Leo McMullen v. Canadian Union of Public Employees — C.L.C. Ontario Hydro Employees Union Local 1000, 1984 CanLII 1054

[1984] OLRB Rep. February 323

0125-83-U Leo McMullen, Complainant, v. Canadian Union of Public Employees — C.L.C. Ontario Hydro Employees Union Local 1000, Respondent, v. Ontario Hydro, Intervener

BEFORE: N. B. Satterfield, Vice-Chairman.

APPEARANCES: Robin B. Cumine, Q. C. and Leo McMullen for the complainant; Naomi Duguid, Bill Vincer and Jack Atkinson for the respondent; Paul Jarvis, Barry Cruickshanks, Wes Chalmers, Al Steels and Dr. Tom Hamilton for the intervener.

DECISION OF THE BOARD; February 13, 1984

1. The complainant, Leo McMullen, has filed a complaint under section 89 of the La­bour Relations Act alleging that the Canadian Union of Public Employees — C.L.C. Ontario Hydro Employees Local Union 1000 ("Local 1000") has dealt with him contrary to the pro­visions of section 68 of the Act. That section sets out in the following terms the duty of unions to fairly represent employees for whom they have bargaining rights:

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.

2. The complaint which was made April 19th, 1983 arises out of the termination of McMullen's employment with the intervener Ontario Hydro ("Hydro") on September 24th, 1982 and the refusal and failure of the responsible officials of Local 1000 to take up a griev­ance on McMullen' s behalf. The specific complaint is that Local 1000's failure to proceed with a grievance is contrary to section 68 ..... in that [Local 1000] did not take any or proper steps to consider the facts or the validity of the grievance, did not at any time consult with [McMullen], did not consider the grievance formally in any manner and took no steps to proc­ess the grievance.". The relief requested in the complaint is that the Board direct Local 1000 to proceed with a grievance of McMullen's dismissal. Scheduled hearings into the complaint were adjourned on three separate occasions on consent of the parties while they attempted to resolve the complaint. It came on for hearing ultimately in August and September 1983.

3. The formal reasons given by Hydro to McMullen for his dismissal are contained in a memorandum dated September 24th, 1982 addressed to him from A. K. Steels, personnel manager for Hydro ' s western region which incorporates by reference certain terms and con­ditions contained in an earlier letter dated August 19th, 1981 from Hydro's area manager, W. C. Chalmers, also addressed to McMullen. That letter contains the caution "Any deviation from the foregoing requirements will result in immediate termination of your employment with Ontario Hydro.". The "foregoing requirements" are a reference to the essential steps pursuant to a mandatory referral for treatment 'of alcohol abuse under Hydro's "Employee Assistance Program for Alcohol and Drug Problems" ("the Program").

4. A brochure about the Program issued to all Hydro employees includes the following statement under the heading "Ontario Hydro's Policy":

Alcoholism and other forms of drug abuse are recognized as health prob­lems requiring medical treatment. Their recognition and handling is part of the Preventative Health Program of the Health Services Department, Health and Safety Division.

According to the brochure, the Program is endorsed by a Joint Advisory Committee on the Employee Assistance Program for Alcohol and Drug Abuse ("the J.A.C."). Local 1000 and two other organizations representing Hydro staff are represented on the J. A. C.. Local 1000's representative is Ivan Hehn who is also the Local's co-ordinator for the Program. He has been a Hydro employee for over 30 years and an official of Local 1000 for more than half of that time. He told the Board that the Program is a successor to one which had been operated by Hydro since approximately 1969 without participation by Local 1000. The Program developed out of studies and recommendations of the J.A.C. and Local 1000 has been jointly involved with Hydro in the Program's operation since 1978, although its day to day administration is carried out by Hydro's Health Services Department.

5. Employees are referred to treatment under the program either by voluntary request or mandatory referral which the brochure describes in the following terms:

Voluntary requests for help before job performance is affected, are en­couraged. The most difficult step is admitting to the need for help. Such requests will be kept confidential and will not jeopardize employment. The main objective of the program is to encourage voluntary participation.

Mandatory referral will continue to be necessary in those cases where an alcohol or drug problem contributes to unacceptable job performance and behaviour. Successful completion of the prescribed treatment and follow-up period is a condition of continued employment.

Hehn confirmed that voluntary requests to be referred for treatment are without prejudice to employment and would not form a basis for disciplinary action. Mandatory referrals result when employees have documented, work-related problems connected with alcohol or drug abuse. Hydro and Local 1000 consider mandatory referral for treatment under the Program to be an alternative to discipline as an approach to managing alcohol and drug related prob­lems which impact on work performance, including attendance. The Program relies on and utilizes treatment facilities existing in the community. Once a work problem is identified, the employee undergoes a medical assessment following which, according to the brochure

"..., a variety of treatment approaches is possible. Counselling sessions or full-time attendance at a clinic as an out-patient or in-patient for three or four weeks may be involved. Follow-up care for approximately one year is usual."

The specific form and nature of follow-up care depends upon the employee and what services are available in his locale. Follow-up usually involves the employee reporting to a counsellor and he may use other self-help services such as Alcoholics Anonymous.

6. Local 1000 had no right to know why an employee was placed on the predecessor program, becoming involved only if the employee was disciplined or discharged for failure to respond to the program. Only then could the union investigate the facts and decide whether to file a grievance. Under the Program Local 1000 has the right to know why an employee has been given a mandatory referral. It cannot rely, however, on an employee being given more than one referral if he is not successful on the first. Hehn told the Board that the Pro­gram is designed to give an employee one opportunity only. The discretion to make any fur­ther referral is vested in Dr. Hamilton. Local 1000 can attempt to persuade him to give an employee a second chance, but it has no right to require that an employee be given a second referral. If Local 1000 is not satisfied that there is documented unsatisfactory work perform­ance with respect to an employee being referred to the Program, it would grieve the referral. Other examples given by Hehn of circumstances in which the Union would file a grievance were: if an employee on the Program was dismissed for allegedly failing to follow it and the allegation was improperly or inadequately founded; or, if an employee with an alcohol prob­lem was dismissed for poor work performance without having had a chance to go on the program.

7. If Hydro has administered the Program properly in the first instance, Local 1000 will not file a grievance for an employee who has been given a mandatory referral or has been disciplined or discharged for refusing or failing to comply with the Program. Hehn of­fered several reasons why Local 1000 does not grieve mandatory referrals to the program or discharge for refusal or failure to follow the Program as long as it is properly administered. Local 1000 decided to participate jointly with Hydro in the Program because it accepts the viewpoint that alcohol abuse is a disease and because the Local's participation jointly with Hydro management demonstrates to employees the deep concern of both parties with the prob­lem of alcohol and drug abuse. Local 1000 and Hydro have accepted the advice of experts consulted by the J . A. C. with respect to the importance of being firm about the discipline con­sequences for an employee on mandatory referral who fails to co-operate in treatment and con­tinues to give unsatisfactory job performance. For example, if an employee who is on mandatory referral to the Program is told, because of his prior unsatisfactory work record, he will be discharged if he fails to co-operate in treatment, it is critical to his chances for success that he believes that will be the real result of failure to follow the Program. That becomes his incentive to succeed. Making the consequences stick for any particular referral is important to the overall credibility of the Program because the employees at large must know that, if any of them become candidates for mandatory referral, the price of failure to co-op­erate in treatment and continuing unsatisfactory work performance is the discipline they have been cautioned to expect, which potentially could be termination of employment. This dis­cipline aspect of the Program is referred to in the policy statement which formed part of the J.A.C. 's recommendation as "constructive coercion". In view of that approach, according to Hehn, it would be destructive of the Program's objectives if Local 1000 were to grieve dis­cipline arising out of proper application of the Program. Therefore it is part of Local 1000's support of the Program that it will not grieve if the Program is properly applied.

8. Hehn acknowledges, however, that no waiver of the right of employees, Local 1000 or Hydro to grieve under the collective agreement is created by the Program. In fact, the Board notes that a Hydro personnel policies and procedures document entered into exhibit by Local 1000 counsel and titled Control of Alcoholism and Drug Abuse, which deals with the Program contains the following statement:

"Involvement in [the Program] does not prevent recourse to normal grievance ... procedures.

It contains as well the following statement of specific responsibilities under the Program for employee representatives:

(4) Responsibilities of the Employee Representative

The 1977 Joint Advisory Committee on Alcohol and Drug Abuse (O.H.E.U., C.U.O.E., Society and Ontario Hydro) developed the fol­lowing statement of responsibilities which has been accepted by the participating organizations.

(a) To be familiar with the policies and procedures of the Employee Assistance Programme.

(b) To provide information on the programme and encourage em­ployees who may have an alcohol or drug problem to seek as­sistance voluntarily before job performance is affected.

(c) In mandatory referral situations to ensure that the rights of their bargaining unit members are explained to them.

(d) To advise employees of their options should they refuse the help offered through the Programme.

(e) To participate in ensuring support and follow-up on the job to facilitate the employee's rehabilitation.

9. In Hehn's view, the just cause provisions of the collective agreement between Local 1000 and Hydro with respect to discipline and discharge are satisfied when the Program has been properly applied to an employee and the employee has understood the risk of discharge being the consequence of his failure to respond to the program. The agreement provides as follows:

ARTICLE 2

GRIEVANCE PROCEDURE

2.2 Any allegation that an employee has been subjected to unfair treat­ment or any dispute arising out of the content of this Agreement shall be understood to be a fit matter for the following grievance proce­dure. All matters of grievance by any employee or group or class of employees for whom the Union is the bargaining agent and which the Union may desire to present shall be dealt with in accordance with the following procedure, provided, however, that the Union must file notice of intent to grieve within three months of the grievous act and formally grieve within six months of the grievous act. However, the Union may file notice of intent to grieve within six months of the grievous act and formally grieve within nine months of the grievous act if the Union satisfies Ontario Hydro or an Arbitration Board that circumstances beyond the control of the Union or its representatives prevented the filing of such notice within the three months.

ARTICLE 2A

DISCIPLINE AND DISCHARGE

2A. 1 Any allegation that an employee, other than a probationary em­ployee, has been demoted, suspended, discharged or otherwise disciplined without just cause shall be a fit matter for the Griev­ance and Arbitration procedures as provided for in this Collective Agreement.

2A.2 Any allegation that a probationary employee has been demoted, suspended, discharged or otherwise disciplined without just cause shall be a fit matter for the Grievance procedure only.

The chief steward has the responsibility to decide whether to file a grievance with respect to administration of the Program.

10. According to Hehn, Local 1000's participation with the Program's application to an employee begins with the employee's chief steward being notified by Hydro' s area man­agement of the existence of documented poor work performance in which alcohol or drug use is a suspected factor. If the chief steward is satisfied that there is a problem, he does not intervene. Next, the employee is interviewed by Hydro about the problem. The employee has the option of having a Local 1000 representative with him in the interview. It may be inferred from the evidence that the various steps of the Program are described to the employee in the interview and the consequences pointed out of refusing or failing to follow them. Whether or not a Local 1000 representative participated in the interview, it is the chief steward's re­sponsibility to advise the employee of the seriousness of his situation, the importance of fol­lowing each step of the Program and the follow-up and that the consequence of failure will be discharge. The chief steward must make it clear to the employee that the union will not file a grievance if discharge results from his failure or refusal to follow the Program.

11. McMullen was employed in Hydro's forestry division from 1956 until his employ­ment was terminated September 24th, 1982. He worked out of the Chatham service centre and was a journeyman forester when he was discharged. His work as a forester involved the clearing of obstructions to Hydro power lines, including live power lines, and the maintenance of areas around power lines. The work required him to drive a variety of vehicles, operate chain saws, work out of lift buckets and feed brush into a brush chipper. Prior to the incidents referred to hereunder, McMullen was never disciplined and was never involved in any work related vehicle or personal accidents.

12. His first exposure to the Program occurred in September 1979 when a Hydro su­pervisor suggested he would benefit from it. The suggestion followed an incident where he showed up for work appearing to the supervisor to be under the influence of alcohol. McMullen underwent a three-week in-patient treatment program by the end of which he had stopped drinking. In February 1980 he was given a mandatory referral to the Program. This time he was seen by a Hydro supervisor leaving the service centre yard in a Hydro vehicle. The supervisor followed McMullen, apparently considering him to be under the influence of alcohol and unfit for work, stopped him outside the yard and ordered him to return to the yard. He was sent home and told to report to his area manager the next day, February 20th. He reported sick instead. On February 21st, the area manager wrote to McMullen placing him on unpaid leave and directing him to report to Hydro's chief physician, Dr. T.R. Hamilton. The direction contained the following statement:

"It should be clearly understood that the appointment with Dr. Hamilton is not voluntary but rather is mandatory and any other action on your part without approval will be dealt with as a direct defiance of orders."

The letter contains no direct reference to McMullen's employment being at risk. The referral to Dr. Hamilton did result in McMullen entering and completing a 28-day in-patient program for alcohol abuse. He returned to work immediately upon discharge from the program in late April 1980 at which time he received a letter from his area manager stating in part:

We feel quite confident you will be able to continue your present abstinence but feel you should understand clearly the responsibility you now have in order to avoid disciplinary action including termination of your employment.

1. You must avoid alcohol.

2. You must remain in a treatment program satisfactory to the chief

physician.

3. You must produce satisfactory work performance.

At the same time I would like to make it perfectly clear that any help you feel is necessary is available and you should not hesitate to make the need known.

(emphasis added)

13. On August 19th, 1981, the area manager wrote to McMullen again because he had been absent from work for a week and the manager claimed to have evidence McMullen was drinking again. The letter includes a reference to the warning underlined in the excerpt quoted above from the earlier letter. Instead of discharging McMullen, however, the manager set out in the letter specific conditions with which McMullen was required to comply in order to re­tain his employment. The conditions concluded with the following warning:

"Any deviation from the foregoing requirements will result in immediate termination of your employment with Ontario Hydro."

McMullen complied with the conditions, re-entered and completed another 28-day in-patient treatment program and returned to work on October 2nd, 1981. A letter of the same date from his area manager includes the following statement:

"While as stated we do intend to help you in any way we can, it should be very clearly understood, Leo, that the responsibility to remain clear of the dehabilitating use of alcohol is yours. Failure to do so will be taken as evidence you are no longer able to safely perform in the workplace and no alternative will be available other than to terminate your em­ployment with Ontario Hydro. All of the support others can offer has now been provided, Leo, and the rest is up to you."

When he began drinking again in September 1982 and was absent from work he was dis­charged in the manner set out in paragraph 3 above. Steels' memorandum dated September 24th, 1982 outlines the following reasons for termination of his employment:

This letter will confirm our discussion at your home this afternoon con­cerning your absence from work without authorization.

You have been absent since September 7, 1982. You claimed to have ar­ranged for vacation for four days, September 7 to 10 inclusive, and be­cause there appears to be some misunderstanding here, the four days have been allowed on vacation. The 10 working days commencing on Septem­ber 13 have been treated as Personal days off without pay.

This type of work performance cannot be tolerated, and there is consid­erable evidence that this is a repeat of your 1980 and 1981 problem. You were warned quite clearly in W. C. Chalmers' letter to you on August 19, 1981, that your services would be terminated if you did not follow the conditions outlined in that letter.

You have failed to do so and have been absent from work without ap­proval. Therefore your employment with Ontario Hydro is being termi­nated at 4:30 p.m. Friday, September 24, 1982.

14. Jack Atkinson is the chief steward of Local 1000 for the Chatham service centre and he works out of that centre. He has been with Hydro for 35 years and has been chief steward since 1973 with responsibility for approximately 65 employees. He was aware of McMullen's voluntary entry into this Program in 1979 and that's when he learned that McMullen had a problem with alcohol. On the two occasions when McMullen was given mandatory referrals to the Program, Atkinson received copies of the referrals and of the area manager's letters to McMullen when he returned from those treatments. Those were the only communications he received about these incidents. Atkinson was clearly aware of the circum­stances resulting in the first referral. He had been told about the February 19th incident and on February 20th Chalmers told him that McMullen had not reported to work' that day and asked Atkinson to make sure he reported on February 21st. Atkinson contacted McMullen's wife and told her to make sure he reported to work because Hydro was talking about possible termination of his employment. There is no evidence that Atkinson verified the events of Feb­ruary 19th which triggered the first referral or the circumstances giving rise to the second referral. Nor is there any evidence of Atkinson having advised McMullen, on either referral, that Local 1000 would not file a grievance for him if the Program was properly applied and he failed to comply with it. Atkinson could not recall speaking with McMullen before he went for treatment on the second mandatory referral. Each time McMullen returned from treatment Atkinson made it known to him that he and Local 1000 were available if McMullen needed help. Atkinson tried to maintain contact with McMullen so he would be aware someone was interested in his well-being. He also tried through other Hydro employees to keep informed of McMullen. Atkinson was not aware of any details of McMullen' s follow-up treatment pro­grams and relied on what McMullen told him.

15. Atkinson learned from McMullen's foreman of his possible discharge. This knowl­edge prompted Atkinson to call his division chairman for advice on what action to take should McMullen be discharged. Atkinson reviewed with his chairman his copies of the letters from Hydro to McMullen. Since they served to advise Atkinson of the problem with McMullen and the action to be taken under the Program, Atkinson and the division chairman concluded that Hydro had fulfilled its obligation to Local 1000 and had properly applied the Program with respect to McMullen. The division chairman advised Atkinson that there would be no cause for a grievance in those circumstances. After Atkinson was notified of McMullen's discharge he checked with his division chairman to make sure he had not overlooked anything. He also raised the question of whether there was grounds for filing a grievance with other chief stew­ards in his division at a meeting shortly after the discharge. They agreed that there was no ground for filing a grievance.

16. Atkinson spoke without success to Chalmers, the area manager, and to Hydro's re­gional personnel manager to see if the discharge could be rescinded. He spoke to McMullen twice following the discharge. The first time was when McMullen called him a few days after the event to ask whether Local 1000 could do anything for him. McMullen did not ask At­kinson to take up a grievance but he told McMullen that there was "no possibility of a griev­ance". On the second contact, Atkinson told McMullen he had been unable to get any of Hydro's local management to amend his discharge and advised McMullen to contact Bill Vin­cer, president of Local 1000. Atkinson did not attempt on either of these contacts to get McMullen's side of the story as to why a grievance should be filed.

17. After McMullen's discharge, a relative, Gerald Nagle, intervened on his behalf to try to restore his employment with Hydro. Nagle was aware from his own occupation of mat­ters such as time limits for filing grievances. His concern began when, by two weeks after McMullen's discharge, no one from Local 1000 had contacted McMullen. In addition to his concern about the time limits, Nagle interpreted the lack of contact to mean that neither Local 1000 nor Hydro was aware of two factors which might be grounds for mitigating the dis­charge. First, the possibility that McMullen's unauthorized absence in September was the result of medication prescribed by his doctor for treatment of depression. Second, his counsellor under the follow-up treatment program had failed to keep several appointments with Mc­Mullen, particularly the appointment in August, the month prior to his discharge. Accordingly, early in October he made an appointment with Atkinson for October 12th. Atkinson told him that McMullen had been given several chances by Hydro to correct his performance problem; that Local 1000 would not arbitrate a grievance in these circumstances and there was nothing Atkinson could do to get Hydro to reinstate McMullen. Apparently Atkinson did not inform Nagle that he had discussed the matter with his division chairman who had advised that a grievance would not be in order.

18. Atkinson told Nagle that he should speak to Bill Vincer, President of Local 1000, if he wanted the Local to act to have McMullen reinstated. Nagle contacted Vincer, expressed his concern about the time limit for filing a grievance and told Vincer there were mitigating factors in McMullen's favour. Vincer referred Nagle to Hehn. After speaking with Nagle in December, Vincer had Atkinson send his file on McMullen to him for review. Vincer also discussed the matter on the telephone with Atkinson. His discussion and file review satisfied Vincer that there was nothing improper in the way Atkinson handled McMullen' s case. Vin­cer's evidence in chief was that Local 1000 will file a grievance on discharge or major dis­cipline and pursue it through to arbitration if there is any prospect for success. He told the Board that Local 1000 would do that for any grievance which was not frivolous, but, in his opinion, it would have been frivolous to pursue McMullen' s grievance because his was almost a classic case of progressive discipline ending in discharge. Vincer claims that McMullen' s absences during three years prior to discharge were sufficient alone for discharge without any alcohol problem. He testified that he reviewed McMullen's employment history with Nagle when he spoke to him last in March 1983. That was the day on which Nagle later met with McMullen's counsel to file this complaint.

19. Vincer acknowledged in cross-examination that he had heard Atkinson testify that he had based his decision not to file a grievance solely on the fact that Hydro had followed the Program properly with McMullen. He was aware of that fact when he reviewed Atkinson's file and did not suggest that he should have done anything more because Vincer considered Atkinson to have handled the decision properly. In any event, the decision was still justified on the grounds that there were three work performance infractions compounded by the alcohol problem. Vincer claimed that there have been no cases of discipline under the Program in which the employee involved was not interviewed by a Local 1000 official, but he did not know if anyone had heard McMullen' s views on his discharge. During re-examination, Vincer testified that, when the Program is applied correctly and an employee is disciplined or dis­charged, Local 1000 examines the facts to see if there is a basis for filing a grievance, but in McMullen' s case, the facts were substantial unauthorized absences over a three-year period and one incident of reporting for work under the influence of alcohol and would not sustain a grievance.

20. Nagle had two conversations with Hehn, one on the same day as he had contacted Vincer and another on the next day. Nagle once more expressed his concern about the griev­ance procedure time limits and apprised Hehn of the circumstances which he thought might serve to mitigate the discharge and his concern that no one in Hydro or Local 1000 seemed to be aware of them or, if aware, had paid no heed to them. Hehn's advice was that Nagle's concern about mitigating factors might better be addressed under the Program than in the grievance procedure. Hehn suggested to Nagle that he speak to Dr. Hamilton. Nagle decided to do so, but, since Dr. Hamilton would not be available until early January 1983, he and Hehn agreed to let the matter rest until that meeting could be arranged. Nagle did meet with Dr. Hamilton in late January but that contact ended with no change in the results. After that meeting had taken place, Hehn also discussed with Dr. Hamilton Nagle's concern about the alleged failure of McMullen's counsellor to make the follow-up visits. By the time of this dis­cussion, Hehn had been told by Vincer that his review of Atkinson's record of the mandatory referrals had satisfied Vincer that Hydro had applied the Program properly to McMullen. On the basis of these two pieces of information Hehn decided that the discharge was not grievable and advised Nagle to this effect.

21. Prior to his meeting with Vincer, Nagle had also voiced his concerns, without avail, to Chalmers and Hydro's area management that there were extenuating factors relating to McMullen' s conduct immediately prior to his discharge. By the time he had talked to Dr. Hamilton, Nagle had appealed unsuccessfully to all of the management persons with respon­sibility for application of the Program and those officials of Local 1000 who had responsibility for the Program or for processing a grievance for McMullen. Next he acted to retain counsel for McMullen and this complaint was filed. On the same day when Nagle engaged counsel he went to see Vincer to see if Local 1000 would file a grievance. Vincer advised him that it was too late to file a grievance because the time limits had expired.

22. Complainant counsel acknowledges that Local 1000's failure or refusal to process a grievance on behalf of McMullen is not grounded in any bad faith. He argues, however, that the facts do establish that Local 1000 has acted in a manner which is arbitrary and dis­criminatory in its representation of McMullen.

23. He asks the Board to look at the facts with respect to the discharge, the respon­sibilities of Local 1000 officials under the collective agreement and what they did and failed to do against a legal context where:

(1) The Act requires collective agreements to provide for arbitration of disputes arising out of them and Article 3 of the agreement herein meets that requirement. Section 44(9) of the Act allows an arbitrator to substitute another penalty for discharge for cause where the col­lective agreement does not contain a specific penalty for the infrac­tion at issue. The collective agreement contains no specific penalty for McMullen's infraction.

(2) Arbitrators, in deciding whether to substitute another penalty for the discipline or discharge assessed against any employee, consider such factors as the employee's record with the employer, his seniority or length of service, the employee's potential for rehabilitation, includ­ing his state of mind at the time when the matter is under consid­eration and the economic hardship on the employee relative to the infraction. Counsel cited as specific examples of the application of these factors by arbitrators two awards where alcohol was a factor and a lesser penalty was substituted for discharge for just cause: Re Labatt's Ontario Breweries Ltd., (1978), 1978 CanLII 3425 (ON LA), 20 L.A.C. (2d) 66 (Brun­ner) and Re Cook and The Crown in Right of Ontario (1979), 1979 CanLII 4016 (ON LA), 22 L.A.C. (2d) 1.

24. The factual matters which are to be considered within that legal framework, ac­cording to counsel are:

(1) McMullen had 27 1/2 years service with Hydro at discharge and for approximately the first 24 years had not been disciplined and had not been involved in any vehicle accidents or personal injuries.

(2) He was age 53 when discharged and, with no special skills or ed­ucation to fall back on, this was equivalent to what some arbitrators refer to as economic capital punishment.

(3) The infractions, looked at apart from the Program, for which McMullen was discharged were reporting once for work in an unfit condition because of alcohol (February 1980) and twice failing to re­port for work without permission. to be absent, once in August 1981 and again in August 1982 for which he was fired. These were the only recorded incidents of a disciplinary nature in more than 27 years of employment with Hydro.

(4) The only contact made with McMullen by Local 1000 officials after his discharge was in the two brief telephone conversations with At­kinson and no one attempted to obtain from McMullen his side of the story before deciding not to process a grievance. When Nagle attempted to press with Atkinson, Hehn and Vincer McMullen' s case for processing a grievance the net result of the response in each case was there was nothing that Local 1000 could do. None of them sought to investigate further. When Nagle spoke to Vincer the last time be­fore this complaint was filed, Vincer simply told Nagle that the time limits for filing a grievance had lapsed and Local 1000 could do nothing.

(5) The procedure followed in Local 1000 for deciding whether to file a grievance for a member in a situation not involving the Program would involve the appropriate steward making the first inquiry and reporting the results to his chief steward who, in turn, may make his own inquiry with Hydro ' s supervisory and personnel staff and pos­sibly consult with a grievance officer at Local 1000's head office be­fore deciding whether to process a grievance. If discharge is involved the chief steward would likely speak to the grievor, but would make the grieve/not grieve decision whether or not he got the employee's story directly from him. In most instances of discharge, the chief steward files either a notice of intent to grieve or a grievance even before making or completing any inquiries so as to protect against expiry of time limits.

25. On those facts, counsel argues, there has been a violation of section 68 of the Act because Local 1000's approach to McMullen's discharge effectively foreclosed him from the opportunity of having considered at arbitration the factors which an arbitrator would have con­sidered. Instead his discharge has been accepted as being for just cause and as an appropriate penalty on the sole consideration that Hydro had followed the steps of the Program when it was applied to McMullen. Even if that result arises from actions taken by Local 1000 in the best of faith, counsel contends that the result is arbitrary and patently discriminatory treatment of McMullen.

26. The arbitrariness, according to counsel, is in the matter of fact way the decision not to grieve was made: simply, Hydro properly applied the steps of the Program, so there is no need to hear the employee's side of the story and there is no basis for a grievance. The discrimination with respect to McMullen is the consequence of the decision which was to deny McMullen the same chance to have an arbitrator consider 'his employment record, seniority, potential for rehabilitation and the economic impact of the action, a chance which would be available to employees with comparable work performance infractions, but unrelated to an al­cohol problem. For the same reason, counsel argues that Local 1000's undertaking not to grieve mandatory referrals to the Program or discipline arising out of refusal or failure to comply with all of the conditions of a referral is, of itself, discriminatory.

27. Local 1000, counsel contends, by considering only whether the steps of the Pro­gram were followed, has failed to put its mind properly to whether McMullen's case was one of merit. This failure is of itself arbitrary and, compared with how Local 1000 would deal with other types of discharges, the failure amounts to discriminatory treatment.

28. Generally, with respect to employee grievances, section 68 of the Act requires a trade union to act fairly. Acting fairly in administering the grievance process does not impose an absolute requirement on the union to file a grievance for an employee, or take it to a par­ticular stage of the process including final and binding arbitration. No entitlement is vested with employees in a bargaining unit to have grievances filed and processed through to arbi­tration or to any of the earlier stages, unless the collective agreement is worded to give them the right of carriage of grievances at one or more steps of the procedure. Nonetheless, unions must address employees' complaints and duly and deliberately consider their merits. The Board, when assessing unions' conduct in grievance processing will consider how a union ar­rived at the go/no go decision looking at such factors as whether it made a full and proper investigation, examined available evidence, attempted to clarify issues, heard the employee's side of the case and, if appropriate, discussed factors or issues in the complaint with the employer.

29. The issue in the instant case is simple at least in its clarity. Has Local 1000 failed in its section 68 duty to fairly represent McMullen because of Atkinson's decision, subse­quently endorsed by Hehn and Vincer, not to process a grievance for him when he was dis­charged? It takes on complexity, however, in the context of the Program out of which the issue arises. Hydro introduced the predecessor program in 1969 to assist persons within its total employee population who were misusing alcohol and drugs and to assist it in dealing effec­tively with such employees. The J.A.C. recommended that the program be preserved with certain refinements, one of which was to incorporate the active support and participation of the organizations representing Hydro staff. Thus the original concept of the Program emerged at a time when there was a developing trend in the labour relations community to recognize potential for rehabilitation as a factor in dealing with employees embroiled in discipline gen­erally, and particularly with respect to employees where misuse of alcohol was seen as a fac­tor. See generally, D.J.M. Brown and D. M. Beatty, Canadian Labour Arbitration (Agincourt: Canada Law Book Limited, 1977) and the arbitration awards cited therein at pages 381-2. It is reasonable to presume that Hydro was responding substantially as well as temporally in 1969 to the concerns about alcohol and drug abuse in the workforce being expressed in arbitration awards and other forums. The express intent of Local 1000 and Hydro is to use the Program as a vehicle by which problems of unsatisfactory work performance, where misuse of alcohol or drugs is a factor, can be lifted from the mainstream of progressive discipline and be dealt with as a health problem. Such efforts deserve the support of tribunals like this Board or pri­vate arbitrators. At the same time, that support cannot be at the expense of depriving the very employees who are intended to be helped by those efforts of the protection of the legal frame­work which has developed around employee discipline in the labour relations context. The proper balance between those two competing interests is a delicate one.

30. The facts show that Local 1000 has accepted the treatment philosophy of the Pro­gram, including the constructive coercion concept. It has made a policy decision and given Hydro an undertaking not to grieve discipline or discharge arising out of mandatory referrals to the Program as long as Hydro has followed the steps of the Program in making the referral. The trade off for Local 1000 is that Hydro must notify it when Hydro is going to take action with an employee for documented unsatisfactory work performance in which Hydro suspects alcohol or drugs are a factor. That allows Local 1000 to verify the accuracy of the information and challenge it if not satisfied. This task falls to the chief steward. If the chief steward is satisfied that there is documented unsatisfactory work performance in which alcohol or drugs are a suspected factor and whether or not he participated in the employee's interview with Hydro, as Hehn described the process to the Board, the chief steward must advise the em­ployee that:

(1) his situation is serious;

(2) it is important for the employee to comply with each step of the Pro­gram, including follow-up;

(3) the consequence of a refusal or failure to comply with the program and continued unsatisfactory performance will be discharge; and

(4) if he is discharged, Local 1000 will not file a grievance.

31. The Board disagrees with complainant counsel's argument that Local 1000's policy decision and undertaking with Hydro violates its section 68 duty because application of the policy results in Local 1000 discriminating in its treatment of employees who are subjected to discipline and discharge arising out of the Program compared with employees who are dis­ciplined for the same kind of infractions, but where alcohol or drugs are not a suspected fac­tor. The discrimination, as the Board understands the argument, lies in the claim that the latter group of employees have normal access to the grievance procedure with the attendant op­portunity of having their discipline tested against prevailing arbitral standards, while persons disciplined pursuant to conditions of referral to the Program are denied access to the grievance procedure and having their discipline tested at arbitration. Local 1000, for the reasons set forth in paragraph 7, made its decision to co-operate with Hydro in operation of the Program after participating in the J . A. C. 's recommendations arising out of its study of the predecessor pro­gram. It is obvious from those reasons that Local 1000 considered the Program to have benefit for all bargaining unit employees because, in cases of employees with unsatisfactory work per­formance records in which alcohol or drugs were a suspected factor, it treats the alcohol and drug problem as a disease instead of a matter for immediate discipline. Local 1000 accepted, as did Hydro and representatives of other hydro staff, the advice of experts that successful treatment depended upon the employees believing their referral to be a "last chance" to cor­rect unsatisfactory work performance. It decided that filing grievances for employees who were disciplined for refusing or for failing to comply with the terms of referral would be incon­sistent with that concept. Consequently, it agreed with Hydro that, if it properly followed the steps of the Program in making mandatory referrals, Local 1000 would not grieve discipline and discharges arising out of employees' failures or refusals to comply with the terms of their referral.

32. The Board is entirely satisfied that these were sound labour relations reasons for Local 1000's policy decision and that it was taken for the general benefit of the bargaining unit employees who are represented by it. The Board is satisfied also that Local 1000, when making its policy decision, sought to balance the value of the Program to all bargaining unit employees, and the need to enhance its effectiveness by supporting the constructive coercion concept on which it operates, with the interests of the employees who would be referred to it. The trade off for Local 1000 and those employees for the undertaking not to grieve dis­cipline or discharge arising out of proper referrals~ was that Hydro is obligated to keep Local 1000 fully informed of each step taken beginning with the alleged grounds for referral. If Lo­cal 1000 is not satisfied that there are proper grounds for the referral or with any of the steps, it can act then to protect the employees' rights by pursuing the grievance procedure. If that policy decision does in fact result in different treatment under the grievance procedure of em­ployees disciplined for unsatisfactory work performance, depending upon whether alcohol was a suspected factor, there are cogent labour relations reasons for the difference. Under the pred­ecessor program, Local 1000's opportunity to intercede came only after Hydro had discharged or otherwise disciplined the employee. By that time, the employee either could have com­mitted an alleged disciplinable offense and have refused referral to the program, or had ac­cepted referral to the program, but failed to comply with all terms of the referral. If Local 1000 could not resolve the discipline with Hydro, it would either have to drop the matter or rely on the uncertainty of arbitration. Whereas, the arrangement under the Program results in a de facto deferral by Hydro of its right to discipline an employee at the time of the work performance infraction, with the attendant risk of having its action challenged by Local 1000 through grievance procedure and arbitration; making the Program available in lieu of imme­diate discipline so that the root cause of the employee's unsatisfactory work performance can be treated; and making available to Local 1000 the information which, in the first place, would have been the grounds for discipline. The quid pro quo for Hydro is the undertaking from Local 1000 that, if the employee still does not respond and unacceptable work performance persists, there will not be a grievance as long as Local 1000 is satisfied that Hydro has prop­erly applied the Program. The net result of the bargain for Local 1000 and Hydro is that, in effect, they have the chance to make their best case for arbitration at the start of the referral because Local 1000 can grieve then if it is not satisfied with the grounds for, or terms of, referral and Hydro has the chance to reconsider its course of action.

33. If Local 1000 did not breach section 68 when it made its policy decision, the re­maining issue is whether the application of that policy decision to the circumstances of McMullen's termination was arbitrary or discriminatory contrary to section 68 of the Act. The policy decision was applied by Atkinson when he told McMullen that Local 1000 would not file a grievance over his discharge. Hehn and Vincer later confirmed and upheld Atkinson's decision not to file a grievance for McMullen.

34. As the Board noted earlier in this decision, section 68 of the Act does not impose an absolute obligation on Local 1000 to file a grievance for the employees it represents, or process a filed grievance to arbitration or any particular step of the grievance procedure. See the Board's decision in Nick Bachiu, [1975] OLRB Rep. Dec. 919, at paragraph 12. Its de­cision at any point, however, is subject to scrutiny when there is an allegation that its decision breached the section 68 duty, whether by an act of omission or commission. In a frequently quoted passage of the Board's decision in Walter Princesdomu and C. U P. E. Local 1000, [1975] OLRB Rep. May 444, the Board, in the process of interpreting the "arbitrariness" in the section 68 duty, made the following comment.

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 inadvertently overlooked and section 60 [now section 681 has not 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.

35. When Atkinson informed McMullen that his discharge was not grievable, he had made that decision after verifying that Hydro had correctly applied the Program to McMullen on each of the two mandatory referrals. Those conditions having been met, Atkinson decided that Local 1000's policy decision applied to McMullen's circumstances. By then McMullen had twice been referred to the program for separate unsatisfactory work performance infrac­tions, both of which he admitted were grounds for Hydro to either issue discipline or put him on the Program. McMullen also understood, at least with respect to the second referral, that his job was at risk. When McMullen did not protest these actions, Atkinson can hardly be faulted if he took at face value the grounds for the referrals set out in Hydro's memoranda to McMullen. McMullen was clearly on notice as to what conduct and work performance were required of him when he committed the third and final infraction. Atkinson did not base his decision to not file a grievance on those circumstances, however. Rather he based it on the fact that Hydro had satisfied the conditions precedent to the application of Local 1000's policy decision. As the Board has already stated, there are sound labour relations reasons for that policy.

36. Atkinson failed to communicate to McMullen the reasons for his decision and in so doing deprived himself of the opportunity to hear McMullen's side of the story. A failure to communicate the basis for his decision, however, does not by itself trigger a violation of section 68. See Softley Cartage Limited, [1982] OLRB Rep. May 766, at paragraphs 28 and 29. In any event, even if Atkinson's failure to communicate the reasons for his decision might have provided the foundation for a section 68 violation, that defect was cured when the reason for the decision was eventually forthcoming from Hehn and Vincer after Nagle intervened on behalf of McMullen. They also heard and answered his concerns about extenuating circum­stances. While Nagle did not get the response he was looking for, they did hear him out and their responses were consistent with what they told him was Local 1000's policy with respect to the Program and discipline arising out of it. Furthermore, Vincer's review of Atkinson's handling of McMullen' s discharge was in response to Nagle' s first contact with him. Vincer confirmed for himself, from his review of Atkinson's file on McMullen and from talking to Atkinson that it was proper to apply Local 1000's policy decision to McMullen's circum­stances and not file a grievance. It was Vincer's testimony that it would seriously undermine Local 1000's credibility with Hydro and the effectiveness of the Program if Local 1000 went back on its undertaking in McMullen's case. Therefore, through Nagle's intercession with Hehn and Vincer, McMullen got the hearing which Atkinson failed to give him.

37. The Board does not view Vincer as having taken shelter under a technicality when, having failed or refused to have the grievance taken up, he commented to Nagle on their final contact that the time limits for filing a grievance had lapsed. There is no evidence that his position on the merits of McMullen's request that a grievance be filed had changed, or rea­sonably should have changed, from the prior contact. Nor is there any evidence that either Hehn or Vincer said or did anything which would give McMullen reasonable grounds to ex­pect that Local 1000 might file a grievance.

38. Atkinson's failure to follow the procedures laid down by Local 1000 for its chief stewards with respect to their responsibilities towards employees who receive mandatory re­ferrals to the Program does give the Board cause for some concern, even though the failure is not a breach of section 68. By not confirming the alleged unsatisfactory work performance infractions and by not talking to McMullen he ran the risk of depriving himself of information relevant to Local 1000's section 68 duty not to be arbitrary in its representation of McMullen. The same might be said for Atkinson's failure to inform McMullen that Local 1000 would not file a grievance if he failed or refused to comply with a proper mandatory referral. Either failure made no difference in this case because Atkinson would not have discovered anything which reasonably would have caused him to alter his decision. McMullen did not dispute the grounds for each referral at the time and acknowledged before the Board that Hydro had grounds for its actions. In another case either step might evoke a response from the employee which directs the chief steward to new and relevant facts. The section 68 duty aside, if it is inconsistent with the concept of constructive coercion for the Local 1000 to grieve discipline arising out of proper mandatory referrals it is equally inconsistent with the concept for the chief steward not to caution the employee to that effect. That very advice would reinforce the "last chance" aspect of the Program. If Local 1000's chief stewards ignore the procedures which it has said are their duty, the union runs the risk of becoming "mechanical" in its dealing with the problems of employees who are intended to be helped by the Program and thus diminishing its effectiveness. Failure to follow its own procedures may also be viewed by the Board as an unwillingness or lack of effort to meet a reasonable standard of com­munication with employees referred to the Program, bringing into question both the basis of the policy decision and whether it was being applied in an arbitrary manner. See, for example, the caution expressed by the Board in Softley Cartage, Supra, at paragraph 29, with respect to the failure of trade union officials to communicate to employees information essential to the employees' understanding of the efforts being made by those officials to resolve job security concerns of the employees:

"... the mere unwillingness or lack of effort to communicate, if unrea­sonable, may in itself point in the direction of conduct which is arbitrary, discriminatory or in bad faith and cause the Board to view with particular attention the actual level of representation afforded by the trade union.".

39. To summarize, the evidence establishes that there were sound labour relations rea­sons for Local 1000's policy position to support the Program, including its undertaking with Hydro not to file grievances when employees, properly referred to the Program by Hydro, are disciplined or discharged for refusing or failing to comply with the terms of mandatory re­ferral. Atkinson's decision not to file a grievance for McMullen was based on Local 1000's policy decision and was made after he determined that Hydro had satisfied the conditions prec­edent for the policy decision to be applied. While Atkinson did not communicate to McMullen the reasons for his decision, the failure was later rectified by Hehn and Vincer. Atkinson also failed to follow the procedures established by Local 1000 for dealing with employees being placed on mandatory referral to the Program. Had he followed them he would not have learned anything which reasonably would have caused him to challenge the referrals. When Atkinson made his decision not to grieve the discharge and when Hehn and Vincer confirmed it, they knew that Hydro had referred McMullen to the Program twice on grounds of documented un­satisfactory work performance and with evidence in each instance of an alcohol problem. They knew, too, that he had been clearly warned in writing of the possibility of discharge on the first referral and, on the second one, he had been warned twice that discharge would be the result of his failure to comply with its terms. The first referral was for reporting to work under the influence of alcohol and in that condition driving a Hydro vehicle onto a public street where he was stopped by a Hydro supervisor, returned to the Hydro yard and then taken home for the day. The second one was for unauthorized absence for one week. They knew also that the final incident was a two-week unauthorized absence involving alcohol. Therefore, McMullen had been given two chances to correct his unsatisfactory work performance and was seeking one more "final" chance by asking Local 1000 to file a grievance for his discharge.

40. On those facts and all of the evidence herein, it cannot be said that the manner in which Atkinson, Hehn and Vincer dealt with McMullen in refusing to file a grievance for him was, in the words of the Board in Walter Princesdomu, supra, "... consistent with a 'not caring' attitude", or was conduct "... so implausible, so summary, or reckless to be unworthy of protection.". Therefore, Local 1000 has not treated McMullen in an arbitrary manner con­trary to section 68. Nor do those facts and the evidence herein support a finding that the de­cision not to grieve his discharge resulted in discriminatory treatment. The decision not to grieve his discharge was made on the basis of Local 1000's undertaking with Hydro, a policy decision which the Board has found to be based on cogent labour relations reasons, in an individual fact situation wholly consistent with the reasons underlying the policy. Finally, McMullen's counsel has acknowledged that there was no ill will behind Local 1000's decision not to file a grievance for McMullen. Therefore, it has not acted in bad faith. Accordingly, there has been no violation of section 68 of the Act and Local 1000 has not failed in its statutory duty of fair representation as defined by that section.

41. This complaint is dismissed.