Susan G. Bartlett v. The Amalgamated Clothing and Textile Union, AFL, CIO, CLC, Shoe Division, Local 307, 1983 CanLII 791

Susan G. Bartlett v. The Amalgamated Clothing and Textile Union, AFL, CIO, CLC, Shoe Division, Local 307

[1983] OLRB Rep. December 2067

1259-83-U Susan G. Bartlett, Complainant, v. The Amalgamated Clothing and Textile Union, AFL, CIO, CLC, Shoe Division, Local 307, Respondent, v. Savage Shoes Ltd., Intervener

BEFORE: Owen V. Gray, Vice-Chairman.

APPEARANCES: Leo Bartlett and Susan Bartlett for the complainant, Harold H. Fulker, Robert Barber, Maureen Byrne, Basil Gordon and Shona Barry for the respondent, Marc J. Somerville, Q. C. and F. W. Gobbo for the intervener.

DECISION OF THE BOARD; December 12, 1983

1This is a complaint under section 89 of the Labour Relations Act alleging that the respondent union dealt with the complainant contrary to section 68 of the Labour Relations Act in that, through its President, the union "failed to recognize my accumulated seniority as per Article 16.05 of the collective agreement" and "failed to recognize my recall rights as per Article 16.07 of the collective agreement, therefore I was not permitted to return to work."

2As originally framed, Mrs. Bartlett's complaint relied not only on section 68 but also on sections 69, 70, 72 and 3 of the Act. Reliance on sections 70, 72 and 3 was not seriously maintained by Mrs. Bartlett's representative when it came to the argument of the case. Indeed, on the Board's jurisprudence and on the evidence adduced, the complaint would not have succeeded to the extent it was based on those sections. However, having regard to the provisions of section 102 of the Labour Relations Act, the Board as presently constituted is unable to dispose of the complaint insofar as it relies on section 70, 72 and 3, and that aspect of the complaint will be treated as having been adjourned sine die. If section 69 has any application where, as here, hiring hall operations are not in question, then the reach of that section is, at best, no greater than that of section 68. In what follows, then, the respondent's treatment of Mrs. Bartlett is examined to determine whether a violation of section 68 is made out.

I

3The complainant, Susan Bartlett, was first hired by the intervener, Savage Shoes Ltd. ("Savage") on March 25, 1981. After working full-time for the company for seven months, she was laid off on October 23, 1981. The employer issued a Record of Employment on November 5, 1981 indicating that the reason for issuing the record was "shortage of work" and that the expected date of recall was "unknown". At the time of her layoff, Mrs. Bartlett was told by the plant superintendent, Kurt Bonstingle, that she would get some money if the lay off went beyond a certain point. She did receive a cheque at some time after her lay off. At that point in time she had no idea when, or whether, she would be recalled to work.

4As it happens, Mrs. Bartlett went back to work on February 5, 1982 in response to a telephone call from Savage. She understood she was being asked to return to work because work was picking up. Two or three days after her return to work Alfie, her foreman, brought her a job application form and asked her to fill it out. She asked Alfie why this was necessary. Alfie told her it was for the office records. She filled out the form. Under the heading "Prior Employment History" she set out her previous period of work at Savage from March to October of 1981, and wrote "laid off" as her "Reason for Leaving". At some time after filling out this form, Mrs. Bartlett asked one or other of her shop stewards, Shona Barry and Maureen Byrne, why she was being treated as a "re-hire". The response she received in a brief conversation on the shop floor was to the effect that she had to start again because she had been laid off a certain number of weeks. Although she did not feel this gave her a clear picture of what was happening, she did not pursue the matter further at that point. Asked in cross-examination whether she had accepted the explanation given, Mrs. Bartlett said that at the time she did not know anything different from what she had been told. She was not happy with what she was told, but did not think there was anything she could do. It did not appear to her that the stewards thought there was anything she could do, either.

5Mrs. Bartlett was laid off again in April, 1982. On April 14th, she was given a standard form letter dated April 8th, the first paragraph of which reads as follows:

"May this letter serve as notice of permanent lay-off (termination of employment) from the employment of Savage Shoes Limited."

This letter shows Mrs. Bartlett's last day worked as April 16, 1982. The Record of Employment later issued by Savage Shoes shows April 15th as the last day worked. "Shortage of work" is again given as the reason for issuing the record. The words "terminated probationary employee" appear as hand-written comments, and opposite "Expected date of recall" the employer has ticked off the box labelled "not returning".

6Mrs. Bartlett did return on May 3, 1982 as a result of another telephone call from the company. After she had been back at work for two or three days, she was again asked to fill out a job application form. She filled it out, giving the "reason for leaving" in April 1982 as "laid off". She again questioned one or other of her job stewards about this procedure. They had nothing new to tell her, and she did not pursue her concerns further at that point. Shortly before she had been back at work for two months, the shop steward, Shona Barry, came and asked her to come to the front office. Kurt Bonstingle was there when she arrived. She was presented with a piece of paper which she was asked to sign. The document acknowledged her agreement to an extension of her probationary period by a further period of one month. She was led to believe that if she did not sign she would be fired or laid off. She signed the document. Sometime after that, Mr. Bonstingle told her she was to be laid off again, but would be re-hired as of the end of the plant shutdown or vacation period. She was laid off July 9, 1982. The Record of Employment issued by the company on this occasion shows "shortage of work" as the reason for issuing the record, and "not returning" is checked off with respect to the expected date of recall. Mrs. Bartlett did return, however, on August 4, 1982 in accordance with her earlier discussion with Bonstingle. In due course she was presented with yet another application for employment. She filled it out, and in doing so set out the three previous periods of work at Savage, showing "laid off" as the reason for leaving in each case. On August 11, 1982, Mrs. Bartlett was laid off again, for the fourth time in less than a year.

7Up to this point, Mrs. Bartlett had not reviewed the collective agreement between Savage Shoes Limited and the respondent union. She had previously asked for a copy, but had been told there was none. She admitted, however, that she had not gone so far as to specifically request of the stewards or the local union president that they make efforts to get her one. In any event, at this point Mrs. Bartlett went to a co-worker and borrowed her copy of what she called "the union book". The book in question is the collective agreement between the respondent union and Savage Shoes Limited made October 1, 1979 and covering the period from that date to September 30, 1982. She read the collective agreement, and found in it the following clauses:

16.01 A new hired employee will be considered probationary for the first two (2) months of employment and will have no seniority rights during that period. After two (2) months' service, the employee's seniority shall date back to the day on which the employment began. In individual circumstances the probation period may be extended by one (1) month if agreeable to the Union and the Company.

16.02 Unless otherwise specified, seniority as referred to in this agreement, shall mean length of continuous service in the employ of the Company.

16.05 Employees who have been laid off due to lack of work and subsequently recalled to work will have their length of service determined by the actual time they have been on the Company's payroll provided such employees returned to work when notified and subject to the conditions in Clause 16.06 and 16.07 below.

16.06 Any employee who has been off the payroll for a continuous period of one (1) year or more will lose previously acquired seniority and will be rehired only as a new employee. In cases of lengthy absence due to illness, the one (1) year period may be extended by the mutual agreement of the parties to this contract.

16.07 An employee who has been laid off and still retains seniority and who is notified to return to work will lose seniority unless the employee notifies the Company within three (3) working days (after receiving notice) that the employee intends to return to work, and unless the employee returns to work as soon as possible after receiving notice and in any event, within ten (10) working days after the mailing of such notice by registered mail to the last known address on the books of the Company.

16.08 An employee shall lose seniority standing if the employee voluntarily quits employment with the Company, is discharged for just cause and is not reinstated pursuant to the provisions of Article X or if absent from work without leave as provided in Article XIX, Clause 19.05, unless there is a reasonable justification for such absence.

Article 16.04 makes provision for lay-off of part-time and probationary employees before any full-time employee is laid off, and then goes on to deal with the bumping rights of employees with seniority where a lay-off goes so far as to affect them. After setting out a series of possible bumping routes for a displaced employee, Article 16.04 contains the following language:

16.04 Part 1

(v) Any employee transferred under this clause will be transferred back to their former job as soon as their job becomes available, and the last employee transferred to a job in a lower classification shall be the first moved back to the job in the higher classification or in the case of layoff, shall be the first employee recalled to their job, except in cases where the recall of the employee last laid off would require the Company to provide the employee with the training time of more than - Twenty (20) working days in Class 1, fifteen (15) working days in Class 2, ten (10) working days in Classes 3 and 4....

Mrs. Bartlett read Article 16.05 and 16.06 as providing that she still had seniority rights when she returned to work at Savage in February, 1982, since she had been laid off due to lack of work and subsequently recalled to work, and had not in the meantime been off the payroll for a continuous period of one year.

8When she returned to the plant to pick up her last pay cheque in the latter part of August, 1982, she went to speak to shop steward Shona Barry, showed her the collective agreement and told her what she thought it meant. Ms. Barry took Mrs. Bartlett to see Maureen Byrne, the other steward in her section. Mrs. Bartlett showed them both what was in "the union book". She said she thought the union book meant that "you keep your seniority for a year". Barry and Byrne said she was not right. They went to get Bobby Barber, the local union president, to explain why.

9Mrs. Bartlett met with Mr. Barber in an office in the front of the plant. She asked Mr. Barber about the provisions of the collective agreement. She said she understood them to provide that employees with seniority keep seniority for a year after they are laid off. According to Mrs. Bartlett, Mr. Barber told her that when the collective agreement had been brought in "a lay-off was just a lay-off" and lay-offs were not classified as "temporary" or permanent". Now, however, all lay-offs were either "permanent" or "temporary", and the clauses that she was reading in the collective agreement only applied to temporary lay-offs. As she had been permanently laid-off, she had not retained seniority. Mrs. Bartlett said she thought this amounted to breaking a written contract, and asked how that could be done. Mr. Barber said that it could be done, citing as his authority the union's business agent in London to whom he said he had just been talking that morning.

10Mrs. Bartlett was not satisfied with Mr. Barber's explanation. She asked him for the name and telephone number of the business agent he had referred to. He refused to give it to her. He said there was nothing she could do. He had been talking to the business agent that day, and that is what he had been told.

11During her meeting with Mr. Barber, Mrs. Bartlett had also raised some questions about deductions which had been made from her pay. In that respect Mr. Barber directed her to see Betty Cully, a Savage office employee who dealt with payroll matters. Betty Cully reviewed with Mrs. Bartlett her OHIP deductions. During the course of this review Mrs. Cully said "they" had taken union dues twice when "they" should not have. Cully said the union owed Mrs. Bartlett $8.00 and that she would get a cheque for that. During this conversation Mrs. Cully called Mrs. Bartlett a troublemaker, and said that she was causing "a lot of trouble for the union and the company". Mrs. Bartlett never did receive a cheque refunding dues.

12A couple of days after her meeting with Mr. Barber, Mrs. Bartlett spoke to Mr. Barber by telephone and again asked for the name and telephone number of the union business to whom he had referred in their earlier meeting. Mr. Barber again refused to provide her with that name. He again said there was nothing she could do and that she should drop it.

13Except in connection with the question of her seniority, Mrs. Bartlett had not previously had any difficulty with the union. Prior to her meeting with Ms. Cully she had not been called a troublemaker by anyone. She thought there had been an occasion in the spring of 1982 when she had not been able to file a grievance because she was being treated as a probationary employee. She conceded, however, that the supposed inability of the union to deal with her grievance might have been a conclusion she had come to on her own, and not something she had been told by the union.

14During cross-examination, Mrs. Bartlett was shown a document later identified as a list of employees laid off from the Cambridge plant of Savage during the fall of 1981. The list shows the seniority dates of each of the laid off employees, and Mrs. Bartlett appears to be the 22nd employee on the list if retirees are excluded. It was put to Mrs. Bartlett that on her interpretation of the collective agreement there were more than 20 employees who must have been improperly passed over when she was recalled to work in February 1982. Her response was simply that she did not know whether these people had been called and declined work or not. She was also asked whether she had attended any union meetings during the periods in which she had been at work at the Savage shoe plant in Cambridge. She said she had not.

15Mrs. Bartlett was asked what she had done about her concerns between the time of the last of her conversations with Mr. Barber and September 2nd, 1983 when she filled out the Complaint in this matter. She said she had done nothing for quite some time, because she thought she would eventually be called back to work by Savage as she had been on the three occasions in 1982. She felt she had a good work record and at first saw no reason to expect she would not be recalled. When she was not recalled, however, she began to wonder whether it had anything to do with the discussions she had had with Mr. Barber, or the statement Betty Cully had made that she was a troublemaker. She only found out about the possibility of an application to the Ontario Labour Relations Board at a later stage. It is not clear from the evidence when that was.

16The respondent union called Robert Barber as its only witness. Mr. Barber is President of that local union. At the hearing he testified he had been president for "three or four years".

17Mr. Barber recalled the meeting at which he said he had tried to explain to Mrs. Bartlett the difference between temporary and permanent lay-offs. He confirmed Mrs. Bartlett had asked for the name and telephone number of the business agent in London, and that he had refused to give Mrs. Bartlett that information. He explained he had done this because he had just been talking that day to the business agent, who had told him what temporary and permanent lay-offs meant. He felt he understood, and was "capable of handling it." He confirmed directing Mrs. Bartlett to Betty Cully on the question of the deductions. He denied having had a subsequent telephone call from Mrs. Bartlett. He felt Mrs. Bartlett had left the meeting satisfied with his explanation of the situation. Asked by the union representative whether Mrs. Bartlett had been the only employee "treated in this way", he said 50 to 75 employees had been "dealt with in this way".

18It was Mr. Barber's understanding that a "permanent" lay-off resulted if the com­pany did not recall an employee within thirteen weeks. The result was that the company had to pay severance pay. He felt "permanent means they no longer need you." He said his explanation to Mrs. Bartlett had been that the clause she was showing him was based on temporary lay-off, and would not apply to permanent lay-off. Mr. Barber was unable to identify anything in the collective agreement which made a distinction between permanent and temporary lay-offs.

19Early in his cross-examination, Mr. Barber admitted not remembering too much about what went on in his meeting with Mrs. Bartlett. Asked whether any of the 50 to 75 employees to whom he had earlier referred had returned to work, he said some had and some had not. He could not say how many had or had not returned. Mr. Barber knew of the incident in which Mrs. Bartlett had been asked to execute a written consent to the extension of her probation period. He noted that the collective agreement provided for such extensions on the consent of the union, which he said had been given in Mrs. Bartlett's case because he thought the company would lay her off or fire her if the union's consent was not given.

20With respect to Mrs. Bartlett's return to work in February of 1982, Mr. Barber was asked by the union representative in re-examination whether there had been employees with greater seniority who should have been recalled at that time. Mr. Barber responded that the union had been consulted about Mrs. Bartlett's initial recall in February, 1982, and had agreed to the recall of Mrs. Bartlett because she knew the particular job for which she was being recalled. If the company had recalled a more senior person, he said, it would have slowed the department down because that person would have required training. Mr. Barber did not say whether, in his view, any employee with greater seniority had been entitled to recall at that time and in those circumstances.

21Mr. Barber identified Basil Gordon as the business agent whose name and telephone number he had denied Mrs. Bartlett. Mr. Gordon was present throughout the hearing. He was not called to give evidence. The two shop stewards referred to in Mrs. Bartlett's testimony were also present throughout the hearing. They were not called to give evidence.

22The intervener employer chose to call Frank Gobbo as a witness. Mr. Gobbo is the Vice-President of Personnel and Industrial Relations for Savage. He has been involved in industrial relations for Savage Shoes for 28 years and in collective bargaining with the respondent union since 1964, when it acquired its bargaining rights. He is responsible for the negotiation of collective agreements and other union relations matters for four Savage plants, including the Cambridge plant at which Mrs. Bartlett had worked.

23Mr. Gobbo explained that in early 1981 there had been 250 to 275 hourly rated employees at the Cambridge plant. In the fall of 1981, Savage had to reduce the workforce due to competition and lack of sales. Although there had been fluctuations in employment levels in the past, this was the first time in 80 years that a workforce reduction had been so drastic as it was in the fall of 1981, when 55 to 65 employees were laid off. Mr. Gobbo said that Susan Bartlett was one of a number of employees to whom the company sent "permanent lay-off letters" in November 1981. Asked by his counsel what the words "permanent lay-off" signified, Mr. Gobbo replied that this had been the first time when this phrase had been used. He said the phrase "permanent lay-off" had been used rather than "termination" because it was "more explainable to Immigration and Employment". In re-direct Gobbo was asked about his familiarity with the provisions of the Employment Standards Act and Regulations thereunder. He said his understanding was that with a temporary lay-off if there is a recall within 13 weeks no severance pay or notice is required. If there is a permanent lay-off, the company has to give notice or severance pay. He went on to say that Mrs. Bartlett had received such severance pay in November, 1981, in the amount of $191.60.

24Mr. Gobbo identified the lay-off list shown earlier to Mrs. Bartlett. He confirmed it had been prepared on his instructions. The document has added to it in pencil a column headed "Date of Re-hire". Under this heading appear six pencilled dates opposite the names of six of the employees on the list. There is no notation opposite the name of Susan Bartlett. The company's explanation was that the secretary who prepared the document was instructed to note the dates of re-hire of any employees, other than Mrs. Bartlett, who had been rehired after the 1981 layoffs. Three of the six "re-hires" had less seniority when laid off than Mrs. Bartlett did at the time of her October, 1981 layoff. All of the six re-hires are shown as having occurred in the period between February 14 and August 9, 1983, in every case more than twelve months after the date on which the rehired employee had last been laid off.

25Mr. Gobbo said he thought that Article 16 of the 1979-82 Collective Agreement did not deal with permanent lay-off. Asked to define "permanent", Mr. Gobbo said a permanent lay-off occurred when the company no longer had work for an employee and he is terminated from employment with Savage Shoes. In his questioning of Mr. Gobbo, the union's representative suggested that this approach was a "policy". Mr. Gobbo adopted that suggestion. The union's representative also suggested to Mr. Gobbo that this policy had been expressed during the negotiation of the 1979-82 collective agreement and earlier collective agreements, and Mr. Gobbo adopted that suggestion as well. Mr. Gobbo also acknowledged, however, that "permanent lay-off" is nowhere referred to in the 1979-1982 collective agreement. He volunteered that the subsequent collective agreement contained new clauses making reference to "permanent lay-off". References to permanent lay-off in the new collective agreement, which came into effect October 1, 1982, include the following:

16.04 Part 2 RECALL AFTER PERMANENT LAY OFF (TERMINATION)

Recall rights will be granted to employees who have been laid off (terminated) due to a reduction in the work force for a period of one year from the time of termination notice.

Mr. Gobbo was asked in cross-examination what had given rise to the inclusion of this new provision in the current collective agreement. Mr. Gobbo's answer was evasive. He said that just as in, any other set of negotiations, new clauses had been added and others deleted. He vehemently denied the suggestion that "Susan's case" was used as an example during negotiations.

II

26Mrs. Bartlett's representative argued that the respondent union, through Mr. Barber, had failed in its duty to Mrs. Bartlett when Mr. Barber told her at that meeting of August, 1982, there was nothing she could do. Barber failed to explore the questions posed by her, or to consider the means available for resolving those questions. He failed to consider whether or how the provisions of the Employment Standards Act and Regulations could adversely affect employee rights under the collective agreement. He failed to give Mrs. Bartlett the name of the business agent, so that she could take the matter further. It was also argued that the union should have opposed the filling out of new application forms on the occasions when Mrs. Bartlett returned to work during 1982, and should not have agreed to the extension of Mrs. Bartlett's probation for an additional 30 days.

27The respondent union argued that the company has control over hiring under clause 4.02 of the collective agreement, which reads as follows:

4.02 The Union further recognizes the right of the Company to operate and manage its business in all respects in accordance with its commitments and responsibilities. The location of the plant, the products to be manufactured, the right to move production work from one plant to another, the schedules of production, the methods, processes and means of manufacturing used, the right to decide on the number of employees needed by the Company at anytime, the right to use improved methods, machinery and equipment, and jurisdiction over all operations, buildings, machinery and tools, are solely and exclusively the responsibility of the Company. The Company also has the right to make and alter from time to time rules and regulations to be observed by the employees. Before making new rules and altering any rules or regulations, the Company will first discuss the rules with the Union and provide the Union with an opportunity to make representations on the proposed alternation to the rules, and notice of new rules or rule changes will be posted in the plant to insure that employees are familiar with the rule. The foregoing enumeration is intended to illustrate, and not to limit the regular and customary function of management, all of which is maintained by the Company.

The union said this entitled the company to treat Mrs. Bartlett as it had.

28The union noted that Mrs. Bartlett did not file a grievance on her own, despite Articles 6.02 and 8.01 of the collective agreement which it claims permitted her to do so without the intervention of the union. It emphasised that Mrs. Bartlett had failed to attend union meetings. It submitted that these two failures on her part disentitle her to relief. The union also argued that Article 16.02 of the agreement, which defines seniority as "length of continuous service in the employ of the Company", contradicts Mrs. Bartlett's interpretation of the collective agreement. Finally, the union said the evidence reveals an understanding between the company and the union which supports Barber's views of the meaning of Article 16.

29Counsel for the employer argued that there is nothing in the evidence to indicate that the union acted in an arbitrary, discriminatory or bad faith manner; the union simply did not agree with Mrs. Bartlett's interpretation of the collective agreement and, accordingly, did not act on it. Assuming, without conceding, that the union's interpretation was faulty, he argued that this resulted from mere negligence or innocent misunderstanding which falls short of the behaviour necessary to constitute a breach of section 68 of the Act, citing Diamond "Z" Association [1975] OLRB Rep. 791, ITE Industries Ltd., [1980] OLRB Rep. 1001 and R. E. Brown, "The 'Arbitrary', 'Discriminatory' and 'Bad Faith' Tests Under The Duty of Fair Representation in Ontario', [1982] Can. Bar Rev. 412. He suggested the evidence shows that Mrs. Bartlett was treated in the same manner as others, and in some respects better. In that regard, he noted that although she was 22nd on the seniority list, she was given work three times. He submitted that the union had properly addressed itself to Mrs. Bartlett's concerns during the prolonged discussion between Mrs. Bartlett and Mr. Barber and, having done so, cannot be described as having acted in an arbitrary manner.

30With respect to Mr. Barber's denial of the name and telephone number of the business agent, counsel for the intervener questioned whether Mrs. Bartlett is entitled to a right of access to the business agent. He argued that it was reasonable for the local union president to deny such access, as the local trade union had an interest in "keeping dealings of this sort at the local level". He said that Mrs. Bartlett could have found the telephone number for the union office in London on her own. He suggested Mrs. Bartlett engaged in "wilful blindness" in failing to do so.

31Counsel for the intervener asked the Board to find that her failure to file a grievance herself disentitles Mrs. Bartlett from claiming that the union has breached its duty to her or, at least, supports an inference that she was satisfied with Mr. Barber's explanation at the time she received it. In any event, counsel argued there was no prejudice to Mrs. Bartlett as a result of the behaviour of the union representatives. He asked what good a grievance would have done, and argued this is a question the union was entitled to ask itself.

III

32Section 68 of the Labour Relations Act provides:

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 represenation 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.

33Its status as exclusive bargaining agent gives a trade union the exclusive authority to negotiate and administer a collective agreement which establishes the terms and conditions of employment by which each employee in the bargaining unit is bound. The employees in any bargaining unit will have a wide range of interests. Because those interests will often vary and, occasionally, conflict directly, the trade union cannot fully accommodate or be expected to fully accommodate all those interests simultaneously, either at the bargaining table or in the administration of the collective agreement. The trade union is in each forum constantly obliged to make choices between competing interests of individuals, groups of employees and the bargaining unit as a whole, as well as of the trade union as an institution. Individually, no employee has direct control over the union's exercise of discretion in making these choices. The individual employee is prevented from bargaining on his own behalf with his employer. Such rights as the trade union may gain for him in bargaining will only have substance for him if a remedy for their breach is available. A remedy is ordinarily available only in a forum to which the trade union, and not the employee, has the right of access (General Motors of Canada Ltd. vs. Burnet et al, 1976 CanLII 196 (SCC), [1977] 2 S.C.R. 537; 77 CLLC ¶14,067).

34An employee for whom the costs of an adverse trade union decision outweigh the benefits can resign his employment, or join with a sufficient number of like minded co-workers in an application to terminate the trade union's bargaining rights. Apart from the protections of section 68, those are his only options if he wishes to avoid continued dissatisfaction. Neither option provides any retrospective remedy. The constitution of the trade union may provide for internal appeals or opportunities for redress of a political nature. The availability of such opportunities, however, is not expressly guaranteed by the Labour Relations Act, which does not set any particular standards for union constitutional democracy (see Canada Trustco Mortgage Company, [1976] OLRB Rep. Oct. 596).

35In this context, an employee in a bargaining unit for which a trade union exercises exclusive bargaining rights has no reason to expect that his personal interests will always be fully served by the trade union. He does, however, have a legitimate expectation that choices made by the trade union, whether ultimately favourable or adverse to his personal interest, will at least be honest, fair and rationally responsive to interests and circumstances relevant to the decision. It is this employee interest to which section 68 is addressed.

36Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee's bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. "Bad faith" and "discriminatory", therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. "Arbitrary", on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.

37Although this duty is imposed on the trade union as an institution, the trade union observes or breaches the duty through the actions of its officials or decision-making bodies. Especially where an impugned decision is that of a single official, there are obvious difficulties in reviewing the process by which that decision was made. Only the union official knows what his thought processes were and what facts and circumstances he actually took into account in the course of arriving at his decision. His ability to recall and articulate what took place in his mind may be influenced, sub-consciously or otherwise, by self-interest and by the knowledge that he is the only witness to these crucial mental events.

38With these thinking process hidden from direct examination, a review of the behaviour of a trade union official must necessarily focus on what he did and the context in which he did it, as well as on what he says he thought. The result of the decision-making process is weighed against the facts and circumstances on which it is said to have operated. If the resulting interpretation of facts or of a collective agreement is found by the Board to be "reasonable" (Clifford Renaud, 11976] OLRB Rep. Jan. 967, ¶22; Jay Sussinan, 111976] OLRB Rep. July 349 ¶11; I.TE. Industries Limited [19801 OLRB Rep. July 1001, ¶20), "not unreasonable" (Ivan Pletikos 111977] OLRB Rep. November 776, ¶3), "not open to challenge" (Oil, Chemical & Automic Workers International Union and its Local 9-698, 111972] OLRB May 521, ¶3), or at least "not implausible" (Canadian Union of Public Employees Local 1000 - Ontario Hydra Employees Union, [1975] May 444, ¶32), then the Board is inclined to find that the decision is not arbitrary. Where the decision maker, on the other hand, misapprehends facts and circumstances which the Board considers "patent" and arrives at an "almost perverse" understanding of the facts and circumstances, the Board will conclude that union effectively barred itself from "directing its mind to the real question", and that in so doing it has acted in an arbitrary fashion: The Corporation of the County of Hastings, 111976] OLRB Rep. November 1072, ¶22. Where it is difficult to see a rational pathway between the facts and circumstances said to have been taken into account and the interests said to have been balanced on the one hand, and the result on the other, then there arises a rebuttable presumption that the decision was arbitrary.

39The required thought process may involve more than the simple application of logic to the information then at hand. Decision making may be arbitrary if, before making its decision, the union fails to identify and seek out sources of further relevant information which should be taken into account in making that decision: Canadian Union of Public Employees Local 2327, [1981] OLRB Rep. June 623, ¶30; Swing Stage Ltd. re Alvin Plummer, 111983] OLRB Rep. Nov. 1920.

40A determination whether the behaviour of a trade union official is arbitrary or not must be sensitive to the context within which and the persons by whom such decisions are normally made. These considerations are reflected in the following passage from the Board’s decision in Canadian Union of Public Employees Local 1000, supra:

25. In using the word arbitrary both the United States Supreme Court and the Legislature of this Province must have envisaged the duty constituting more than the simple castigation of subjective ill-will in that any other interpretation would render the use of this word superfluous. Thus, a well known rule of both statutory and contractual construction militates against the respondent's particular submissions in this regard. But where does this path lead? Some insight is gained from the Vaca case wherein Mr. Justice White juxtaposed the word arbitrary with the word "perfunctory" and observed that a trade union "in a non arbitrary manner [must] make decisions as to the merits of particular grievances." It could be said that this description of the duty requires the exclusive bargaining agent to put "its mind" to the merits of a grievance and attempt to engage in a process of rational decision-making that cannot be branded as implausible or capricious.

26. This approach gives the word arbitrary some independent meaning beyond subjective ill-will, but, at the same time, it lacks any precise parameters and thus is extremely difficult to apply. Moreover, attempts at a more precise adumbration have to reconcile the apparent consensus that it is necessary to distinguish arbitrariness (whatever it means) from mere errors in judgment, mistakes, negligence and unbecoming laxness. (See, for example, The Steel Company of Canada, Limited [1974] OLRB Mr.R. 392; Rutherford's Dairy Limited 111972] OLRB M.R. 423. See also Flynn and Higgins, Fair Representation: A Survey of the Contemporary Framework and a Proposed Change in the Duty Owed to the Employee (1974) 8 Suffolk University, Rev. 1096, 1143; Clark, The Duty of Fair Representation. A Theoretical Structure [1973], 51 Tex. L. Rev. 1199, 1173.) The rationale of this consensus was canvassed by the board in Ford Motor Company of Canada Limited [1973] OLRB M.R. 519 at para. 40:

27. In deciding whether a union has violated the Act the standards to be applied are important. We recognize that union affairs are conducted for the most part by laymen. In some situations there are experienced full time officials of a trade union who conduct the union affairs; in other situations, the union affairs are conducted by employees in their spare time, while in yet other situations employees may be given a limited amount of paid time by their employers to engage in trade union matters. This Board does not decide cases on the basis of whether a mistake may have been made or whether there was negligence, nor is the standard based on what this Board might have done in a particular situation after having the leisure and time to reflect upon the merits. Rather, the standard must consider the persons who are performing the collective bargaining functions, the norms of the industrial community and the measures and solutions that have gained acceptance within that community; see Fisher v. Pemberton et al 8 D.L.R. (3d) at 521 at p. 546."

28. There is thus a concern not to engage in what may well constitute uninformed second guessing about a process of decision-making that resides at the heart of the administration of the collective agreement or to imposed unrealistic standards of conduct upon unpaid union officials who may lack the experience and time required to shoulder the burden. The parties to a collective agreement are the most familiar with the problems that must inevitably arise and decisions have to be made "in a context of considerable conflict with delicate balance of mutual acceptability in a vortex of power, reason and persuasion". (See Hanslowe, Individual Rights in Collective Labour Relations (1959) 45 Cornell L. Rev. 25, 46.) It is argued that a more stringent definition of the duty would discourage the union from settling grievances thereby clogging the lifeline of the collective agreement. Further, because in appropriate circumstances, an employer can be directed to respond to an alleged violation of the collective agreement which it may consider settled or withdrawn (and possible time barred) too stringent a standard might introduce an unhealthy uncertainty that would discourage or penalize reasonable reliance on a trade union's actions. In other words, it is felt that a more stringent standard would aversely affect the entire relationship between trade unions and employers to the detriment of all employees. Unfortunately, this limitation - one prevailing in the United States as well as in Ontario - necessarily leaves employees affected by mistakes and carelessness without a remedy under section [68]. And it is this result that caused at least one commentator to lament that until recovery for ordinary negligence is permitted "employees will always be second class citizens in their industrial world." (Flynn and Higgins, supra, p. 1144). And while we must say this latter observation lacks a perspective and concern for the overall health of collective bargaining referred to above, it is sympomatic of a feeling some employees may experience in particular circumstances.

On the other hand we do not believe, at least at this time, that all mistakes and careless conduct by trade union officials fall outside the scope of section [68]. It may be difficult to elaborate the precise meaning of arbitrary representation in advance but, as noted above, the very use of the word suggests that some regulation of the quality of decision-making was intended. Accordingly at least flagrant errors in processing grievances - errors consistent with a "non-caring" attitude - must be inconsistent with the duty of fair representation. An approach to a grievance may be wrong or a provision inadvertently overlooked and section [68] has no application. The duty is not designed to remedy these kinds of errors. But when the importance of the grievance is taken into account and the experience and identity of the decision-maker ascertained the Board may decide that a course of conduct is so implausible, so summary or so reckless to be unworthy of protection. Such circumstances cannot and should not be distinguished from a blind refusal to consider the complaint. However, each case must be decided on its own peculiar facts and is is clear that the duty is not going to be a fertile field for the individual adversely affected by less fragrant conduct.

41One of the themes of the passage just quoted is that the decisions which become subject to scrutiny under section 68 may be made by persons without legal training, persons whose experience in trade union matters may fall within a wide range. This must be taken into account both in the interpretation of section 68 and in its application to particular cases. This is not say that there is a different duty applied to different unions, depending on the extent to which the union devotes time and money to matters of representation. The duty is the same for all unions. The standard of care is set with that fact in mind. In individual instances, however, the knowledge and experience of the trade union official whose decision is impugned will be relevant to an assessment whether his or her decision is arbitrary on the one hand or an honest mistake on the other. A mistake which might be the honest result of the reasoning processes of a volunteer new to the job (as in Gina Ercegovic 111975] OLRB Rep. Sept. 676, or Jay Sussman, supra) might be seen as the result of arbitrary conduct in an experienced full-time paid official who must be taken to know better. Lack of experience, however, will be a defence of limited utility where an official has available to him or her the assistance of more experienced officials. It must be recognized that the duty of fair representation is, in the end, a duty which applies to the trade union as an institution. Its requirements cannot be avoided by delegating decision-making to someone incapable of travelling a rational pathway from relevant considerations to reasonable result.

IV

42Mrs. Bartlett's complaint to her union representatives was that her seniority rights had been ignored by the employer in its dealings with her subsequent to her October 1981 layoff. It is important to recognize the place seniority has in the spectrum of issues which may be faced by trade unions in collective bargaining and in the administration of the resulting collective agreement.

43The administration of a collective agreement is influenced, at least ultimately, by the principles brought to bear by arbitrators who are regularly called upon to resolve contract disputes over seniority rights. Their approach is well summarized in the following often quoted passage from Tang-Sal of Canada Ltd., (1965) L.A.C. 161 (Reville) at p. 162:

Seniority is one of the most important and far-reaching benefits which the trade union movement has been able to secure for its members by virtue of the collective bargaining process. An employee's seniority under the terms of a collective agreement gives rise to such important rights as relief from lay-off, right to recall to employment, vacations and vacation pay, and pension rights, to name only a few. It follows, therefore, than an employee's seniority should only be affected by very clear language in the collective agreement concerned and that arbitrators should construe the collective agreement with the utmost strictness wherever it is contended that an employee's seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement.

44In Re United Automobile Workers Local 27 and Minnesota Mining and Manufucturing of Canada Ltd. 1970 CanLII 1652 (ON LA), [1970] 21 L.A.C. 377 (O'Shea), a male employee had been laid off while two female probationary employees were retained. The male employee grieved, relying on a collective agreement provision requiring that probationary employees be the first laid off. The employer's defence was that its long-standing unchallenged practice had been to maintain two seniority lists, one for male employees and the other for female employees, and to lay off male employees only in accordance with their seniority relative to other male employees. It was in that context that the following observations were made at pp. 380 — 381:

The fact that this grievance is the first complaint made with respect to the company's long standing practice cannot prejudice the grievor's rights in this case, since the grievor has done nothing to lead the company into adopting this practice. With the possible exception of the provisions fixing rates of pay, the seniority provisions of a collective agreement are the most important provisions contained in the agreement. Seniority provisions usually afford an employee more protection and job security than any other provision of the agreement. The seniority provisions are not for the benefit of the union but are for the benefit of each individual employee and the provisions benefit the individual employee to the extent of the employee's own length of service in the bargaining unit. The seniority provisions should therefore be interpreted as individual rights rather than class rights. Once an employee's seniority rights are established under the terms of a collective agreement neither the company nor the union nor other employees can take those rights away during the lifetime of the agreement. At times of lay-off, the seniority of one employee in the bargaining unit is in contest with the seniority of other employees and the individual with the least amount of seniority suffers the lay-off. Accordingly, if an employee's rights are clearly defined by the collective agreement, the fact that the union may have acquiesced in some company practice concerning the implementation of seniority rights cannot alter the rights of an employee which have been earned by the employee under the provisions of the collective agreement. In the instant case, the fact that three senior male employees were on lay-off at the time the two female probationary employees were hired cannot affect the outcome of this grievance. It may well be that the three male employees were not aware that the jobs were vacant or perhaps they were not willing to perform the lower-rated jobs. However; that may be, the fact that they did not exercise their rights under the collective agreement does not prevent the grievor from exercising his rights.

If the parties to the agreement had wished to alter the manner in which the seniority provisions are to be applied, they could have done so by agreeing in writing to amend the seniority provisions of the collective agreement at any time during the term of the operation of the collective agreement. If they had done so, each employee would have been fully aware of what his rights then would be. This the parties have not done.

(emphasis added)

In Re Canadian Union of Public Employees, Local 1, and Toronto Electric Commissioners 1978 CanLII 3423 (ON LA), [1976] 19 L.A.C. 75, Arbitrator Arthurs observed at page 88:

Seniority provisions have been recently described in judicial language as a "charter of employment security", see R. v. Arthur, Ex p. Port Arthur Shipbuilding Co., 1967 CanLII 30 (ON CA), 62 D.L.R. (2d) 342 at p. 363, [19671 2 O.R. 49 atp. 70 [revd 1968 CanLII 29 (SCC), 70 D.L.R. (2d) 693], per Laskin, J.A. The importance attached to these rights is demonstrated by the Bradley decision in which Laskin, J.A. (speaking for aunanimous Court), radically altered the previous practice or arbitrators by giving a right of audience to employees who were adverse in interest to the union. He was dealing there with seniority rights as well, which he referred to as "personal benefits" and "substantive employment benefits", analogous to "property or contractual advantages" recognized by the common law as worthy of protection by natural justice requirements, see 1967 CanLII 160 (ON CA), 63 D.L.R. (2d) 376 at pp. 381-2, [19671 2 O.R. 311 at pp. 3 16-17. There will be little dissent from the proposition that the seniority rights of employees are of extreme importance to them, and ought to be protected if at allpossible."

(emphasis added)

45Trade union collective bargaining decisions which have an adverse impact on the seniority or other job security rights of a minority of employees have been subjected to the closest scrutiny by Labour Boards: B. C. Distillery Company Ltd., [1978] 1 Can. L.R.B. 375; Dufferin Aggregates [1982] OLRB Rep. Jan. 35; Corporation of the City of Toronto 111982] OLRB Rep. Jan. 124. In that context, the nature of seniority rights was explored by the British Columbia Labour Board in the following terms (B. C. Distillery Company Ltd., supra, at pp. 381 — 382):

Legally speaking, the seniority rights of the employees rest on this contract which the Union has negotiated. These rights would terminate if the agreement were cancelled. And for that reason, a union may claim the same broad authority to revise the terms of this seniority provision as it enjoys in the negotiation of the general run of economic benefits.

But that claim rests on a superficial view of the nature of seniority as a social institution. The fact of the matter is that existing seniority clauses take on a much more compelling hue than other contract clauses. This is a good statement of the reasons why:

Seniority enables an employee to acquire valuable interests by his work, to capitalize his labour and obtain something more than a day's wages for his continued production. When seniority determines promotion rights, it gives the employee a claim to better jobs when they become available; when seniority determines the order of layoff, it provides the employee a measure of insurance against unemployment. Seniority does not guarantee that vacancies in higher rated jobs will be filled or that any jobs will be available; but by giving the senior employee priority when a choice is made as to who will be promoted or who will remain employed, seniority gives an employee an interest of substantial practical value. As Professor Aaron has pointed out, "more than any other provision of the collective agreement…seniority affects the economic security of the individual covered by its terms," and is has understandably come to be viewed as one of the most highly prized possessions of an employee. Seniority may be the most valuable ccapiital asset of an employee of long service.

Summers and Love, "Work Sharing as an Alternative to Layoffs by Seniority", (1976), 124 U. of Pa. L.R. 893, at p. 902.

Employees in the plant know their position on the seniority list. They believe that they have earned that spot by their long service. They have firm expectations that that position will remain unaltered. Suppose then that the union and the employer negotiate a change in that clause, one which has the effect of re-shuffling positions on the seniority list. How does the adversely affected employee naturally perceive that contract change? He believes that the parties have simply taken a valuable asset belonging to him and given it to another employee. That perspective is most dramatic in a layoff situation in which the total number of jobs in the plant is reduced:

In a layoff situation, however, seniority takes on an importance of a wholly different order, for it determines who shall continue to work and who shall not. That determination necessarily carries with it all the other employment rights ordered by seniority - overtime, shift preferences, promotions, and the rest. In addition, layoff may jeopardize or destroy other valuable rights attached to employmment or accumulated by long service. Layoff may result in termination of group medical or life insurance which the employee cannot afford to continue individually. If the layoff continues long enough to terminate seniority the emmployee may lose the longer vacations, accumulated sick leave, longevity pay, and perhaps even pension benefits, earned by length of service. When employees are confronted with mass layoffs, the symbolic and real importance of seniority is most commpelling; deviation from the order of seniority is viewed as repudiation of "vested right". It deprives the senior employee not only of his security but of all other values he has earned by his legnth of service.

Summers and Love, pp. 904 — 905.

And for these pragmatic reasons, the law simply cannot take the attitude that because the union and the employer freely negotiated the original seniority clauses, they are also able to change that existing clause as well. As Professor Archibald Cox has said: "When established seniority rights are changed, the bargaining representative should be required to show some practical justification beyond the desire of the majority to share the job opportunities theretofore enjoyed by a smaller group." (Cox, The Duty of Fair Representation, (1957), 2 Villanova L.R. 151 at p.¹ 164).

This and other authorities led this Board to following conclusions in Dufferin Aggregates, supra:

28. The weight of authority supports the view put forward by counsel for the complainants that special considerations attach to any decision by a union that alters or abrogates the job security of employees. That is especially true in relation to seniority rights. Seniority rights, built up over time, usually over a number of successive collective agreements, represent an employee's stake in critical interests such as promotion, pension rights and his rights of layoff and recall. The concept of seniority comes as close asany to approximating a form of industrial relations property right for the individual employee …

46In short, seniority rights have a special importance to trade unions and an often critical importance to the employees they represent. Arbitrators are quick to recognize this, and stand ready to protect such rights to every extent possible. A trade union may not lightly compromise the seniority rights of some to secure benefits for others. The employees it represents may fairly expect a trade union to resist any suggestion that the seniority rights they have won be abandoned, restructed or narrowly interpreted, particularly in the climate of uncertainty which prevails in hard times when lay-offs of significant numbers of employees have occurred or are projected.

47With what was the union faced when, acting through Mr. Barber, it was called upon to respond to Mrs. Bartlett's concerns? There was no evidentiary difficulty, no problem of finding or assessing the credibility of witnesses. The facts were clear. Mrs. Bartlett had had seniority when she was laid off in October of 1981. No one had suggested or now suggests that that or any other subsequent layoff was a discharge for just cause. None of the things described in Articles 16.07 and 16.08 had occurred so as to cause her to lose seniority. She had been off the payroll for less than a year when she returned in February, 1982. Why should she not have started then with the seniority she had accumulated by the date of her layoff in October, 1981?

48Mr. Barber's answer was that Mrs. Bartlett's "permanent layoff" sometime in November of 1981 had deprived her of the benefit of Article 16.05. He gave no explanation whatsoever of the basis of this interpretation. He knew of nothing in the agreement which required that so-called "permanent" lay-offs be treated differently from other lay-offs. As far as he was concerned, the distinction had arisen after the then applicable collective agreement had been negotiated. There was no suggestion that the parties had met and amended or agreed to amend the collective agreement at any time after it came into effect. We are left almost entirely in the dark as to how Mr. Barber decided on this interpretation. The only clue to his thought process is to be found in the fact that he referred to the Employment Standards Act and that the distinction he made between "permanent" and "temporary" lay-offs parallels the distinction in that Act. Can Mr. Barber's interpretation be explained by resort to the Employment Standards Act?

49The relevant provisions of the Employment Standards Act, R.S.O. 1980, c. 137, as amended, are as follows:

1. In this Act,...

(e) "employment standard" means a requirement imposed upon an employer in favour of an employee by this Act or the regulations.

4. (1) An employment standard shall be deemed a minimum requirement only.

(2) A right, benefit, term or condition of employment under a contract, oral or written, express or implied, or under any other Act or any schedule, order or regulation made thereunder that provides in favour of an employee a higher remuneration in money, a greater right or benefit or lesser hours of work than the requirement imposed by an employment standard shall prevail over an employment standard.

40. (1) No employer shall terminate the employment of an employee who has been employed for three months or more unless he gives,

(a) one week's notice in writing to the employee if his period of em­ployment is less than two years;

and such notice has expired.

(3) Subsections (1) and (2) do not apply to,

(b) an employee who is temporarily laid off, as defined in the regulations;

Subsection (6) of section 40 obliges an employer who has given the required notice to an employee to continue the employee's wage benefits and conditions of employment unaltered during the notice period. Subsection (7) provides that where the employment of an employee is terminated without notice contrary to section 40, the employer must, inter alia, pay termination pay to the employee in an amount equal to his regular pay for the notice period. Section 65 of the Act authorizes the Lieutenant Governor in Council to make regulations:

(n) prescribing what constitutes termination of employment;

(o) prescribing what constitutes "a definite term or task", "lay-off", "temporary lay-off", "indefinite lay-off", and a "period of employment".

Regulation 286 under the Employment Standards Act is subtitled "Termination of Employment" and provides, inter alia, as follows:

1. For the purposes of Part XII of the Act,

(a) "temporary lay-off" means,

(i) a lay-off of not more than thirteen weeks in any period of twenty consecutive weeks,

(b) "termination of employment" includes a lay-off of a person for a period longer than a temporary lay-off;

(3) Notice of indefinite lay-off shall be deemed to be notice of termination of employment.

50It is not hard to see how Mr. Barber got the idea that the continuation of a layoff for thirteen weeks or more had an effect on employees. The effect is that they become entitled to termination pay if they did not receive it (or appropriate notice) at the time of their layoff. It is hard to see, however, how Barber could possibly have thought that the provision of this statutory benefit results in the truncation of collective agreement rights. It should seem as obvious to a layman as to a lawyer that legislation designed to improve the position of workers would not take away the benefits they had won in collective bargaining. That, indeed, is made quite clear in section 4 of the Act. Although it neither adds to nor detracts from the weight of this observation, it is interesting to note that the argument that receipt of statutory severance pay on an indefinite layoff precludes resort to collective agreement recall rights has been made and rejected (Citation Industries Limited (1983), 83 CLLC ¶16,027 (BCLRB)), as has the argument that the availability of recall rights while on indefinite lay-off precludes entitlement to termination pay under Employment Standards legislation (Exolon Company, Springate, Referee, unreported decision dated February 8, 1978; Freightliner of Canada Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local No. 14 and Employment Standards Board 83 CLLC ¶14,019 (BCSC)).

51Notwithstanding the total absence of any reference to permanent lay-offs or to the Employment Standards Act in the collective agreement, Mr. Barber thought that Article 16.05 did not apply to a "permanent lay-off". In Mr. Barber's view, any lay-off of more than thirteen weeks was a permanent lay-off. On that view, employees laid off for lack of work would necessarily lose previously acquired seniority if they remain off the payroll for more than 13 weeks. That is in direct contradiction to the clear language of Article 16.06, which expressly contemplates retention of seniority during layoffs of up to one year in duration. This makes it clear that "lay-off" as used in Article 16 cannot possibly be limited to "temporary lay-off" as defined by section 1(a) of Regulation 286 under the Employment Standards Act. Barber's persistance in his interpretation after Mrs. Bartlett drew his attention to Articles 16.05 and 16.06 suggests that Barber ignored either the Articles or the patent incongruity of his interpretation when juxtaposed with those Articles or, alternately, that he was influenced by some consideration not revealed by the evidence.

52There was an attempt in the presentation of the evidence by the union and the company to suggest that Mr. Barber's interpretation, however unusual, had been in conformity with some past policy and had been consistently applied to employees other than Mrs. Bartlett. With respect to Mr. Gobbo's evidence in that regard, I am prepared to believe that the parties may for years have recognized a distinction between a lay-off for lack of work on the one hand and a discharge for cause on the other. That distinction is recognized in the collective agreement which was current at the time of the events giving rise to this complaint. I disbelieve Mr. Gobbo when he suggests the parties had previously recognized for collective agreement purposes a distinction between temporary lay-offs and permanent lay-offs, either in the negotiations which led to the 1979-82 collective agreement or in any prior negotiations. On Mr. Gobbo's own evidence, there had been no occasion on which that distinction would have become important prior to the lay-offs which occured in the fall of 1981, after the collective agreement in question had been negotiated. I accept Mrs. Bartlett's evidence that in August, 1982 Barber told her that no distinction was made between temporary and permanent lay-offs when the 1979-82 agreement was negotiated. As to the suggestion that Mrs. Bartlett was one of a number of employees who had been "treated in the same way" by both the employer and the union, it is difficult to know what treatment the witnesses were referring to when they made these suggestions. Having considered the evidence carefully, I can only conclude that the treatment to which the witnesses referred was the treatment of employees at the time of the lay-offs in October and November of 1981. It was only at that stage that a large number of employees can be said to have received similar treatment. As noted in paragraph 24 of this decision, evidence introduced by the employer, and uncontradicted by the union, suggests that Mrs. Bartlett was the only one of the employees laid off in the fall of 1981 who was recalled to work within a twelve month period after her lay-off. On the evidence before me, I can only conclude that Mrs. Bartlett's was the first, if not the only, recall or rehiring in which the application of Article 16 of the collective agreement would have come into question. I have no difficulty accepting that the lay-offs would have been the subject of much discussion, both at union meetings and elsewhere. I have no difficulty believing that the distinction for Employment Standards purposes between temporary and permanent lay-offs might have been discussed on these occasions in relation to termination pay entitlement. It is not at all clear how the connection between the Employment Standards rights and the recall rights in the collective agreement would have come to be considered prior to the meeting between Mrs. Bartlett and Mr. Barber. If it had been, and if the conclusion Mr. Barber expressed at that meeting was a conclusion earlier reached, there is no explanation of the thought process by which he or anyone else had earlier achieved that result. There is no evidence that the business agent, Mr. Gordon, made that connection in his telephone discussion with Mr. Barber. If he did, there is no explanation of the mental process by which he did so.

53The interpretation Mr. Barber says he adopted was disadvantageous not only to Mrs. Bartlett but to any other employees for whom some right of recall might have been asserted after their layoff stretched beyond 13 weeks. Far from excusing his treatment of Mrs. Bartlett, this observation adds to the gravity of the matter with which Mr. Barber was faced. Implicit in the company s treatment of Mrs. Bartlett was an interpretation of the collective agreement which had the potential of substantially and adversely affecting the rights of a number of employees represented by the union. In the result, the union, through Barber, acquiesced in that interpretation. Except in the evidence of Gobbo recited and rejected above, there is no suggestion that the union was obliged to accept this interpretation as a result of any previous conduct on its part. There is no suggestion that some other employee or group of employees had competing interests which were advanced by the acceptance of the company's interpretation. The union does not say here that the rights of Mrs. Bartlett and those in positions similar to hers were sacrificed for the greater good of the bargaining unit. Had that suggestion been made, of course, the supposed advantages would have been subjected to the careful scrutiny mandated by such cases as Dufferin Aggregates, supra. The union was entitled, as the intervener argues, to ask what good a (successful) grievance would do for Mrs. Bartlett. There is, however, no evidence that Barber considered that question at the time or that the answer would clearly preclude support for Mrs. Bartlett's interpretation of the agreement. Mr. Barber could not predict the future, and was in no position to say, in August of 1982, that recognition of her seniority would not do Mrs. Bartlett any good in the ensuing 12 months.

54The Board recognizes that rational thought processes applied to appropriate mate­rials by different people may lead to different results. The language of the Board in Dufferin Aggregates, supra, which deals with this issue in relation to a balancing of interests, is equally apt in considering the interpretation of collective agreements:

37. The Board must obviously use great care in assessing what is and what is not objective justification for a union's decision, particularly a decision relating to choices as to the allocation of goods in conditions of scarcity. In my view it would be clearly inappropriate for the Board to substitute its own view for the union's by simply asking itself whether it would have acted differently. To do what is to substitute one subjective standard for another, and not to consider the issue of objective justification. The appropriate standard to be adopted by this Board is not unlike that expressed by the Court in the judicial review of the decisions of arbitrators: the Board should ask not whether th decision is right or wrong or whether it agrees with it - rather it should ask whether it is a decision that could reasonably be made in all of the circumstances, even if the Board might itself be inclined to disagree with it. Used in this sense "reasonable" must mean by the rational application of relevant factors, after considering and balancing all legitimate interests and without regard to extraneous factors.

I do not find the union's interpretation reasonable. The union now argues that Articles 4.02 and 16.02 support Barber's interpretation. That argument is unpersuasive and, equally importantly, there is no evidence that that argument or those Articles in any way influenced Barber when he made his decision. On the evidence before me, I am unable to find any process of reasoning leading from the materials Barber says he considered to the result at which he says he arrived. In coming to that conclusion I take into account Mr. Barber's length of service as president of the local union and I assume in his favour, although it was not brought out in evidence, that he is and was an unpaid part-time volunteer.

55Section 68 of the Labour Relations Act does not grant any employee the absolute right to have his or her complaint taken by the union to arbitration or to any stage of the grievance procedure. This is so even if the subject matter of the complaint is of undeniable and fundamental importance to the grievor. Even where the complaint concerns an alleged unjust discharge, the trade union is not obliged by section 68 to process the grievance through to arbitration regardless of its merits or the weight of competing interests. Its critical importance to the individual affected, however, establishes a discharge grievance as one which is entitled to serious consideration by the trade union. Where the possibility of obtaining a significant remedy in arbitration cannot be excluded on the evidence of the complainant, proof that a trade union has failed to process an unjust discharge grievance through to arbitration will impose on the trade union the burden of adducing persuasive evidence of the competing considerations it took into account in deciding to act as it did: Alvin Plummer, supra. Where the complaint is of a denial of seniority rights which affects or potentially affects the employee's right to available work, that complaint is also entitled to serious consideration by the trade union. Proof of the trade union's failure to pursue a complaint of this sort also casts upon it the burden of explaining the factors which led it to act as it did, so as to avoid the inference that that failure was arbitrary. That burden arose in this case, and the respondent trade union failed to discharge it.

56The respondent argued that the collective agreement permitted Mrs. Bartlett to process a grievance on her own. Articles 6.02 and 8.01 of the collective agreement were referred to. It is apparent from those Articles that a grievance cannot be pursued to arbitration or even submitted in written form without the involvement of union representatives. Mrs. Bartlett can hardly be expected to suppose that a union representative would assist her in any significant way in the face of the opinion expressed by Mr. Barber and his refusal to give her access to the business agent. In any event, Mrs. Bartlett was entitled to rely on the respondent to represent her, and nothing in the collective agreement could relieve the respondent of its statutory duty to do so: The Corporation of the County of Hastings, supra, ¶23.

57I conclude that in advising Mrs. Bartlett that she had lost her seniority rights before her "rehiring" in February of 1982 and that there was nothing she could do about her concerns, the respondent, through Mr. Barber, acted in an arbitrary fashion contrary to section 68 of the Labour Relations Act. I am reinforced in that conclusion by the fact that Mr. Barber refused to provide Mrs. Bartlett with the name and telephone number of the business agent to whom he referred in his conversation with her. I can only infer that he referred to that business agent in order to bolster the credibility of the advice he was giving Mrs. Bartlett. Having found it necessary to refer to the business agent, and having left the implication that someone more knowledgeable that he shared his interpretation of the agreement, his refusal to allow Mrs. Bartlett to check the accuracy of his report and to discuss the matter with the business agent cast doubt on the confidence which even Mr. Barber held in that opinion when he expressed it at the meeting. In addition, the refusal was itself arbitrary. Mr. Barber's only explanation for his refusal was that he felt he could handle Mrs. Barlett's concern. He did not suggest he was acting in accordance with any internal union policy discouraging contact between bargaining unit members and the business agent. Nothing in the evidence suggested that there was any trade union interest which he thought out-weighed the interest of Mrs. Bartlett in pursuing her concerns with the Union’s business agent.

58By contrast I do not find any violation of section 68 prior to Mrs. Bartlett's meeting with Mr. Barber in August, 1982. There is no suggestion that the actions complained of were discriminatory or in bad faith. Mrs. Bartlett's contacts with the stewards over her treatment as a rehire seem more in the nature of perfunctory inquiries than serious complaints. She had just returned to work, she did not ask the stewards to pursue the matter with anyone, and made no attempt to do so herself. She did not at that stage complain, as she did in August, that her rights had been violated. A trade union is not obliged to recast every unfocused concern or off-hand remark into a grievance under the collective agreement. That the stewards in question were capable of appropriate action is demonstrated by their immediate referral of Mrs. Bartlett to Mr. Barber once she had related her concerns to collective agreement rights.

59The union's consent to extend what was then thought to be Mrs. Bartlett's probation period was not arbitrary. There was a reason for the union's decision to consent. The reason was rationally responsive to the circumstances and Mrs. Bartlett's interests. It appeared to the union, as it did to Mrs. Bartlett, that she would be fired if she did not remain probationary. On the then unchallenged assumption that she was a probationary employee, there was nothing the union could do to prevent the firing, except to consent, as did Mrs. Bartlett, to the extention of the probation period.

V

60The respondent did not suggest that the complaint should be dismissed because of the complainant's delay in filing it. It did, however, suggest that the delay be treated as evidence that Mrs. Bartlett had been satisfied with the union’s treatment after the incident of which she now complains. The trade union’s expression of its concern has implicit in it the notion of prejudice, which is the factor considered by the Board in determining whether the delay in filing will, alone, lead to the dismissal of a complaint.

61The Labour Relations Act does not impose a limitation period on the filing of complaints under section 89 of that Act. Section 89 does, however, leave it to the Board's discretion whether to entertain a complaint. The Board will exercise that discretion against the complainant if the delay is "extreme" and there are no mitigating factors which might justify or excuse the delay: CCH Canadian Limited, [1977] OLRB Rep. June 351; Sheller-Globe, [1982] OLRB Rep. Jan. 113 (judicial review denied; (1983) 1983 CanLII 1655 (ON HCJ), 42 O.R. (2d) 73); The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420; and, Caravelle Foods [1983] OLRB Rep. June 875. In assessing both the extremity of the delay and the existence of mit­igating factors, the Board takes into account prejudice of two kinds: prejudice to the defense of the complaint and prejudice to the orderly conduct of the collective bargaining relationship between the union and the employer. With respect 'to mitigating factors, the Board does not penalise complainants for delay reasonably incurred in pursuing other avenues of redress prior to launching a section 68 application or for the time it may reasonably take for complainants to recognize the existence of a potential remedy under section 68: Sheller-Globe, supra, ¶15; The Corporation of the City of Mississauga, supra ¶22; Caravelle Foods, supra, ¶10.

62Neither the respondent nor the intervener complained of having lost witnesses, destroyed documents or otherwise suffered any specific prejudice to its defense asa result of the delay. Having regard to the nature of the case and the length of the delay, it cannot be said that the delay must of necessity have unduly prejudiced the defense. As for prejudice to the collective bargaining relationship, a delay of 12 months in asserting a seniority claim may in some cases cause considerable prejudice. A successful claim for recognition of seniority rights can have a domino effect, as bumping rights are successively exercised by workers displaced as a result of recognition of the claimant's rights. This may be so even if there is no delay in asserting the claim. During any period of delay, other layoffs, recalls, promotions and transfers may take place in reliance on the view of seniority later challenged by a grievor. This multiplies the number of adjustments which may become necessary to vindicate the grievor’s view. In this context, a 12 month or even shorter delay might well lead the Board to exercise its discretion not to entertain a complaint that seniority rights have been ignored. Here, however, there was little evidence to establish what effect, if any, recognition of the complainant’s seniority would have had on subsequent events. Indeed, there was some suggestion in the union's evidence that, on its view of the collective agreement, there might have been no difference to Mrs. Bartlett if her seniority had been recognized. While I am not particularly confident of the trade union's interpretation of its agreement and hence of its conclusions in this regard, I am not prepared to avoid or limit the inquiry into this complaint out of a concern which neither the respondent nor the intervener has expressed. In addition, there are mitigating factors. It was not unreasonable for Mrs. Bartlett to wait a while, at least, to see whether she would be recalled to work as she had in the past. As that prospect faded, it is not unusual that it took Mrs. Bartlett some time to resolve to take an adversarial position against the union and to discover her right to do so under the Labour Relations Act. In assessing tolerable limits on the delay involved in discovering and resolving to assert rights, the Board must take into account that while every bargaining unit employee is owed the section 68 duty, not every employee is aware of it. Indeed, the Board's experience is that the lawyers and other authorities to whom employees reasonably turn for advice are often unaware of section 68. The institutions most keenly aware of that section - trade unions - are less than anxious that awareness be improved. Not every employee thrives on controversy and confrontation. The availability of redress for violations of section 68 should not be limited to those who, by nature, are quick to discover and assert real and imagined rights. A twelve month delay may be more than can be accepted under this rationale alone, but in the circumstances of this case any unexplained portion of the delay is not "extreme" and does not warrant total denial of relief. The effect of delay on the appropriate remedy, and the nature of that remedy, remains to be determined.

VI

63The object in fashioning any remedy under section 89 is to put the complainant so far as possible in the same position as if the Act had not been violated. It will nearly always be impossible to do so with mathematical precision, since the Board does not have the power to turn back the clock or expunge from the minds of the participants the experience of prosecuting or defending the complaint. The Board will not naively direct the trade union to do what it is just found the trade union failed to do, which is to devote thought of the appropriate quality to the complaiant's problem and decide whether to pursue it. The prospective cost to the union of pursuing Mrs. Bartlett's complaint through the grievance procedure, to arbitration if necessary, is quite different now than it was at the time the union was first faced with the choice whether to do so. Now, success of the grievance will impose on the union liability to compensate Mrs. Bartlett for any loss she suffered through non-recognition of her seniority from the time the union breached section 68 to the time it turns its mind to the question of pursuing the grievance. Having been obliged to become the trade union's adversary in these proceedings, the complainant would be justifiably unimpressed with a remedy which afforded the trade union an opportunity to avoid that liability by conveniently concluding that her grievance should not be pursued having given apparent regard to all the appropriate factors. The appropriate remedy, therefore, is to direct that the union formulate and process the appropriate grievance. That direction would be of little value if the employer were to rely on the time limits set out in the collective agreement. The Board has the power to direct that the employer and the union process grievances and submit them to arbitration notwithstanding the time limits set out in a collective agreement: Ford Motor Company, supra; linperial Tobacco Products, [1974] OLRB Rep. July 418 and [1974] OLRB Rep. Sept. 606; Leonard Murphy, 119771 OLRB Rep. March 146; Shafickool Mohammed, [1977] OLRB Rep. April 216; Reginald Walker, [1980] OLRB Rep. Oct. 1651; Bedard Girard Ontario, 1119811 OLRB Rep. Oct. 1338; and, North York General Hospital, [19821 OLRB Rep. Aug. 1190.

64The difficulty in this case is in determining what grievance the union and the employer should be directed to process through the grievance procedure and, if necessary, arbitrate. Had this case been heard and disposed of the day after Mrs. Bartlett's meeting with Mr. Barber, the Board would have directed that the grievance deal with failure of the company to recognize Mrs. Bartlett's seniority and to claim whatever relief might follow from the assertion of that seniority. Suppose at that point the employer had acknowledged, in principle, that Mrs. Bartlett had been entitled to carry forward her previously acquired plant seniority from the moment of her return in February, 1982. Having regard to the complex and not altogether clear bumping and recall provisions of Article 16.04 of the then current collective agreement, the parties would then have been obliged to analyze whether Mrs. Bartlett would have been less prone to layoff at any point up to and including the layoff of August, 1982. An assessment of the outcome of that analysis is impossible without hearing further evidence and argument. The evidence might establish that Mrs. Bartlett would have been laid off in August of 1982 even if her previously acquired seniority had been recognized at all material times. Mrs. Bartlett would then have been left only with the assurance that vigilant policing of the collective agreement by the trade union might result in her recall at some future date pursuant to the terms of the collective agreement then in place and, later, pursuant to the provisions of the collective agreement which succeeded it. Had no such rights arisen (or been discovered) in the twelve months following her August layoff, she would have lost the seniority rights at issue in these proceedings, either under the old collective agreement or under the new one. It is not beyond possibility that Mrs. Bartlett has suffered no real loss as a result of the union's breach of section 68. If, on the other hand, some set of circumstances did arise during the intervening period which would have entitled Mrs. Bartlett to recall on the basis of her previously acquired seniority, an arbitral remedy for the failure to recall her might well include a declaration that her seniority be calculated as though she had been properly recalled, with the result that the one year period referred to in Article 16.06 of both the old and the new collective agreements would have begun to run again only from the point, if any, at which she might have been laid off from the job to which she should have been recalled.

65None of the parties is to be criticized for the fact that the Board does not have before it sufficient evidence to assess the range or complexity of the issues which might have to be dealt with in arbitrating any grievance which might now be filed on Mrs. Bartlett's behalf. The complainant could not be expected to know very much about what took place at Savage after she was laid off. The respondent and the intervener could be expected to know more. However, at the outset of the hearing counsel for the intervener inquired of the Board whether its participation would have to include a defense of the grievance on the merits. The Board drew counsel's attention to the fact that reference to arbitration was the usual remedy granted on a successful complaint under section 68 alleging failure to process a grievance, but that on the Board's jurisprudence the merits of the grievance would be relevant to an assessment of the union's conduct in failing to pursue it. The course taken by the respondent and the intervener in not leading evidence relevant to a remedy at arbitration is consistent with those comments and with the Board's policy in dealing with section 68 complaints as outlined, for example, in Shafickool Mohammed, supra.

66Some evidence did emerge which, if pursued, may establish that retrospective recognition of Mrs. Bartlett's claimed seniority rights would be more than a moot exercise. A person not previously employed by Savage was hired after Mrs. Bartlett's lay-off and prior to the hearing in this matter. While Mr. Barber claimed Mrs. Bartlett would require training in order to do the job for which the new employee was hired, he was unable to say how long that training would take. That information would appear to be relevant to an assessment of the applicability of the recall provisions of Article 16.04 referred to in paragraph 7 of this decision and the equivalent provisions in the new collective agreement. The evidence also disclosed at least three recalls of employees with less plant seniority than Mrs. Bartlett within the twelve month period after Mrs. Bartlett's layoff of August 1982. There was no evidence what those employees were recalled to do or whether the job or departmental seniority of those employees exceeded that of Mrs. Bartlett or whether Mrs. Bartlett could have been trained to do the jobs for which they were recalled within the time frame provided for in either the old or the new collective agreement. It may be that an advocate of Mrs. Bartlett's rights can persuade an arbitrator that she was entitled to be recalled to one of these, or other, jobs in preference to the employees who filled them.

67In short, while resort now to the grievance process and, ultimately, arbitration raises potentially extensive factual issues relating to the ultimate remedy, the Board is unable to say that an effective and significant remedy would not be available to Mrs. Bartlett if she had recourse to the grievance procedure and, ultimately, arbitration.

68While the Board is satisfied that Mrs. Bartlett's complaint should, if necessary, go to arbitration, this is not a case in which it is necessary or even desirable that the grievance procedure be by-passed. Indeed, intelligent resort to the grievance procedure by all of the parties may resolve the issues left unresolved by this decision. Even if full settlement is not possible, resort to the grievance procedure may at least assist the parties in narrowing the issues necessary to be dealt with at arbitration. The Board therefore directs that the union retain and instruct legal counsel approved by Mrs. Bartlett to forthwith draft and present a grievance with sufficient scope to take in all the defaults which flow from the company's failure from and after February, 1982, to recognize Mrs. Bartlett's previously acquired seniority, and to claim all such relief as may be required to remedy the consequences of each and every such default. The union is directed to file and process the grievance commencing at Step 2 of the grievance procedure outlined in its current collective agreement with the employer. The Board further directs that the employer receive and process the grievance commencing at Step 2 without objection concerning its timeliness or any other procedural deficiency arising from the delay. Both parties shall proceed on the basis that an arbitrator will have jurisdiction to consider and remedy any breach of the 1979-82 collective agreement or the current collective agreement.

69In the event that the grievance is not settled to Mrs. Bartlett's satisfaction, the Board further directs that the grievance be processed to arbitration before a single arbitrator selected jointly by the company and the union and approved by Mrs. Bartlett. If the parties, including Mrs. Bartlett, are unable to agree on a single arbitrator within fifteen days after the completion of Step 3 of the grievance procedure, the trade union and employer are both hereby directed to request of the Minister of Labour that he appoint a single arbitrator to hear and determine the grievance. The Board further directs that the union retain and instruct legal counsel approved by Mrs. Bartlett to represent it at the arbitration hearing and present and argue the the grievance. Again, the company shall not raise any objection concerning timeliness or any other procedural deficiency arising from delay, and both parties shall proceed on the basis that the arbitrator has jurisdiction to consider and remedy any breach of the 1979-82 collective agreement or the current collective agreement.

70Mrs. Bartlett's approval of union counsel or of the arbitrator shall not be unreasonably withheld, and, in the case of the arbitrator, shall not be necessary if the appointment is made by the Minister of Labour.

71In the event Mrs. Bartlett becomes entitled to compensation as a result of an arbitration award or settlement, whatever portion is attributable to the delay caused by the union's breach of section 68 shall be paid by the union and that portion, if any, attributable to the complainant's delay in filing this complaint shall be foregone by the complainant.

72The respondent union is further ordered to immediately post copies of the attached Notice marked "Appendix", duly signed by its authorized representative, on each and every of the bulletin boards in Savage's Cambridge plant which are ordinarily available to it for the posting of notices of union business. The respondent shall keep the notices posted for sixty consecutive working days, and shall take reasonable steps to ensure that the said notices are not altered, defaced or covered by any other material. If the union's use of such bulletin boards is subject to a requirement that Savage approve material the union proposes to post, then Savage is hereby ordered to forthwith give the required consent or approval to the posting provided for in this paragraph.

73In addition to the posting provided for in the next preceding paragraph of this decision, the respondent is hereby ordered to mail one true copy of the duly executed Notice to each and every employee who is now or has at any time since October 1, 1981 been an employee at Savage's Cambridge plant in the bargaining unit represented by the respondent union. Each such copy shall be sent by prepaid ordinary mail addressed to the employee at his or her last known address. The copy shall not be accompanied by any other material. To assist the respondent in ascertaining the names and last known addresses of the employees to whom it is obliged to mail these Notices, the intervener Savage Shoes Limited is hereby ordered to make available to the respondent, and the respondent is hereby ordered to consult, the records maintained by Savage Shoes Limited pursuant to subparagraphs (i) and (ii) of section 11((l)(b) of the Employment Standards Act, R.S.O. 1980, c. 137, as amended, which provide as follows:

11. (1) An employer shall

(b) make and keep in Ontario or in a place out of Ontario authorized by the Director for a period of five years after work is performed by an employee complete and accurate records in respect of the employee showing,

(i) the employee's name and address,

(ii) the date of commencement of employment and the anniversary date thereof,...

74The Board remains seized of this matter to resolve any dispute arising over the interpretation or implementation of the Board's orders and directions herein, including, without limiting the foregoing, any question of quantum arising out of the directions in paragraph 71.

[Notice to Employees Omitted]