c) and (d) the Complainant argues he was not afforded the right of a full and fair hearing. He contends the result was effectively predetermined and was unfair. With respect to the latter, he argues the trial board had no evidence of any IBEW member suffering economic harm as a result of his actions being the

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true gist of the charges against him. The Complainant also contends Local Union 424 officers were being spiteful and the nature and terms of the Constitution were violated in the persecution of the Complainant. [13] We agree with Local Union 424s submissions that the true thrust of the Complainants application is under section 26(c) as opposed to section 26(d). That is, the Complainant argues he was not afforded a full and fair hearing as required under the statute. The leading case on defining a full and fair hearing is Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Starting at paragraph 22, the Supreme Court of Canada states: 22 I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. 23 Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances. One important consideration is the nature of the decision being made and the process followed in making it. In Knight, supra, at p. 683, it was held that the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making. The more the process provided for, the function of the tribunal, the nature of the decisionmaking body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. 28 The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.

[14] To summarize, the following factors may be referenced in determining the content of the duty of fair process in any given matter: a) b) c) d) e) The nature of the decision being made and process followed. The nature of the statutory scheme and terms of the statue pursuant to which the body operates. The importance of the decision to the individual or individuals affected. The legitimate expectations of the person challenging the decision. The choice of the procedure made by the agency itself.

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[15] Reviewing the process followed by IBEW 424 with respect to the allegations affecting Mr. Hunt, we find the following: The charges were provided to Mr. Hunt on or about February 2, 2006. On or about March 2, 2006, he was provided with notice of a hearing for April 21, 2006. On April 21, 2006, he was provided with the opportunity of a hearing including having a representative, Mr. Eric Klyne, appear and speak on his behalf and being given an opportunity to present evidence and argument. The Trial Board received the preliminary objections, reserved on making its decision in relation to these preliminary objections, and then ruled on each preliminary objection with its final decision. While having been given the opportunity to participate, Mr. Hunt through his representative Mr. Eric Klyne, chose not to participate for various reasons. The Trial Board issued its final decision on May 17, 2006.

[16] Applying the Baker principles to the above facts we again agree with the Unions characterization of the application as set out in its submission to the Board. Specifically, we find that: a) The nature of the decision that was made was whether or not Mr. Hunt, in his application for membership, had honestly advised IBEW 424 about not having had a previous membership in IBEW and what was the appropriate penalty. The nature of the process followed was one of a hearing wherein Mr. Hunt was provided with the allegations against him prior to the hearing, entitled to the assistance of Mr. Klyne, provided full disclosure of all evidence and provided the opportunity to both introduce his own evidence and to make argument. b) The nature of the statutory scheme is the requirement for a full and fair hearing in a labour relations context pursuant to subsection 26(c) of the Labour Relations Code.

c) The importance of the decision to Mr. Hunt is ambiguous as he is the only person that appears to be directly affected. With respect to the findings of the trial board, we are satisfied that conclusions can be inferred from the circumstances and, in this case, the Trial Board inferred that if Mr. Hunt was on the Hiring Hall list improperly in front of others, his presence on that list would increase the time that other union members had to wait on the list before being dispatched. The trial board continued and based on this inference found that, to the extent Mr. Hunt was improperly on the Hiring Hall list, he had prevented other union members from being dispatched earlier thereby causing economic harm to other union members. With respect to the penalty imposed by the trial board, we first note the penalty imposed upon Mr. Hunt does not deny him the opportunity to make a living. Further, neither the Code nor the Unions Constitution requires the imposition of a monetary penalty. Rather, the wording of section 26(d) states if a monetary penalty has been imposed the union shall not expel for non-payment unless

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reasonable time is provided. Here, no monetary penalty was imposed nor was any required. d) It is unclear what the legitimate expectations of Mr. Hunt were. In the complaint, Mr. Klyne on behalf of Mr. Hunt, complains about the intimidating atmosphere. The Constitution creates an expectation of a trial by a trial board and Mr. Hunt received such a trial. Mr. Hunt also takes exception to the trial boards allowance of hearsay evidence but the strict rules of evidence are not necessary for an administrative tribunal such as a trial board hearing. Additionally, we note Mr. Hunt and his representative were both present and did not object to the evidence on the basis of hearsay evidence. e) The choice of procedures made by the trial board were procedures that provided for the opportunity for disclosure of all evidence against Mr. Hunt, the opportunity to question witnesses, the opportunity to introduce evidence and the opportunity to provide full argument, all of which occurred according to records provided. The trial board had full authority to reserve on the preliminary objections and proceed with the hearing as a whole. The trial board provided a ruling upon completion of the entire matter. This same procedure is quite common in administrative or court proceedings. [17] Based on the above, we are satisfied Mr. Hunt received a full and fair hearing as required under section 26(c) of the Code. Further, section 26(d) does not require the imposition of a monetary penalty and the fact the trial board chose not to issue such a penalty does not contravene the section. As such, Mr. Hunts complaint is without merit. We therefore exercise our discretion under section 16(4) (e) and summarily dismiss the application in its entirety. Mark Asbell, Chair