[1983] OLRB Rep. March 323

1333-82-U Phillip Wayne Bradley, Complainant, v. Canadian Paperworkers Union, Local 212, Respondent

BEFORE: Corinne F. Murray, Vice-Chairman.

APPEARANCES: M. Bendel and Phillip Wayne Bradley for the complainant; Wilfred C. Oliver, Roger N. Delage and Floyd A. Dupras for the respondent

DECISION OF THE BOARD; March 17, 1983

1. This is a complaint under section 89 of the Labour Relations Act in which the complainant alleges that he has been dealt with by the respondent contrary to the provisions of section 68 of the Act.

2. The complainant alleged that the respondent acted in an arbitrary way because its officials were "unresponsive" to his inquiries regarding his situation of being terminated by Domtar Inc. (Fine Papers) (hereinafter referred to as "Domtar"). The complaint filed by the complainant states that:

On or about September 1981 to present the grievor was dealt with by Canadian Paperworkers Union, Local 212 of the respondent contrary to the provisions of section 68 of the Labour Relations Act in that ... (it) did refuse or neglect to provide any representation to the grievor when the grievor was dismissed from his employment with Domtar Inc. in September 1981. The grievor has had no response to his persistent attempts since September 1981 to find out why no steps have been taken by the Respondent to represent him.

It was further alleged that:

The grievor has communicated on several occasions with officers of the respondent without ever receiving a substantive response. The grievor has also communicated with similar effect with the President of the International. The grievor's solicitor has received no reply to his letter to the respondent.

The respondent denied that a breach of section 68 has occurred.

3. The complainant was terminated on or about September 11, 1981. He had been hired as a Spare Crewman at Domtar's Cornwall plant on June 23, 1981. Prior to this period of employment Mr. Bradley had been intermittently employed by Domtar at its Cornwall plant since September of 1973 as follows:

Sept. 11/73 Hired on Space Crew Nov. 17/73 Laid off for lack of work Dec. 26/73 Reinstated Jan. 11/75 Laid off for lack of work Aug. 15/75 Did not wish to return June 16/76 Rehired as a Student Sept. 4/76 Returned to school Dec. 21/76 Rehired for Christmas period Jan. 8/77 Returned to school May 22/77 Rehired as a student Sept. 10/77 Returned to school

This history is important because one of the contentious features of this matter is whether Mr. Bradley was a "probationary employee" at the time of his discharge and whether the obligations of the respondent would be affected by whether he was a probationary employee or not. Part of the respondent's defence is that the complainant was probationary at the time of his termination, and therefore the respondent's power or obligation under the collective agreement to represent Mr. Bradley is limited. At the time of Mr. Bradley's termination there was a collective agreement between Domtar Inc. and the Canadian Paperworkers Union, C.L.C. Locals 212 and 338 effective until April 30, 1984. The respondent interpreted section 4(b) of that collective agreement only to permit the respondent "to take the matter up" with management and "discuss it" outside the grievance procedure. The full text of section 4 is a follows:

SECTION 4 - MEMBERSHIP

a) Any employee, eligible for membership in accordance with Section 2 of this Agreement who is now, or who should after this date become a member in either Local Union shall, as a condition of continued employment, maintain membership in good standing in the appropriate Local.

Except for non-payment of dues the application of this provision will be subject to the grievance procedure.

b) New employees, including Summer replacements eligible for membership in one of the signatory Unions, shall as a condition of employment, join such Union after thirty (30) days and will serve a probationary period of ninety (90) days and after the first thirty (30) day period, the Union shall represent such employees in every capacity except for discharge and lay-off.

c) The Union shall make available to the Management monthly a list of members in arrears showing to what extent arrears are owing. Suspension of employees for arrears is conditional on one week's notice of such arrears having been provided to the Company, in accordance with this paragraph.

d) The Cornwall Mill of Domtar Fine Papers Group, through its Local Management will cooperate with the Local Unions in every legal and proper manner to assist in obtaining and retaining members.

Mr. Bradley acknowledged in testimony that when he was hired in June of 1981 he was advised by Domtar officials that he would be on probation for 90 days and during that time would be under constant and steady work reviews. Aside from section 4(b) there is no other provision in the collective agreement explicitly stating that employees must be on probation for 90 days. There is no provision which gives management complete discretion to discharge probationary employees nor is there any provision explicitly denying probationary employees the opportunity to file a grievance.

4. There is little dispute regarding the facts as described by Mr. Bradley and two of the three witnesses for the respondent. The third witness gave largely hearsay evidence and the Board has not given it any weight. Domtar did not appear at the hearing. On September 7, 1981 Mr. Bradley was working as a 5th hand on a 6-person crew assigned to operate No. 5 Papermachine. Roger Delage, one of the respondent's witnesses, was the Machine Tender (the most senior crew member) for No. 5 Papermachine that day. At the time of the incident he was Past President of the respondent union and held no official position with the respondent. After completing some assigned work between 6:30 a.m. and 10:20 a.m., Mr. Bradley announced to the crew members standing around that he was going to the cafeteria for a drink. Mr. Bradley said that the crew was standing around and he had no more assigned work at the time because No. 5 was "down" due to a lack of steam. It is clear he did not ask for permission to leave his work area. On the way to the cafeteria he was joined by the 6th hand, Mark Shaver, on the same machine. While in the cafeteria, he noticed Mr. Wallace, his superintendent, glaring at them. Mr. Bradley was apparently aware that he was doing something he should not have been doing by being in the cafeteria at this time because he claims he spent a good deal of his time there trying to convince Mr. Shaver they should go back to their work area. After they had returned to their work area, Mr. Wallace "stormed" up to Mr. Bradley and Mr. Shaver and told them to get down to his office immediately. Mr. Bradley said that when they went to Mr. Wallace's office, Mr. Wallace began screaming and swearing, becoming red in the face. The meeting concluded with both Mr. Bradley and Mr. Shaver being ordered back to their work area to sweep the floor. Mr. Bradley acknowledged that while sweeping the floor was a normal part of his duties, he considered the specific direction that he sweeps the floor a "slur". Mr. Bradley acknowledged he was snickering as he left Mr. Wallace's office and this was adversely commented upon by the Acting Foreman who had been present at the meeting. Mr. Bradley said he snickered out of nervousness.

5. Later that day (at approximately 12 noon) an Acting Foreman ordered Mr. Bradley and Mr. Shaver back to Mr. Wallace's office. Mr. Wallace presented Mr. Bradley with an inter-office memo (Exhibit 2) which said:

On September 8, 1981 Mr. Philip Bradley was found in the Cafeteria at 10:20 a.m. doing absolutely nothing except drinking from a milk container and talking to someone at a table.

#5 P.M. was down and trying to get started up. I observed this man for 10 minutes just standing around talking.

There have been other occasions when this man has not performed his duties but stood idly by.

“G. Wallace”

He also handed Mr. Bradley a "tick sheet" whereon Mr. Wallace had written that Mr. Bradley was "one of the lousiest employees". The "tick sheet" was not produced in evidence. After receiving these documents, Mr. Bradley and Mr. Shaver were ordered out of Mr. Wallace's office.

6. It appears from both Mr. Bradley's evidence and the evidence of Mr. Delage that when Mr. Bradley returned to his work area, he expressed his dissatisfaction with Exhibit 2 and showed it to the whole crew, including Mr. Delage. Mr. Delage testified he told Mr. Bradley that if he did not like the contents of the memo from Mr. Wallace, he should "put in a grievance and we'd go from there". Mr. Bradley did not refute this in reply. Mr. Bradley did not at this time nor at any subsequent time file a grievance.

7. The next day, a scheduled work day for both Mr. Bradley and Mr. Shaver, they were asked to report to the Personnel office after their shift to meet with Mr. Ian Bush. When Mr. Bradley met with Mr. Bush he was told that the previous day's incident warranted his dismissal. Mr. Bradley managed to talk Mr. Bush into not taking this action for two days so that Mr. Bush could investigate the matter further.

8. During the next two days Mr. Bradley contacted "everyone he could think of who he worked with". He did not mention that he phoned Mr. Delage and Mr. Delage in his evidence did not claim he received a call from Mr. Bradley. Mr. Bradley could not recall with certainty contacting anyone in an official position in the union during the 2 days. Mr. Bradley explained that he did not contact his steward, Murray McCormick, because he was away on vacation. He did not contact any of the other 11 to 14 stewards in the plant either. It therefore appears that at least until his discharge Mr. Bradley was not looking to officials of the respondent for assistance in the matter.

9. After the two days had elapsed, Mr. Bradley reported back to Mr. Bush and was told he was discharged. Mr. Bush, according to Mr. Bradley, was not totally explicit as to the reasons why.

10. Mr. Bradley at this point seems to have decided to call upon the union for assistance. He said he "found out" Mr. Roger Poirier was President of the Local and he called him (Mr. Poirier did not testify therefore the only reliable evidence of what Mr. Poirier said or did was given by Mr. Bradley). Mr. Poirier said he did not know what he could do for Mr. Bradley. He said that if he himself were hiring for Domtar he would not hire himself. Mr. Poirier also said that "because of the 90 days he should forget it". Mr. Bradley testified that in this conversation Mr. Poirier did not advise him to file a grievance. Mr. Bradley testified initially that he thought he had no "right" to do so "because of the 90 day bit". Later in his testimony he claimed that he told Mr. Poirier that the 90 days should not matter because he had been employed by Domtar previously.

11. Mr. Bradley testified that he did not contact anyone else in the union other than Mr. Poirier immediately after his discharge. During the month of September he said he spoke with Mr. Poirier on 4 or 5 occasions. Mr. Bradley said that these calls were to "bug" Mr. Poirier "to get information" as to why he was terminated. Sometime shortly after October 15, 1981, Mr. Bradley received a copy of an inter-office memo dated October 15, 1981 to Roger Poirier from Thomas Aitken, Personnel Superintendent for Domtar (Exhibit 4) which outlined his work history and performance (Satisfactory) prior to being hired in June of 1981 and what Domtar found wrong with his performance after June 23, 1981. What prompted Mr. Aitken's memo to Mr. Poirier is unclear. In his testimony Mr. Bradley speculated that this memo must have been prompted somehow by Mr. Poirier as a result of his calls. However, Exhibit 4 could have resulted from Mr. Bradley's direct correspondence with Mr. W. Emory, Resident Manager of Domtar for Cornwall; at the same time as he was calling Mr. Poirier Mr. Bradley wrote to Mr. Emory seeking a meeting with him to discuss his termination. After setting out what Mr. Bradley felt was unjust about his termination, he concluded the letter with the following paragraph:

I hope you will agree to review this matter with me, Mr. Bush, Mr. Wallace and my workmates on 1 and 5. If my re-instatement is not possible I hope you will at least see fit to clarify for me what my alleged [sic] personal problem is supposed to be. My job at Domtar, and my work record are things that I place high value on. I strongly feel that they were both unjustly taken away from me!

It is fair to conclude that while the general tenor is to achieve reinstatement, there is an alternate request for clarification as to the reasons for his termination. Mr. Bradley did not mention that he attended any meeting with company officials as a result of Exhibit 3 nor did he receive any direct written response to it.

12. Exhibit 4 also could have resulted from the intervention of Mr. Wilfred Oliver, National Representative of the Canadian Paperworkers Union. By October Mr. Bradley had expanded his horizons regarding who he should contact in the respondent to assist him with his termination. Sometime in October (it is unclear whether it was prior to or after he received Exhibit 4) Mr. Bradley personally went to the Montreal headquarters of the respondent. He claims he did not "get by the receptionist". He did obtain from the receptionist additional names (besides Mr. Poirier) who he could contact: Mr. Oliver and a Mr. Holden in Toronto. Mr. Bradley said he never went to see Mr. Holden and he did not say he called him either. He did telephone Mr. Oliver and told him his problem. Mr. Oliver told Mr. Bradley he would have Mr. Poirier look into the matter. According to Mr. Bradley "nothing came of it". According to Mr. Oliver he contacted Mr. Poirier and asked for a report. The result, according to Mr. Oliver, was Exhibit 4.

13. It is unclear from Mr. Bradley's evidence whether he did anything by way of contacting the respondent between October and January 1982. He could not remember for certain calling either Mr. Poirier, Mr. Oliver or anyone else in the union prior to January 1982 to dispute the contents of Exhibit 4 which Mr. Bradley in his testimony described as "full of lies". It is clear that he started calling Mr. Delage in January because he knew Mr. Delage had become President. Mr. Delage advised Mr. Bradley to write him a letter. Mr. Bradley did so on February 19, 1982 (Exhibit 5). Mr Bradley's letter reveals that he was taking issue with some of the allegations in Exhibit 4. Mr. Bradley got no written reply to his letter but he said that Mr. Delage subsequently advised him he was "moving on it". Mr. Delage testified that he told Mr. Bradley that he would do everything he could. He says he also asked him why he had not put in a grievance as he had asked him to do five months prior. Mr. Bradley's response, according to Mr. Delage, was: "When you don't know what to do, it's pretty hard to do it". Mr. Bradley did not testify to the contrary in reply. Mr. Delage claimed he went to Mr. Aitken on several occasions after receipt of Exhibit 5 because he had a rapport with him and he had been able, in other situations, more or less to "iron things out" with him. He says he told Mr. Bradley that they "pretty well had things arranged to have Mr. Aitken rehire, but he had to give him time". This evidence more or less coincides with Mr. Bradley's. Mr. Bradley testified that Mr. Delage said he believed Mr. Aitken was "coming around slowly but surely". At no time did Mr. Delage advise Mr. Bradley to submit a grievance. Mr. Delage admitted that he is a hard person to reach and he did not contact Mr. Bradley very much. It seems clear there were several conversations between them.

14. Mr. Bradley claimed he had extracted a promise from Mr. Delage that he would phone him regarding the results of his discussions with Mr. Aitken in 4 or 5 weeks. Mr. Delage apparently did not fulfill his promise so Mr. Bradley wrote to James M. Buchanan, National President of the Canadian Paperworkers Union, sometime in June (Exhibit 6) seeking "some proper and immediate aid" from the respondent. By letter dated June 29, 1982 (Exhibit 7) Mr. Buchanan replied to Mr. Bradley that he was requesting Mr. Oliver to investigate and report to him. Sometime after July 6, 1982 he received a copy of a letter dated July 6, 1982 (Exhibit 8) from Mr. Oliver to Mr. Delage wherein Mr. Oliver identified the allegation of Mr. Bradley that Mr. Delage had received no answer to a call to his home. He also specifically requested Mr. Delage to let Mr. Buchanan and Mr. Oliver know "what has happened at Domtar and why Domtar will not take him back". Mr. Bradley claims he telephoned Mr. Buchanan as a follow-up to Exhibit 8 and Mr. Buchanan assured him he would be back to him immediately. When Mr. Bradley had not received the call from Mr. Buchanan more than a month later, he called again and said he was tired of waiting and was going to "take steps".

15. The step Mr. Bradley took was contacting a lawyer, Mr. Michael Bendel, and as a result of this, Mr. Bendel wrote, on behalf of Mr. Bradley, a letter dated September 28, 1982 (Exhibit 9) addressed to Mr. Delage.

Dear Sir:

Re: Phillip Wayne Bradley

I am the solicitor for the above named employee, who was fired by Domtar Fine Papers in September 1981.

He informs me that he has been unable to ascertain from you what steps, if any, have been taken by your local on his behalf. He showed me a copy of a letter from Mr. Buchanan, the President of the Union, dated June 29th, 1982, requesting the CPU Representatives to investigate the matter with you, but this letter has not led to Mr. Bradley learning of the action, if any, that has been taken on his behalf.

Unless I am in receipt of a satisfactory report of your attempts to have Mr. Bradley re-instated within two weeks of the date of this letter, I shall reluctantly have to advise Mr. Bradley that his bargaining agent does not appear to have provided him with adequate representation and that he should act accordingly.

Yours truly,

Michael Bendel

No response was received and this complaint was filed October 19, 1982. Neither Mr. Delage nor Mr. Oliver knew why there was no response to Mr. Bendel's letter.

16. Mr. Oliver testified about how the Canadian Paperworkers Union and its Locals handle internal administrative matters. Each local union has autonomy so that if a member objects to what the local executive has done, the member is advised to go to the "membership". If the membership does not satisfy the member complaining, then the member has a right to appeal to the National President. The National President would then send "someone" in. That "someone" would make a decision on the matter. If the member is not satisfied, then he/she can appeal the matter to the National Executive Board and if not satisfied with that Board's decision, can appeal to the National Convention which is held every 2 years. There is no evidence that Mr. Bradley was advised about the fact that he could "go to the membership" if he was dissatisfied with Mr. Poirier's or Mr. Delage's actions. While evidence was given that there were monthly membership meetings during the relevant times, there is no evidence Mr. Bradley was or should have been aware of this fact. There was no evidence that Mr. Bradley knew or was advised regarding the other steps he could take.

17. Mr. Delage testified that he brought up Mr. Bradley's situation at the Executive meeting in February of 1982, at which time he said they reviewed the collective agreement and interpreted the time limits in section 9, Step 1 as leaving the respondent no choice but to drop "it". Mr. Delage claims he was not familiar with the waiving of time limits. Mr. Delage did not make any satisfactory response to whether Step 3 was considered. The text of section 9 pertaining to the grievance procedure follows:

SECTION 9 - GRIEVANCE PROCEDURE

STEP I — Any employee who feels he has a legitimate complaint or grievance will take the matter up with his Foreman as soon as possible, [sic] or no later than thirty (30) days, after the occurrence of the facts giving rise to the grievance. The employee, if he so wishes, will be accompanied by his Shop Steward or other Local Union Representative. Failing settlement of the grievance within a twenty-four hour period, the grievance will be reduced to writing and referred to Step 2.

STEP 2 — The written grievance shall be presented to the Superintendent of the Department concerned, who shall either settle the grievance within two (2) days or convene a panel, as set forth below, within a period of four (4) days. A grievance panel shall consist of (up to four) members of the Union, one of which must be an Officer of the Union and (up to four) members of the Company, one of which should be the Superintendent of the department concerned.

Following a meeting of such panel, a decision in writing shall be handed down by the Superintendent within a further period of one (1) calendar week.

STEP 3 — In the event the grievance is not settled in Step 2 above, the Local Union shall offer the matter to the National Union, who will, along with their Local Union, endeavour to affect [sic] a settlement with the Resident Manager of the Mill.

Following the above meeting, an answer will be handed down by the Resident Manager within three (3) days. In cases of discharge or suspension, or other Union grievances, the grievance shall commence at the second stage of the Grievance Procedure.

Grievance committee members shall be paid their straight time rate for time lost from their regular shift in connection with grievance hearings. This shall not include time lost as a result of Arbitration or any Third Party proceedings arising from complaints or grievances.

18. Mr. Oliver testified that if Mr. Bradley "had have entered a grievance (the respondent) would have taken the matter up". Mr. Oliver claims that Step 1 leaves it up to the individual to take this step. He indicated that it was up to the local executive and membership to deal with any would-be or actual grievance and he could not overrule the local people's decision. It is clear Mr. Bradley was never advised by any official of the respondent that he could enter his own grievance.

19. Other provisions of the collective agreement relevant to this decision are Mill Rules. These indicate that no distinction is made between probationary and non-probationary employees regarding the application of discipline up to and including discharge. They also reveal that the penalty of dismissal is an "extreme" one.

20. The argument of the complainant is that the officers of the Local, specifically Mr. Poirier, knew of the time limits for filing a grievance under the collective agreement and should have advised Mr. Bradley it was up to him to do so within the 30-day limit. The failure to advise him to do so, if caused by an interpretation of section 4(b), was a misconstruction of the collective agreement. This misconstruction was in two ways:

(1) miscalculating the amount of work time necessary to become a regular employee as 90 continuous days; and

(2) even if the calculation of time worked was correct, interpreting the limitation on the respondent's representation rights to eliminate Mr. Bradley's opportunity to file a grievance of his own.

Alternatively, if there was no misconstruction and section 4(b) means what the respondent interpreted it to mean, then the section should be struck down by this Board as being a violation of the section 68 duty, citing in support of this a similar case decided by the Canada Labour Relations Board in Elliston & the U.S. W, (1982) 2 Can. LRBR Rep. 241. The complainant also argues that once the 30-day period had elapsed, Mr. Delage should have responded to Mr. Bradley's expressed wish to pursue his problem by attempting to get Domtar to waive the time limits. The complainant claimed the evidence showed that Mr. Delage only had a few conversations with Mr. Aitken and did not attempt to have the time limits waived for filing a grievance. This conduct falls far short of the onus to provide advice to members and to point out to the member avenues of recourse available. Failure to do this shows an unresponsive attitude. In support of this the complainant's counsel cited Raymond E. Brown, "The Duty of Fair Representation" (1982) 60, Canadian Bar Review 412 at pages 442—443. Finally, notwithstanding the respondent made no challenge to the complaint's timeliness, it was submitted that the complaint was submitted with "reasonable dispatch" and at no time did Mr. Bradley abandon his complaint. Mr. Bradley's situation was distinguishable from other cases where delay was a negative factor in the Board's determination (Daley, (1982) 2 Can. LRBR Rep. 392 and Sheller-Globe, [1982] OLRB Rep. Jan. 113).

21. A summary of the respondent's claim is that since Mr. Bradley was a probationary employee, he could not file a grievance and the union could not or would not represent him in a formal way even if he did. Mr. Bradley knew that he was probationary and what this status entailed. Even if this is incorrect, Mr. Bradley himself did not contact any stewards or officials of the Union.

22. The key question is whether section 68 was breached by Mr. Poirier acting on behalf of the respondent. In this connection the Board must interpret what Mr. Poirier may have meant when he advised Mr. Bradley "to forget it because of 90 days". In the absence of Mr. Poirier's testimony and considering Mr. Oliver's representations, I find that he meant the respondent would not represent Mr. Bradley in the grievance procedure because of section 4(b). The failure to advise Mr. Bradley that he could individually file a grievance indicates also that Mr. Poirier thought that without representation by the respondent he had no individual right to file a grievance. Mr. Oliver's statement that if Mr. Bradley had filed a grievance the respondent would have "taken it up" does not change this conclusion because it is made ex post facto and contradicts his submissions as to the meaning the respondent attached to section 4(b) (see paragraph 3 above).

23. In the absence of any evidence from Mr. Poirier we cannot conclude that he did anything more than talk to Mr. Bradley four or five times in the same vein. He did nothing beyond the time when he received the October 15, 1981 memo from Mr. Aitken, probably because he continued to believe that Mr. Bradley should "forget it". There is no evidence that, notwithstanding his belief there was no grievance possible in the circumstances, he attempted to "take the matter up" or "to discuss it" with management in an informal way, the course of action which Mr. Oliver claimed as the only one available to the respondent in view of section 4(b).

24. Section 68 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 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.

25. In order to prove "arbitrariness", it is not necessary to show that there was subjective ill will. The Board has in other cases found arbitrariness where the union has taken a totally unresponsive position (see the analysis of the meaning of "arbitrary" in section 68 in C. U.P.E. Local 1000, [1975] OLRB Rep. May 444, at page 462), or has totally ignored the merits of a complaint (see I.A.W Local 2—700, [1972] OLRB Rep. Oct. 916). Mr. Poirier believed that section 4(b) released him and the respondent from any obligation to consider representing Mr. Bradley using the normal channels of the grievance procedure and eliminated Mr. Bradley's right to file a grievance of his own. Assuming, without finding, that section 4(b) indeed meant that, I find that Mr. Poirier conducted himself in an arbitrary manner. One of the most fundamental ways in which a trade union represents bargaining unit members is through negotiation of a grievance procedure and through the participation of its officials in some or all of the steps in the grievance procedure. The respondent in this case negotiated a grievance procedure accessible to all bargaining unit members and did not negotiate a clause excluding probationary employees from the substantive right of having their discharge or suspensions subject to the standards set out in the Mill Rules. But in the same collective agreement the respondent stipulated, through section 4(b), that it would not represent probationary employees who have been discharged. This stipulation, in the context of this collective agreement, is an arbitrary one because it sanctions an unresponsiveness and the total ignoring of the merits of a probationary employee's discharge simply because he/she is probationary. Without any explanation as to why probationary employees should not be represented by the respondent when they are discharged or why the merits of their discharge should not be considered, I must conclude that the respondent has arbitrarily abdicated its duty to represent Mr. Bradley because he was a probationary employee.

26. The fact that the memo of October 15, 1981 was sent to Mr. Poirier from Mr. Aitken does not in any way eliminate the effect of this breach of section 68 because there is no way to assess whether Domtar's position would have been the same in the context of the grievance procedure.

27. The fact that Mr. Delage made efforts on Mr. Bradley's behalf after February 19, 1982 also does not repair or correct the breach committed by Mr. Poirier because he did not attempt to represent Mr. Bradley through the grievance procedure. It is not necessary to find Mr. Delage's conduct a breach of section 68 in and of itself.

28. Therefore, the Board hereby finds that the respondent through its then President Mr. Roger Poirier, violated section 68. The Board hereby orders that:

29. the respondent union forthwith submit the matter of Mr. Bradley's discharge to arbitration for hearing on its merits;

30. Domtar forthwith take steps that are necessary for bringing Mr. Bradley's discharge to arbitration;

31. Domtar waive any preliminary objection as to timeliness it might have under the collective agreement that would preclude Mr. Bradley's discharge from being heard on the merits;

32. in the event Mr. Bradley's discharge is overturned and an arbitrator or board of arbitration makes an order of compensation, the union bears the burden of paying whatever compensation may be attributable to the delay caused by its violation of the Labour Relations Act, specifically any compensation owing from the date of termination up to and including the date of issuance of the arbitration decision.

33. The complainant's request for costs of bringing his complaint under section 68 is refused because this is not a case of sufficient overriding policy considerations to require a departure from the Board's normal practice of not awarding costs (Radio Shack, [1979] OLRB Rep. Dec. 1220).

34. The Board remains seized in the event that a dispute arises over the interpretation or implementation of its order.

35. The complaint is hereby allowed.