John Salter v. Graphic Communications International Union, Local 466, 1984 CanLII 1122

Ontario Labour Relations Board

[1984] OLRB Rep. September 1179

0560-84-U John Salter, Complainant, v. Graphic Communications International Union, Local 466, Respondent, v. B. C. MacDonald, Manager of Industrial Relations, Dixie Canada Inc., Intervener

BEFORE: S. A. Tacon, Vice-Chairman.

APPEARANCES: C. J. Abbass and John Salter for the complainant; James K. McDonald and Jim Elliot for the respondent; B. C. MacDonald for the intervener.

DECISION OF THE BOARD; September 19, 1984

Decision

1The name of the respondent is amended to read: Graphic Communications International Union, Local 466.

2This is a complaint alleging contravention of section 68 of the Labour Relations Act. The complainant asserts that the respondent union violated this duty of fair representation when the complainant's grievance was dropped at the fourth stage of the grievance procedure and was not carried to arbitration.

3Much of the complainant's testimony was not disputed. The complainant, an experienced first pressman, was hired by the company in 1974 as a five-colour pressman. At that time, there were seven five-colour pressmen in the department but only two besides the complainant at the top of the wage classification. During slow periods over the years, other five-colour pressmen were demoted to lower positions for a time but the complainant always retained his position. In the Spring of 1982, the complainant was to be "bumped" by a more senior five-colour pressman, K. Moore, but, as the complainant was Plant Chairman at that time, he exercised his "super-seniority" under the collective agreement and retained his position. In the Fall of 1982, however, the complainant, having resigned his union position, was bumped by K. Moore. A grievance was filed by the complainant but was dropped after the third stage. The complainant was returned to his position as five-colour pressman some time later but, in the Fall of 1983, he was again bumped by K. Moore. It was the respondent union's decision not to proceed to arbitration with this grievance which led to the complaint which is now before the Board.

4The basis for the complaint lies in the language of the collective agreement dealing with seniority. The relevant section reads as follows:

Section 15 (4): Promotions, transfers, demotions, lay-offs and recalls from lay-offs, shall be made on the basis of seniority as between all individual employees where, in the judgment of management, the qualifications of such employees, including ability and experience, are equal. The Shop Committee shall be informed by Management of any changes in the status of Union members and shall be given the opportunity to present its views on the changes. In any case, however, conclusions regarding the relative abilities of employees shall rest with the Company subject to the provisions of the grievance procedure of this Agreement.

It is not disputed that this language has remained unchanged for a number of years. The complainant testified that he regarded this provision as meaning seniority and ability and experience were all factors to be considered and seniority only wins if the ability and experience of two employees are equal. Since, in the complainant's view, he was the most skilled of all the five-colour pressmen, he should have retained his position and K. Moore should have been demoted. It was the respondent union's failure to press for the "ability and experience" aspect of the seniority language which, the complainant asserted, violated the duty imposed by section 68 of the Act. The complainant acknowledged, though, that it was the company, not the union, which assessed the ability and experience of the employees.

5In support of his position, the complainant testified that, when he was hired, there was an "ability list" in the department on which he was ranked third, ahead of four other employees, including K. Moore. In the complainant's opinion, this ability list was used to determine who would be bumped up until this grievance. The complainant's grievance in the Fall of 1982 had been denied because there was no proof of his greater ability. The complainant pointed to one paragraph in the company's stage two response which stated:

The results of the study did not indicate that Mr. Salter was the best five (5) Colour Offset Pressman, and indeed the study indicated that all the gentlemen involved scored about the same in the sample studied.

The complainant testified, however, that there were production records instituted after that grievance which established that he was at least better than K. Moore. The respondent union's refusal to examine these records in assessing the merits of his grievance was further indication that the union had acted contrary to section 68 of the Act.

6The complainant had several conversations at various times regarding his grievance with his supervisor, M. Palmer, R. Cairns (plant manager and, later, president) and various union officers, including T. Griffin (shop steward), D. Williamson (plant chairman) and J. Elliott (business agent). The complainant also testified that J. Elliott clearly indicated that the union's position was that seniority should be the governing factor when two employees were at the top rate of the classification. Moreover, this had been the union's position with respect to section 15(4) of the collective agreement since the 1980 negotiations, when the complainant had been on the union negotiating committee.

7The complainant asserted that, in the past and since the 1980 negotiations, the respondent union had supported the notion of "ability and experience", rather than seniority, in deciding whether to proceed to arbitration with other grievances. Specifically, the complainant cited the Hewitt-Wallawski grievance and the Wagstaff-Amaro and Wagstaff-Bishop grievances.

8The complainant, as Plant Chairman, was personally involved in the Hewitt-Wallawski grievance during the first stages. The complainant recollected that the company had informed Hewitt that he would have to agree to remain in the position for about two weeks; Hewitt refused and the less senior man, Wallawski, was given the position. However, in the complainant's view, since the collective agreement did not stipulate a time period for the position "bumped into", the company was really citing this excuse to keep the person (Wallawski) they considered more experienced and capable. The complainant, though, considered Hewitt to be the most senior and to have the greater ability and experience. However, the complainant could not recollect why the union dropped the Hewitt grievance at the fourth stage; he did not consider the grievance a 'big issue" and stated he had been informed by the steward that J. Elliott had just dropped the grievance without giving reasons.

9With respect to the Wagstaff grievances, the complainant stated that the less senior employee, Wagstaff, remained in the position while two others were denied the job on the clicklock machine. All three were at the top rate on the clicklock. The complainant did acknowledge, though, that the company's position in the grievance was that the other two were not capable of running another piece of equipment while Wagstaff was. The complainant stressed however, that the job was scheduled as just the clicklock machine.

10On cross-examination, the Beamish-Neil grievance was raised. The complainant agreed that he had been involved with this grievance, as Plant Chairman, as well. Further, the complainant agreed that that grievance was similar to his grievance in that seniority versus ability and experience was at issue. During the grievance procedure, the company recognized that Beamish, the more senior employee, should have received the position. The complainant conceded that the union had taken the position throughout the grievance, that seniority should govern since both men were at the top rate of the classification. However, in the complainant's view, while he was surprised at the successful outcome of the grievance, he considered that the company felt that it could not be proved that Neil possessed more skill and ability than Beamish.

11Finally, the complainant conceded that, in the Viveiros grievance, the union had argued for seniority over ability and experience.

12After the respondent union decided to drop the complainant's grievance, the complainant testified that he appealed that decision to the Union Executive Board. Both he and J. Elliott submitted written statements outlining their respective positions; the complainant received a copy of J. Elliott's submission. Moreover, the complainant spoke at the Executive Board hearing. The Executive Board's decision (communicated to the complainant by letter from J. Elliott) reads, in part:

After careful consideration of all facts brought forward by you both verbally and by your letter dated April 10, 1984, along with my letter they have concluded that seniority must prevail when two members are equal to each other by both being at the top rate of their classification.

They realize that in your case this is of little help to you, but they hope that you would recognize that all unions push for seniority first and that it is the companys [sic] responsibility to use ability never ours.

They would also like to thank you for the time and effort by you when you served as Plant Chairman and do regret that they could not help you in resolving your problem.

13The Board has not attempted to recount the complainant's testimony in exhaustive detail. Similarly, the testimony of the other witnesses is abbreviated to the relevant statements.

14The next witness for the complainant was M. Palmer, an employee of some forty years and currently Printing Superintendent. M. Palmer testified that there had always been a seniority list and, additionally, in the pressroom, an ability list until about five or six years ago. M. Palmer, as union chairman at the time, had helped introduce the ability list. He could not recall whether other, more senior pressmen had been bumped by the complainant during the years on the basis of the ability list. In his view, the complainant has more experience and more ability, based on this experience, than K. Moore. He had been asked to review jobs in the pressroom to see if output could be compared. However, he indicated that the records merely measured output, not quality. Further, he stated that he didn't think the production records showed any significant differences (although the complainant's output was always good) but acknowledged that the union had not asked for the records in connection with the complainant's grievance. M. Palmer outlined the steps to the top rate. Apparently, while the company has discretion to approve the progress to the next rate, in practice, the steps are usually automatic every six months, until the top rate is reached.

15M. Palmer testified that he told the complainant that this grievance has been fought about four times and the union keeps winning; the company, then, had decided to stop fighting and go by the clock number (seniority) once the top rate is reached. That is, in M. Palmer's view, it has become the union's practice, since about 1978, to file a grievance if the less senior employee had been given the job. After assessing the costs of arbitration and since there were no reliable tests to distinguish ability and experience among top-rated employees, management had concluded that, if the union really wanted to lean a little toward seniority, the company was prepared to go along with the union's position in these circumstances. However, there was no verbal agreement on this point between the company and the union. In M. Palmer's opinion, seniority became the governing consideration where two employees were at the top rate of the classification about two or three years ago; he referred to the Lupson-O'Callahan and the Beamish-Neil grievances. M. Palmer also told the complainant that he (the complainant) had fought for seniority in the Beamish grievance.

16J. Elliott testified that he had been President of Local 466 for five years and business agent for ten years; during the last four years he serviced the American Can plant. He and Ed Hodges were full-time employees of the local, which comprised about 2,300 members. J. Elliott indicated he had had dealings with the complainant when the latter was Plant Chairman and during the complainant's grievances. It was normal procedure for the early stages of a grievance to be handled by the relevant steward and the Chapel Chairman (i.e., Plant Chairman) and for J. Elliott to be involved at the fourth stage.

17At the fourth stage of the complainant's grievance, J. Elliott stated that the grievance committee, consisting of Williamson (Plant Chairman), Griffin (steward), Lane (steward) and Smith and another representative from the machine shop and himself, considered the grievance (including the company's responses to the previous steps in the grievance procedure), decided there was nothing more the union could do for the complainant and dropped the grievance. According to J. Elliott, the grievance was dropped because the individual who had bumped the complainant had more seniority and both were top-rated. If the complainant's grievance had been successful, that other employee, K. Moore, would have been demoted. Furthermore, it was the union's position that the "skill and ability" aspect of article 15(4) of the collective agreement was for the company's benefit, that the union would like to have taken this out entirely and just have seniority as the ruling factor. In Elliott's view, the grievance committee would not be in a position to judge the relative skill and ability of all employees on the three shift operation at the plant. Moreover, in the Beamish-Neil grievance, the union had specifically argued for, and won, the principle that seniority should govern where two employees were top-rated. The complainant, J. Elliott, Lane and Smith comprised the grievance committee which asserted that union position in the Beamish-Neil grievance. From that point, the company had recognized the union's argument on this issue, although this was never put in writing or even amounted to a verbal agreement. J. Elliott testified that the union had asserted the "Beamish" grievance principle in at least two other grievances in the cutting and creasing department; these grievances were slated for arbitration when the company settled on a "without prejudice" basis, although paying the grievors all lost wages. Thus, in J. Elliott's view, proceeding to arbitration with the complainant's grievance would have "shot the Beamish principle out the window" and placed the union in the position of arguing for "skill and ability" while the company would have been supporting "seniority". That is, the normal roles of union and management would have been reversed. In J. Elliott's opinion, seniority is the backbone of any union, a right to be guarded jealously and fought for as much as possible.

18J. Elliott agreed that he and the complainant had submitted written appeals to the Executive Board and that, upon being advised of the Executive Board's decision, he had informed the complainant in writing. Finally, J. Elliott testified that the complainant had not attended the submission meeting of the membership, at which members could propose changes in the collective agreement for consideration by the negotiating committee, to press for his interpretation of article 15(4) or for strengthening the "skill and ability" aspect of the article.

19On cross-examination, J. Elliott stated that he had talked with the complainant before the fourth stage meeting but that the complainant had not mentioned the production records. However, even had he known about the records, he would not have asked for those records nor would his position on the grievance have changed, i.e., seniority should be the governing factor since both employees were top-rated. J. Elliott reiterated his view that he would prefer seniority always to be the governing factor but that every collective agreement has some "skill and ability" aspect to a seniority clause and management would never completely give up that point. J. Elliott testified that he had told the complainant, when the latter had exercised his superseniority to avoid being bumped, that, if he ever came out from under the umbrella of the superseniority, he would be vulnerable to bumping by more senior employees. When the members urged dropping of the superseniority clause at the submission meeting in June, 1982 and the complainant resigned as Plant Chairman, J. Elliott said that he had urged the complainant not to resign because many union negotiating proposals were not accepted by the company and, thus, the complainant should remain in his position at least until the clause was changed. J. Elliott added that the superseniority clause had, in fact, been restricted to layoff whereas formerly it had protected against both layoff and demotion.

20Also on cross-examination, J. Elliott stated that the grievance committee reached its decision by looking at the replies from the company to the earlier grievance stages and previous grievance decisions and discussing the complainant's grievance amongst themselves. With respect to the complainant's ability, J. Elliott testified that the grievance committee felt the other man was equal to the complainant and, further, if the company had considered the complainant superior, the company would have relied on the "skill and ability" aspect of article 15(4) to retain the complainant while demoting K. Moore. Thus, it was management which should have asserted the complainant's case in this instance, not the union. J. Elliott stated that he recommended that the complainant's grievance be dropped but that, if the committee had wished to proceed, the grievance would have gone to arbitration. In that event, J. Elliott would not have argued the grievance but would have referred the grievance committee to the union's lawyers. However, the committee voted unanimously to abandon the grievance. J. Elliott commented, though, that the committee recognized that the demotion resulted in the complainant losing about $280 per week in wages.

21J. Elliott acknowledged that this was an unusual grievance in that the union usually gets grievances alleging violation of seniority rights, not "skill and ability". However, he said he recalled one grievance in Alcan where an employee wanted to assert "skill and ability"; the individual appealed to the Executive Board but the grievance was dropped. Finally, in J. Elliott's view, the complainant should have presented his position on article 15(4) to the submission meeting.

22D. Williamson testified that he has been an employee of the company for eleven years and served as Chapel Chairman for two years. As Chapel Chairman, he is involved in all steps of the grievance procedure. He stated that the grievance committee would normally meet a few minutes before the stage four meeting with the company. With respect to the complainant's grievance, he stated that he, Elliott, Griffin and whatever other stewards were available, met to discuss this grievance just before the fourth stage meeting; other grievances were discussed at this same time and the meeting lasted about fifteen minutes. Usually, J. Elliott would tell the committee whether a grievance should be dropped or proceed to arbitration. In this grievance, D. Williamson said the information regarding the grievance was given to J. Elliott. D. Williamson stated he had also discussed grievances generally with J. Elliott before the grievance committee meeting but could not recall this grievance specifically. As to the grievance committee meeting itself, D. Williamson could not recall details of the discussion, except that both he and T. Griffin had agreed to drop the complainant's grievance. If he had wanted to proceed with the grievance, however, it would have gone to arbitration. D. Williamson conceded that the union had not requested the production records from the company. He added that the union had never requested such records in any grievance because the records were not needed for seniority calculation; moreover, the union had no input into the records, nor did he feel that the records were proof that one individual was better than another if both were top-rated. This was the first grievance which asserted skill and ability over seniority in the time in which D. Williamson had been Chapel Chairman. D. Williamson stated that it was his responsibility to tell the complainant that the union had decided to drop the grievance, but that he could not recall when or even whether he had so informed the complainant.

23As to the earlier stages, D. Williamson's recollection was even more sketchy. At stage one, the meeting would have been between the complainant and the steward for the union and the supervisor. At the second stage, D. Williamson couldn't recall the meeting itself but testified that he would have asked about the alleged discrimination, since the complainant's written grievance had used this terminology. At the third stage, again, he could not remember the discussion but stated that, while there was nothing in the grievance he could fight for, he would not have dropped the grievance since the union would automatically take all grievances to the fourth stage. Finally, D. Williamson asserted that he considered that the skill and ability aspect of article 15(4) was in the collective agreement to benefit the company, not the union. In his view, seniority should prevail among employees at the top rate.

24The complainant called one witness, T. Griffin, in reply. T. Griffin, an employee for nine years, was a second pressman and steward for the pressroom department. He could not recall discussing the grievance with the complainant before the complainant put the grievance in writing but believes such a discussion took place. Nor could he remember the details as to who actually bumped the complainant, although he said he would have been aware of the details at the time. Again, T. Griffin could not remember the discussions at the various stages, except that the meetings took place and followed the usual procedures. Even the grievance committee meeting before the fourth stage meeting with the company was sketchy. T. Griffin recalled asking J. Elliott what course the union should take and J. Elliott's reply that the union should go for seniority as they always had and that he agreed. That is, he did not doubt that the union had made the correct decision in dropping the grievance, in favouring seniority over ability amongst top-rated employees. T. Griffin could not specify who attended that grievance meeting, perhaps 3, 4 or S individuals. All present, however, agreed to drop the grievance, although he could not have characterized the matter as a vote but rather as a consensus. He stated that there was no written summary of the grievance presented to the grievance committee, nor did he review the earlier stages since there was no need to do so. T. Griffin acknowledged that he did not see the production records, nor was there any union input in their preparation. He was aware that the department logged production records but stated that he would not trust such records since he knew that foremen occasionally changed such records to show increased efficiency.

25T. Griffin could not recall ever dealing with a grievance asserting skill and ability over seniority. Further, he supported the union position that, at the top-rate, seniority should be the governing factor. T. Griffin stated that he was in the department when the ability list was in existence but he could not recall when the ability list was dropped. Only the complainant may have approached him asking for the reintroduction of the ability list. With respect to the Hewitt-Wallawski grievance, T. Griffin said that the union had taken the position that seniority should govern and, thus, Hewitt should get the job; he could not recall whether the company had asserted that Wallawski was the more skilled. He believed that M. Palmer met with Hewitt and himself and offered Hewitt the job if he would agree to keep the position for one week as the job was in the office and the duties could not be properly performed if the individuals shifted around more frequently. It was T. Griffin's recollection that Hewitt did not wish to give this assurance. In T. Griffin's view, the complainant was in error if he asserted that Wallawski was given the job because of his greater ability. T. Griffin also stated that he was involved with the Wagstaff grievances but could not recall any details.

26Finally, T. Griffin testified that he had handled seven to ten grievances filed by the complainant in the last two years and that all had proceeded to the fourth stage. In his view, an individual who wished to change the collective agreement should make the proposal at a submission meeting; if accepted, the proposal would go to the negotiating committee for use in preparing the union's bargaining demands.

27The complainant essentially asserted that the respondent had not "put its mind" to the complainant's grievance but, rather, had a predetermined position to support the "seniority" aspect of article 15(4) and ignore the "ability and experience" aspect. The testimony of some respondent's witnesses that the company should have represented the complainant was cited as support for the allegation that the duty in section 68 of the Act to represent all employees, including the complainant, had been violated. The complainant had the right to rely on all the language of article 15(4), at least until the collective agreement itself was properly amended. The complainant contended that the respondent union had the right to amend the collective agreement but asserted that there was no evidence that the appropriate procedure for so doing had been followed here. The complainant referred the Board to the decision in Dufferin Aggregates, [19821 OLRB Rep. Jan. 3S but argued that the case was distinguishable from the instant facts.

28The complainant also conceded that the jurisprudence concerning section 68 of the Act established the principle that the Board should not second guess the union's decision in a particular grievance. However, the complainant argued that the evidence demonstrated that the respondent union had not assessed the merits of the complainant's grievance in this case. The testimony of D. Williamson and T. Griffin was referred to in support of the complainant's position that the grievance had received only cursory consideration. The respondent union's refusal to examine the production records was also cited as support for the union's alleged non-caring attitude. Further, the complainant asserted the respondent union was conducting a charade in processing the grievance through to step four when the union officials knew the grievance would be dropped; moreover, the only full explanation given the complainant as to why the grievance was dropped was the decision of the Executive Board in denying the appeal. The complainant also referred the Board to the cases dealing with section 68 of the Act in R. E. Brown, "The 'Arbitratory', 'Discriminatory' and 'Bad Faith' Tests under the Duty of Fair Representation in Ontario", [1982] 60 Can. Bar. Rev. 412.

29Finally, the complainant conceded that the alleged verbal agreement between the respondent union and the company that seniority would govern where two employees were both top-rated had not been proven. However, the complainant argued that, if there was such an agreement, it was improper since the appropriate procedure for amending the collective agreement had not been followed. Conversely, if there was no such arrangement, the respondent union was obligated to fairly consider the merits of the complainant's grievance. The complainant stressed that, as it was not disputed that this was the first time such a grievance had been filed, it was even more important that the respondent union was required to fairly assess the complainant's grievance to avoid the "tyranny of the majority". The complainant emphasized that the remedy sought was an opportunity for the complainant to demonstrate his superior experience and ability at an arbitration hearing.

30The respondent insisted that there had been no violation of section 68, either procedurally or substantively. The union has the right, in administering the collective agreement, to balance competing interests and had done just that. That is, as the testimony indicated, the union had preferred to protect seniority over ability and experience in deciding which of the two top-rated five-colour pressmen to support. Moreover, the preference for seniority in these circumstances had been union policy for quite some time, and further, that policy was well known to the complainant from his involvement as Plant Chairman, particularly in the Beamish-Neil grievance. The union had no obligation to examine production records in reaching its decision not to proceed to arbitration given its policy. It was also not disputed that the complainant had been given the opportunity to appeal to the Executive Board and had done so. The respondent cited several cases in support of its right to balance competing interests and preference for seniority: Tung-Sol of Canada Ltd., (1964), 1964 CanLII 1021 (ON LA), 15 L.A.C. 161 (Reville); Lady Gait Towels Ltd. (1969), 1969 CanLII 1498 (CA LA), 20 L.A.C. 382 (Christie); and The Municipality of Metropolitan Toronto, [1978] OLRB Rep. Feb. 143 [the Gormley case].

31The respondent also pointed out that the assessment of ability is given to the company, not the union, in article 15(4). As to the precise scope of review by the Board of a union's decision, the respondent referred to Dufferin Aggregates, [1982] OLRB Rep. Jan. 35 especially paragraphs 39 and 37. There was no evidence of ill will or hostility directed against the complainant personally. The union had properly directed its mind to the result or impact which proceeding to arbitration would have caused. The Algoma Steel Corporation, Limited, [1981] OLRB Rep. June 611 (especially paragraphs 6 and 8), Douglas Aircraft Company of Canada Ltd. [1976] OLRB Rep. Dec. 779 (particularly paragraph 31) and Falcombridge Limited, [1983] OLRB Rep. Aug. 1303 (at paragraph 13) were cited in support of the propriety of this approach to a grievance. Whether there was a "vote" at the "pre stage four" union meeting where the decision to drop the grievance was reached was irrelevant given that the uncontradicted evidence established that all union officials were agreed that the grievance should not proceed to arbitration. Thus, the respondent submitted, as there had been no violation of section 68, the complaint should be dismissed.

32Section 68 of the Labour Relations Act reads:

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.

33The duty imposed by section 68 has been elaborated in a number of Board decisions. One of the most useful summaries is found in the Gormley decision, supra, at paragraph 18.

Over the years many aspects of the duty of fair representation have settled into place. The Board has repeatedly held that in order not to act in an arbitrary manner in the processing of a grievance, the union must direct its mind to the merits of the grievance and act on the available evidence. While the effective operation of the grievance machinery requires that unions also be allowed to consider factors beyond the merits of a particular grievance in deciding whether to process a grievance on to arbitration, considerations of this nature must have their roots in the welfare of the bargaining unit and the bargaining process and must not be based on irrelevant facts or principles. Additionally, a union is prohibited from processing a grievance in bad faith. An employee must not become the victim of the union's ill will such that a dislike for an individual dictates the path of the grievance rather than the merits of the grievance or legitimate concerns for the welfare of the bargaining unit and bargaining process. The prohibition against a union acting in a manner that is discriminatory functions to prevent a union from distinguishing among members in the bargaining unit unless there are good reasons for so doing. To avoid acting in a manner that is discriminatory, the duty requires, in general, that like situations be treated in a like manner and that neither particular favour nor disfavour befall any individual apart from the others unless justified by the circumstances. The duty does not make the union the guarantor for every aggrieved employee. Instead, the duty requires that the union consider the position of all of its members and that it weigh the competing interests of minorities or individuals in arriving at its decisions.

34The concept that a union, in directing its mind to the merits of a grievance, may legitimately consider other factors was further discussed in Algoma Steel, supra, at pages 613-6 15 wherein the Board cited the reasoning in Antonio Melillo, [1976] OLRB Rep. Oct. 613.

6. On the main branch of Mr. Noble's complaint, the Board has noted on a number of occasions that the administration of the collective agreement is an extension of the trade union's status as exclusive bargaining agent, and that an employee has no absolute right to have his grievance arbitrated. In Antonio Melillo, [1976] OLRB Rep. Oct. 613, for example the Board commented as follows:

7. Most unfair representation complaints arise, as did this one in the context of a union decision not to carry a grievance to arbitration. It is well established that the duty imposed on a trade union by section 60 does not require it to process through to arbitration every grievance which a bargaining unit employee wishes proceeded with. An employee has no absolute right to have his grievance arbitrated (see Gebbie and Longmoore [1973] OLRB Rep. Oct. 519). The key assumption underlying this legal conclusion is that the settlement of disputes and grievances of employees under the terms of a collective agreement is an extension of the collective bargaining process, a process in which the interests of particular individuals must of necessity yield to the legitimate interest of the group.

8. There is another group interest in the settlement of grievances which applies even to cases which might succeed at arbitration. This interest was given expression in Rayonier and L W.A., Local 1-217, [1975] 2 Can. LRBR 196, a recent decision of the British Columbia Labour Relations Board interpreting a B.C. provision with language almost identical to our own. After adopting the Ontario position that an employee has no absolute right to have his grievance arbitrated, the B.C. Board stated:

"While a grievance may originally be brought by one individual, it is not unusual for it to involve a conflict with other employees as well as with the employer. Occasionally, this is true even in the facts of a particular case, but more often it arises from the implications of the general interpretation of the agreement upon which the particular grievor is relying. By necessity, a collective agreement speaks obliquely to many new and unforeseen problems arising during the course of its administration. Rather than relying on the arbitrator's interpretation of the vague language of the agreement drafted a long time ago, it is normally more sensible for the parties to settle that type of current problem by face-to-face discussions in the grievance procedure, with the participation of those individuals who are familiar with the objectives of the agreement and the need of the operation and are thus best able to improvise a satisfactory solution. Again, if the employees are to have the benefit of this process and of the willing participation of the employer in it, the law must allow the parties to make the settlement binding, rather than allowing a dissenting employee to finesse it by pressing his grievance to arbitration. As Archibald Cox put it: 'Allowing an individual to carry a claim to arbitration whenever he is dissatisfied with the adjustment worked out by the company and the union treats issues that arise in the administration of a contract as if there were always a 'right' interpretation to be divined from the instrument. It discourages the kind of day-to-day co-operation between company and union which is normally the mark of sound industrial relations — a dynamic human relationship in which grievances are treated as problems to be solved and contract clauses serve as guideposts. Because management and employees are involved in continuing relationships, their disposition of grievances and the arbitrator's rulings may become a body of subordinate rules for the future conduct of the enterprise... When the interests of several groups conflict, or future needs run contrary to present desires, or when the individual's claim endangers group interests, the union's function is to resolve the competition by reaching an accommodation of striking a balance. The process is political. It involves a melange of power, numerical strength, mutual aid, reason, prejudice, and emotion. Limits must be placed on the authority of the group, but within the zone of fairness and rationality this method of self-government probably works better than the edicts of any outside tribunal.' Cox, Law and the National Labour Policy, at pp. 83-88."

16. In the Algoma Steel case, the interpretation of the collective agreement asserted by the complainant, Mr. Noble, would have had serious consequences for a significant number of the employees. The union and the company chose not to refer the matter to an arbitrator but, rather, accepted an interpretation of the collective agreement which upheld the status quo. The Board rejected the complainant's argument that the parties, at least, should have formally amended the collective agreement to avoid a violation of section 68 [then section 60] by the union. That is, whether the parties' decision took the form of an actual amendment or merely an "agreed" interpretation of that collective agreement was irrelevant to the content of the duty of fair representation. The Board considered that the union executive had proceeded responsibly in placing the matter before a scheduled membership meeting, explaining its position, permitting a full debate on the matter (in which Mr. Noble participated) and accepting the vote of the membership to withdraw the grievance. Since the union had directed its mind to the grievance (in terms of the consequences for other employees if the complainant's interpretation was found to be correct) and had proceeded in a fair and open fashion, the Board found "nothing implicitly arbitrary, discriminatory or in bad faith in the decision to elevate the interests of one group of employees over that of Mr. Noble" (at page 616).

35In the Board's view, the respondent did seriously consider the complainant's grievance in terms of assessing the impact proceeding to arbitration would have had on the bargaining unit as a whole. In J. Elliott's words, the principle established in the Beamish-Neil grievance would have gone "out the window". That principle — that seniority should govern when two employees were both top-rated — had been union policy for some time and had been asserted by the union in several grievances. The Board accepts the evidence of J. Elliott in this regard, particularly since M. Palmer, the complainant's own witness, also testified that the company had fought the union on this point "about four times" before deciding to accept the union's position in the interpretation of article 15(4).

36The Board also accepts the testimony of M. Palmer and J. Elliott that there was no verbal agreement between the parties to the collective agreement to "alter" the interpretation of article 15(4). The fact that the union proceeded to arbitration with two grievances in the cutting and creasing department (although the company settled the grievances before the arbitration hearing) supports this finding. However, the Board would stress that, on the reasoning in Algoma Steel, supra, which this Board affirms, there would have been nothing improper in the parties agreeing, verbally or otherwise, to interpret article 15(4) to mean, in effect, that top-rated employees are deemed to be of equal ability and experience so that seniority would govern.

37The Board also considers it significant that the complainant had known the union policy of pressing for seniority where two employees were top-rated for quite some time. The complainant had, after all, served as Plant Chairman and, hence, been involved in processing grievances. Moreover, in the Spring of 1982 the complainant had exercised his "superseniority' as Plant Chairman to retain his position against K. Moore's greater seniority. Again, the demotion of the complainant in the Fall of 1982 also flowed from the exercise of K. Moore's greater seniority. The complainant testified that the union had supported — or at least acknowledged — the ability and experience aspect of article 15(4) in various grievances. However, the Board does not consider the complainant's testimony as to the rationale involved in settling or dropping various grievances (e.g. Wagstaff-Amaro, Wagstaff-Bishop, Beamish Neil and Hewitt-Wallawski grievances) as compelling as the explanations of J. Elliott, D. Williamson and T. Griffin. Again, the Board notes that the testimony of the union officials was corroborated by M. Palmer, a member of management, at least with respect to the Beamish Neil grievance. The Board would emphasize M. Palmer's testimony where he stated that he expressly told the complainant that he (the complainant) had fought for seniority in the Beamish-Neil grievance.

38The complainant stressed that the refusal of the union to examine the production records was indicative of a non-caring attitude, contrary to the duty under section 68. The Board disagrees. The production records, apart entirely from their reliability or value in demonstrating ability and experience (and the Board would comment that these are open questions) were simply not relevant to the union's position on the central issue of deciding which of two top-rated employees should be retained and which demoted.

39The complainant also argued that the processing of the grievance to the fourth stage had been a charade, that there had been no serious consideration of the complainant's case. The apparent conflict in testimony in the "vote" or "consensus" method of deciding to drop the grievance was cited. The Board has no doubt that the steward and current Plant Chairman felt awkward in proceeding with the grievance in view of their position on the issue involved. However, as D. Williamson testified, all grievances were automatically processed to step four. In light of that practice, to have done otherwise with the complainant's grievance may well have constituted discrimination. Further, continuing the grievance to step four meant that the decision would have been made by a larger group of union officials, the grievance committee. As well, the assessment and recommendation of J. Elliot, the business agent and President of the local, would have been available. The Board finds nothing improper in the union proceeding as it did. Moreover, whether there was a formal vote or less formal consensus is immaterial given the unanimity of the officers as to the appropriate disposition of the grievance.

40The complainant suggested that, as the union witnesses (including T. Griffin) heard at least some of the testimony of the witnesses before giving evidence, the testimony was in some way less reliable. The Board would comment that the differences in the amount of detail recollected by J. Elliott, D. Williamson and T. Griffin was considerable. However, the Board is not prepared to draw any adverse inferences from this beyond different capacities of the three to remember details of this sort of event at a date well after that event. Moreover, the minor discrepancies in the testimony directly undermine the complainant's asserted conclusion. The witnesses did not "parrot" each other or repeat the same story almost verbatim. In the Board's opinion, the differences in testimony were not significant nor do they represent more than the fact that witnesses seldom remember all — or the same — details in any situation.

41The complainant conceded that the union's decision was not activated by any personal animosity or ill will. In Douglas Aircraft, supra, the Board determined that a violation of the duty not to discriminate in section 68 need not involve motive. As the Board stated at page 789:

To summarize the position of the Board, therefore, we suggest that "discriminatory" in section 60 [now 68] is designed to prevent distinctions in treatment accorded individual employees or groups of employees which are made without the support of cogent labour relations reasons. The focus of the concern is in the distinction itself rather than on the motive for the distinction. Thus a distinction made without motive may be discriminatory if it lacks the underpinning of reasonableness defined from a labour relations point of view. By the same token a seemingly reasonable distinction may become discriminatory if it is motivated by hostility.

Douglas Aircraft involved a challenge to a "superseniority" clause as a violation of section 68. (It is interesting to note that, in the instant case, the complainant benefitted, in the past, from such a clause.) This passage is cited, however, because, underlying the principle asserted by the union as the basis for dropping the complainant's grievance is the reality that the union was actually choosing to support one employee, K. Moore, instead of the complainant.

42The question, then, for this Board is this, "Was there a rational reason, a cogent labour relations reason for the union to drop the complainant's grievance, to opt for the seniority rights represented by K. Moore as against the allegedly greater ability and experience of the complainant?". The Board uses the term allegedly given that the assessment of the complainant's ability and experience as compared with that of K. Moore was not before the Board.

43The Board agrees and, indeed, it was not really disputed, that seniority is a critical job interest (see Dufferin Aggregates, supra at pages 4 1-43 in particular). As stated later in that decision (at page 45):

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

44This Board would note that the instant case does not involve what has been termed the "tyranny of the majority" but is really a choice between two individuals, although each individual "represents" a view of article 15(4) which would affect others in the bargaining unit.

The union, in opting for seniority rights as between two top-rated employees, was making a reasoned decision based on its view of the best interests of the bargaining unit as a whole. Union support for seniority clauses — or the interpretation of seniority clauses in the direction of giving greater weight to seniority over other factors — is hardly novel. Moreover, it is not for this Board to second guess the union's choice provided the relevant factors and competing interests are considered. The union candidly characterized the other interest, i.e. ability and experience, as one which is generally supported (and sought after) by management. This assertion is also neither novel nor indicative of impropriety on the union's part. Thus, in light of all the evidence and submissions by the parties, and in view of the principles underlying the duty of fair representation, the Board finds that section 68 of the Act has not been violated.

45This complaint, therefore, is hereby dismissed.