Vujicic v. The Schneider Employees Association, 1984 CanLII 936

[1984] OLRB Rep. March 467

1663-83-U Vukota Vujicic, Complainant, v. The Schneider Employees Association, and J. M. Schneider Inc., Respondents

BEFORE: R. D. Howe, Vice-Chairman, and Board Members W. H. Wightman and B. L. Armstrong.

APPEARANCES: J. Vincent Toolsie and Vukota Vujicic for the complainant; Sheila Block, Rod MacKenzie and John Christensen for the respondent Association; Harvey A. Beresford and Harold Blake for the respondent Company.

DECISION OF R.D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; March 14, 1984

1. This is a complaint under section 89 of the Labour Relations Act in which the com­plainant alleges that he has been dealt with by the Schneider Employees Association (referred to in this decision as the "Association") contrary to section 68 of the Act. (The complaint also alleges a contravention of section 72(1) of the Act, but that provision was not relied upon at the hearing of this matter, and the evidence adduced in respect of this matter would not in any event support a finding that it had been breached).

2. At the commencement of the hearing of this matter on February 13, 1984, the Board amended the style of cause to add J. M. Schneider Inc. (referred to in this decision as the "Company") as a respondent, for remedial purposes. That amendment was not opposed by Company counsel.

3. The gist of Mr. Vujicic' s complaint is that the Association acted arbitrarily in fail­ing to represent him with respect to his request that the Company provide him with a "light job" or, alternatively, return him to his regular job, and in failing to grieve the Company's termination of his employment.

4. Section 68 of the Act provides:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the 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.

In I.TE. Industries Limited, [1980] OLRB Rep. July 1001, the Board described the scope and effect of section 68 (then section 60) as follows:

17…….The Labour Relations Act constitutes the trade union as the em­ployees' exclusive bargaining agent. Within the framework of collective bargaining an employee must depend upon the union to represent him, and cannot bargain individually to establish his terms and conditions of employment. However, the trade union's right to represent employees is not unfettered, and its exclusive bargaining agency carries with it a com­mensurate responsibility; the union must represent each employee in the bargaining unit, in a manner that is neither "arbitrary, discriminatory, or in bad faith." By enacting section 60 the Legislature has sought to tem­per the union's authority and prevent abuses which might arise if that authority was entirely unreviewable.

18. Bad faith, malice, discrimination, or subjective ill will are clearly proscribed and readily ascertainable; the real difficulty is to determine when a union's conduct may be properly regarded as "arbitrary" — bear­ing in mind that the union's affairs may be conducted by laymen with limited formal education, or elected officials who may have been chosen for qualities other than their legal training or understanding of parlia­mentary procedure. While the Legislature undoubtedly sought to protect the employee from an abuse of the union's authority, I do not think it was intended that every miscalculation, honest mistake, or error in judgment would constitute a breach of a public statute. The standard to which a union must adhere was described in Ford Motor Company Limited, [1973] OLRB Rep. Oct. 519 as follows (at paragraph 40):

"40. In deciding whether a union has violated the Act the standards to be applied are important. We recognize that union affairs are con­ducted for the most part by laymen. In some situations there are ex­perienced full time officials of a trade union who conduct the union affairs; in other situations, the union affairs are conducted by em­ployees in their spare time, while in yet other situations employees may be given a limited amount of paid time by their employers to engage in trade union matters. This Board does not decide cases on the basis of whether a mistake may have been made or whether there was negligence, nor is the standard based on what this Board might have done in a particular situation after having the leisure and time to reflect upon the merits. Rather, the standard must consider the per­sons who are performing the collective bargaining functions, the norms of the industrial community and the measures and solutions that have gained acceptance within that community; see Fisher v. Pemberton et al. 1969 CanLII 726 (BC SC), 8 D.L.R. (3d) 521 at p. 546."

Similar views were expressed in Re: Ontario Hydro Employees' Union -CUPE Local 1000 and Walter Prinesdomu, [19751 OLRB Rep. May 444, at p. 462 ff. in a long passage which canvassed the intended meaning of the word "arbitrary":

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

26. This approach gives the word arbitrary some independent mean­ing beyond subjective ill-will, but, at the same time, it lacks any pre­cise parameters and thus is extremely difficult to apply. Moreover, attempts at a more precise adumbration have to reconcile the apparent consensus that it is necessary to distinguish arbitrariness (whatever it means) from mere errors in judgment, mistakes, negligence and un­becoming laxness.

On the other hand we do not believe, at least at this time, that all mistakes and careless conduct by trade union officials fall outside the scope of section 60. It may be difficult to elaborate the precise mean­ing of arbitrary representation in advance but, as noted above, the very use of the word suggests that some regulation of the quality of decision-making was intended. Accordingly at least flagrant errors in processing grievances — errors consistent with a "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 has no application. The duty is not de­signed to remedy these kinds of errors. But when the importance of the grievance is taken into account and the experience and identity of the decision-maker ascertained the Board may decide that a course of conduct is so implausible, so summary or so reckless to be un­worthy of protection. Such circumstances cannot and should not be distinguished from a blind refusal to consider the complaint. How­ever, each case must be decided on its own peculiar facts and it is clear that the duty is not going to be a fertile field for the individual adversely affected by less flagrant conduct."

19. It is clear that in order to establish a breach of section 60, a com­plainant must do more than demonstrate an honest mistake or even neg­ligence. The union must have committed a "flagrant error" consistent with a "non caring attitude", or have acted in a manner that is "im­plausible" or "so reckless as to be unworthy of protection". In other words, the trade union's conduct must be so unreasonable, capricious, or grossly negligent, that the Board can conclude that the union simply did not give sufficient consideration to the individual employee's concerns. Honest mistakes or innocent misunderstandings are clearly beyond these paramaters and do not attract liability.

See also Savage Shoes Ltd., [19831 OLRB Rep. Dec. 2067 in which the Board wrote:

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

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

38. With these thinking process hidden from direct examination, a review of the behaviour of a trade union official must necessarily focus on what he did and the context in which he did it, as well as on what he says he thought. The result of the decision-making process is weighed against the facts and circumstances on which it is said to have operated. If the resulting interpretation of facts or of a collective agreement is found by the Board to be "reasonable" (Clifford Renaud, [1976] OLRB Rep. Jan. 967, ¶22; Jay Sussman, [1976] OLRB Rep. July 349 ¶11; I.TE. In­dustries Limited [1980] OLRB Rep. July 1001, ¶20), "not unreasonable" (Ivan Pletikos, [1977] OLRB Rep. November 776, ¶13), "not open to challenge" (Oil, Chemical & Automatic Workers International Union and its Local 9-698, [1972] OLRB May 521, ¶3), or at least "not implau­sible" (Canadian Union of Public Employees Local 1000 - Ontario Hy­dro Employees Union, [1975] May 444, ¶32), then the Board is inclined to find that the decision is not arbitrary. Where the decision maker, on the other hand, misapprehends facts and circumstances which the Board considers "patent" and arrives at an "almost perverse" understanding of the facts and circumstances, the Board will conclude that union ef­fectively barred itself from "directing its mind to the real question", and that in so doing it has acted in an arbitrary fashion: The Corporation of the County of Hastings, [1976] OLRB Rep. November 1072, ¶22. Where it is difficult to see a rational pathway between the facts and circum­stances said to have been taken into account and the interests said to have been balanced on the one hand, and the result on the other, then there arises a rebuttable presumption that the decision was arbitrary.

39. The required thought process may involve more than the simple ap­plication of logic to the information then at hand. Decision making may be arbitrary if, before making its decision, the union fails to identify and seek out sources of further relevant information which should be taken into account in making that decision: Canadian Union of Public Em­ployees Local 2327, [1981] OLRB Rep. June 523, ¶30; Swing Stage Ltd., re Alvin Plummer, [1983] OLRB Rep. Nov. 1920.

(See also Catharine Syme, [1983] OLRB Rep. May 775; George Lazenkas, [1983] OLRB Rep. Jan. 83; General Motors of Canada Limited, [1982] OLRB Rep. Feb. 181; Bedard Girard Ontario, [1981] OLRB Rep. Oct. 1338; and Amalgamated Transit Union, [1973] OLRB Rep. March 125.)

5. During the hearing of this matter, the Board heard the evidence of the complainant, Vukota Vujicic; Harold Blake, the Manager of Employment in the Company's Human Re­sources Department (who was called by the Association as its first witness); John Christensen, the President of the Association; and Mike Karpow, the complainant's Association steward. There were a number of material conflicts in the testimony of those witnesses. In resolving those conflicts and making the findings of fact contained in this decision, we have considered a number of factors, including the firmness of the witnesses' respective memories, their ability the resist the influence of self-interest to modify their recollections, the consistency of their evidence, their capacity to express their recollections clearly, and their demeanour while tes­tifying. We have also assessed what is most probable in the circumstances of this case, and what inferences may reasonably be drawn from the totality of the evidence.

6. The complainant commenced employment with the Company on June 3, 1974 in its "hog kill" department. As a result of various accidents, injuries, and illnesses, the com­plainant has had a rather poor attendance record. In 1978 the complainant's absenteeism rate of 23.6% (for the Company's fiscal year) was more than twice the plant average. Accordingly, he was called in for a "counselling session" by Mr. Blake. In 1979 the complainant's ab­senteeism rate improved marginally by falling to 20.3%, but in 1980 it rose to 27%. In 1981 the complainant's absenteeism rate increased to 66%. In October of 1981 the complainant was called to the Personnel Office where, in the presence of his Association steward, his absen­teeism record was reviewed and he was told that further failure to attend work on a regular basis could result in the termination of his employment.

7. The complainant has also been involved in several instances of employment related misconduct for which he has been disciplined by the Company. In November of 1975 he was suspended for striking a co-worker . Tom Eason, who was the President of the Association at that time, represented him with respect to that incident. When he was discharged in De­cember of 1976 for another fighting incident, representation by Association officials (including steward Mike Karpow) resulted in the complainant's discharge being reduced to a five day suspension at the fourth stage of the grievance procedure. Mr. Karpow and other Association officials also represented the complainant in respect of a horseplay incident in 1977 (for which he received a warning), and a refusal to perform certain work in June of 1980. The com­plainant did not suggest that there was anything inadequate or improper about the represen­tation which he received from the Association in relation to any of those matters.

8. In an effort to combat losses of productivity through absenteeism, the Company has formulated and implemented absence control policies. It has also created, with the cooperation of the Association, an absenteeism control committee. That committee is chaired by Mr. Blake and consists of the Company's Health and Safety Supervisor, the Company's Manager of Compensation benefits, and two members of the Association's Executive (generally the Pres­ident and the Vice-President). The committee attempts to reduce the incidence of absenteeism by arranging programs to assist workers whose absenteeism is caused in whole or in part by alcoholism, drug addiction, marital problems, or other personal difficulties. Moreover, from time to time the Association and the Company agree that particular "light duty" jobs will not be covered by the seniority and job posting provisions of the collective agreement, in or­der to facilitate the return to work of employees who have been absent due to injury, illness, or other personal difficulties. Although the employees assigned to such jobs do not "own" them (since they are outside the seniority provisions of the collective agreement), once an employee is assigned to such a job he will generally not be removed from it until his physical condition permits him to return to a seniority stream job.

9. From October of 1982 until August of 1983, the complainant was unable to work due to back pain resulting from an injury sustained in a fall on Company premises. In June of 1983, the Company decided to create a new light duty job in the hog kill department and, at the request of the Association, agreed to offer it to the complainant. That job involved re­cording certain information on a clipboard by ticking one of four columns. Since one of the complainant's physical limitations was that he could not remain standing in one spot for very long, the Company was prepared to provide the complainant with a chair to permit him to perform the job in a sitting position. On June 14, 1983 Mr. Blake telephoned the complainant and offered him that light duty job. The complainant told Mr. Blake that he would check with his doctor and call him back. On the following day the complainant telephoned Mr. Blake and advised him that his doctor had told him that he could not do the job. The complainant also advised the Company's first aid department at or about that time that he had been referred to a specialist by his physician.

10. The complainant was subsequently examined by a specialist who arranged for him to enter the Workers' Compensation Board Hospital and Rehabilitation Centre in Toronto on July 18, 1983 for a period of assessment and treatment. He was discharged from the Centre on August 8, 1983. On or about August 9, 1983, Mr. Vucinic telephoned Mr. Blake to advise him that he had been released from the hospital and was ready to return to work. Mr. Blake told him to wait until the Company had received documentation from the Workers' Compen­sation Board. On August 10, 1983, the complainant's W.C.B. Rehabilitation Counsellor wrote to the Company as follows:

Please be advised that Mr. Vujicic was admitted to our Hospital and Re­habilitation Centre on July 18, 1983 for a period of assessment and treatment.

Mr. Vujicic was discharged on August 8, 1983, at which time medical information indicated that he is fit for a full-time job allowing frequent position changes, with limited low level work, limited bending and no lifting over 10 kgs.

11. Upon receiving that letter, Mr. Blake arranged to meet with the complainant on August 12, 1983 in the presence of Association President John Christensen and steward Mike Karpow. At that meeting which lasted about ten or fifteen minutes, after reviewing the Com­pany's light duty jobs the Association's representatives expressed agreement with Mr. Blake's conclusion that there were no jobs available that were within the complainant's physical ca­pabilities. Although there were some bargaining unit jobs which the complainant was capable of performing, those jobs were "owned" by the persons who were then performing them, there being no right under the collective agreement to bump a less senior employee out of his job, except in case of layoff. When it became apparent to the complainant at that meeting that the Company was not going to provide him with light duty work, he requested that he be returned to his regular job. Although there was some confusion in the complainant's mind as to what had been his regular job in and before October of 1982, it is relatively clear from the evidence as a whole that on or about December 3, 1979, the complainant was transferred from job #359 (which consists of cleaning the feet of slaughtered hogs) to job #361 (which involves using a knife to trim the fat off the tenderloin at chest level and to trim bruises from the hog top to the centre of the carcass). That transfer occurred as a result of a more senior employee bumping into job #359 when a change in line speed resulted in the posting of all the jobs on that line. The complainant later returned to job #359 for a period of twenty days when the employee who had displaced him went on an extended vacation. Job #361 is a line job which requires constant standing and does not allow frequent position changes. Although the complainant expressed a willingness to attempt to perform that job, its requirements appear to be beyond the limitations set forth in the August 10, 1983 letter from the W.C.B. Hospital and Rehabilitation Centre. Near the end of the meeting, Mr. Blake advised the complainant that he was being released by the Company since there was no jobs available that he was capable of performing, but emphasized that this termination was a "non-punitive" release from employment and not a disciplinary discharge. When Mr. Christensen expressed the view that the Company was acting within its rights under the collective agreement, the complainant, who was becoming increasingly upset by what he perceived to be a failure on the part of Messrs. Christensen and Karpow to attempt to represent his interests and preserve his em­ployment with the Company, criticized them for failing to "fight" for him and told them to

"get the hell out". He also accused them of being prejudiced against him because he was Yugoslavian, and stated that he was going to get a lawyer to represent him.

12. The Workers' Compensation Board subsequently awarded the complainant a lump sum award and a monthly payment for his 15% disability. He was also awarded a temporary supplementary payment to assist him during a six month period of rehabilitation commencing on January 24, 1984.

13. No grievance was filed by the Association on behalf of the complainant concerning his discharge. Mr. Christensen testified that the Association never refuses to file a grievance when requested to do so in a timely fashion by a member of the bargaining unit, even when the Association's representatives feel that it is a weak grievance (although such grievances may later be "cut off" before arbitration). His explanation for not grieving the complainant's dis­charge was that the complainant did not ask him to do so at any time prior to the expiry of the applicable time limit set forth in the collective agreement. When Ralph Potwarka (the law­yer initially retained by the complainant concerning his discharge) telephoned Mr. Christensen near the end of August to ask if a grievance had been filed on behalf of the complainant, Mr. Christensen replied that no grievance had been filed because there had been no request. When Mr. Potwarka said, "How about now?", Mr. Christensen replied, "We still don't have a re­quest", and went on to note that there was a time limit which had expired. Mr. Potwarka then requested a copy of the collective agreement and Mr. Christensen arranged for it to be mailed to him by Charles Losier, the Vice-President of the Association.

14. There are a number of circumstances present in this case which cause the Board concern in the context of section 68 of the Act. Mr. Blake and Mr. Christensen both testified that they reviewed all of the Company's light duty jobs before concluding that no such po­sition was available on August 12, 1983. However, under cross-examination by counsel for the complainant, they contradicted one another concerning why the light duty clipboard ticking job which had been offered to the complainant two months earlier was no longer available. Mr. Blake testified that that job had been filled by another employee who was "off on com­pensation for a long time". It was also his evidence that the employee was still doing the job in question as of the date of hearing of this matter. However, he was unable to recall whether the job had been filled by that employee (or by anyone else) at any time during the period from June 14 to August 12, 1983. Mr. Christensen, on the other hand, testified that the job in question was filled for one day by another employee and then ceased to exist. The con­tradictory and generally satisfactory evidence adduced by the Association (through the testi­mony of Messrs. Blake and Christensen) concerning the availability of that position on August 12, 1983 stands in marked contrast to the detailed evidence adduced concerning the offer of that very position to the complainant on June 14, 1983. Since it was not suggested that the complainant, who was acting on the medical advice of his physician, had improperly declined to accept that position on June 14, 1983, it is difficult to understand why greater attention was not devoted to the availability of that position on August 12, 1983 after the complainant had completed his period of assessment and treatment at the W. C. B. Hospital and Rehabilitation Centre, following consultation with the specialist to whom he had been referred by his phy­sician. Moreover, while the Association may not be censurable for agreeing with the Com­pany's view that the limitations set forth in the August 10, 1983 letter from the W.C.B. Hospital and Rehabilitation Centre precluded the complainant from performing his regular job (#361), it can be justly criticized for acquiescing in the Company's action of peremptorily discharging the complainant without affording him any opportunity to supply the doctor's cer­tificate contemplated by Article 16.7 of the applicable collective agreement, which provides in part as follows:

[16.7] Absence Due to Accident of Illness

An employee with seniority absent due to accident or illness shall con­tinue to accumulate seniority and shall return to the position held prior to absence or to one of equal rating providing they possess the ability and physical fitness to qualify for that position.

The absent employees' [sic] reinstatement shall be conditional upon him supplying a doctor's certificate when requested by management before returning to work, certifying that he is physically able to do the work required.

Indeed, on the basis of the evidence as whole, while Mr. Christensen gave some consideration to the availability of light duty work on August 12, 1983 and to the complainant's physical ability to perform his regular job at that time, we conclude from our assessment of all the evidence that neither Mr. Christensen nor any other representative of the Association put their minds in any meaningful way to the vital issue of whether a (non-disciplinary) discharge of the complainant by the Company was justifiable under the circumstances.

15. Article 8.1 of the collective agreement precludes the Company from discharging any employee without notice except "for cause", and Article 8.3 expressly makes a wrongful discharge a grievable matter which (except in the case of a probationary employee) can ul­timately be referred to a board of arbitration (pursuant to Article 7.1). Even a rather cursory review of the applicable arbitral jurisprudence would have revealed to the Association's rep­resentatives that to justify the discharge of an employee with substantial seniority on the basis of innocent absenteeism, an employer must generally establish not only undue absenteeism in his past record, but also that the employee will probably not be able to provide reasonable regularity of attendance in the future. (See, for example, Brown and Beatty, Canadian Labour Arbitration (Agincourt: Canada Law Book Limited, 1977) at pages 302-308; Palmer, Collec­tive Agreement Arbitration in Canada (Toronto: Butterworths, 2nd Ed. 1983) at pages 409-414 and 420-425; Re Falconbridge Nickel Mines Ltd. and Subdury Mine, Mill and Smelter Workers Union, Local 598 (1978), 1978 CanLII 3405 (ON LA), 18 L.A.C. (2d) 293 (Brown); Re American Standard, Di­vision of Pottery & Allied Workers (1977), 1977 CanLII 2937 (ON LA), 14 L.A.C. (2d) 139 (Burkett); Re Norton Co. of Canada Ltd. and U.A. W Local 397 (1977), 1977 CanLII 2902 (ON LA), 14 L.A.C. (2d) 60 (Hinnnegan); Re National Auto Radiator Manufacturing Co. Ltd. and United Automobile Workers, Local 195 (1976), 1976 CanLII 2213 (ON LA), 11 L.A.C. (2d) 48 (Brandt); and Re Atlas Steels Co. and Canadian Steelworkers' Union, Atlas Division (1975), 1975 CanLII 2087 (ON LA), 8 L.A.C. (2d) 350 (Weatherill)). Association officials did not even request the Company to defer the complainant's discharge and permit him to at least temporarily maintain his status as a non-active employee awaiting the availability of (non seniority stream) light duty work or (seniority stream) regular work within his physical capabilities. Thus, they permitted the Company to terminate without challenge the employment of an employee with over nine years' seniority, despite the fact that the most recent evidence of his physical con­dition (as set forth in the aforementioned letter dated August 10, 1983) indicated that he was "fit for a full-time job allowing frequent position changes, with limited low level work, lim­ited bending and no lifting over 10 kgs." Although those restrictions precluded the com­plainant from performing some of the jobs in the plant, there were a number of other jobs that were within his capabilities and that might have become available to him as a result of job postings, discharges, resignations, deaths, creation of new positions, or other changes in the composition of the Company's workforce.

16. Although the complainant did not expressly request the Association to file a griev­ance on his behalf, it is apparent from the evidence as a whole that he was implicitly, if not explicitly, asking Messrs. Christensen and Karpow at the August 12th meeting to fight for him by taking all necessary steps to advocate his interests, attempt to obtain light duty work for him, and preserve his employment with the Company. The complainant's angry direction that Messrs. Christensen and Karpow "get to hell out" was precipitated by his frustration with the fact that instead of vigorously supporting his interests, the Association representatives readily agreed with the Company's position and acquiesced in the peremptory termination of his employment.

17. When he was subsequently contacted (within two weeks after the discharge) by the lawyer whom the complainant found it necessary to retain in an effort to regain his employ­ment with the Company, Mr. Christensen raised the time limit contained in the collective agreement as a potential barrier to filing a grievance at that point in time. He did not indicate to the lawyer at that time, or to the Board during his testimony in respect of this complaint, that he had given any consideration to such material issues as whether the applicable time limit was mandatory or merely directory, whether the Company would waive the time limit, or whether an arbitrator would extend the time for filing a grievance, pursuant to section 44(6) of the Labour Relations Act. Although a failure to consider such matters might be under­standable in the case of an inexperienced union official such as a novice steward, it is much less easily excused in the case of an experienced union official such as Mr. Christensen, who holds a full-time paid position as the President of the Association.

18. While some of the aforementioned matters, if considered in isolation, might be found to constitute mere errors in judgment, mistakes, or negligent acts or omissions falling beyond the scope of section 68, taken as a whole in the context of the discharge of an employee with over nine years' seniority, they lead the Board to conclude in the circumstances of this case that the perfunctory manner in which the Association handled the situation contravened section 68 of the Act, which proscribes a trade union, such as the Association, from acting in a man­ner that is arbitrary in the representation of a bargaining unit employee. While the Association had adequately represented the complainant's interests on previous occasions, its treatment of his August 12, 1983 termination of employment was in our view so summary and perfunctory. as to be unworthy of protection.

19. The remedy requested by counsel for the complainant is reinstatement of his client with compensation for all losses to date. However, we do not find such remedy to be ap­propriate. Whether the complainant is entitled to any such relief is a matter to be determined by a board of arbitration constituted in accordance with Article 7 of the collective agreement, or a single arbitrator appointed under section 45 of the Labour Relations Act. The remedy which we find to be appropriate in the circumstances of this case is to direct the Association to file a discharge grievance on behalf of the complainant and to process it through the griev­ance procedure. If that grievance is not settled at any stage of the grievance procedure to the satisfaction of all parties to this complaint, then it shall be referred to arbitration by the As­sociation. The Association (and the complainant) shall be represented at the arbitration hearing by a lawyer or other representative mutually satisfactory to the complainant and the Asso­ciation, at the Association's expense. The respondent Company will be directed to waive any preliminary objections to a hearing on the merits in order to ensure that issues such as ti­meliness do not preclude such hearing. In the event that a settlement by the parties or an arbitration award provides for compensation to be paid by the complainant, the Board will remain seized of this complaint for the purpose of entertaining the representations of the par­ties with respect to the amount of such compensation which is to be borne by the Association. We will also direct that the Association post a Board notice on the plant bulletin board pro­vided by the Company (pursuant to Article 25 of the collective agreement) for the display of Association notices and material. This notice will serve to inform other bargaining unit em­ployees of the disposition of this case and provide them with an element of assurance that the Association will not in the future contravene section 68 in the representation of any bargaining unit employee.

20. For the foregoing reasons, the Board, pursuant to section 89(5) of the Labour Re­lations Act, hereby orders, notwithstanding the provisions of the collective agreement binding upon the parties hereto:

(1) that the respondent Association forthwith file on behalf of the com­plainant a grievance protesting his August 12, 1983 discharge by the re­spondent Company, and duly process such grievance through the grievance procedure set forth in the collective agreement;

(2) if the grievance is not settled at any stage of the grievance procedure to the satisfaction of all parties to this complaint, that the respondent As­sociation refer the grievance to arbitration for a hearing on its merits, and that the respondent Company take all steps necessary to have the griev­ance arbitrated on its merits, and waive any preliminary objections to such hearing on the merits;

(3) that the respondent Association take all steps necessary to assure that it and the complainant are represented at the arbitration hearing by a law­yer or other representative mutually acceptable to the complainant and the respondent Association, at the Association's expense; and

(4) that the respondent Association post a copy of the attached notice marked "Appendix", duly signed by a representative of the respondent Association, on the plant bulletin board provided by the respondent Com­pany (pursuant to Article 25 of the collective agreement) for the display of Association notices and material; keep the notice posted for sixty con­secutive working days; and take reasonable steps to ensure that the notice is not altered, defaced, or covered by any other material.

21. In the event that a settlement by the parties or an arbitration award provides for compensation to be paid to the complainant, the Board will remain seized of this complaint for the purpose of entertaining the representations of the parties with respect to the amount of such compensation which is to be borne by the Association. The Board also remains seized of this complaint for the purpose of resolving any matter arising out of the interpretation or implementation of the above order.

DECISION OF BOARD MEMBER W.H. WIGHTMAN;

1. Notwithstanding it being an independent local union, The Schneider Employees As­sociation, provides its members the services of a full-time president and has succeeded in ne­gotiating special employment provisions and opportunities for members who become incapable of performing regular bargaining unit jobs. As reflected in the majority decision, on agreement of the parties, these particular jobs are not subject to bumping or other implications flowing from the seniority provisions of the agreement and, if not unique, are at the very least not commonly found in collective agreements.

2. With respect to the complainant, this union has given him effective representation both in the matter of his attendance record and, more particularly, in two instances (fighting and horseplay) wherein the union succeeded in getting the Company to agree to substantial modifications in penalties it had intended to impose.

3. For its part the Company has in place an operative and formalized program to deal with absenteeism. The effect of this program would, I feel, satisfy the classical arbitral con­cept that for disciplinary action to be acceptable it must have as its primary objective the sal­vaging of the employee concerned with termination of employment being the final result only if efforts to salvage prove futile.

4. Indeed, in co-operation and through negotiations with the Association, the Company has gone so far as to identify certain jobs which are less demanding in one respect or another and to which at least some employees who are temporarily or partially incapacitated may be assigned until they are capable of performing regular bargaining unit duties. The light duty assignment referred to in paragraph 14 of the majority award was one such "job". It was a non-productive make-work project having all the earmarks of government "job creation" schemes, the only difference being that in this case the Company was prepared to bear cost rather than the taxpayers. I accept Harold Blake's evidence that "the longer they are away, the harder it is to get them back", and based on this perception the Company is prepared to absorb some non-productive costs. I assume, however, there is some limitation on this largesse and that it would stop short of taking the Company into bankruptcy.

5. I further accept Mr. Blake's testimony when he tells us, with respect to the August 12, 1983 meeting: "We received a letter from W.C.B. (Exhibit #9). I set a time for Vic to come in with the President and Chief Steward to make sure I wasn't missing a place in the plant where he could perform given the WC.B. limitations" (my emphasis). And later; "We discussed the W.C.B. letter and decided there was no job which met those conditions". The prospect of bumping was also alluded to as having been discussed at this meeting but, in light of the medical evidence before the parties, it is clear the complainant would not have been able to perform a regular assignment even if the collective agreement had permitted him to bump someone.

6. It seems to me the very essence of the August 12th meeting, although initiated by a Company official, was an exercise wherein both the Company and the Association turned their minds to an exhaustive canvassing of the alternatives only to arrive at the conclusion that indeed there was no "place in the plant where he could perform" that was open to him. I therefore cannot agree with the conclusion arrived at by the majority at the end of paragraph 14.

7. As to conflicts in the evidence this Board, as does any tribunal, is frequently obliged to assess the variances of recollection as between witnesses and does so without having to conclude that one or another party is lying. The complainant in this matter does not help his own credibility by testifying to having asked Blake for his "regular job" at the August meet­ing despite the W.C.B. letter as to his condition and upon learning that no light duty jobs were available.

8. As a Board, I believe we are in agreement that the duty of fair representation, while it does not require the union to win at arbitration or even to proceed to arbitration if it can be demonstrated a reasonable assessment of the merits of the case was made, does require the union to make such an assessment no matter how lacking in merit the complaint would appear on its surface. I view the August meeting, involving both Company and Association officials, as being a full and considered assessment by both the Association and the Company. At the conclusion, when the complainant told the Association to go to hell, his instructions were accepted figuratively and, to my mind, with good reasons.

9. I would not, perhaps, feel as strongly about this case were it not standing against the background of a comprehensive and, to say the least, compassionate program to deal po­sitively with the problem of absenteeism, and more particularly the numerous occasions upon which the Association has effectively intervened on behalf of the complainant including, in my view, on the event giving rise to this complaint. I fear the effect of this decision could lead the parties to the collective agreement to consider retreating to a safer but less com­passionate approach to dealing with partially incapacitated employees.

10. For the above reasons I would have dismissed the complaint.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE, THE SCHNEIDER EMPLOYEES ASSOCIATION, HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE AND THE COMPANY PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LAROUR RFIATIDNS ACT AND HAS ORDERED US TO INFORM ALL EMPLOYEES IN THE BARGAINING UNIT OF THE FOLLOWING INFORMATION.

THE ACT GIVES INDIVIDUAL EMPLOYEES THESE RIGHTS:

To BE REPRESENTED BY A TRADE UNION AND TO PARTICIPATE IN ITS LAWFUL ACTIVITIES.

To BE REPRESENTED BY A TRADE UNION IN A WAY THAT IS NOT ARBITRARY, DISCRIMINATORY OR IN BAD FAITH. WHETHER OR NOT THEY ARE MEMBERS OF THAT TRADE UNION,

WE ASSURE ALL EMPLOYEES REPRESENTED BY THE SCHNEIDER EMPLOYEES ASSOCIATION THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS;

WE WILL NOT ENGAGE IN ANY CONDUCT THAT IS ARBITRARY, DISCRIMINATORY OR IN BAD FAITH IN THE REPRESENTATION OF ANY

BARGAINING UNIT EMPLOYEE.

WE WILL COMPLY WITH ALL ORDERS OF THE ONTARIO LABOUR RELATIONS BOARD.

WE WILL FORTHWITH FILE ON BEHALF OF VUKOTA VUJICIC A GRIEVANCE PROTESTING HIS AUGUST 12, 1983 DISCHARGE BY THE COMPANY, AND DULY PROCESS SUCH GRIEVANCE THROUGH THE GRIEVANCE PROCEDURE, IF THE GRIEVANCE IS NOT SETTLED AT ANY STAGE OF THE GRIEVANCE PROCEDURE TO THE SATISFACTION OF ALL PARTIES, WE WILL REFER THE GRIEVANCE TO ARBITRATION FOR A HEARING ON ITS MERITS. WE WILL TAKE ALL STEPS NECESSARY TO ASSURE THAT THE ASSOCIATION AND MR. VUJICIC ARE REPRESENTED AT THE ARBITRATION HEARING BY A LAWYER OR OTHER REPRESENTATIVE MUTUALLY ACCEPTABLE TO THE ASSOCIATION AND MR VUJICIC, AT THE ASSOCIATION'S EXPENSE.

WE WILL PAY TO MR. VUJICIC SUCH COMPENSATION AS MAY BE ORDERED BY THE ONTARIO LABOUR RELATIONS BOARD,

THE SCHNEIDER ENPLOYEES ASSOCIATION

PER: __________________________________

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.

DATED this 14TH day of MARCH . 1984