[1983] OLRB Rep. November 1920
0200-82-U Alvin Plummer, Complainant, v. Operative Plasterers' & Cement Masons" International Association, Local 172, Respondent, v. Swing Stage Ltd., Intervener
BEFORE: Pamela C. Picher, Vice-Chairman.
APPEARANCES: E. G. Posen for the complainant; L. C. Arnold and A. Enman for the respondent; Henry Vanderlinde for the intervener.
DECISION OF THE BOARD; November 18, 1983
Alvin Plummer has filed a complaint under the Labour Relations Act alleging that the union has breached its duty of fair representation which is set out in section 68 of the Act and provides as follows:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
Mr. Plummer started his employment with Swing Stage Ltd. in August of 1980. Up until the point of his discharge in January of 1982 he worked as a welder-fitter. He holds welding certificates from both Canadian Pacific Railway where he was employed for two years and from George Brown College where he took upgrading and refresher courses. Effective January 22, 1982 Plummer was given an indefinite lay-off which was designed to permanently terminate his employment at Swing Stage. The union declined to file a grievance over Plummer's termination. His counsel maintains that the union's representation of Plummer was both arbitrary and in bad faith and thus in breach of section 68 of the Act.
On or about January 19, 1982 Plummer's foreman, Mr. John Babutac, gave Plummer the following notice informing him that he would be laid off indefinitely:
LAYOFF NOTICE
EMPLOYEE NAME: Alvin Plummer
DEPARTMENT: Manufacturing
DATE: January 18, 1982
LAYOFF EFFECTIVE DATE: January 22, 1982
EXPECTED TERM OF LAYOFF: Indefinite
REASON FOR LAYOFF: Shortage of suitable work for this employee's skill.
"John Babutac"
Authorizing Signature
Five other employees, including another welder, were laid off at the same time as Plummer. The company acknowledged that it hired at least one welder at the same time as it laid off Plummer. Babutac confirmed, however, that the lay-off was intended to be permanent and reflected the company's decision to terminate Plummer for his inability to perform available work. Plummer denies that he was ever informed by the company or his union that the company's intention was to discharge him rather that to simply lay him off for an indefinite period.
Babutac was the person responsible for the decisions to both hire and terminate Plummer. He testified that for a considerable time Plummer was fully able to perform the welding work for which he was hired. A couple of months before letting him go, however, Babutac witnessed a drastic deterioration in Plummer's work. For some months before that there had been ups and downs requiring Babutac or his father, a lead hand, to have "little talks" with Plummer. Babutac explained that the problem that had developed with Plummer's work was that he was unable to complete tasks within what Babutac considered to be a reasonable time. He further noted that sometimes his work was done incorrectly. Babutac testified that he gave Plummer a few verbal warnings and finally told him if he didn't show improvement it could lead to his dismissal. Plummer normally worked alone. Babutac commented, though, that on those occasions when he assigned Plummer to work with other employees, the employees would frequently complain that he would become argumentative. Babutac estimated that the problems with fellow employees started about two or three months before his termination.
Babutac explained that the company was fading out the type of welding Plummer originally had been hired to perform and that they no longer needed a full-time welder-fitter to perform that kind of work. According to Babutac, Plummer showed himself unable to perform the faster type of welding the company had come to use. Babutac tried to put Plummer on other available jobs but, according to Babutac, Plummer was also unable to perform them.
Babutac stated that he felt there must have been something bothering Plummer because he had not previously exhibited the above mentioned problems. Accordingly, he asked one of Plummer's fellow employees, Mr. Doug Guthrie, who was also the lead hand in charge when Babutac was not there, to speak to him to see if he could uncover a problem. Guthrie testified that Plummer told him that frequently people took his machine away from him so he couldn't work. Guthrie further commented that he found there was some truth to that assertion.
Babutac did not consider the suggestion that employees were taking Plummer's machine away from him to be a full or adequate explanation of Plummer's problem. The next step he took, therefore, was to ask the union representative, Mr. Arthur Enman, to speak to Plummer and his fellow employees to see if he could uncover the root of Plummer's problems at work.
Mr. Enman is the full-time business manager for Local 172, a position he has held since May of 1980. Prior to that he had been involved with another union for some 7 1/2 years. For a number of those years he was the recording secretary. He testified that he first became aware of Plummer on November 24, 1981 when Mr. Henry Vanderline, the company's vice-president, asked him to speak to Plummer because they were having some problems with his work and attitude and were considering firing him. According to Enman, Vanderline mentioned that Plummer was having difficulty making a particular kind of base and had done some other faulty work that had to be redone. Enman acknowledged that he did not discuss with Vanderline the details of those or any other complaint the company had with Plummer' s work performance
Enman further stated that Babutac himself told him that he wanted to fire Plummer because of problems with his work. Although Enman acknowledged that Babutac mentioned a few specific problems, Enman did not press him for details or determine when any of the problems had occurred.
Enman then went to speak to Plummer to find out if he was having problems. There are substantial conflicts in the evidence concerning the details of this conversation. The Board accepts that Enman informed Plummer that the company was dissatisfied both with his work and with his ability to get along with employees and was thinking of firing him. Enman acknowledged that he did not tell Plummer what specific complaints the company had with his work. The Board further accepts that when Enman told Plummer that a particular employee had lodged a complaint about him, Plummer stated that that employee wanted to get him fired. Plummer testified that he explained to Enman that he and that particular individual did not get along well because one day that person had taken Plummer's machine after Plummer had told him not to. Enman summarized his view of his exchange with Plummer: he said he had difficulty getting a straight answer from Plummer and could tell very little from the conversation.
Enman's next step was to speak to Plummer's fellow employees. The Board accepts that in November he asked some four or five people about Plummer and received from them a distinctly negative reaction to Plummer. According to Enman, no one had anything good to say about Plummer. During the course of his testimony Plummer recounted a number of racial slurs directed against him by fellow employees. He recalled, for example, that one employee said to another within his earshot, "We want to send these niggers back where they came from." Counsel for Mr. Plummer confirmed, however, that they were not arguing that the union had discriminated against Mr. Plummer. The Board, therefore, makes no finding with respect to any negative racial comments which may or may not have been directed against Plummer.
Paul Clarke, a lead hand, was one of the employees approached by Mr. Enman. He stated that in November Enman asked him if there was anything he could say in Plummer's defense. Clarke replied that there was very little he or anyone else could say to support Plummer because of the number of mistakes he was making requiring others to divert their attention from their own work to repair his. Clarke acknowledged that he was not particularly fond of Plummer and that he and Plummer had gotten into an argument.
Enman testified that when he reported back to Babutac in November he stated that perhaps if Babutac gave him a chance Plummer' s work would improve and he would get along better with his fellow employees. Enman further testified that he informed Vanderline that he had spoken to Plummer and several of his fellow employees and found that their reaction to Plummer was unfavourable. The Board does not accept Enman's further evidence that he either saw a discipline notice on Vanderline's desk warning Plummer in writing that if his performance and attitude didn't improve he could be dismissed or that through his efforts he prevented this notice from being sent to Plummer. It is apparent from the testimony of Vanderline and Babutac that they were not at this point contemplating giving Plummer a written warning. Instead they were considering the larger question of whether they would terminate him directly.
Enman did not speak to Plummer between his initial conversation with him in November and the point of his termination in January. Nor did he have further conversations with the company concerning Plummer's work performance. On or about January 18th, Babutac informed Enman that he intended to terminate Plummer. On or about the same day, Enman asked two employees if Plummer's work had improved; the reply was negative.
Enman testified that on Friday, January 22 he went to the plant and saw a termination notice for Plummer drawn up and sitting on Vanderline's desk. According to Enman, he told Vanderline that he would be filing a grievance if the termination was unfair. Enman stated that he and Vanderline then discussed the problem of Vanderline not wanting to overrule Plummer's supervisor, Mr. Babutac. Enman stated that with considerable effort he prevailed on Vanderline to change the notice of termination to an indefinite lay-off so that Plummer wouldn't lose an additional four weeks' unemployment insurance.
Vanderline' s testimony has a somewhat different flavour. He testified that he phoned Enman in the latter part of January to let him know that the dismissal was going to take place. Enman then requested that the company make it an indefinite lay-off instead. Vanderline testified that Enman's overture was a request at most and that no bargain was struck between the company and the union which would have prevented the union from filing a grievance if the company changed the dismissal into an indefinite lay-off. The evidence in this regard is somewhat confusing. At one point Vanderline stated that he agreed to make the termination a lay-off but then at another point stated that he did not dispute that it was Babutac's decision to put "lay-off" on Plummer's notice. He stated, though, that he would have conveyed to Babutac his conversation with Enman and commented that Babutac might have been influenced by it.
Babutac testified that he did not have a discussion with Vanderline or Enman concerning changing Plummer's notice from a termination to a lay-off. He confirmed that the words chosen were his words and that he put "lay-off" on the slip because the original job Plummer was hired to do was no longer available and there was no other job at the plant he was able to perform. He stated that he would have talked to Vanderline a couple of days before the effective date of lay-off to inform him that he was going to let Plummer go as of January 22nd.
It is unnecessary to resolve all of the conflicts and inconsistencies in the evidence. The Board will accept that Enman asked Vanderline to give Plummer an indefinite lay-off instead of a discharge, that Vanderline agreed and that whether by coincidence or otherwise, Plummer's termination notice was put in terms of an indefinite lay-off instead of a discharge. It is common ground that Enman did not discuss the lay-off versus discharge question with Plummer.
On January 25th, the Monday following his lay-off, Plummer went to the union office to discuss the situation. He stated that he spoke to Enman and asked him to intervene on his behalf because he didn't understand why he was laid off on such short notice particularly when another man had been hired to do his job. According to Plummer, Enman stated that he didn't know anything about it and assured him that he would look into the situation and get back to him with an explanation. Plummer denies that Enman told him that the company had wanted to fire him and that he had arranged a lay-off instead.
Enman recalls their conversation differently. He testified that when Plummer came to see him at the union office on January 25th he went through the whole situation telling Plummer exactly what had transpired i.e. that he had changed what would have been a discharge into an indefinite lay-off. He further stated that he told Plummer that for a number of reasons a grievance would be unsuccessful. In this regard he noted that Plummer had had several verbal warnings, that he couldn't find any employee to support him and that several employees were, in fact, willing to support the company. Enman testified that he reminded Plummer that he had told him in Novmeber "to keep his nose clean" but that obviously he hadn't because everyone said things had not changed. Enman stated that he told Plummer that the best he could do for him was to get the company to change his notice of discharge into a notice of indefinite lay-off. Enman testified that he told Plummer he would make every effort to do more for him if he could but it seemed to be a hopeless situation. Enman testified that Plummer called him two days later at which time he went over the whole situation again.
Again it is unnecessary to resolve all the inconsistencies in the evidence. It may be that on January 25th Plummer heard what he wanted to hear from Enman and was not receptive to criticism. On Enman's own evidence, though, it is clear that Enman did not discuss the situation with Plummer, in the sense of asking him for his side of the allegations. Instead he told Plummer how he negotiated an indefinte lay-off and told him that a grievance would not succeed because he had had prior verbal warnings and because no fellow employees would support him.
The Board further accepts that Plummer was not satisfied with Enman's response and repeatedly, yet unsuccessfully, sought to discuss the situation further with him. In view of Enman's admission (discussed in further detail below) that following their January 25th meeting Enman considered Plummer a "non-priority", the Board declines to accept Enman's assertion, strongly contradicted by Plummer, that Enman went over the whole matter again with Plummer two days following their January 25th meeting. The Board accepts Plummer's statement, confirmed more generally by Enman's own testimony, that he tried repeatedly to get hold of Enman to discuss his situation again but was continually met with a wall of silence. Plummer stated that sometimes he went to the union office twice a day but always found it locked. He stated, and the Board accepts, that while he left messages with the union's answering service along with his name and phone number on some ten occasions, his calls were never returned. Enman acknowledged that Plummer left his number with the union's answering service but asserted that Plummer wasn't in when he returned his call.
When Plummer was unable to contact the union by phone he wrote Mr. Enman the following letter:
Mr. Enman,
I know that you have been avoiding me both at your office at 2909 St. Clair and at the answering service.
When I phone and leave my name and phone no. you make sure that you don't call me back.
But that's O.K. I believe for sure that you have no intention of helping me in the fight against the injustice done to me by SWING STAGE LTD. of 60 Howden Rd. Scarborough.
All I'm asking you for is a note stating that you cannot help me. I need a note to that effect now, because we don't want sometime after, you said I should have waited on you.
Please just send such a note. [T]hat's all I'm asking of you then I won't bother you any more. I mean after all man I have paid to you a lot of money over 1 yr. and 6 months. [Y]ou have never done anything for me to deserve all that.
SWING STAGE laid me off and took on a another man right away on my same job. You never even asked what happen[ed].
I paid nearly $100.00 down and $8.00 every month, for you to say something, anything. Plus I paid 2 per cent of any weekly salary every week for 1 yr. and 6 months and you never represent[edl me at any time even when I needed you to say something in my behalf.
And now look at the way you are avoiding me.
Please just send me a note that you can't or won't help me or call me to pick it up.
Thanking you in anticipation.
ALVIN PLUMMER
Phone No. 282-1744
Plummer never received a reply to his letter. Enman acknowledged that he received Plummer's letter, probably around the first week of March. He said he read it and threw it in the garbage because he felt it discredited and offended him. He said he felt he had done all he could for Plummer and had explained the whole situation to him on January 25th. He asserted at the hearing that he doesn't reply to a letter like that; he responds when he receives a letter of substance. He commented that running a union is like anything else; there are priorities and after January 25th Plummer's situation became a non-priority because he had explained the situation to Plummer and knew a grievance would not succeed. He said that as far as he was concerned the situation was closed on January 25th.
Plummer testified that approximately two weeks after he wrote his letter to Enman he called him at his home on a Sunday and told Enman that he was disappointed because Enman had not kept his promise to find out why he was laid off. According to Plummer, Enman replied that he couldn't help him and stated that Plummer wouldn't want to go back to Swing Stage anyway. Enman agreed that Plummer called him at his home on Sunday but said he couldn't remember the purpose of his call. According to Plummer he never got an explanation from either the union or the company for why he was laid off.
In April of 1982, Plummer filed the instant complaint against the union. Some months thereafter, in November of 1982, Plummer was invited to appeal the union's failure to grieve his discharge to the union membership. Mr. Matchelman, the international union representative, assisted him in drawing up his appeal. The issue put before the meeting was whether the union should file a grievance on Plummer's behalf.
Plummer maintains that by the time the union meeting turned to his grievance only eight or nine people were left. Prior to discussing Plummer's grievance, the membership had engaged in a heated debate relating to an increase in union dues during which a considerable number of people walked out of the meeting. When Plummer's case was brought forward, there were so few members that a number of employees from Swing Stage who had walked out of the earlier discussion were brought back. Mr. Guthrie, an employee, acknowledged that they had to get a number of people out of a bar to deal with Plummer's case. Plummer maintains that he was not given a fair opportunity to present his case to the membership. He commented that when he tried to speak, those in attendance made so much noise that they couldn't hear him. He further maintains that at the meeting the international representative commented that if Plummer should win his case and receive back pay then it might affect the bonus of the other employees.
Mr. Clarke attended the union meeting at which Plummer's attempt to have the union grieve his discharge was brought to a vote. In his testimony, Clarke displayed some confusion over the precise question considered by the membership that night. Initially, he described the question the members were voting on as "Plummer's attempt to have a grievance brought against the union". Later he said that the vote was taken on whether or not the company should take Plummer back. At another point he stated that the vote was whether the union should file a grievance for Plummer. The vote was taken and approximately 14 voted against filing a grievance for Plummer and approximately 8 voted in favour of it.
We turn to consider whether the union acted in accordance with its duty of fair representation in its handling of Plummer's indefinite lay-off. In Walter Princesdomu and C. U.P.E., Local 1000, [1975] OLRB Rep. May 444 the Board at pp. 464-465 made the following comment concerning its interpretation of arbitrary representation in section 68 of the
Act:
Accordingly at least flagrant errors in processing grievances - errors consistent with a "not caring" attitude - must be inconsistent with the duty of fair representation. An approach to a grievance may be wrong or a provision inadvertantly overlooked and section 60 [now 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.
Counsel for Plummer argues that whether the company's perception of Plummer's work performance was right or wrong, the manner in which Enman considered Plummer's situation was so summary and superficial that it constitutes arbitrary and bad faith representation in violation of the union's duty of fair representation. He further maintains that the union meeting which occurred after Plummer filed his complaint is irrelevant and, in any event, insufficient to cure the union's earlier breach of its duty.
Counsel for the union emphasized his view that Enman was an inexperienced, unsophisticated business agent who did not have much of a background in processing grievances. Counsel notes that Enman told Plummer in November that his job was at stake and that he would have to improve; he then conducted an investigation into Plummer's situation by asking fellow employees for their views of Plummer's attitude and his work. Through this process, according to counsel for the union, Enman addressed his mind to what the evidence for and against Plummer would have been if the union had filed a grievance and processed it to arbitration. Counsel argues that the union should not be found to be in violation of the union's duty of fair representation simply because Enman declined to engage in the "window dressing" of going through what he describes as the futile motion of filing a grievance.
Counsel for the union argues that Enman made a sincere effort to help Plummer by persuading the company to convert what was going to be a discharge into a lay-off, thereby both reducing what would otherwise have been his waiting period for unemployment insurance benefits and making it less difficult for him to obtain another job. Counsel admits that Enman should have spoken to Plummer before asking the company to change his termination to an indefinite lay-off but maintains his failure to do so results from inexperience and does not constitute a breach of the union's duty of fair representation. Union counsel further argues that the Board should accept Enman's testimony that he fully explained the situation to Plummer on January 25th when Plummer came to see him in the union office.
The Board accepts that in his first conversation with Plummer in November, Enman told Plummer that his job was in jeopardy. Enman had not, however, asked the company for specific details of its complaint with Plummer's work and attitude. Enman, therefore, did not ask Plummer for his side of the company's allegations. Neither in November nor at any time thereafter did Enman ask Plummer for his response to any specific complaints with his work, including the bases that Vanderline had specifically noted as a problem. Enman testified that Babutac told him that he was upset about some 96 cages that had to be rebuilt by others because of Plummer's faulty work. Enman, however, did not ever ask Plummer for his side of that accusation or even find out from Babutac when that alleged mishap had occurred.
The one concrete fact Enman told Plummer in his initial conversation was that a named employee had filed a complaint against him. Although Plummer's response was that that employee wanted to get him fired, Enman did not press him for the reason he felt that way. As Enman knew the company was concerned with Plummer's attitude and relationship with his fellow employees, Plummer's assertion that an individual wanted to get him fired should have been considered highly relevant and probed in some detail. When Plummer went to see Enman after he had been terminated Plummer again mentioned that he thought that the named employee might have had something to do with his lay-off. By that time, the evidence shows, Enman had already made up his mind that a grievance on behalf of Plummer would not succeed and he did not explore Plummer's concern about the other employee.
Enman testified that he found it difficult to communicate with Plummer and could in fact tell very lithe from their conversation in November. In the Board's view, however, Enman had an obligation to make additional efforts to communicate with Plummer before concluding that any attempt to grieve Plummer's termination would be unsuccessful.
Instead of talking further with the company, either before or after his termination, about the specifics of its complaint against Plummer and instead of discussing the situation with Plummer beyond their initial conversation in November from which Enman stated he could tell very little, Enman canvassed fellow employees for their opinions of Plummer. It is certainly appropriate for a union official to talk with fellow employees to assess the merits of a potential grievor's claim against the company. These discussions, however, cannot take the place of asking the grievor for his side of the story.
Moreover, it is apparent that Enman's discussions with fellow employees were highly superficial. Enman testified that Clarke told him he had nothing good to say about Plummer and that Plummer had threatened him with physical violence. The Board concludes, however, that Enman did not ask Clarke for the details of that encounter or go back to Plummer to ask him whether such an argument had occurred. Another employee Enman approached for an opinion about Plummer said "something about his work having to be redone". Once again Enman did not ask that employee for details or go back to Plummer to ask him for his version. Another employee told Enman that Plummer had a problem getting along with employees and had made some serious errors in his work. Enman did not probe that employee for specific details so that he could return to Plummer for his reaction. Another employee told Enman that once he had to give Plummer instructions several times. Again Enman asked for no surrounding details. It is clear from Plummer's evidence that he might well have had a different version of the events. The Board concludes on the evidence that when Enman canvassed Plummer's fellow employees and learned that they had a negative opinion of Plummer' s work performance, he closed his mind to a consideration of the merits of Plummer's situation. Enman closed his mind to Plummer's plight without having ascertained from either the company or Plummer's fellow employees anything beyond the most cursory and broadly swept accusations against Plummer. Moreover, and most critically, Enman closed his mind to considering the merits of Plummer's termination without ever asking Plummer, in a meaningful way, for his side of the story.
The union's duty of fair representation requires more. Even if the company had a legitimate complaint with Plummer's work and attitude, Plummer had never been formally disciplined; he had never been given so much as a written warning. Enman did not consider the asset of Plummer's clean record before concluding that filing a grievance on Plummer's behalf would have been a fruitless effort. Babutac, Plummer's foreman and the person who terminated Plummer, testified that Plummer had been a fine employee from the time he was hired until about six months prior to his termination when there was a dramatic deterioration in his work. Enman did not direct his mind to the suddenness of the decline in Plummer's work before deciding that filing a grievance would be a useless effort. Enman did not consider that through the grievance procedure alone, quite apart from proceeding to arbitration, the company and union might have been able to arrive at a mutually satisfying arrangement concerning Plummer. Nor did he consider that through the grievance procedure alone, Plummer might have at least gained the satisfaction of an explanation for his indefinite lay-off, something he maintains he has not yet received. The Board does not suggest that Enman would have to have assessed each and every one of the above factors to have acted in accordance with the duty of fair representation. In the circumstances, however, Enman's failure to consider any of them bespeaks a non-caring attitude.
The collective bargaining system and much of the jurisprudence arising out of it, generally accepts the principle of progressive discipline. An employee is normally warned in writing, sometimes more than once when his work performance or his conduct falls below an acceptable standard. A continuation of the substandard conduct may lead to one or more suspensions. Beyond that point, a failure to correct the problem may well provide just cause for the employee's termination. Egregious conduct may in some cases justify a departure from this normal pattern of progressive discipline. Generally, however, an employee may expect to be given adequate warning respecting his conduct or performance before being confronted with the ultimate sanction of discharge. Moreover, an arbitrator may be expected to review with care a discharge which departs from the normal stream of progressive discipline. While it is recognized that the use of progressive discipline may not be as consistently followed in the construction industry where projects are typically of a limited duration, the grievor was employed in the plant at Swing Stage. He did not work on a construction site.
Plummer had no disciplinary record whatever before he was summarily discharged through the vehicle of indefinite lay-off. His termination was not preceded by escalating forms of discipline. It is of concern that the union did not consider the company's obvious failure to follow progressive disciplinary steps before declining to file a grievance in the face of Plummer's termination.
Discharge is the ultimate sanction in collective bargaining. Through it an employee forfeits not only his livelihood but also valuable accrued rights including seniority and benefits, acquired sometimes over years of service. For this reason the law in some jurisdictions gives discharged employees an absolute right to have their terminations reviewed at arbitration. (See Division V.7 (Unjust Dismissal) Section 61.5 of the Canada Labour Code, R.S.C. 1970, C.L-l, amended S.C. 1977-78, C.27, applicable to employees not covered by a collective agreement). Some maintain that the duty of fair representation should be interpreted as requiring a union to carry the grievance of any discharged employee to arbitration (see Weiler, P. Reconcilable Differences, (1980) pp. 137 ff.). In Brenda Haley [19801 3 Can. LRBR 501; (1980), 41 di 295, [1981] 2 Can. LRBR 121; 41 di 311 (Plenary Board Review), however, the Canada Labour Relations Board declined to adopt Professor Weiler's view.
This Board does not view the language of section 68 of the Act as guaranteeing to every employee the arbitration of his or her discharge. That is not to say, however, that the duty of fair representation contemplated under section 68 of the Act is unable to remain responsive to labour relations realities.
The case at hand raises the issue of whether the duty of fair representation is violated when an employee with no prior disciplinary record is discharged and his union, on the basis of a superficial inquiry and without asking the grievor for his side of the story declines to file a grievance.
Enman admitted at the end of cross-examination that Plummer had become a "non-priority" after January 25th when Plummer visited him at the union office and he "explained the situation" to him. He stated that as far as he was concerned the matter was closed on January 25th some three days following Plummer's termination. Subsequently, Plummer left countless telephone messages for Enman which Enman simply didn't bother returning. It is apparent to the Board that once Enman felt he had succeeded in turning Plummer's termination into a permanent lay-off he took no further interest in his situation.
The Board can only conclude that once Enman learned that Plummer was not a popular employee and that fellow employees would not support him, he concluded on this basis alone that a grievance would be futile and was blinded to whatever merits there might have been to a case made on Plummer's behalf. Conducting a popularity contest does not fulfill a union's duty of fair representation. An employee cannot be denied access to the grievance procedure simply because other employees don't like him.
Enman's response to Plummer's letter is disturbing and fully consistent with his failure to fairly represent Plummer. Enman admits that after he read Plummer's letter which asked for a simple response he threw it in the garbage. Enman found, the letter offensive and did not think it deserved a reply. Surely an employee who has paid a $100.00 initiation fee and $8.00 monthly dues to his union deserves more attention when he has been terminated than to have his letter thrown in the garbage. The Board cannot conclude that Plummer had harrassed, bothered or done anything else to Enman to justify Enman's blatent disregard for Plummer's concerns.
As noted, the Act does not give an employee an absolute right to have his case grieved and carried to arbitration. In our view, however, the law has evolved beyond the point where the union may simply assert that it has "considered" an employee's request for help and "decided" not to help him.
The decision not to process a grievance for an employee who has been disciplined or discharged may, depending on the circumstances, be a justified and responsible exercise of a union's prerogatives. Where, however, an employee has been discharged there is an obligation on a union to provide a satisfactory explanation for its decision not to process a grievance. While the legal burden in a section 68 complaint is on the individual complainant, once it is established that a union member has suffered the ultimate sanction of discharge, this Board expects a persuasive account from the union to justify its refusal to file a grievance, or having done so, to carry the grievance to arbitration.
The union's explanation in the instant situation that it did not grieve Plummer's termination because Plummer had received verbal warnings about his work performance and because none of his fellow employees would support him is inadequate because, as detailed above, the union did not ascertain from Plummer his side of the story. The union cannot be said to have directed its mind to the merits of a grievance or potential grievance if it has not ascertained the grievor's version of the situation. In the Board's assessment Enman's "investigation" and handling of Plummer's situation was so superficial, cursory and ultimately antagontistic that it constitutes arbitrary representation in contravention of section 68 of the Act. Moreover, we are not persuaded that the vote taken among the general membership after Plummer had filed his section 68 complaint was sufficient to cure the prior breach of the Act. (See North York General Hospital, [1982] OLRB Rep. Aug. 1190.)
In the result, the Board is compelled to conclude on a review of the evidence and argument that the union failed to represent Plummer in accordance with its duty of fair representation.
By way of remedy counsel for Plummer requested that the Board, among other steps, direct that the union file a grievance over Plummer's indefinite lay-off. The Board is satisfied that this is an appropriate remedial step and therefore directs that the union forthwith file a grievance on Plummer's behalf and process it through the grievance procedure. The Board further directs that the company, for its part, receive and process the grievance without objection concerning its timeliness or any other procedure deficiency arising from the delay.
In the event that the grievance is not settled to Plummer's satisfaction, the Board further directs that the grievance be processed to arbitration. Again the company is directed not to raise a procedural objection. Given the degree of superficiality with which the union dealt with Plummer's situation as well as the antagonism deplayed by Enman following his January 25th meeting with Plummer, the Board is satisfied that the union should be required to process Plummer's grievance to arbitration if he so requests to fully cure the union's breach of its duty of fair representation. (See The Corporation of the County of Hastings, [19791 OLRB Rep. Nov. 1072 at para. 24.)
The Board further directs that the union be represented at the arbitration hearing by an individual approved by Plummer. Plummer's approval, however, may not be unreasonably withheld. In the event that Plummer ultimately receives compensation, whatever portion is directly attributable to the union's breach of section 68 shall be paid by the union. (See Leonard Murphy, [1977] OLRB Rep. March 146 at para. 40; Massey Ferguson Industries Limited, [1977] OLRB Rep. April 216; Bedard Girard Ontario, [1981] OLRB Rep. Oct. 1338; North York General Hospital, [1982] OLRB Rep. August 1190; Phillip Wayne Bradley, [1983] OLRB Rep. March 323.)
The Board remains seized of this matter to resolve any dispute arising over the interpretation or implementation of the Board's Order.