Endel Vesik v. Consolidated Fastfrate Limited, McNeil McGrath Transport Inc. and Teamsters Union Local 938, 1984 CanLII 986

[1984] OLRB Rep. May 691

1413-83-U Endel Vesik, Complainant, v. Consolidated Fastfrate Limited, McNeil McGrath Transport Inc. and Teamsters Union Local 938, Respondents

BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members J. Wilson and W. F. Rutherford.

APPEARANCES: M. Gottiheil, R. Kuszelewski and E. Vesik for the complainant; P J. Thorup, B. Singleton, M. Freeman and M. Gordon-Whiting for the respondent companies; Douglas J. Wray and Val Neal for the respondent union.

DECISION OF THE BOARD; May 31, 1984

1. This is a complaint pursuant to section 89 of the Labour Relations Act wherein the complainant alleges breaches of sections 66(b) and 68 of the Act. Sections 66(b) and 68 provide as follows:

66. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act.

68. 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.

It was agreed at the outset of the hearing into this complaint that McNeil McGrath Transport Inc. be added as a respondent. While the respondents admitted to some uncertainty as to the jurisdiction under which their labour relations fall, all agreed that they would not object to this Board's jurisdiction to hear this complaint. This position was specified to be without prejudice to any future matters which may arise.

THE FACTS

2. The complainant had been employed as a dockhand on a part-time basis by Consolidated Fastfrate Limited and/or McNeil McGrath Transport Inc. (both of which will be referred to herein as "McNeil McGrath") between November 1980 and June 10, 1983. On average he worked 8 hours per week. From week to week the variation of hours could be between 2 and 15 hours and it was not unusual for several weeks to pass without him being required to work at all. The complainant generally was notified that he was required for work on the same day as the work was to be performed. This was usually a Friday evening between 5 and 7 p.m. Although he was not required to do so, he would call McNeil McGrath in advance of Friday if he knew he would not be available to work. Between November 1980 and January 1982, the complainant held a full-time position as a laboratory technician with Inglis Ltd. His part-time work supplemented his income. Between January 1982 and January 1983 the complainant attended a community college on a full-time basis and his work with McNeil McGrath helped him to survive through this period. After completing his community college course, the complainant took full-time employment as a service technician at Nelma Data Corp. but nevertheless continued to work part-time with McNeil McGrath. It is undisputed that during the whole of his employment with McNeil McGrath he never sought to work there on any other basis than part-time. It is also undisputed that the complainant in the spring of 1981 sought and obtained from a steward (Bob Campbell) of Local 938 at McNeil McGrath a copy of the collective agreement which preceded the current collective agreement (October 1, 1982 — September 30, 1985) between the respondents. As a result of reading the collective agreement and the advice of Mr. Campbell, the complainant believed that as a part-time employee, he was not ~~covered by the collective agreement". There is some difference in the complainant's testimony describing his perception of his connection with Local 938. On the one hand he testified that he thought he was a union member as a result of the deduction from his paycheque of an amount equivalent to union dues. However, when cross-examined about why he had not grieved he indicated that he could not grieve because he had been led to believe that he "was not in the union". The complainant acknowledged that throughout his employment at Inglis he had been represented by the United Steelworkers of America and that he had acted as a steward for 7 months. He acknowledged that he had paid no initiation fee to the Teamsters nor had he received a union card, but he believed that he had signed an authorization card to allow the amounts equivalent to union dues to be deducted from his paycheque and remitted to the Teamsters. In view of this, we conclude it is more likely that the complainant recognized he was not a member of the Teamsters and accepted the deduction of money from his paycheque as the price he had to pay to enjoy part-time work. During his employment as a part-time employee, the current collective agreement was negotiated. He took no part in trying to seek changes to the collective agreement affecting part-timers and did not try to attend union meetings in this regard.

3. June 10, 1983 was the complainant's last day worked. After that he received no more calls from McNeil McGrath. On July 15th he called Ron McCracken, an employee of McNeil McGrath responsible for calling in part-time employees, and inquired about his situation. The complainant was advised that he was no longer on the part-time employee list and that he would have to call Mike Elimente, an employee of McNeil McGrath who had taken over Mr. McCracken's responsibilities in connection with part-time employees. The complainant spoke with Mr. Elimente the same day and was told that he had received orders to hire all new part-time employees. Mr. Vesik testified that Mr. Elimente said the reason for this was that part-timers got too comfortable after they had been on the list for a while. Mr. Elimente invited Mr. Vesik to visit the dock area and see for himself that the part-timers were all newly hired. When Mr. Vesik visited the dock area, he tried to find Greg Currie, the steward of that area, but since Mr. Currie was not present, spoke instead with Mr. Campbell, by this time a former steward. Mr. Campbell advised Mr. Vesik that the union could not do anything for him because he was not a union member, even though he had paid union dues. About a week later, Mr. Vesik spoke with Mr. Currie about his situation. Mr. Currie promised to talk to Mr. Elimente. Mr. Currie reported back to Mr. Vesik that the union could not do anything for him and Mr. Elimente claimed that the reason for Mr. Vesik being taken off the part-time list was because he had taken a 45-minute lunch break. Mr. Currie suggested he speak with Gerry Massicotte, who Mr. Currie explained had been a complainant in a similar case to that of Mr. Vesik's and who had ultimately "lost". He also recommended he call Ray Kuszelewski at the York University Legal Aid Clinic. Finally, Mr. Currie gave Mr. Vesik the name of Val Neal, the business agent for Local 938. Mr. Vesik contacted all of these people. He testified that he spoke by telephone to Mr. Neal on August 18th. Mr. Neal, after being advised by the complainant of the details of his situation, told Mr. Vesik that he had no right to file a grievance because he was not covered by the collective agreement. Mr. Vesik further testified that Mr. Neal said that the purpose for the paying of amounts equivalent to union dues was to be given the right to work as a part-time employee and such payment did not give part-time employees any of the benefits or conditions of employment in the collective agreement. Notwithstanding this, he said he would contact McNeil McGrath to see what he could do. About an hour after this conversation with Mr. Neal, Mr. Vesik received a telephone call from a Mike Freeman, Vice-President of Operations for McNeil McGrath, who told him that he had been taken off the part-time list because he had a full-time job and others did not, because McNeil McGrath was trying out part-time employees who had previous related experience with the intention of making them full-time, and because students were being employed to save money through federal grants received on account of their employment. Mr. Vesik did not call or receive a call from either Mr. Neal or Mr. Freeman again. His next step was to file the instant complaint.

4. Both Mr. Currie and Mr. Neal testified and substantially corroborated what Mr. Vesik had said in his evidence. A few additional details bear mentioning. Mr. Neal, who has been responsible for McNeil McGrath's bargaining unit since approximately 1969/70 and who has been business representative for Local 938 since 1967, testified that Article 28 (entitled "Part Time Help") of the collective agreement has been largely unchanged during the time Mr. Vesik has been employed with McNeil McGrath. He testified that part-time employees played no part in the negotiations of a collective agreement, either at the proposal stage or ratification stage. The only "benefits" part-time employees received under the collective agreement was vis-a-vis wages, which were established at lC to SC less than the full-time rates. The purpose of Article 28 was to ensure that McNeil McGrath did not use part-time employees "at the expense of full-time employees" and that part-time employees were only used as a supplementary labour source. Dues were deducted from part-time employees because this was a condition of employment with McNeil McGrath. Other Articles in the collective agreement dealing with Students (Article 27), Casual Help (Article 29), Hired City Equipment (Article 30) and Brokers (Article 31) were also negotiated to protect the full-time employees and to avoid the erosion of their unit i.e., so that the unit did not end up consisting of primarily part-time employees, brokers and casuals. All of these types of employees are required to pay for the "support" of Local 938 through a checkoff of amounts equivalent to monthly dues. Mr. Neal's recollection of his conversation with Mr. Vesik is that he advised Mr. Vesik that if he was fired because he had become complacent, he thought this was "bullshit" and he would check it out for him. While he acknowledged he probably told him he had no right to grieve, he also claimed he told Mr. Vesik that if he were terminated for unjust cause, "he'd have something" otherwise he didn't. Under cross-examination he said he meant that if a part-time employee had been unjustly treated, he would try to help, but such help would be extended outside the provisions of the collective agreement. Under cross-examination Mr. Neal was unclear about the precise position of part-time employees vis-a-vis Local 938. He was asked whether it was fair to say that part-time employees were not 'represented" by Local 938. His answer was that they were not covered by the collective agreement. When asked point blank whether Local 938 "represented" part-time employees, he answered that he guessed they were not in terms of what (counsel for the complainant) was saying". He acknowledged that part-time employees are not allowed to be union members and that there are never any meetings held for part-timers concerning the negotiation of the collective agreements. Mr. Neal testified that part-time employees have no rights or obligations in connection with Local 938 and, except for clauses in the collective agreement specifying when they work, for how long and at what rate of pay, Local 938 does not negotiate their terms and conditions of employment.

5. There was no evidence led indicating that Local 938 has been certified as bargaining agent. The relevant portions of the collective agreement before us are as follows:

ARTICLE 1

PREAMBLE AND RECOGNITION

Section 1. 1 — Union Recognition

The Company does hereby recognize the Union as the exclusive bargaining agent for certain employees employed by the Company at all Company terminals within the jurisdiction of Locals 91 and 938.

Section 1.2 — Scope of Bargaining Unit

The term "employee" shall mean all employees save and except foremen, those above the rank of foreman, office staff, sales staff, security guards and office janitors.

Section 1.4 — Intent and Purpose

The intent and purpose of this Agreement shall be to promote and improve industrial and economic relations in the Industry, to establish and maintain discipline and efficiency and to set forth herein the basic Agreement covering rates of pay, hours of work and conditions of employment which will render justice to all. The parties hereto desire to co-operate in establishing and maintaining proper and suitable conditions in the Industry, to provide methods of fair and peaceful adjustments of all disputes which may arise between them and to foster good will and friendly relations and better understanding between the parties.

ARTICLE 2

Section 2. 1 — Maintenance of Membership

It is agreed that all Union members shall maintain their Union membership in good standing for the duration of this Agreement as a condition of employment.

Section 2.2 — Union Dues Authorization

All employees hired prior to the date of the signing of this Agreement must, as a condition of their continued employment, authorize the Company to deduct from their pay on the pay day the Local Union's dues deductions are made, an amount equal to the Local Union's monthly dues for the duration of the Agreement as their financial contribution to the Local Union.

Section 2.3 — Initiation Fee Deductions

All employees hired shall, as a condition of continued employment, authorize the Company to deduct the amount equal to the Local Union's Initiation Fees in instalments of twenty-five dollars ($25.00) per week after the completion of the probationary period. This deduction shall continue until the Initiation Fee is paid in full. The Company agrees to remit such monies so deducted to the head office of the Local Union along with a list of the employees from whom the money was deducted at the same time as the Union dues are remitted.

Section 2.4 (a) — Deduction of Union Dues

The Company agrees for the duration of this Agreement to deduct from the last pay cheque each month the monthly dues of any employee covered by this Agreement and to remit such monies so deducted to the head office of the Local Union along with a list of the employees from whom the monies were deducted not later than the tenth (10th) day of the month following the date upon which such monies were deducted. The checkoff list will include social insurance numbers and names designated by terminals within the jurisdiction of each Local Union. In the case of an employee on Workmen's Compensation, the checkoff shall indicate that such employee is on

Section 2.4 (e) — Scope of Union Dues Deductions

The deduction of Union dues shall be made from every employee including, but not limited to, probationary employees. In the event that a probationary employee fails to complete his probationary period, Union dues will be deducted from his final pay cheque.

ARTICLE 3

MANAGEMENT FUNCTIONS

Section 3. 1 — Management Functions

The Union recognizes that the Company has the right of manage [sic] the business, to exercise all the prerogatives of management, and without affecting the generality of the foregoing, it has the right to determine the size of and direct the work force, to extend or curtail operations, and to hire and promote, except to the extent that the said rights and prerogatives have been specifically delegated to the Union or otherwise curtailed in this Agreement. The Company also has the right to discharge, suspend or otherwise discipline employees for just cause.

Section 3.2 — Rights of Employees

The above clause shall not deprive the employee of the right to exercise

the Grievance Procedure as outlined in this Agreement.

ARTICLE 6

GRIEVANCE PROCEDURE AND ARBITRATION

Section 6. 1 — What Constitutes a Grievance

A grievance shall consist of a dispute concerning interpretation and application of any clause in this Agreement, alleged violation of the Agreement and alleged abuses of discretion by supervision in the treatment of employees contrary to the terms of the Agreement. If any question arises as to whether a particular dispute is or is not a grievance within the meaning of these provisions, the question may be taken up through the Grievance Procedure and determined, if necessary, by arbitration.

Section 6.7 — Powers of Board of Arbitration

The Board of Arbitration shall not have the right to alter or change any provisions in this Agreement, or substitute any new provisions in this Agreement, or substitute any new provisions in lieu thereof or to give any decision inconsistent with the terms and provisions of this Agreement. The Board, however, shall have the power to vary or set aside any penalty or discipline imposed relating to the grievance then before the Board.

ARTICLE 8

Section 8.4 — Probationary Period

Employees shall be considered probationary until placed on the seniority list. Once an employee has exceeded eight (8) hours in any one work week, such employee shall work under the provisions of this Agreement and shall be employed on a probationary basis for thirty (30) calendar days during which period he may be terminated or disciplined without recourse to the Grievance Procedure. The company may not terminate such employee for the purpose of forcing an additional probationary period. Upon completion of the thirtieth (30th) calendar day, the employee shall either be terminated or placed on the regular seniority list as of the date of commencement of his probationary period.

ARTICLE 28

PART-TIME HELP

Section 28. 1 — Definition

Part-time help shall be defined as persons who are employed by the Company to supplement the normal work force and they shall perform such work on terminal premises only.

The Company agrees that where it is necessary to use part-time help the following conditions shall apply:

Section 28. 1 (a) — Deduction of Dues

The Company shall deduct from all part-time help from their first pay and each month thereafter an amount equal to the Union dues and such monies shall be forwarded to the Local Union as outlined in Article 2 together with a list which shall show the names of persons for which the dues are remitted and the number of hours worked by such persons on an individual basis and the company shall indicate on the checkoff form that such employee is a part-time employee.

Section 28. 1 (b) — Conditions

Where the hours worked by part-time help exceed four (4) hours in any one (1) day or eight (8) hours in any one (1) week, the Company will, upon receipt of a grievance(s), pay to the senior employee(s) who files such grievance(s), who would have been available to perform such work, an amount equal to the time worked by the part-time employees in excess of the daily or weekly limitation.

Where the hours of work of a part-time person exceed eight (8) hours in any one (1) week, such person shall be considered a probationary employee and the conditions of this Agreement shall then apply.

The Company agrees not to use back to back shifts of part-time personnel in place of regular employees and nothing in this Article will be used to defeat the hiring of regular employees providing such are available.

Section 28.1(c) (1) — Laid Off Regular Employees

Laid off regular employees shall be given the first opportunity for part-time work and they will be entitled to the daily call-in guarantee. Section 28. 1 (c) (2)

Prior to part-time help being used, all regular employees will be given the opportunity to do such work. This work may involve returning to work later on that given day and these employees will be notified prior to the end of their shift.

Section 28. 1 (d) — Regulation of New or

Additional Part-time Employees

The Company agrees that where new or additional part-time help is required, the Company will contact the Local Union. In the event the Local Union is unable to supply qualified persons, the Company shall obtain such help from any available source.

Section 28. 1 (e) — Rates of Pay

Part-time help exclusive of laid off regular employees shall receive the same minimum scale as regular employees but are not otherwise covered by the terms of this Agreement.

Section 28. 1 (0 — Preference of Regular

Employees

Part-time help shall not be used on a shift or starting time to deprive regular employees of their normal hours of work.

Section 28. 1 (g) — Part-time Employees Not to

Deprive Hiring of Regular Employees

Where the Local Union establishes that part-time help is being used where a regular employee could be gainfully employed, the Company shall replace part-time people with one or more regular probationary employees.

Section 28. 1 (h) — Disputes Procedure

Where the Local Union feels that there is a violation of the intent in the application of the above clauses, the Company will meet to discuss the problem with the Local Union. If no amicable solution can be reached, the grievance shall be submitted to Arbitration as outlined in Article 6.

Section 28. 1 (i) — Time Cards and Hours Worked

Each part-time employee shall be required to punch a time card. Shop Stewards to be supplied, once a week, with a list of part-time employees and the number of hours worked by such persons on an individual basis.

Section 28. 1

The Company shall supply the Local Union(s) with a list of all part-time employees on a monthly basis.

Section 28.1 k

The Company agrees that no part-time help will start prior to 5:00 p.m. on any day.

SUBMISSIONS

6. The complainant argues that Articles 1 and 2 relate to "part-time" employees (employees who work less than 8 hours in a week) as well as full-time employees. Section 2.3 is exceptional in that only those who complete the probationary period are allowed to pay initiation fees. Article 8 (section 8.4) and Article 28 (section 28.1(b)) provide that a probationary period is applicable only to those employees who work in excess of 8 hours in any one week. Therefore, part-time employees cannot pay initiation fees pursuant to section 2.3. Article 3, which catalogues the prerogatives of management to which the union accedes, specifies that the company has the right to discharge, suspend or otherwise discipline "employees" for just cause. The complainant points out that there is no qualification on the word "employees" in this Article. Section 3.2 gives the individual employee the right to grieve and the complainant was wrongfully deprived of this right. The complainant argues that it is a 'principle of collective bargaining" that where a union is the exclusive representative of those in a bargaining unit, it must represent all members of that unit. If section 28.1(e) withdraws from part-time employees particular benefits negotiated for full-time employees, then to this extent there has been an "illegal withdrawal" of the duty to represent all. While conceding that a bargaining agent can legally negotiate different benefits and conditions of employment for some employees in the bargaining unit, this becomes illegal when there is a "withdrawal of the representation duty". The complainant argues that there has been a withdrawal of such duty on the facts of this case because:

(1) the "language of the collective agreement put part-time employees outside representation" (the complainant relies on Mr. Neal's evidence as confirmation of this);

(2) the union should have written a grievance for Mr. Vesik because he himself could not write one claiming that he was unjustly discharged; and

(3) the union negotiated provisions for hours of work, rates of pay, and type of work for part-time employees without consultation with part-time employees affected.

The complainant argues further that the scheme of the Labour Relations Act and collective bargaining did not intend that the part-time employees "carve out their own rules for behaviour" by the company in their connection and vice versa, which rules are outside the collective agreement.

7. The complainant submitted that McNeil McGrath was added as a respondent and should be found in breach of section 66(b) of the Act because it "participated in limiting the rights of an employee under the Act". The particular right limited was the right to participate in union activities, i.e., using the grievance procedure and becoming a member of a union. The company and union in negotiating this particular collective agreement limited such right. The complainant further argues that by not changing the scope clause of the collective agreement to eliminate part-time employees, both the company and union violated section 66(b) of the Act.

8. The complainant's counsel cited the following authorities: Chapter 5 (paragraph 11:22) and chapter 9 (para. 13:00) of Brown & Beatty's Canadian Labour Arbitration and decisions footnoted in each such paragraph; Fisher v. Pemberton et al. (1969) 1969 CanLII 726 (BC SC), 8 D.L.R. (3d) 521; Prinesdomu and CUPE 1000 et al.; [19751 OLRB Rep. May 444; Ontario Hydro v. Ontario Hydro Employees' Union Local 1000, 83 CLLC ¶14,042 (Ont. C.A.); Retail Clerks Union Local 409 v. Northwest Merchants et al., 83 CLLC ¶16,055 (O.L.R.B.); London Association of Painting and Decorating Journeymen and Gaymer & Oultram, (London), 54 CLLC ¶17,073 (O.L.R.B.); CSAO National (Inc.) v. Oakville Trafalgar Memorial Hospital Association et al., 72 CLLC ¶14,118 (Ont. C.A.); Wallace Corporation (1944), 323 U.S. 248 (NLRB); Syndicat Catholique des Employes De Magasins de Quebec, Inc. v. Compagne Paquet Ltee., (1959) 1959 CanLII 51 (SCC), 18 D.L.R. (2d) 346 (S.C.C.); and Rayonier Canada (B.C. Ltd.) (1975), 2 Can. LRBR 196 (B.C.L.R.B.). Paragraph 11:22 in ChapterS of Brown & Beatty was cited to establish that the term "employee" must be defined to include all employees unless there is a specific exclusion. Paragraph 13:00 in Chapter 9 of Brown & Beatty, together with Fisher v. Pemberton, supra, and Prinesdomu, supra, were cited in support of the proposition that any member of the bargaining unit can use the grievance procedure in a collective agreement. Ontario Hydro, supra, was cited as an example of where the Act was used to entitle a probationary employee to use the grievance procedure in the collective agreement. Northwest Merchants, sup ra, was cited to support the proposition that the scope clause of any collective agreement is "negotiable" and that if a scope clause includes a certain group of employees who have amounts equivalent to union dues checked off, it makes sense that these employees have the right to be represented by the trade union pursuant to section 68. CSAO (National) Inc. was cited to support the proposition that a union must represent all members of the bargaining unit. The remaining cases show that Canadian law is based on the twin concepts of majoritarianism and exclusivity of representation: "One Voice for All Employees". Given that Mr. Vesik was "disenfranchised", based upon the respondents' interpretation of the collective agreement, the complainant sought the following remedies:

(1) an order reinstating him to part-time employment;

(2) a declaration that the grievance procedure is available to part-time employees under the collective agreement;

(3) an order that McNeil McGrath inform all its employees that the grievance procedure is available to part-time employees;

(4) an order directing Local 938 to inform each and every part-time employee in its jurisdiction that the Local will in future fairly represent them through the grievance procedure.

9. The respondent, Local 938, submitted a 5-part argument as follows:

(1) the complainant lacks status to complain under section 68 because he has never been in the bargaining unit and, therefore, Local 938 has never owed him a duty under section 68;

(2) in the alternative, there has been no violation of section 68 proved regarding the treatment of Mr. Vesik;

(3) the complaint, in any event, ought not to be entertained in view of Mr. Vesik's delay in raising his complaints about the negotiation of terms of the collective agreement relating to him as a part-time employee;

(4) there has been no violation of section 68 in regard to the terms negotiated in the collective agreement; and

(5) even if there has been a violation of section 68 (which Local 938 does not admit), the only remedies available to the complainant are:

(i) referral to arbitration, or

(ii) referral to Local 938 for reconsideration; and

neither are appropriate. The referral to arbitration was not primarily requested by the complainant because of an arbitration decision, Re Humes Transport Ltd. and Teamsters Union, Local 938, 1981 CanLII 4514 (ON LA), 1 L.A.C (3d) 385 which was the result of a Canada Labour Relations Board decision (Gerald M. Mass icotte and Teamsters Union Local 938 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al., (1980) 1 Can. LRBR 427 (C.L.R.B.), appl. for jud. rev. dism'd 1980 CanLII 4324 (FCA), 34 N.R. 611 (F.C.A.), appeal to S.C.C. rejected 1982 CanLII 18 (SCC), 44 N.R. 340) relating to the same collective agreement as is before this Board. The arbitration board found that Mr. Massicotte, as a part-time employee, had no substantive right to be discharged only for just cause and therefore found itself to be without jurisdiction to deal with the grievance lodged.

10. Local 938 argues that Mr. Vesik is, in fact and in law, not an employee in the bargaining unit which it represents in collective bargaining. While the Canada Labour Relations Board and the arbitration board in the Massicotte case held that Mr. Massicotte was an employee in the bargaining unit, these decisions are wrong. In support of this argument Local 938 points out that section 1. 1 of Article 1 recognizes the union as the exclusive bargaining agent for ~certain employees" and there is therefore a limit on the union's representation rights and obligations. These limitations are found by reading the rest of the collective agreement as a whole. While section 1.2 may appear to include part-time employees in the bargaining unit, this is not true when reference is made to section 1. 1 and other Articles of the collective agreement, namely, sections 2.3, 2.4(a), 3.1, 3.2, 6.1, 6.7 and 8.4. All of these sections contain words of limitation indicating that not all employees are covered by the collective agreement. It is of particular note in this regard that section 8.4 provides that only those that work more than 8 hours per week accumulate seniority and work under the provisions of the collective agreement. Articles 8 through 27 apply only to employees 'under the collective agreement" — none are applicable to part-time employees. Articles 27, 28, 29, 30 and 31 restrict the employment of certain types of employees in order to protect the full-time bargaining unit. In each Article there is specific provision that no other part of the collective agreement applies to these particular groups of employees (pertinent to this case section 28.1(e) specifies this). A close examination of Article 28 itself reveals that the parties never intended that part-time employees would be part of the bargaining unit. Virtually every section of this Article is aimed at protecting the hours and wages of the bargaining unit made up of full-time employees. Three sections of Article 28 support the argument that neither Mr. Vesik nor any other part-time employee was intended to be encompassed within the bargaining unit represented by Local 938. Firstly, section 28.1(a) provides that the company must deduct from the pay of all part-time help an amount "equal to union dues". If part-time help are covered by all of the other provisions of the collective agreement, then this section is redundant because Article 2 (section 2.4(a)) requires the equivalent of union dues to be deducted from the pay of employees "covered by this Agreement". Secondly, section 28.1(b) provides that if a part-time help works in excess of 8 hours in any one week, then that person becomes a probationary employee and "the conditions of this Agreement apply". If any of the conditions of the collective agreement already apply, as the complainant argues, this also is a redundant provision. Finally, section 28.1(e) specifies explicitly that the only provision in this Agreement which applies to part-time help is the provision regarding minimum pay to regular employees. Section 28.1(e) states clearly that aside from this provision, part-time help "are not otherwise covered by the terms of this Agreement". In interpreting section 28.1(e), two canons of contractual interpretation should be utilized, i.e., that a specific provision (section 28.1(e)) should be considered to override a general one (the scope clause) and that a provision appearing later (section 28.1(k)) should be considered as overriding the earlier (scope clause). Local 938 also argued that if the collective agreement is ambiguous as to the precise definition of the scope of the bargaining unit, the Board may properly have reference to the practice of the parties. In support of this latter proposition the respondent union cited Silverstein's Bakery, [1983] OLRB Rep. Dec. 2095; General Concrete of Canada Ltd., 1972 CanLII 2060 (ON LA), 1 L.A.C. (2d) 187, appl. for jud. rev, allowed 1978 CanLII 2178 (ON HCJDC), 22 O.R. (2d) 65 (Div. Ct.), leave to appeal granted, motion to quash appeal allowed September 18, 1979 since issue had been settled between the parties 1979 CanLII 4027 (ON HCJDC), 23 L.A.C. (2d) 144; Victoria Hospital, 1977 CanLII 2981 (ON LA), 17 L.A.C. (2d) 204; Canadian Red Cross Blood Transfusion Service, [1981] OLRB Rep. Feb. 137; International Union of Operating Engineers Local 793, [1981]

OLRB Rep. June 692.

11. In the alternative, the respondent union argues that no violation of section 68 has been established vis-a-vis Mr. Vesik's treatment by Local 938. Both Mr. Neal and Mr. Currie advised Mr. Vesik correctly that he had no substantive right which he could grieve. This was correct because section 28. 1(e) says this clearly — the provisions relating to the circumstances in which an employee in the bargaining unit could be discharged did not apply to Mr. Vesik. The correctness of this interpretation of section 28. 1(e) is underlined by the arbitration board's decision regarding Mr. Massicotte's discharge, supra. The argument of the complainant is illogical to the extent that there is only a partial selection as to which Articles are applicable to part-time help, particularly Mr. Vesik. The Ontario Hydro case, supra, which the complainant relies on, merely elaborates upon the distinction which must be drawn between substantive rights and procedural rights under a collective agreement. It established that in the case of probationary employees who have been granted substantive rights to discharge based on just cause, these rights could not be procedurally blocked by the collective agreement. Also, insofar as part-time and casual employees are concerned, there is a line of arbitral jurisprudence (unmentioned in the spate of probationary employee cases) which indicates it is legally possible to block these employees' access to the grievance procedure in cases of discharge, e.g., Bell Canada, 1977 CanLII 2947 (ON LA), 16 L.A.C. (2d) 236 wherein regular part-time employees covered by the collective agreement were found to have no right to grieve their discharge (the arbitration board specifically found that section 155 [comparable to section 44 of the Act] of the Canada Labour Code did not give employees the right to grieve); Re City of Toronto and C. U.P.E., 1978 CanLII 3471 (ON LA), 20 L.A.C. (2d) 191; Re Municipality of Metropolitan Thronto and Canadian Union of Public Employees, Local 43, (1980) 1980 CanLII 4032 (ON LA), 26 L.A.C. (2d) 320. In addition, there has been a Newfoundland Court of Appeal decision wherein the award of an arbitration board allowing a probationary employee the right to grieve based on section 155 of the Canada Labour Code was quashed (CALEA v. Eastern Provincial Airlines (1982) 1982 CanLII 2966 (NL CA), 140 D.L.R. (3d) 369, leave to appeal to S.C.C. refused). Therefore, even if Mr. Vesik is found to be part of the bargaining unit, Local 938 may lawfully restrict access to the grievance procedure for part-time help so that no grievance is permitted where no substantive rights regarding discharge have been provided in the collective agreement. Even if it be found that Mr. Neal's and Mr. Currie's advice regarding Mr. Vesik's right to grieve is incorrect, this does not ipso facto lead to the conclusion that section 68 has been violated because it has been shown that they put their minds in a rational way to the merits of his grievance. If this complaint amounts to an attack on the collective agreement and to an attempt to amend the collective agreement to allow part-time employees to grieve their discharge (both of which purposes Local 938 alleges are primarily behind this complaint), there has been such a substantial delay in raising these criticisms of the exercise of Local 938's duty of representation vis-a-vis negotiations that the Board ought to exercise its discretion pursuant to section 89(5) and refuse to consider the complaint simply on the basis of delay (cf. Sheller-Globe, [1982] OLRB Rep. Jan. 113, appl. for jud. rev. dism'd 1983 CanLII 1655 (ON HCJ), 42 OR. (2d) 73 (Div. Ct.)). Not only would the granting of the right to file a grievance not assist him, in view of the Massicotte arbitration board decision, supra, but there is substantial Board authority that a bargaining agent can make legitimate choices between or among parts of the bargaining unit it represents in negotiations (C. UPE. Local 43, [1982] OLRB Rep. Jan. 124; Royal Ontario Museum, [19801 OLRB Rep. Jan. 106). In this case the Board has no evidence of any unlawful choices being made to protect full-time employees against reduced hours or layoff by restricting the use of part-time help, students, casual employees, brokers, etc.

12. Finally, Local 938 submits that neither the remedy of referral to arbitration nor referral to Local 938 for reconsideration are appropriate. As mentioned in paragraph 9 above, the arbitration board dealing with the grievance of Mr. Massicotte properly found that he had no substantive right to be discharged only for just cause; therefore, this remedy is useless and has not been primarily or clearly requested by the complainant. If the grievance of Mr. Vesik is referred back to Local 938 for reconsideration (a remedy which the Canada Labour Board seems to be preferring, post-Massicotte in these circumstances [cf. Boreal Navigation Limitee, [1982] 2 Can. LRBR 241]), there must necessarily be a direction to amend the collective agreement so that the illegal provisions are changed. In this respect it is submitted that the Board does not have any jurisdiction to direct the parties to a collective agreement to amend it. Insofar as such directions strike out section 28.1(e), the Board also has no jurisdiction. Finally, the other remedies requested by the complainant amount to requests for the amendment of the collective agreement. No basis for them in this case has been established and the complainant was unable to cite any previous cases where such remedies have been granted.

13. Local 938 also submits in connection with the alleged violation of section 66(b) that the Act does not grant to an employee in the bargaining unit the right to participate in the grievance procedure regardless of what the collective agreement provides. To find this right where there is no clause in the collective agreement providing for this (especially where there is no prohibition against discharging part-time help) would be beyond the Board's jurisdiction. International Wallcoverings, [1983] OLRB Rep. Aug. 1316, stands for the proposition that there is noviolation of the Act for an employer to take the position that it will not allow grievances regarding striking employees' discharges where the acts complained of occur when no collective agreement is in effect. If this is possible, then negotiation of a collective agreement where discharges can occur without cause and no grievance regarding them is permitted should be seen as lawful.

14. The respondent employer supports all the arguments of Local 938 specifically amplifying on arguments responding to allegations by the complainant that section 66(b) of the Act was violated. The employer submitted that the language of section 66(b) is not amenable to being applied to a bilateral arrangement such as a collective agreement. The words used in this section suggest something other than a collective agreement when it specifies "contract of employment" and uses the word "impose". Section 66(b) seeks to restrain employers from interfering with trade union membership. The collective agreement does not interfere with this right. The phrase "or any other right under the Act" does not include any right to have a discharge arbitrated according to a "just cause" standard. This having been said, it must be asked what rights are being referred to by the complainant in his allegations regarding section

66(b). No right has been shown or identified by the complainant. Section 44, referred to in

the complaint, does not establish a right "no matter what" to have a discharge occur only for just cause.

DECISION

15. Section 68 of the Act imposes upon a trade union which is "entitled to represent employees in a bargaining unit" the duty to represent those employees in good faith, without discrimination and without arbitrariness. For this section to apply, the complainant must establish that he was an employee in a bargaining unit which the respondent is "entitled" to represent (see Canadian Red Cross Blood Transfusion Service, supra; James Mason, [1979] OLRB Rep. Feb. 116 and cases cited therein at paragraph 3). Under the Act, a trade union becomes entitled to represent employees in a bargaining unit either through certification pursuant to sections 7(3) or 8 or through voluntary recognition pursuant to section 16(3). The evidence before us does not indicate whether Local 938 originally became entitled to represent employees of McNeil McGrath by certification or recognition. For the purposes of determining representation rights in this case, it is irrelevant which way such status was initially achieved because it is well established that once a collective agreement is concluded, the collective agreement generally becomes the source and description of representation rights (see sections 5(4) and 57(2) of the Act and White Spot Limited, (1976) 1 Can. LRBR 241 (B.C.L.R.B.)). In this sense once a collective agreement is in place, a relationship commenced under the compulsion of a certificate of the Board is transformed into a voluntary recognition type of relationship.

16. The complainant asks us to conclude that Local 938 was "entitled" to represent the complainant and therefore owed him a duty under section 68. The respondents contend that Local 938 never had such entitlement and therefore owed him no duty. Reliance in support of both of these positions is placed on the collective agreement before us; but, over and above this, we are asked by the respondents to resolve any ambiguity we may detect in the collective agreement in their favour because both say they never intended that the complainant or, indeed, other part-time employees be a part of the group for whom Local 938 had representation rights. Where the parties to the collective agreement agree, as they do on the facts before us, that it was never their intention to grant recognition or be recognized for a certain group of employees, the Board must have compelling evidence to lead it to a conclusion contrary to this position. On the other hand, a complaint under section 68 cannot fail simply because the parties to the collective agreement, both of whom may be affected by any finding of violation under section 68 and remedy ordered as a result, present a united front to the Board and deny any intention that the complainant be "represented" by the union.

17. Preliminary to our consideration of the collective agreement before us, it is necessary to set out some elementary propositions regarding the nature and legal effect of recognition clauses in collective agreements. Normally, the parties in the initial Articles of the collective agreement set out a ' 'recognition clause'' which describes the group of employees in the bargaining unit for whom the union has representation rights. This clause serves two purposes:

(1) defining representation rights for applications pursuant to the Labour Relations Act (e.g., certification or termination) or, for future bargaining; and

(2) stating the employees who are covered by the provisions of the collective agreement.

Generally these two aspects are coincidental, i.e., those who the union is entitled to represent by reason of the recognition clause are usually also covered by the collective agreement (see Silverstein's Bakery Limited, supra, as an example). The converse proposition is not necessarily true, i.e., those covered in some of the provisions of the collective agreement are not necessarily those employees who the trade union is entitled to represent (see Canadian Red Cross Blood Thansfusion Service, supra; International Union of Operating Engineers, Local 793, [1981] OLRB Rep. June 692; Victoria Hospital Corporation and Service Workers Union, supra).

18. It is obvious that a recognition clause is a key and important element in the parties' bargaining relationship since it defines future relations and articulates to whom the collective agreement is applicable. The dimensions of the bargaining unit and, hence, recognition are, subject to the Labour Relations Act, essentially those of the parties' own making. It is clear that revisions to the certified or recognized unit must not be a bargaining issue which is pressed to impasse (see Northwest Merchants Ltd., supra, and cases cited therein at paragraph 29) and that such revisions do not violate section 68. While the importance of such clauses to the parties, to third parties who may make certification applications and the employees who may bring a termination application under section 57(2) makes it desirable that parties be clear as to their intention and have the language they use accurately reflect the realities of their relationship, these clauses sometimes fall short of this mark. In those circumstances the Board has recognized that the parties' intentions must be inferred from the entire document and where an ambiguity exists, from the conduct of the parties as well (see Canadian Red Cross Blood Transfusion Service, supra).

19. In the collective agreement before us, the recognition of Local 938 is physically separated from the definition of the scope of the bargaining unit. This separation is more illusory than real, however, because the "definition of the bargaining unit" as set out in Article 1, section 1.2 is really a definition of what the term "employee" means when used in the collective agreement. Reading sections 1. 1 and 1.2 together, as one must, the employer seems to be granting recognition to Local 938 for "all employees save and except foremen, those above the rank of foreman, office staff, sales staff, security guards and office janitors". The fact that section 1. 1 has the term "employee" modified by the adjective "certain" only indicates that the parties did not want to appear to be recognizing all "employees" (which term can have a wide application) when section 1.2 describes a bargaining unit which is a smaller segment of employees. We have concluded that "certain employees" mean those described by section 1.2, i.e., all those who are not foremen, or above the rank of foreman, office staff, sales staff, security guards, and office janitors.

20. Unless there is something else in the remaining portions of the collective agreement or in the practice of the parties to lead to the opposite conclusion, sections 1. 1 and 1 .2 give Local 938 entitlement to represent the complainant and others like him and, therefore, impose a duty on Local 938 under section 68. The respondent union argues that because Article 28, section 28.1(e) states that part-time employees are not covered by the collective agreement, this effects an amendment to the recognition clause. The complainant argues that section 28.1(e) does not and cannot amend the recognition clause without there being a breach of section 68. We cannot accept the complainant's argument which asks us to conclude simply from sections 1. 1 and 1.2 that Local 938 owes the complainant a duty under section 68 and that section 28.1(e) is an "illegal withdrawal" of this duty. This argument seeks to have us refuse to examine the collective agreement as a whole to determine representational rights and restrict our assessment to whatever is designated as the "Recognition Clause". This we are not prepared to do. Even having rejected this argument, we are left with the question of whether section 28.1(e) amends the obvious effect of sections 1.1 and 1.2 or at least creates an ambiguity which requires us to look at the practices of the parties. Section 28.1(e) does not, in our view, effect such an amendment. It is our conclusion, having regard to the whole of Article 28, that while the parties were primarily intending by such Article to agree that the full-time employees in the terminal would not suffer a diminution of work because of the employment of part-time employees the Article goes beyond mere protection to a form of representation.

21. The union, in order to achieve the protection of full-time jobs/income, must necessarily negotiate as a part of the collective agreement clauses setting out what form the protection must take. Only in this way can there be a right to enforce these clauses through arbitration. Article 28 establishes that part-time employees cannot work prior to 5p.m. on any day (section 28.1(k)), must be employed as a "supplement" to the normal work force (section 28.1(a)) and not to deprive regular employees of their normal hours of work (section 28.1(0). Laid-off regular employees and regular employees are to be used in preference to part-time employees (sections 28.l(c)(l), 28.l(c)(2), 28.1(g) and 28.1(0). It is obvious that all of these sections are solely directed at protecting the full-time bargaining unit. However, Local 938 did not stop there. It proceeded to demand and receive undertakings that part-time employees would receive the same minimum scale as a regular employee and that the part-time employees would have deducted from their pay the amount equivalent to union dues and such monies would be forwarded to the union on a "checkoff form". If the establishment of the wage rate for part-time employees had not been included in Article 28, would the full-time employees, present or future, have been any less protected? We must conclude that they would not have had less protection, because the other sections of Article 28 are clear that even if the company were able to pay part-time employees a bargain basement rate, their use would still be equally restricted vis-a-vis full-time employees. The requirement that minimum scale (for full time employees) be paid to part-time employees does not add to the protection of full-time employees. Similarly, the deduction of dues does not protect full-time employees. Why would Local 938 consider it should have them? The evidence indicates they were payment for the establishing of a fixed rate of remuneration which probably would be higher than any part-time employees could achieve in one-to-one bargaining. The deduction of union dues supports the union at least for the clout it had at the negotiating table. While we agree that most of Article 28 is devoted to protecting full-time employees, section 28. 1(a) and section 28.1(e) are instances where the union can be seen to be negotiating on behalf of part-time employees, and being remunerated for this. Since the union was permitted to do this, the company thereby gave recognition to the union for this group. This fact situation and collective agreement are distinguishable from the Canadian Red Cross Blood Transfusion Service case where the Board found there was no expansion of the apparent representation rights, as set out in the recognition clause, caused by the inclusion in the collective agreement of a provision specifying that certain clauses of the collective agreement would be applicable to temporary employees after three months' employment. This clause was included in the collective agreement after the union unsuccessfully tried to bargain for an expansion of the certified bargaining unit as a means of ensuring that the employer could not use temporary employees to the detriment of full-time employees or positions. While the clause did extend many of the terms of the collective agreement to temporary employees (including wage rates), the Board found that such extension did not amount to recognition by the employer or attachment of representation rights or duties because the clause was a compromise offered after the union's broader recognition clause was rejected and because several important articles were not made applicable to temporary employees, i.e., the grievance procedure and arbitration clause and the mandatory check-off provision. It is notable that the hours of work for temporary employees (generally coincidental with full-time regular employees) meant that the union had to seek to protect the full-time employees from the extensive use of temporary employees by establishing a level of compensation identical with bargaining unit employees and not by the introduction of clauses giving full-time employees first refusal opportunities. Since the work was required during the same hours as the full-time employees' normal work, these opportunities could be limited. Comparing the Canadian Red Cross Blood Transfusion Service situation with that at McNeil McGrath, it is clear that since employment of part-time employees is restricted to after 5p.m., the normal quitting time of full-time employees, the requirement that certain wage rates had to be paid would not serve to provide any additional protection to laid-off employees or regular employees who want to work overtime or additional hours or to reduce the prospect that full-time positions might be lost as a result of the use of part-timers. All of that protection could be gained by negotiating Article 28 without sections 28.1(e) and 28.1(a). The inclusion of these sections has led us to conclude that part-time employees were intended to be encompassed within Local 938's jurisdiction.

22. Assuming without finding that there is ambiguity such that evidence of the parties' past practice becomes relevant, we heard evidence that part-time employees were never treated as forming part of the bargaining unit. We note, however, that the collective agreement we have before us is the same in all essential respects as the collective agreement which was the subject matter of a Canadian Labour Relations Board decision (see Massicotte, supra,) wherein that Board also concluded Local 938 owed a part-time employee a duty under the section of the Canada Labour Code comparable to section 68. This surely must be a significant event touching upon the parties' practice. Notwithstanding that decision (rendered January 28, 1980 which Local 938 appealed unsuccessfully to the Supreme Court of Canada — decision released May 31, 1982), the collective agreement before us was concluded in October of 1982, albeit with a different employer, leaving the key contentious provisions unchanged. We received no evidence as to any attempts by Local 938 to change the language. The only revision appears to have been in Article 28 with respect to the wage rates. If the parties wished to remove part-time employees from the bargaining unit and for Local 938 to make clear its intention not to represent part-timers, one would have expected some revision of the recognition clause and other language of the collective agreement to reflect this position. Whatever the "practice" of the parties to the collective agreement had been prior to the Massicotte decision, their conduct in the face of it is the most reliable indicator of their intentions. Having left it as it was prior to the decision of the C.L.R.B., we must conclude that the parties accepted that Local 938 was entitled to represent part-time employees as a part of the bargaining unit. Local 938 must accept its duty of fair representation along with such entitlement.

23. Having found that Local 938 owes the complainant a duty under section 68, the question becomes whether the duty has been breached. The Board has included within this duty a bargaining agent's negotiating activities (see, for example, The Great Atlantic and Pac~fic Company Limited, [1983] OLRB Rep. Oct. 1654 and cases cited therein at pp. 1664-1669; Manor Cleaners Ltd., [1983] OLRB Rep. June 929; Silverwood Dairies, [1982] OLRB Rep. Aug. 1199), administration of the collective agreement (see, for example, C. U.P.E. Lacal 1000, [1975] OLRB Rep. May 444; L TE. Industries, [1980] OLRB Rep. July 1001) and treatment of the complaints of employees under the Act (see Suzanne Hebert-Vaillant, [1981] OLRB Rep. June 623). In this case the complainant claims that Local 938 should have consulted with him (and others in the part-time category) during the negotiation process leading up to the execution of the current collective agreement. We agree that a duty under section 68 must at least include a duty to consult at some point with those represented. We therefore find there has been a breach of section 68 in this instance. We do not hold the complainant responsible for his lack of participation in the negotiation process. He was advised by a steward of Local 938 in 1981 that he was not covered by the collective agreement and it is reasonable, in view of this, that he would not seek to participate in the negotiation of it. It is also likely that until he was dropped from the part-time list he would not have been motivated along these lines. Even if he had attempted to participate, Mr. Neal's evidence is clear on this point — he would have repelled such attempts. As a sequel to both the C.L.R.B. decision and the Supreme Court of Canada decision in the Massicotte case, Local 938 had two choices available to it vis-a-vis part-time employees. It could either redraft the recognition clause, dropping the part-time employees from representation, or accept the representation rights as found by the C.L.R.B. It seems to us that if the second course is taken, there must be some communication with the part-time employees initiated by Local 938 preliminary to negotiations. This was not done and, indeed, Local 938 continued to regard part-time employees as not being "represented" by it. Therefore we find that the duty under section 68 has been breached insofar as Local 938 ignored the part-time employees in its preparations for bargaining.

24. Another negotiating fault alleged to be committed by Local 938 is that the "language of the collective agreement put part-time employees outside representation". Although the meaning of this was never made clear, we took this submission to mean that Local 938 was wrong in not negotiating a clause that extended the grievance and arbitration procedure to part-time employees in the same way as to full-time employees. We cannot accept this contention. Firstly, section 28.1(h) of Article 28 provides that alleged violations of Article 28 can be submitted to grievance and arbitration. While it is true that this clause gives Local 938 carriage of such matter, this is the same condition that applies to grievances by full-time employees. The Canada Labour Relations Board found in Massicotte, supra, that Mr. Massicotte had wrongly not been afforded access to the grievance and arbitration machinery and, on that basis, ordered as a remedy resort to such procedure. Although the grievance and arbitration clauses of that collective agreement were not reproduced in the C.L.R.B. decision, if they were the same as Article 6 of the collective agreement before us, we cannot agree with this conclusion. On the facts before us, section 28.1(h) provides that violations of Article 28 will be grieved and arbitrated in accordance with Article 6 of the collective agreement. Article 6 applies to provisions affecting full-time employees (reproduced at page 9 above). The arbitration board which dealt with Mr. Massicotte's grievance alleging unjust discharge found he had no substantive right to be discharged only for cause. Hence, while Mr. Massicotte gained access to arbitration as a result of the C.L.R.B.'s decision, it was ultimately determined that he was without the necessary substantive right necessary to give the arbitration board jurisdiction to consider his grievance (see The Toronto Hydro-Electric System and C. UP E. Local 1 (1980), 1980 CanLII 1784 (ON HCJ), 29 O.R. (2d) 18 (Div. Ct.), aff'd (1980), 1980 CanLII 1650 (ON CA), 30 O.R. (2d) 64, leave to appeal to S.C.C. refused, 35 N.R. 210n and Ontario Hydro, supra, for an elaboration of the distinction within collective agreements between substantive and procedural rights). We find nothing wrong with that arbitration board's reasoning and, looking at essentially the same collective agreement, we have come to the same conclusion. Therefore, we conclude that the language negotiated did not "put part-time employees outside representation", if representation means negotiating a provision for grievances and arbitration regarding substantive rights negotiated, because Article 28, section 28.1(h) makes the provisions of Article 28 (the only provisions besides the recognition clause applicable to part-time employees) enforceable through the grievance and arbitration procedures in the same way as other provisions are enforceable through Article 6. The complainant really seems to be complaining that there is no substantive right clearly apparent in the collective agreement to have his termination (or removal from the part-time list) only occur for just cause, a protection enjoyed by full-time employees. We are not prepared to find that because no just cause clause was negotiated for him, there is a breach of section 68. The complainant himself, through counsel, acknowledged that negotiation of different levels of employment terms for different employees was not a breach of section 68. The Board also in interpreting section 68 as applied to bargaining has not found that hard bargaining choices and/or differential treatment of portions of the bargaining unit in and of themselves amount to breaches of section 68 (see, for example, James Mason, supra; Royal Ontario Museum, supra; Dufferin Aggregates, (Division of Dufferin Materials and Construction Ltd.) and Brewery Workers, Radenko Bukvich, et al., [19821 OLRB Rep. Jan. 35; Corporation of the City of Toronto and Thronto Civic Workers Local 43, supra; Corporation of the City of Thunder Ba)', [19831 OLRB Rep. May 781). The complainant has failed to show how the failure to include this type of a clause applicable to part-time employees breaches section 68. Clauses become a part of a collective agreement as a result of demands by parties and, ultimately, agreement to their inclusion. It may well be that a just cause clause applicable to part-time employees would not have been demanded by Local 938 in bargaining because the full-time portion of the unit did not think it necessary or, even if demanded, the whole bargaining unit would not be willing to support it in the face of employer resistance or trade its acceptance for some other demand. We therefore cannot conclude that because a just cause clause was not negotiated for part-time employees, that ipso facto this was a breach of section 68. To do so would be to set in the abstract certain minimum conditions which must be negotiated for a bargaining unit by its bargaining agent. This is a path we are not prepared to take in these circumstances.

25. This brings us to the aspect of this application alleging wrongdoing by Local 938 in its administration of the collective agreement because it did not write a grievance for Mr. Vesik. This aspect requires an assessment of Local 938's conduct in administering the collective agreement as it stands. We find the duty Local 938 has under section 68 in this regard was not breached because it correctly assessed that Mr. Vesik had no substantive right to have his termination/cessation of employment arbitrated (let alone grieved). While the recognition clause (Article 1) appears to also describe to whom the provisions of the collective agreement apply, this is not so in view of Article 28, section 28.1(e). This section makes it clear that the only substantive provisions applicable to part-time employees are those in Article 28. Therefore, Local 938 was correct or, at least, was reasonable in its assessment that Article 3 did not apply to Mr. Vesik because it was consistent with the determination of the arbitration board's decision dealing with Mr. Massicotte's grievance.

26. We have also concluded that a breach of section 66 has also not been made out by the complainant because there is nothing unlawful in a trade union remaining in control of some or all of the grievance and arbitration procedure. Indeed, this is the norm in most collective agreements and contemplated by section 44 of the Act. We also cannot find within the collective agreement any clause that explicitly restricts or eliminates part-timers from becoming union members. Article 2 (Union Security) simply provides that union membership held by bargaining unit members must continue but that all non-members must have a dues checkoff inclusive of the deduction of initiation fees after the completion of the probationary period. Presumably the payment of initiation fees leads to membership but all this does not mean part-timers are prohibited by the terms of the collective agreement from becoming members if they so choose. All Article 2 does, at most, is require membership in Local 938 by full-time employees after completion of the probationary period. It is not a restriction on the complainant's right to choose to become a member. In any event, we find that the complainant knew he was not a member of Local 938 as early as 1981 and he never sought to become a member. We find he was under no misguided belief that he was, through the checkoff deductions, becoming a member of the union. This issue is materially different from the issue of whether he thought he was covered by the collective agreement and would therefore be prompted to seek, through negotiations, to improve his terms and conditions of employment. Whether he could or could not become a member of Local 938 was something he could have pursued quite apart from negotiations, immediately after discovering he did not hold membership in Local 938. We therefore are not disposed to deal with this aspect of his complaint because of the delay involved. Finally, "the failure to redraft sections 1.1 and 1.2 of Article 1 eliminating part-time employees" does not amount to a violation of section 66(b) because section 66(b) requires that there was an unlawful imposition of a condition of employment which seeks to restrain an employee "becoming a member of a trade union or exercising any other rights under this Act". We cannot see how a failure to redraft this Article imposed any such condition on the complainant.

27. Insofar as requested remedies are concerned, all except the reinstatement request necessarily must fail because of our findings related to Local 938's conduct in administering the collective agreement. Reinstatement presumably was requested in part to compensate the complainant for his lost opportunity to be consulted prior to or during bargaining. To grant reinstatement would amount to this Board rewriting the collective agreement so that there is a substantive right to continued employment except where there is just cause for termination and adjudicating upon such right. Even in instances where a collective agreement already includes a clause setting out a substantive right, the Board has stated that success in proving that section 68 has been breached in connection with it does not automatically confer on a complainant the right to have his grievance arbitrated (see, for example. Massey-Ferguson, [1977] OLRB Rep. Apr. 216; Bedard Girard, [1981] OLRB Rep. Oct. 1338). The Board has referred an issue to arbitration as a remedy for breaches of section 68 only where it is apparent that a fair-minded reconsideration by the union will be difficult, if not impossible (see Leonard Murphy, [19771 OLRB Rep. Mar. 146). This is the appropriate remedy in most instances because it permits adjudication of the substantive right which the union has ignored or mishandled in its administration of the collective agreement. In some cases the Board has referred the matter back for reconsideration by the union with arbitration being the ultimate resolution of the matter (see Swing Stage Ltd., [19831 OLRB Rep. Nov. 1920). In no instance has the Board overstepped the arbitration process and adjudicated upon the substantive right the complainant claims to have been violated by his employer. This has never been done because a remedy granted under section 68 should not change the essential character of the grievance/arbitration process. Mr. Vesik, having failed to establish a breach of section 68 regarding that process, asks that a new substantive right be written into the collective agreement (a right which may not have been included in the collective agreement even if part-time employees had been consulted by Local 938) and that this right be adjudicated by the Board. We have not been persuaded to do this in these circumstances. Therefore all the requested remedies of the complainant are refused. This leaves open the question of how the breach we have found ought to be remedied. In view of the fact that the parties have not had an opportunity to specifically address this question, we will leave the formulation of how this breach ought to be rectified to the parties to the complaint.

28. The Board will remain seized of this issue and in the event the parties cannot reach a satisfactory solution, will reconvene to hear submissions as to what remedy is appropriate in the circumstances.