Lecuyer v. Canadian Paperworkers Union, Local 132, 1985 CanLII 1008

[1985] OLRB Rep. July 1099

1104-83-U Gerald Lecuyer, Cash Podlewski and John Polhill, Complainants, v. Canadian Paperworkers Union, Local 132 and Canadian Paperworkers Union, Respondents, v. Abitibi-Price Inc., Intervener

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members J. A. Ronson and L. C. Collins.

APPEARANCES: F.J. W. Bickford, J.D. Polhill, G.A. Lecuyer and C. W Podlewski for the complainants; W Dubinsky, Marvin Pupeza and Ronald Balina for the respondent; R. Andrew Shields, Richard Dixon and Orest W. Halushak for the intervener.

DECISION OF OWEN V. GRAY, VICE-CHAIRMAN, AND BOARD MEMBER J. A.

RONSON; July 23, 1985

1. The three complainants are skilled tradesmen employed by Abitibi-Price Inc. ("Abi­tibi") in the mechanical department of its Mission Mill ("the Mill") at Thunder Bay. At all times material to this proceeding, the terms and conditions of their employment and that of other Mill employees were governed by a collective agreement between Abitibi and "the Canadian Paperworkers Union, CLC and it's [sic] Local 132" (referred to here, as in the collective agreement, as "the Union") with effect from May 1, 1982 to April 30, 1984. Beginning in July, 1982, there were several occasions on which employees were selected for short-term layoff from their regular jobs on the basis of their length of service at the Mill ("mill seniority"). The complainants and others in the mechanical department felt such layoffs violated the terms of the collective agreement, which in their view required that selection of employees for layoff from their regular jobs be based on length of service in the department concerned ("departmental seniority"). The complainants attempted to grieve the effects and potential effects on them of the company's reliance on mill seniority in effecting layoffs in July, 1982 and thereafter. The union, however, refused to accept or present some of their grievances; the others of those grievances were not taken beyond the first step in the grievance procedure, where they were denied by the employer. The complainants say that the Union's treatment of them and their grievances violated sections 68 and 70 of the Labour Relations Act, which provide:

2. 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.

3. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

4. John Polhill has been employed as a journeyman pipefitter in the mechanical department of Abitibi's Mission Mill ("the Mill") since January, 1962. He served as Vice-President of Local 132 in 1975, and was a shop steward for a period of two or three years prior to that. He is currently an Alderman of the City of Thunder Bay.

5. Cash Podlewski has been employed as a journeyman millwright in the mechanical

department of the Mill since February, 1973. He served two terms as shop steward prior to 1980, when he acted as Vice-President of Local 132 for eight months after the incumbent resigned.

4. Gerald Lecuyer is also a journeyman millwright. He has been so employed in the Mill's mechanical department since March, 1976.

5. Local 132 represents approximately 200 production and maintenance workers. About thirty-five of these work in the mechanical department; the rest are employed in the several other production departments referred to in the collective agreement. The By-laws of Local 132 provide for the election of its officers: a President, Vice-President, and Recording and Corresponding Secretary, 3 other officers and 3 trustees. Officers other than trustees are elected every two years. Article 9, section 1 of those By-laws provides for a grievance committee:

Section (1)(a) The grievance committee for this local shall comprise of the President, Recording Secretary, Chief Shop Steward, and the shop stewards of the various departments.

(b) The Vice-President of this local shall act as Chief Shop Steward.

(c) Any grievance by a member shall be dealt with in the following manner:

Submitted to the shop steward in writing.

Submitted to the chief shop steward and department head.

To the grievance committee and management.

(d) Any member approaching management with a grievance, and acting as an individual shall be censored.

6. Ron Balina has been President of Local 132 since January, 1977. He is a production worker in the finishing and shipping department of the Mill, and has been employed at the Mill for approximately twenty-four years now. From the evidence we heard, it is apparent that Mr. Balina is an active, aggressive leader. Executive board decisions are effectively his decisions. The same can be said of his role on the grievance committee and as leader of the union's delegation at labour-management meetings, which are held regularly during the term of the collective agreement.

7. The millwrights and pipefitters in the mechanical department repair and maintain, and occasionally construct additions to, the Mill's equipment and mechanical systems. In the fall of 1982 there were approximately eight journeymen pipefitters and twenty journeymen millwrights in the mechanical department. Some, like the grievors, had been journeymen tradesmen when they began work at the Mill. Others became journeymen after becoming employed at the Mill, either by serving a four-year apprenticeship program under Abitibi 's Trades Apprentice Plan, or by establishing proficiency in the trade to the satisfaction of the company's evaluation committee under the Tradesman Promotion Plan after serving a minimum of seven years as a helper in that trade and completing a correspondence course equivalent to that taken by apprentices. Both of these plans have formed part of the collective agreements between Abitibi and the Union for many years. Article 34.03 of the current collective agreement provides:

34.03 When a man transfers from some other job to the status of an apprentice in one of the mechanical trades, he shall maintain his seniority in the job from which he is transferred for a period of six (6) months. Following such probationary period, his seniority shall develop exclusively within the mechanical group to which he transferred. If, when the period of apprenticeship (four (4) years) is served there is a vacancy for a journeyman in the trade for which the apprentice is qualified, he will be retained and will be granted two (2) years' seniority as a journeyman and will become eligible for promotion in accordance with the Tradesmen Promotion Plan.

The language of Article 34.03 appears again in paragraph 11 of the Trades Apprentice Plan, which is Appendix "I" to the collective agreement.

8. Article 7 of the collective agreement reads:

7.PROMOTIONS AND LAY-OFFS

7.01 When vacancies occur in a department then the Company shall post on bulletin boards throughout the mill a notice concerning the bottom job in the department affected. Such notice shall indicate the qualifications essential to promotion within that department. Such posting shall be for a period of ten (10) working days and the Company shall have the right to make temporary appointment without penalty. In all cases of promotion the Company will give consideration to seniority, ability and qualifications. When the last two factors are relatively equal, seniority will govern.

7.02 In cases of promotions, where the man to be promoted is not the senior man in the department concerned, the Company will present the alternative name to the Union, who will have the opportunity to discuss with the Company the qualifications of the senior man. The Company shall take such presentation into consideration in making its decision which decision may be subject to the grievance procedure outlined in Article 30 of this Agreement.

7.03 The Company will train employees to minimize the hiring of skilled men from outside the mill.

7.04 When laying off help Union men shall be retained in preference to those not members, among equally efficient employees, the older in point of service being given preference of employment (the same principles to govern as in the case of promotions).

7.05 In cases of lay-offs, plant wide seniority with due regard to jurisdiction of each of the signatory unions shall apply. In making transfers under this rule it is understood and agreed that in moving between departments, the senior man must have the necessary qualifications to enter the department and shall have access only to the bottom job in the line of progression in the department to which he is being transferred. If the number of senior employees involved in a permanent lay-off exceeds the number of junior employees holding bottom jobs in the lines of progression, the Company, if requested by the Union, will locate other job openings in jobs held by junior employees above the bottom jobs so as to assure continued employment for senior employees. Training will be given if necessary to the senior employees.

7.06 When employees are laid off they shall be recalled in reverse order of their lay­off.

Substantially similar provisions have formed part of Abitibi' s collective agreements with the Union and its predecessor, Local 132 of the International Brotherhood of Pulp, Sulfite and Paper Mill Workers, for nearly thirty years. Some language has remained unchanged despite its becoming outdated. The reference in Article 7.05 to "each of the signatory unions", for example, make less sense now than it did in the 1950's and 1960's, when agreements between Abitibi and this Union's predecessor were also executed by four other (craft) unions. It is common ground that the past practice of the parties to it is an important consideration in the interpretation of this collective agreement.

9. The layoffs which trouble the complainants resulted from production shut-downs of varying durations. Prior to 1982, production shut-downs had generally not resulted in layoffs of journeymen in the mechanical department, as maintenance work ordinarily continued unabated during a production shut-down. The production shut-downs in and after July 1982, were different; they were more frequent, maintenance work was also reduced and journeymen tradesmen were laid off. When Abitibi followed mill seniority rather than departmental seniority in selecting journeymen for layoff, some tradesmen found themselves without work while men they had originally trained as apprentices or helpers remained at work.

10. Having regard to their understanding of past practice and to the language of Article 7, Article 34.03 and paragraph 11 of the Trades Apprentice Plan, the complainants believe the collective agreement provides that promotion to and layoff from any particular job are both governed by departmental seniority. Article 7.02 governs promotions, and the complainants say that the words "senior man in the department concerned" in that Article refer to the man with the most departmental seniority. The complainants emphasize the words in brackets at the end of Article 7.04, which deals with layoffs. They say those words mean that the seniority which governs the initial selection for layoff is the same seniority which governs promotion: departmental seniority. As a result, they say that selection of persons for layoff from their own departments is to be made on the basis of departmental seniority. They read Article 7.05 as giving effect to mill seniority only in the exercise of bumping rights - the right of an employee targeted for layoff from a job in one department to transfer into a job for which he is qualified in another department, a right the transferring employee can exercise only if he is senior to the employee performing the target job. Thus, in the complainants' view, if a layoff requires a reduction in the number of journeymen millwrights, it would be the millwrights with the least departmental seniority who would lose millwrights' work during the layoff period. Those redundant millwrights could then exercise their mill seniority to bump into any jobs remaining in other departments for which they are qualified.

11. John Polhill says his belief in this interpretation is reinforced by certain events which occurred in 1969. At that time Abitibi planned to lay off a journeymen pipefitter. The choice was between Polhill and Victor Wazinski, who had three weeks' more mill seniority than Polhill. Unlike Polhill, who had been a journeyman when he began working at the mill, Wazinski had begun work at the mill as a second year apprentice and did not qualify as a journeyman until three years after he was hired. At the time of the proposed 1969 layoff, Polhill was told that he would be retained in preference to Wazinski. Polhill recalls that this advice came in the form of a letter from a Mr. Neeley, a company official, who quoted the language of what is now Article 34.03 and explained that Wazinski' s departmental seniority was less than that of Polhill because at the end of his first three years of employment he had been credited with only two years' seniority pursuant to that Article. Wazinski received notice of layoff. As it happens, that layoff was cancelled before it occurred. This was the only example any of the witnesses offered of a layoff of journeymen effected or announced prior to July, 1982, in which the choice between mill or departmental seniority as the basis for selection would have affected the identity of the person or persons selected for layoff.

12. The events which led to this complaint began in June of 1982. Near the end of that month, Abitibi posted a seniority list in which mechanical departmental employees were listed in the order of their mill seniority. Although there were rumors of impending work force reductions, none had been announced when this list was posted. However, Polhill and Lecuyer anticipated, correctly, that the company might be planning to use this list to determine the order of the rumoured layoffs. They obtained grievance forms from a shop steward and each prepared a grievance protesting the seniority list, referring to Articles 7 and 34 of the collective agreement and paragraph 11 of the Trade Apprenticeship Plan. They gave these grievances to a shop steward who, they understand, gave them to Dick Facca, the Vice-President and Chief Shop Steward of the local union. Some time after the grievances were submitted, Facca came and advised each of them that the President had ruled these grievances "out of order". Polhill and Lecuyer received no further explanation at the time. Balina testified that he decided not to present the grievances because it would have been inappropriate to do so before any layoffs had been announced. During his cross-examination of the union's Recording Secretary, Bill Shanks, whose testimony followed Balina' s, counsel for the complainants demanded and obtained production of minutes of union-management meetings attended by Balina, Facca and Shanks. These revealed that Abitibi ' s business difficulties and the increasing probability of layoffs and work reductions had been a regular topic of discussion in the meetings prior to the posting of the mill seniority list in June, 1982. At the union-management meeting of June 23, 1982, Balina specifically asked whether mill seniority would be applied in determining the order of impending layoffs. Abitibi said it would. It is clear to us, and would have been clear to Abitibi at that meeting, that that was the answer Balina was seeking when he raised the issue.

13. The first layoff affecting journeymen was announced in July, 1982. Cash Podlewski was one of those told he would be laid off commencing July 25, 1982. On July 21, 1982, Podlewski prepared a grievance which reads as follows:

Nature of Grievance

Junior Millwrights are working for the week of July 25/82 or more while senior millwrights are laid off. This is a case where Class "A" millwright teaches the apprentice or helper all the aspacts [sic] of the trade and then he (the apprentice or helper) takes the senior millwrights job. Appendix I trade Apprenticeship page 105 (Article 11) seniority states very clearly how much seniority the man has when he finishes his apprenticeship.

Settlement Desired

Senior Trade (Class A) Millwrights to be reinstated to work for the week of July 25/82 and proper permenent [sic] mechanical journeymen seniority list to be put on the Board.

Podlewski gave this grievance to Al Giles, a journeyman pipefitter who was then a shop steward in the mechanical department. Giles testified that he gave the grievance to Balina, who subsequently gave it back to Giles and told him it was not accepted. Giles returned with his grievance form and told Podlewski that the President had not accepted it because a similar grievance dealing with the same subject matter had already been filed by Blake Landversitch (a millwright whose seniority, both departmental and mill, was less than Podlewski ' s).

14. Podlewski spoke to the Chief Shop Steward, Dick Facca, about his grievance on at least two occasions. The first was shortly after it was rejected. He then took it to Facca and asked him if he would process it. Facca said he would not, and said the Landversitch grievance would deal with the issue. At some time in October, 1982 Podlewski again asked Facca if he could do something about processing his grievance. Podlewski says Facca told him that he was sympathetic, but could not do anything because Brother Balina had ruled the grievance "out of order". Facca added that the decision was made "it's mill seniority", and that he (Facca) could not overstep him (Balina). Facca was not called as a witness. The complainants' testimony about conversations with him was uncontradicted.

15. The Landversitch grievance was presented at the first step of the grievance procedure in July, 1982, and was denied by Mr. Halushak, the Mill's Superintendent of Industrial Relations. The grievance then proceeded to Step 2, which involved a meeting at which the company would be represented by Mr. R. A. Shields, Abitibi's Toronto-based Manager of Industrial Relations, and the Union would be represented by Marvin Pupeza, a full-time paid representative of the Canadian Paperworkers Union in its Thunder Bay office. Such a meeting was scheduled for the beginning of October, 1982, to deal with a number of second step grievances. Just prior to that meeting, Balina asked Al Giles whether he wished to attend. Balina did not suggest that Giles would have any particular role at the meeting. Giles understood he would be an observer. He accepted the invitation.

16. When the Landversitch grievance was reached at the October meeting, Mr. Pupeza "presented" it. Balina then expressed his opinion about the meaning of the collective agreement. Giles understood Balina to be speaking against the grievance. Balina claims he spoke for the union, not against the grievance. It is clear, however, that Balina believes mill seniority should govern every aspect of a layoff and he also believes that this is the unequivocal, long-standing policy of his union. The basis of that belief will be explored later. We are satisfied that he spoke for an interpretation unfavourable to the Landversitch grievance. Balina then said that perhaps Mr. Giles would like to say a few words, as he was more directly affected by the issue raised by the Landversitch grievance. Giles testified that he felt both surprised and honoured when he was asked to speak. He spoke for about ten minutes in support of the grievance, reciting the pertinent articles of the collective agreement and his understanding of how they had been and should be applied. The meeting then went on to deal with other grievances, and ended with Mr. Shields indicating he would let the union know the company's answer in due course.

17. On October 7, 1982, there was a meeting in Thunder Bay of representatives of the locals of the Canadian Paperworkers Union that represent employees at various Abitibi operations. They were getting together with Don Holder, a senior officer of the national union, to discuss issues of common concern. Although not expressly invited to the meeting, Podlewski attended because he wanted to ask Holder about how the union's grievance procedure was supposed to work, and especially who had the power to turn down a grievance. He also wanted to ask about the national union's interpretation of the seniority clause. Podlewski approached Holder after the meeting was over, and asked who had the right to turn down a grievance. He says Holder told him that only "the floor" (members at a membership meeting) could turn down a grievance, not the executive or the grievance committee. If a grievance was not supported by the grievance committee, the member was supposed to be notified so that he could make argument on his own behalf when the floor considered the grievance. Podlewski then brought up the question of seniority, at which point Holder called Balina over to join the discussion. Holder then invited Podlewski to say what he had to say. Podlewski gave his argument with respect to departmental versus mill seniority. According to Balina, Holder said there was no such thing as "super seniority" for tradesmen, and that "mill seniority governs." Balina says Podlewski then "turned on his heel and stormed out." Holder did not testify. We do not know what he meant by "mill seniority governs" what he based his opinion on, or where he got the idea that anyone was claiming "super seniority".

18. Local 132 holds regular membership meetings in each month except July and August. The complainants made attempts to raise the seniority issue and the union's approach to it at various of the membership meetings in the fall of 1982 and spring of 1983. All of the witnesses had different recollections as to precisely what took place at which meetings. Although minutes of those meetings were kept, they were not intended to and do not reflect everything that occurred at those meetings, and so were often of little assistance resolving conflicts in the recollections of the witnesses.

19. At the October or November membership meeting, Gerald Lecuyer attempted to raise the seniority question and to ask about the grievance he had attempted to file in June. He says the President ruled him "out of order". The President says Lecuyer was told to sit down by the other members present at the meeting. The President approved of "the floor" having done that because, he says, Lecuyer did not put up his hand and ask permission to speak before speaking. Lecuyer remembers that at this meeting Victor Wazinski and Mr. Nieckars both tried to support the complainants view on the seniority issue. Wazinski spoke about the events of 1969, and said the approach used then could not be changed without a resolution of the membership. Nieckars, who was a past president of the local, spoke to the same effect. Lecuyer says Balina ruled Wazinski and Nieckars "out of order".

20. At either the October or November membership meeting, Cash Podlewski asked why his grievance of July 21, 1982, had not been dealt with. In response, the President said that the Landversitch grievance was identical to Podlewski's and he felt he should only submit one. He then told the meeting he had selected the Landversitch grievance because Podlewski's grievance was illegible, his spelling was atrocious, and he would have been "ashamed" to process it. These remarks were coupled with an observation about Podlewski's Polish heritage, which apparently amused other members and embarrassed Podlewski. We have both the Landversitch grievance and the Podlewski before us in evidence. Podlewski' s grievance is handprinted in capital letters, and contains two spelling mistakes. It is entirely legible. The Landversitch grievance is handwritten rather than printed, and is considerably less legible than the Podlewski grievance. The number of spelling errors in the Landversitch grievance might be debated, as the total turns on how one deciphers some of the handwriting in it. On any objective view, however, there clearly are more spelling errors in the Landversitch grievance than in the Podlewski grievance. When Balina was faced in cross-examination with the spelling errors in the Landversitch grievance, he simply refused to acknowledge that they were there.

21. Abitibi's answer to the Landversitch grievance came in the form of a letter from Andrew Shields dated October 27, 1982. The letter was addressed to Marvin Pupeza and copied to Balina. That answer is central to an understanding of this complaint, and is therefore reproduced in full:

This grievance concerns the manner in which departmental and mill seniority are to be applied in the case of layoffs. During recent mill shutdowns, the tradesmen with the most mill seniority were provided with employment while those with more departmental seniority, but less mill seniority, were laid off. During our meeting the President of Local 132, Mr. Balina, indicated that he agreed with the Company's procedure and Mr. Giles argued that it should be changed.

Having re-considered the arguments of Mr. Giles, I am now convinced that he is technically correct. Traditionally when applying the terms of Article 7 in other departments which are the subject of layoffs, those employees with the least departmental seniority are bumped out of the department first. Only once an employee has been "bumped" out of his department does he exercise his mill seniority to gain access to bottom jobs in other departments in the mill.

Notwithstanding the above, however, since Mr. Balina indicated agreement with the Company's procedure and since he has taken the position that it should continue in the future, the Company will not amend this practice unless Mr. Balina, on behalf of Local 132, indicates a desire to handle future situations on a departmental seniority basis.

Balina received this letter before the Local's November membership meeting. There was no report on or discussion of the Landversitch grievance at that meeting. The agenda for the meeting included receiving nominations for executive positions; the election of officers was to take place at the December meeting. Balina was nominated for the office of President. Mr. Balina says he did not report on the company's answer to the Landversitch grievance because he wanted to discuss the company's answer with officers of the national union, and planned to do so when he attended at the parent union's convention in Montreal. That convention was scheduled for mid-December, after the December membership meeting. Balina did not explain in a satisfactory manner why he would not have planned to complete his consultations, and particularly the consultation with Mr. Pupeza, in time to present the company's answer at the December membership meeting.

22. Balina admits that at some point in the fall of 1982 he instructed shop stewards not to give the complainants any grievance forms for seniority grievances "until the new year He could not explain to us the significance of the new year in this context.

23. Balina was re-elected President of the local at the December membership meeting. Balina and Facca attended the CPU convention in Montreal during the week of December 13, 1982. They met one afternoon with Marvin Pupeza and Chris Monk. Monk is a paid representative of the parent union. He operates out of an office in Winnipeg and at times shares with Pupeza coverage of the area served by the Thunder Bay office. Balina and Monk both testified that the Landversitch grievance and the question of mill versus departmental seniority were discussed at this meeting. In the course of the discussion, Pupeza told Monk that he understood that mill seniority had been applied in past layoffs at Mission Mill. Monk said he understood that "mill seniority governs" under all CPU contracts. He was shown the letter from Shields to Pupeza. He testified that he understood it to support his view that, on the language of the collective agreement, "mill seniority governs."

24. At some time after the union received the company's answer to the Landversitch grievance, Mr. Halushak, the mill's Superintendent of Industrial Relations, asked Giles whether he had seen that answer. When Giles said he had not, Halushak showed him a copy of Shields' letter of October 27, 1982. Giles told the complainants that the company had described their interpretation of the collective agreement as "technically correct". They did not know how else an interpretation could be correct. They looked forward to a "floor" discussion based on a reading of the letter. They were disappointed when the letter was not read either at the November meeting or at the December meeting. The complainants then sought legal advice. There was no report on the Landversitch grievance at the membership meetings in January or February of 1982. The complainants' lawyer, Mr. Bickford, wrote the following letter dated March 14, 1983, addressed to the trade union to the attention of Balina:

we have been approached by a number of members of Local 132 regarding the Local's refusal to process a number of individual grievances protesting layoffs where senior tradesmen have been laid off from the Mechanical Department while junior tradesmen have continued to work.

From our reading of the Collective Agreement between Abitibi-Price Inc. and Local 132, it is clear that these layoffs constitute a violation of Clause 34.03 found on page 31 of the 1982 - 1984 Agreement and also a violation of Section 11 of Appendix "I" found on pages 104 and 105 of the same Agreement.

Because of the Union's failure to process these grievances, the Union is in violation of its duty to fairly represent all employees in the bargaining unit found in Section 68 of the Labour Relations Act and the affected employees now have a right to file a complaint with the Ontario Labour Relations Board and to ask that they be compensated by Local 132 for the wages they have lost as a result of the layoffs in question.

[Settlement proposal not reproduced]

May we please hear from you prior to 4:00 p.m. on March 18th, 1983

Finally, on behalf of our clients, this letter will also serve as notice to the Company that it is the intention of our clients, if they are laid off contrary to the Collective Agreement, to file grievances asking that they be reimbursed for all lost wages and benefits incurred by them as a result of their layoff in addition to pursuing any rights they may have against the Union pursuant to the Labour Relations Act.

Balina contacted the union's lawyer, Mr. Dubinsky, and wrote to Mr. Bickford to advise him that his letter of March 14th had been referred to Mr. Dubinsky for reply.

25. The seniority issue was not dealt with at the local unions membership meeting on the evening of March 14th.

26. On March 17, 1983, the Mill manager called Balina to his office. Their conversation

became the subject of an exchange of correspondence. The Mill manager's letter of March

18, 1983, reads:

The Company recently received a copy of a letter sent to you by Mr. F. J. W. Bickford of Weiler, Maloney, Nelson concerning a dispute as to the proper application of seniority in the case of mechanical department layoffs.

You will recall that when this matter was discussed during the fall of 1982, you agreed with the Company's procedure in this regard and took the position that the subject procedure should

continue unchanged into the future. Following those discussions, Mr. Shields, in his grievance answer dated October 27, 1982 (copies to you), found merit in the alternative arguments advanced by certain tradesmen but went on to say:

"Notwithstanding the above, however, since Mr. Balina indicated agreement with the Company's procedure and since he has taken the position that it should continue in the future, the Company will not amend this practice unless Mr. Balina, on behalf of Local 132, indicates a desire to handle future situations on a departmental seniority basis."

The Company's position remains as outlined above and to date, we have not had any indication from you that you desire any change in the subject procedure. Since you again confirmed with me, yesterday afternoon, your agreement with the Company's approach to the scheduling of mechanical employees for the upcoming shutdown, these schedules will remain unchanged. However, the Company relies on this agreement with you, as President of C.P.U. Local 132, to indemnify and save the Company harmless against any claim for lost wages or benefits by those tradesmen who do not agree with this scheduling/ layoff approach.

Mr. Balina's reply was on Canadian Paperworkers Union Local 132 letterhead, and was also dated March 18, 1983. It read:

Dear Sir:

Re: Your Letter of March 18, 1983

Mechanical Department Layoffs

We wish to acknowledge receipt of the above-referenced letter. We do not agree to indemnify and save the Company harmless against any claim for lost wages or benefits by those tradesmen who do not agree with the current scheduling/layoff approach as outlined in the last paragraph of your letter.

Also with respect to the discussion between myself and you as mentioned in the last paragraph - it was just that, a discussion between the Mill Manager and employee. Since it was not a scheduled meeting, my comments to you were given as an employee and not as an official representative of Local 132. Should you wish to discuss the matter formally, a meeting would have to be formally called.

27. On March 18, 1983, Polhill and Lecuyer filed grievances with respect to the March

21st layoff referred to in Mr. Bickford' s letter. In those grievances they again took the position that the proposed order of layoff was contrary to the seniority provisions of the collective agreement. On March 21, 1983, Mr. Halushak endorsed on each of those grievances the following first step answer:

This matter was fully considered during the second stage grievance procedure re: grievance No. 21, 1982 (132) on October 17th, 1982 which was resolved with your Union. This grievance is denied. There is no violation of agreement. Please see attached answer to grievance No. 21.

A copy of the October 27, 1982, letter from Shields to Pupeza was attached to the grievance forms returned to the union. Polhill and Lecuyer were told the company had denied their grievances on the same basis as the Landversitch grievance.

28. Mr. Bickford had this letter delivered to Balina on April 11, 1983:

I acknowledge and thank you for your letter of March 18, 1983 advising that Mr. Dubinsky was representing Local 132 in this matter and that he would be in touch with me in due course. This is to advise that Mr. Dubinsky has not contacted me.

I further understand that several grievances have been filed regarding the layoffs that occurred the week of March 21st and that the Company has denied these grievances. I further understand that these grievances are to be considered at a regular meeting of Local 132 on the evening of April 11, 1983.

This letter will serve to put Local 132 on notice that it is the desire of the grievors to have these grievances referred to arbitration.

I would also request that you advise me in writing of the decision reached at tonight's meeting and the reasons for the decision. Furthermore, I would like this information no later than April 14, 1983.

29. The union's next monthly membership meeting took place on the evening of April 11, 1983. Podlewski and Lecuyer were both in attendance. Balina read out Mr. Bickford's letter of March 14, 1983. He then read what he said was a letter from Don Holder, the Vice-President of the National Union, in which, Balina said, Holder asked for the names and clock numbers of the members referred to in Mr. Bickford's letter. Balina said he wanted those members to stand up and acknowledge that letter. Polhill was not at the meeting. Podlewski and Lecuyer were, but they did not stand up and identify themselves. They had heard rumors that some members, and particularly Podlewski, were going to get their "cards pulled", which they took as a threat to their employment. In that context, the reference to card numbers in Balina' s invitation to speak up greatly concerned Podlewski and Lecuyer. There was some discussion about seniority at this meeting. Podlewski recalls that Victor Wazinski attempted to describe the layoff plans of 1969, and Mr. Nieckars attempted to explain what had happened in the past. Both of them were ruled out of order or told what they were saying was not relevant.

30. After the membership meeting of April 11, 1983, Balina decided to call a lunch-hour meeting of members of the mechanical department. This decision was prompted by a discussion with one of the journeymen employed in that department. Balina read a speech he had written out by hand. Despite the absence of "[sic]", the following is an accurate transcript of Balina's handwritten draft; only the emphasis has been added:

Over the many years as elected Chairman and President of our local union, we have come across many difficult and sensitive tasks in which we had to deal with for the benefit of the best possible representation that could be afforded for all our members. In the recent past and at present there has occurred a most definite reason to believe of an undermining of the executive and maybe mainly myself as president of our local union by a minority group of members in this mechanical department. I called this gathering today because I have been approached by a couple of very concerned members of this minority group to help resolve the bitterness brought about by some members in this department for personal gain rather than what is fair and just and written for all members of this local.

This situation, that seems to bother this minority group deals with plant wide seniority versus department seniority. This local union's official position is the same that has been adopted 50 years ago as part of our Collective Agreement which we do not have any authority to change or alter, but at the negotiations, if the local union desires. The position of this situation is backed by the National Vice-President as stated to a member face to face with three executive members of the local union present. The company's response on this situation is no violation of the collective agreement and one we very seldom agree to, but. we cannot fool ourselves or our members to lead them down the garden path and therefore, we must concur with the company 's answer. Our labour lawyer, as well, whom we consult with on many grievances also agrees.

The bitterness brought about by this minority group without any local union authority, between fine members of this local is totally uncalled for and should cease immediately. Some members calling down others is not a thing we should be doing at times like these. It is too bad this economic situation is upon us at this time but we are not alone. Local unions across the nation are having difficulties to adjust too. Does this mean because we do not get our way that, we break up our families. These times should be used to bring us closer together not farther apart. This statement is one to you members on behalf of the local union executive, this matter has been explored fully and we have exhausted all avenues, however, we deem this matter complete and closed. This matter has warranted far too much attention and perhaps should be treated as an anonymous letter is, - Ignored! Since no one has yet had the courage, but a couple of respected minority members of their convictions and have not admitted their personal involvement in this matter. We also must say if this minority group without any authority persist, then we must duly inform you that caution be given to every aspect and to be prepared to suffer all circumstances that may result. We refuse to jeopardize the rights of the majority for the personal gains of the minority.

(emphasis added)

31. None of the three complainants was in attendance at the meeting of the mechanical department on April 14, 1983. They had all learned of an anonymous telephone call received by Mrs. Lecuyer on April 12th. The caller had told Mrs. Lecuyer that she would be collecting her husband's life insurance if he did not stop his endeavours "against the union". The complainants all thought it prudent not to attend a meeting at which they correctly suspected those endeavours would be discussed. They heard afterwards that Balina had made a speech in which he stated that the union had made its decision that mill seniority would apply and that anyone who continued trying to change that decision would suffer the consequences or they were "on thin ice." Podlewski approached Dick Facca and asked if he could get him copies of the documents read out at the membership meeting of April 11th and the departmental meeting of April 14th. Facca told Podlewski that he could not.

32. On April 22, 1983, Mr. Dubinsky wrote this letter to Mr. Bickford:

Your correspondence directed to Local 132 in connection with the above matter has been given to us for reply. We wish to advise that pursuant to the procedures provided in the by-laws resolutions and constitution of the union the matter was thoroughly examined by the grievance committee. The grievance committee had an opportunity of reviewing the evidence that had been presented to it, examining the collective agreement and examined the response from the employer. As a result the grievance committee concluded that there was no breach of the collective agreement. At a recent meeting of the membership of the local, a full report was submitted. The meeting concurred with the decision of the grievance committee.

At the same meeting those persons who were the alleged grievors were invited to speak out to make any representations that they desired. Although they appeared to be present, they chose not to present any representations on their behalf to the grievance committee or to the general membership. As a result the local has determined not to proceed with the grievances.

There is no evidence that Mr. Dubinsky was at any of the meetings referred to in his letter, nor is there any evidence of the means by which Mr. Dubinsky acquired the information he set out in his letter. We can only suppose that Balina told him that the facts were as he set them out in his letter.

33. Balina's testimony was most revealing. On the subject of the grievance procedure, he acknowledged that the employer's answer to grievances submitted by the union normally came to him; however, he did not consider it his job to "track down" the shop stewards who had submitted such grievances in order to tell them what the company's answer was. So far as he was concerned, shop stewards have to come to him to find out how the grievances they submitted had been answered. With respect to the complainant Podlewski, he acknowledged there had been an occasion prior to the events in question when, in the course of a membership meeting, he had thrown the gavel "to" Podlewski. He spoke derisively of Podlewski's attempts to obtain a copy of the speech he had read to the mechanical department meeting on April 14, 1983. Podlewski "tried to get a copy by asking everyone but me," he testified in chief. This prompted counsel for the union to ask whether he would have supplied a copy if Podlewski had asked him directly. Balina answered "certainly not!" When asked to explain the reference in his speech of April 14th to an "underming" (undermining) of the executive by a minority group, Balina said "at the nomination meeting they were trying to get someone to run against me.''

34. We have already recited the basis on which Balina claims he chose to process the Landversitch grievance rather than that of Mr. Podlewski. He chose to process only one, he said, because he felt that a decision on one would resolve the others. He said the Landversitch grievance had been processed in the same way as other grievances. Indeed, he said the union had "over extended" itself in processing the Landversitch grievance, and explained that remark by observing that they had allowed Mr. Giles to be present and make representations at the second stage meeting and had also "allowed" Podlewski to express his views to Mr. Holder. He could not remember what Pupeza said about the Landversitch grievance when he presented it at the second stage meeting with Mr. Shields. He could not even remember whether Pupeza spoke for or against the grievance. Although he denied speaking against the grievance himself, he could not remember what he had said about it at that meeting. When it was put to him that someone must have made it clear to the company at that meeting that the local union did not support the grievance, Balina replied that he could not remember that "information" being given to the company.

35. Balina could not recall Mr. Wazinski speaking out at membership meetings about the past practice evidenced by the 1969 planned layoff. Even though he had heard reference to that planned layoff during the testimony of Mr. Polhill in November, 1983, when he testified in continued hearings in February, 1984, Balina admitted he had never looked into what had taken place with respect to Wazinski and Polhill in 1969.

36. There is no evidence that any of the grievances referred to in this decision, including the Landversitch grievance, was considered at any formal meeting of a grievance committee constituted in the manner contemplated by the local's by-laws. Balina claimed he discussed the results of the Landversitch grievance in an informal way with the "head table executive". He could not say when he had done that, however, and said he did not know the views of Messrs. Facca and Shanks, two members of the "head table executive", on the question whether mill seniority should apply in determining who is to be laid off. Balina was not sure whether Mr. Shields' letter of October 27, 1982, had ever been read out at any membership meeting, and we find that it had not. It is crystal clear that neither the Mill manager's letter of March 18, 1983, nor Mr. Balina's reply of the same date were ever read out at any membership meeting. Mr. Shanks, the union's Recording Secretary, testified that correspondence received by the local is given to him, and it is the local's practice that such correspondence is read out at the next membership meeting. Shanks said that he had never seen the two letters exchanged between Balina and the Mill manager on March 18, 1983, and had never seen Mr. Shields' letter of October 27, 1982 either. This latter statement stands in curious contrast to Mr. Balina' s testimony that Shanks had accompanied him to a meeting with Mr. Dubinsky at which the matters dealt with in Shields' letter were discussed.

37. Balina acknowledged it had always been his view that mill seniority governed in the case of layoffs. He said this had been the policy of the Canadian Paperworkers Union for fifty years. It was not clear how he would know that, or where this union policy is to be found. Balina claimed that past practice favoured his interpretation of the collective agreement. In that connection, as we have noted, he had not made any investigation to determine what practice had been followed in the 1969 layoffs referred to in Mr. Polhill's evidence and, we find, by Mr. Wazinski at membership meetings. When the hearing of this complaint adjourned in February, 1984, we invited Mr. Balina to offer some examples of the past practice to which he had referred in evidence. When the hearings resumed four months later, Mr. Balina offered several examples of layoffs in which employees had remained at work as a result of the exercise of mill seniority. However, as he acknowledged in cross-examination, every one of the examples he offered involved a worker first being displaced from his own job on the basis of his departmental seniority, then exercising his mill seniority to bump into a job in another department. He acknowledged that in each example mill seniority had only come into play after the worker concerned had been displaced from his own department. Still, Mr. Balina insisted that past practice supported the procedure adopted by the company in the series of layoffs which began in July, 1982, when mill seniority, and not seniority within the department, had been the basis for selection of workers to be displaced from their own department. Balina was evasive when asked whether he had taken Article 34.03 and paragraph 11 of the Trade Apprentice Plan into account in forming his own opinion about the meaning of the collective agreement. Balina acknowledged that the seniority referred to in those provisions of the collective agreement must be departmental seniority and not mill seniority. He acknowledged also that departmental seniority had significance in the case of promotions.

38. Balina repeatedly claimed that Mr. Shields'letter of October 27, 1982, supported his interpretation of the collective agreement. He refused to acknowledge that the second paragraph of that letter supported the claimant's views on the interpretation of the collective agreement and on the nature of the parties' past practice with respect to application of that collective agreement. He refused to acknowledge that the word "procedure" as used in the third paragraph of Shields' letter referred only to the procedure adopted in the July, 1982, layoff which was the subject of the Landversitch grievance. He insisted that he interpreted that third paragraph as agreeing with his view that the procedure adopted in that particular layoff was in accordance with past practice. Balina persisted in those assertions even in the face of the Mill manager's letter of March 18, 1983.

39. This complaint was filed on August 23, 1983. A summary of the relevant facts would not be complete, however, without reference to an event which occurred in September, 1983. After meeting with a Labour Relations Officer, the union agreed to let the complainants file grievances with respect to a layoff which occurred in that month. When Lecuyer gave his grievance to the shop steward, he asked whether there was any truth to the rumor that Balina had told the company not to give minutes of union-management meetings to anyone other than the Union's Recording Secretary. The shop steward said that he did not know anything about that, and left for the area where Mr. Balina was working. Balina came up to Lecuyer some time later. He grabbed Lecuyer's shirt collar, and part of the skin of his neck, with his fist. He said he did not want Lecuyer to use his (Balina' s) name without his permission. He invited Lecuyer to step outside "to settle this once and for all." Lecuyer then told Balina he apologized if Balina had taken his question to the shop steward the wrong way, and explained that he had not been referring to him as an individual but as President of the local union. This seemed to calm Balina down. He accepted the apology and returned to his own department. Balina acknowledges the incident, but says it had nothing to do with the subject matter of these complaints.

Argument

40. Counsel for the complainants argues that the complainants' interpretation of the relevant collective agreement is the correct one. He says the collective agreement gives the complainants rights which they are entitled to have enforced, and that the failure to enforce them is, per se, a violation of section 68 of the Labour Relations Act, however fair the union's decision-making procedures may have been. Even if the failure to pursue those grievances to arbitration is not alone a violation of section 68, counsel argues that in the circumstances surrounding the union's decision not to pursue those grievances, that decision does violate section 68. He argues that the union cannot have been as certain of its interpretation of the collective agreement as Balina would have us believe he was, if at the union-management meeting in June, 1982, it occurred to the union representatives to ask the company whether mill seniority would be applied in effecting upcoming layoffs. He asks us to find that the union must have been in doubt of that point, and argues that this makes its subsequent conduct incomprehensible. He asks us to find that the union did not give serious consideration to the issues raised by the complainants' grievances and that of Landversitch. He asked us to find that the decision not to proceed with these grievances was made by Balina, that Balina made that decision even before the second stage meeting on the Landversitch grievance and that he steadfastly refused thereafter to consider any factor inconsistent with his own interpretation of the collective agreement and the result he wanted to achieve. He argues that the decision to treat the Landversitch grievance dispositive of the complainants' grievances failed to take into account that each was an individual grievance in which the relevant positions on any seniority list, and the ensuing result to any grievor, might well be different. He argues that that decision constituted a violation of the duty created by section 68. In any event, having treated the Landversitch grievance as potentially dispositive of the complainants' concerns, he argues, the union's handling of that grievance breached the section 68 duty in relation to these complainants.

41. With respect to the allegation that the union's actions violated section 70, counsel said that by the actions of Balina at the membership meeting of April 11th and the meeting of the mechanical department on April 14th, the respondent local union sought by intimidation to compel the complainants to refrain from exercising their right under the Labour Relations Act to pursue their grievances in this complaint.

42. The complainants ask that the respondents be ordered to process their grievances to arbitration and to compensate them for all monies they have lost as a result of being laid off contrary to the provisions of the collective agreement and for the legal costs they have incurred as a result of the respondents' violations of the Act. The complainants also ask that the Board award putative damages and direct the respondents to post a notice to employees in the usual form acknowledging their violations and confirming that they will cease and desist from continuing violations of the Labour Relations Act.

43. Counsel for the respondent argues that there is no evidence of intimidation of the complainants by the union. He observes there is no connection established between the union and the anonymous threats to Mrs. Lecuyer and that the physical handling of Lecuyer by Balina after the complaint was filed was unconnected with issues relating either to the complaint or to any potential arbitration.

44. With respect to the complaint that the union's conduct violated section 68, counsel asked the Board to find that the union did direct its mind to the relevant considerations. He asks us to find that Mr. Shields' letter of October 27, 1982, supports the union's position. He submits that the fact that Balina was elected president shows that he was not an unreasonable or sinister man, arguing that most people can discern such characteristics and that the members of this union would not have elected Balina if they had discerned such characteristics in him. He argues that any member of the union can make a motion at a membership meeting to have a grievance proceed to arbitration. He said the complainants could have done that, and failed to do so only because they realized the motion would not have succeeded. Because no such motion had been made, the union could not be guilty of refusing to pursue the matter.

45. Counsel for the union observed that the collective agreement contains no time limits for the filing of grievances, and argues from that that it was entirely reasonable for Balina to select one "seniority" grievance to process as a test case, and that this approach did not in any way prejudice the grievors' position. With respect to the standard required by section 68 in union action and decision-making, he cited Ford Motor Company Limited, [1973] OLRB Rep. Oct. 519, The Steel Company of Canada Limited, [1974] OLRB Rep. June 392, Antonio Melillo, [1976] OLRB Rep. Oct. 613, Diamond "Z" Association, [1975] OLRB Rep. Oct. 791 and Catherine Syme, [1983] OLRB Rep. May 775. He argued that the settlement or consolidation of grievances was not a per se violation of section 68; Catherine Syme, supra, and Stelco Inc., [1983] OLRB Rep. May 771. With respect to the claim for putative damages and costs, counsel argued that the Board is without jurisdiction to award the former and has consistently refused to award the latter, citing Globe Spring & Cushion Co. Ltd., [1982] OLRB Rep. Sept. 1303 and The Corporation of the City of Thunder Bay, [1984] OLRB Rep. May 759, at paragraph 28.

46. Abitibi-Price Inc. was granted intervener status, and its representatives were present throughout the Board's hearing of this complaint. Its representatives did not lead any evidence or cross-examine any witnesses. They did reserve the right to make representations at the conclusion of the case, having regard to the claim that the respondent trade union be directed to take the complainants' grievances to arbitration. The representations made on Abitibi's behalf were brief and simple. Its representative suggested that the company's position with respect to the application of seniority was very clear from the letters introduced in evidence. Because Abitibi had not taken sides in the argument over which form of seniority should be applied, Abitibi's representative suggested that no liability should be imposed on Abitibi with respect to the layoffs. With respect to remedy, Abitibi's representatives said the Board would have to tell Abitibi which side to take if it decided that the union should proceed to arbitration on the mill versus departmental seniority issue.

Complaint of Intimidation and Coercion

47. The complainants have not established that the respondent local union violated section 70 of the Labour Relations Act. The kind of behaviour to which that section is directed was discussed in The Corporation of the Cily of Thunder Bay, [1983] OLRB Rep. May 781, where the Board observed at paragraph 59 that:

48. Section 70 of the Act prohibits any interference with the rights of individuals under the Act amounting to compulsion by means of intimidation or coercion. Without exhaustively defining the meaning of those terms it appears to the Board that at a minimum they must relate to conduct which, directly or indirectly, deprives an individual of his free choice in the exercise of his rights under the Act. While that might include acts or threats which are physical or economic, the section is aimed at preventing interference with an individual's rights by some form of pressure or force that removes their ability to choose. (Tim Reay, [1982] OLRB Rep. Aug. 1206; Beatrice Foods (Ontario) Ltd., [1982] OLRB Rep. Apr. 519; Purple Heart Film Corp., [1979] OLRB Rep. Sept. 900; Great Lakes Forest Products, [1979] OLRB Rep. July 651; Intermodal Marine Surveys Ltd., [1979] OLRB Rep. April 321; Innovative Wood Products, [1978] OLRB Rep. 161; Alex Henry and Son Ltd., [1977] OLRB Rep. May 288; A. Greco, [1976] OLRB Rep. June 323; Andrew Warren, [1976] OLRB Rep. Jan. 963; Canadian Textile and Chemical Union, [1971] OLRB Rep. Aug. 469.

(See also Keith Macleod Sutherland, [1983] OLRB Rep. July 1219.) The behaviour of the local union complained of here was not calculated to deprive nor capable of depriving the complainants of their ability to choose.

48. Before explaining our assessment of behaviour which was clearly that of the local union, we make two observations about behaviour which was not. The first is that there is no evidence from which we can conclude that the union is responsible for the threats on Mr. Lecuyer's life which were conveyed to Mrs. Lecuyer by telephone in April, 1983. The second observation is that when Balina assaulted Lecuyer in September, 1983, he was not acting in the course of his duties or the exercise of his powers as President of the local union. Accordingly, the union could not be legally responsible for that action, and as Balina is not a named respondent, it is unnecessary to decide whether the assault constituted an unfair labour practice.

49. The complainants say the local union violated section 70 at the April 11th membership meeting when Balina demanded that the members referred to in Mr. Bickford's letter identify themselves by clock number as well as by name. They say their concern about the reference to clock numbers was heightened by a rumour that the complainants might have their "cards pulled." They did not identify the source of this rumour, and there was no evidence that Balina or anyone acting on the local union's behalf had started or was even aware of this rumour nor, for that matter, that the complainants thought he had or was. It cannot be supposed, therefore, that Balina intended his request for clock numbers to take on the special connotation the complainants say they attached to it as a result of their having heard that rumour. We see nothing wrong with the request that the members concerned identify themselves. When a trade union receives a demand from a lawyer that his client's grievance be taken to arbitration, the trade union needs to know who the client is before it can deal with the demand. The complainants' lawyer having twice made such a demand without expressly identifying his client or clients, there was nothing sinister about the trade union attempting to find out whose demand it really was. The request for clock number lends a certain formality to the request for a name, but it does not seem out of place in this context.

We note that when members sign the attendance sheets at the beginning of a membership meeting, most of them identify themselves by name and clock number.

50. The complainants say that Balina's April 14th speech to employees in the Mechanical Department, and particular the second last sentence of that speech, violated section 70. We do not agree. It is not clear what, if anything, is being threatened by the words "all circumstances that may result" in the sentence in question. The thrust of Balina' s speech was that the debate over seniority was divisive, and that it would be better for the local to be united. In that immediate context, these words could be taken as referring to the consequences which the minority and the rest of the membership could expect would naturally follow if the minority were to persist; it is not entirely clear these words would or should be taken as threatening that the minority would be made to suffer some otherwise unanticipated circumstances. Even if Balina' s words are taken to imply retaliation rather than mere causation, the threatened "all circumstances that may result" are left entirely undefined by the speech or its context. Although Balina' s behaviour prior to the speech gives us concern when we consider the respondents' duty under section 68, we can find nothing in his or any other local union conduct which would have lent that vague phrase some special meaning capable of effecting intimidation or coercion. The threat, if there was one, was not clear enough or serious enough to come within the ambit of section 70, even if Balina' s reference to the minority's persisting would or should be taken as referring to their exercising rights under the Labour Relations Act.

51. Insofar as it alleges a breach of section 70, this complaint is dismissed.

Complaint of Breach of Section 68

52. The balance of the complaint is based on the alleged violation of section 68 of the Act by the complainants' bargaining agent, "the Canadian Paperworkers Union, C.L.C., and its Local 132" as the bargaining agent is named and recognized in the applicable collective agreement. It is well established that section 68 does not give an employee with a grievance any absolute right to have his collective bargaining agent take the grievance to arbitration. In its capacity as collective bargaining agent, a trade union is bound to represent all of the employees in a bargaining unit. In deciding whether to champion the particular interests of one or more of those employees, whether in the negotiation of a collective agreement or in dealing with grievances arising under a collective agreement, the union must assess the effect its so doing will have on the others it represents. In determining whether and how far to pursue a grievance, the trade union must consider not only its importance to the grievor, but also the likelihood of success and the impact success or failure will have on the union and other employees it represents. If the grievance raises a question of interpretation of a collective agreement provision, the union is entitled to consider whether an interpretation favourable to the grievor is consistent with past practice and also whether its obtaining or even advocating such an interpretation would have an adverse impact on the rights and expectations of other employees. A balancing of other legitimate interests against those of the grievor may warrant the trade union's compromising a grievance which might have succeeded at arbitration: Rayonier Canada (B. C.) Ltd., [1975] 2 Can LRBR 196 at pp.203-204; Antonio Mellilo, [1976] OLRB Rep. Oct. 613 at paragraphs 14 to 16; Algoma Steel, [1981] OLRB Rep. June 611 at paragraph 6; Catherine Syme, [1983] OLRB Rep. May 775 at paragraphs 20 to 22. Indeed, there can be circumstances in which such competing considerations may justify a trade union abandoning a claim with which the employer is prepared to agree: Massey-Ferguson Industries Limited, [1980] OLRB Rep. Jan. 49.

53. While not challenging the general proposition that an employee has no right to have every sort of grievance taken to arbitration, counsel for the complainants argued that an employee must have such a right when the grievance involves a "critical job interest." On this theory, a trade union is always obliged to pursue a claim on an employee's behalf if his or her continued employment or job security is at stake, and there can be no countervailing consideration or other excuse for its doing otherwise. That is not a theory which has been accepted by this Board: see Dufferin Aggregates, [1982] OLRB Rep. Jan. 35 at paragraphs 18 and 19. Trade union action that leaves unchallenged, or even results in, the loss of employment or job security of one or more of the employees it represents is not per se unlawful. However, where critical job interests have been adversely affected by a trade union's actions as bargaining agent, the Board will subject the union's action and its explanation for that action to the closest scrutiny.

54. In Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, the Board described the union's duty under section 68 in this way:

55. In this context, an employee in a bargaining unit for which a trade union exercises exclusive bargaining rights has no reason to expect that his personal interests will always be fully served by the trade union. He does, however, have a legitimate expectation that choices made by the trade union, whether ultimately favourable or adverse to his personal interest, will at least be honest, fair and rationally responsive to interests and circumstances relevant to the decision. It is this employee interest to which section 68 is addressed.

56. 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.

57. 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 a 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.

58. 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.

In Antonio Melillo, supra, the Board explained the relevance of the merits of a grievance to a complaint that failure to take that grievance to arbitration constituted a violation of section 68:

17. Since the incorporation of the fair representation doctrine into the Ontario Act, the Board has accumulated a considerable body of experience defining the kinds of situations in which it is permissible for a union to deny a grievor access to the arbitration process. Although the judgement in each case turns primarily on its own peculiar facts, the Board has evolved a couple of general guidelines by which the conduct of the trade union may be assessed. The first of these relates to the use which the Board will make of evidence regarding the merits of the grievance itself. In determining whether section 60 has been violated by the trade union, the Board has stated that it does not assume the posture of an arbitration board and adjudicate the merits of the complainant's grievance against the employer. While the Board does not receive and consider evidence of all the circumstances surrounding the grievance, it does so for the limited purpose of determining whether the union has acted in an arbitrary, discriminatory, or bad faith manner in the representation of the complainant (see Essex International of Canada Limited, (1972) OLRB M.R. 104). The policy behind this approach is not difficult to fathom. On the one hand, the fact that a grievance appears meritorious may lend credence to an employee's claim that he has been unfairly represented. For example, it may permit the Board to draw an inference of bad faith and/or discrimination in situations where the circumstantial evidence in respect of the union's motivation might otherwise prove inconclusive. On the other hand, the fact that a grievance does not appear to have merit will generally be supportive of the trade union's defence to an unfair representation complaint. (For a recent application of this principle, see the Jay Sussman case [1976] OLRB Rep. July 349). That is not to say, however, that the Board will never find a breach in circumstances where the complainant's grievance appears to lack merit (in this regard, see the Joseph Papp case (1974) OLRB M.R. 60). Nor is it to say that a meritorious grievance will necessarily be dispositive of the union's defence. The merits of the complainant's grievance is but one of a number of factors (albeit an important one) of which the Board may take account in arriving at the judgment about whether the union has dealt with his grievance in a proper manner. Among the other factors which the Board may consider are: the importance of the particular grievance to the employee concerned, the implications of a settlement or arbitration on the other members of the bargaining unit both now and in the future, whether there is any independent evidence of bad faith or discrimination, the degree of consideration given the grievance by the union, and the experience and qualifications of the trade union officials who have been involved in the processing of the grievance.

The process by which a trade union decides on a course of action is often more critical than the "correctness" of the decision, as the Board observed in The Corporation of the City of Thunder Bay, supra:

65. The duty of fair representation has both substantive and procedural dimensions. In some cases a union's actions may result in an outcome that is itself arbitrary, discriminatory or in bad faith, even though the procedures by which it creates that result are to all appearances fair and open. The most obvious example of a substantive violation of the duty would be a union voting by a majority of its members to restrict membership or certain rights under a collective agreement to a particular racial group. The fact that it has not been arbitrary or discriminatory in its procedures, and has arrived at its decision by an accepted democratic process involving proper notice, debate and balloting is no answer to a charge that it has nevertheless violated the duty of non-discrimination owed to the minority. That kind of insidious distinction, which for ease of reference may be characterized as substantive discrimination, has been contrary to the duty of fair representation since its earliest judicial expression. (Steele v. Louisville & N.R.R., (1944) 323 U.S. 192)

66. Procedural infringements on the duty of fair representation have more frequently been the basis of complaints under section 68 before this Board (see, generally, Brown, "The Duty of Fair Representation in Ontario" (1982) 60 Canadian Bar Review 412.) The procedural aspect of the duty requires that decisions adversely affecting the interest of an individual or group of employees be made by a process within the unit that is untainted by ill will, hostility or any other aspect of discrimination, arbitrariness or bad faith. Outcomes which are the fruit of such procedures have consistently been found to be in violation of the duty of fair representation and have given rise to a number of remedial orders under section 89 of the Act. (Leonard Murphy, [1977] OLRB Rep. Mar. 146; Great Lakes Forest Product, Ltd., [1979] OLRB Rep. July 651; Toronto East General and Orthopaedic Hospital Inc., [1980] OLRB Rep. Apr. 555; Toronto Hydro Electric System, [1980] OLRB Rep. Oct. 1561)

67. Some years ago, Professor Cox observed that:

A large part of the daily grist of union business is resolving differences among employees poorly camouflaged as disputes with the employer.

(Cox, "Rights Under a Labour Agreement". (1956), 69 Harv. L. Rev. 601 at 627.) That is certainly true in this case. When the events giving rise to this complaint began, there were (at least) two views among employees on the part "mill" and "departmental" seniority were to play under the collective agreement in determining who would and who would not remain at work in the mechanical department during a production shutdown. Each side understood that the union could not change the collective agreement except through collective bargaining, which by union custom would require membership approval of any proposed amendment before the union could present the proposal to the employer. The critical question, as both sides perceived it, was the correct interpretation or application of the existing provisions of the collective agreement in light of past practice. The language of the collective agreement was not a model of clarity; each side of the issue felt it could find support for its viewpoint in the provisions of the agreement and in the past practice of the union and employer in applying those provisions to the circumstances of other layoffs. The complainants held one view; Ron Balina, the President of the local, held another.

56. Balina was as entitled to his personal view as the complainants were to theirs. As President of the local union, however, Balina had a major role to play in determining which view the union would support. With that role went the responsibility to ensure that the union did not act in an arbitrary, discriminatory or bad faith manner in making that determination. He failed in that responsibility as a result of his single-minded determination to have his own position succeed (a characteristic which, in other circumstances, may have contributed to his success as a political leader). His failure constituted a violation by the union of its duty to the complainants under section 68 of the Labour Relations Act.

57. Balina' s personal animosity toward the complainants was palpable. His ill will toward Podlewski was evident in the explanation he gave for his decision not to process Podlewski's grievance of July 21, 1983. We can accept, for the sake of argument, that there was nothing improper about a decision to process just one grievance as a test case, and we can even accept that comparative spelling accuracy and neatness would be as good a basis as any on which to select a test case from among otherwise identical grievances. However, Balina's claim that the handwriting and spelling in Podlewski's grievance were illegible and atrocious, either in comparison with Landversitch' s grievance or in any absolute sense, is preposterous. The fact that the claim was made at all can only be explained if one remembers that it was first made by Balina at a membership meeting to members who had no way of knowing that it was unfair and untrue. The only purpose Balina could have had in making such a statement at that time was to discredit Podlewski' s position on the seniority issue by discrediting Podlewski personally. That Balina would repeat the claim before us and expect us to believe it was his reason for refusing to present Podlewski's grievance simply shows how much Balina's ill will toward the complainants and desire to vindicate his personal views about the collective agreement have clouded his judgement in this matter.

58. Balina's ill will toward the complainants and his inability to recognize a distinction between his own interests and those of the union were both clearly illustrated by his explanation that it was the complainants' attempts in November, 1982, to get someone to run against him for the office of President of the local that warranted his accusing them, in his speech to the mechanical department on April 14, 1983, of undermining the local union's executive. It is as impossible for us, as it must be for the complainants, to imagine that the decisions Balina made in connection with the complainants' grievances were untainted by his ill will toward them.

59. Quite part from the bad faith element introduced by his ill will, Balina' s actions were arbitrary in that in making his decisions he persistently failed to take into consideration any matter which supported the complainants' interpretation of the collective agreement. Although he claimed to recognize the importance of past practice in interpreting the collective agreement, he made no effort to investigate the 1969 proposed layoff when it was drawn to his attention. He also failed to take into account or investigate the statement in Mr. Shields' letter that layoffs had traditionally been effected in the manner contended for by Giles and the complainants. This failure to investigate is particularly troubling in view of Balina' s inability to provide us with a single example of a layoff effected prior to July, 1982, otherwise than in the manner contended for by the complainants and described in the second paragraph of Mr. Shields' letter of October 27, 1983.

60. In the circumstances, it is no answer for the union to say that Balina had obtained supportive opinions from national officials of the union and from Mr. Dubinsky. The only one of those persons to testify was Mr. Monk. He acknowledged that the application of the seniority provisions on layoffs was a question on which local practice was important. He did not know the local practice. He based his opinion on Pupeza's statement that layoffs at this mill had been conducted in the past in the manner complained of by Landversitch. Pupeza did not testify. We can only infer that his testimony would not have assisted the respondent. It seems likely that Balina was the sole source of any information about past practice on which anyone relied in providing Balina with a reassuring opinion. There is no magic to the fact that one of the opinions Balina obtained was that of a lawyer. The factual foundation on which it is based is just as critical to the value of a lawyer's opinion as it is in any other case. We do not know what Mr. Dubinsky was told or, except as reported by Balina, what opinion he gave. If what he said about the facts in his letter to Mr. Bickford of April 22nd is any indication, his understanding of the facts was not a particularly strong foundation on which to rest any useful opinion. The important point is that Balina controlled the factual basis on which these opinions were given. A decision which arbitrarily ignores relevant information is no less objectionable merely because someone from whom that information was withheld would have made the same decision.

61. The union's principal defence is that there has been no decision not to take the Landversitch grievance or any other of the seniority grievances to arbitration. It argues that the complainants could have made a motion at a membership meeting to have one or all of the grievances taken to arbitration. We are asked to conclude from the complainants' failure to do so that they feared the motion would be lost if made. That may be so, but it does not answer this complaint. The fact that union action is approved or dictated by the result or anticipated result of a membership vote will not in every case ensure compliance with the duty imposed by section 68. The reason for that must be obvious. One of the functions of section 68 is to protect minority interests from tyranny of the majority. That very purpose would be defeated if by voting in favour of doing so the majority could cause the union to act with impunity in a manner which is arbitrary, discriminatory or in bad faith: see Douglas Aircraft Company of Canada Ltd., [1976] OLRB Rep. Dec. 779 at paragraph 14.

62. Compliance with the duty of fair representation created by section 68 requires that heads be used and not merely counted. The group vote must satisfy the same test as any other form of decision-making: neither the substance of the decision nor the procedure taken to arrive at it may be arbitrary, discriminatory or in bad faith. (See The Corporation of the Town of Oakville, [19841 OLRB Rep. May 731 for an example of a membership vote found to violate section 68.) As with any other kind of decision, a decision taken by vote at a meeting of members can be no more reliable than the information on which it is based. Balina withheld from the membership the fact that Abitibi thought the complainants' interpretation of the collective agreement was "technically correct". He withheld from the membership the fact that Abitibi's understanding of the practice followed prior to July 1982 supported the complainants' position. Of course, Balina claims not to read Shields' letter of October 27, 1983, as saying either of those things. It is significant, however, that he withheld from the members the text of this letter which he says supported his view. That happened despite the local union's practice of having the Recording Secretary read out correspondence at membership meetings; the letter was not given to the Recording Secretary. We can only suppose Balina suppressed the letter because he recognized that if the members knew its contents, they might interpret it differently, as the complainants did and as we have.

63. It is particularly telling that Balina also withheld from the members and the Recording Secretary both the contents and the existence of the Mill manager's letter of March 18, 1983, which made it clear that its following mill seniority in effecting layoffs after July 1982 had nothing to do with what the company thought was the "correct" interpretation or application of the collective agreement, but simply reflected its willingness to adopt whatever procedure Balina told it the union wanted. When he spoke to the members of the mechanical department on April 14th, he told them that the company's answer to the seniority grievance had been that it had not violated the collective agreement by effecting layoffs by mill seniority. The implication was that the union was not likely to succeed at arbitration if it contested that answer. Shanks recalled Balina saying something similar at a membership meeting. Without seeing the letters, the members could not know that Abitibi was continuing the mill seniority approach taken in the July, 1982, layoffs because Balina had told them that was what the union wanted. It would have been obvious from the letters that the company would change its approach if the union asked it to.

64. Balina withheld from the membership information it would have needed in order to properly assess what should be done with the Landversitch grievance. In doing so he acted in a manner which was both arbitrary and in bad faith. While honest errors of judgment, particularly in the balancing of competing interests, may not be proscribed by section 68, wilful or reckiess deception clearly is: Diamond Z Association, [1975] OLRB Rep. Oct. 791; Cliff Wilson, [1980] OLRB Rep. July 1102; City of Thunder Bay, supra.

65. The respondents are legally responsible for the actions of Mr. Balina and for the consequences of those actions. We find that through and as a result of his acts and omissions, the respondents acted in a manner which was arbitrary and in bad faith in representing the complainants, and in so doing violated section 68 of the Act.

Remedy

66. The Board's object in exercising its remedial jurisdiction under subsection 89(4) of the Act is to put the complainants in the same position, so far as it is able to do so, as if there had been no breach of the Act. The nature of the appropriate remedy or remedies will vary from case to case, but there is no room in the Board's repertoire of remedies for a remedy whose primary function is to punish: see Radio Shack, [1979] OLRB Rep. Dec. 1220 at paragraph 94 and following. By their nature, that is the function of punitive damages. We will not award punitive damages.

67. In addition to compensation for earnings and other benefits lost as a result of the manner in which layoffs have been conducted since July, 1982, a matter which would be dealt with at arbitration if we were to order that the complainants' grievances be taken to arbitration, the complainants ask that we direct that the respondents reimburse them for their costs of pursuing this complaint before the Board, including legal costs and earnings lost as a result of attending the Board's hearings. In Radio Shack, supra, the Board had this to say about a similar claim for legal costs:

The Board is hesitant to pursue this line of compensation because of the possibility that the denial of legal costs to those parties who successfully defend against complaints may be misunderstood and perceived as unfair. This policy may be reviewed by the Board from time to time.

We consider that policy applicable, and see no reason to review it in the circumstances of this case. The reason for the policy applies with equal force to the claim for any earnings the complainants may have foregone in order to attend at the hearing of this complaint. The complainants' remedy will not include any compensation for their legal or other costs of proceedings to date.

68. The complainants request that the respondents be ordered to process their grievances to arbitration. This is a quite conventional remedy where the alleged breach of section 68 involved a trade union's refusal to process a grievance. We are in doubt whether that is the appropriate response in this case, however, for reasons which require a review of the reasons why referral to arbitration is the conventional remedy.

69. The duty imposed by section 68 has been part of the Labour Relations Act since early 1971. At first, the Board regarded a monetary award against the union as its primary, if not only, remedial response to breach of that duty. When the breach involved a failure to process a grievance through the grievance and arbitration procedures, the Board recognized that the amount of a remedial monetary award would have to reflect the likelihood of its success had the grievance been processed properly by the union. This led initially to a two­stage hearing process in cases of that kind. The Board first considered whether the trade union had violated its duty to the complainant and, if it found it had, then assessed the merits of the grievance the union had failed to process: Rutherford's Dairy Limited, 11972] OLRB Rep. March 240. As consideration of the merits of a grievance could not be divorced entirely from assessment of the propriety of trade union conduct in processing that grievance, in Alfred Compton, [1972] OLRB Rep. Oct. 916, the Board expressed a preference that it hear evidence on both issues together in one hearing.

70. Until late 1973, the employer against whom a trade union had improperly failed to process a grievance was not considered a proper party to the complaint for any purpose. In Ford Motor Co. of Canada Ltd., [1973] OLRB Rep. Oct. 519 (the Gebbie and Lan gmoore case), the Board observed for the first time that, while section 60 imposed no direct duty on an employer, the Board did have the power to award remedies which affected the employer's rights and held that an employer could be made a party to a fair representation complaint for that reason and purpose. The Board observed that remission of the unprocessed grievance to arbitration was such a remedy, and one which might have to be accompanied by an order vacating collective agreement time limits on referral to arbitration if it were to effectively remedy a delinquent trade union's failure to take the grievance to arbitration within those time limits. The Board also observed:

It is also apparent that where there is an allegation respecting the union's refusal to deal with a grievance that many of the facts and issues surrounding the grievance may be resolved in the course of arriving at a determination concerning the union's duty. In those cases it may be desirable that this Board decide the grievance issues as well as the section 60 claim, because the remission of that type of situation to arbitration would only result in a duplication of evidence, time and cost to the parties.

71. In Imperial Tobacco Products, [1974] OLRB Rep. July 418, the Board again held that an employer could be added as a respondent to a fair representation complaint for remedial purposes. It observed that the Board could remit a grievance to arbitration or determine the merits of the grievance itself and so remedy the statutory and associated contractual breaches itself. Indeed, in that decision the Board observed that the latter approach might be preferred in some cases:

... where it is first established that the trade union is in breach of its duty of fair representation by, arbitrarily failing to take the grievance to arbitration the Board may assume jurisdiction to interpret a collective agreement in order to fashion meaningful relief for the employee. (See Joseph Pap...) As noted above, this will often necessitate joining the employer who has initiated the sequence of events giving rise to the breach of the union's duty of fair representation. But, it was noted in Gebbie... that part of the remedy may be the remission of the grievance to an arbitrator under the collective agreement which raises the dilemma faced by this Board - when should the Board defer to arbitration in a s.60 situation. In many situations, in finding that the trade union has violated s.60 in failing to take an employee's grievance to arbitration, facts will arise that suggest the trade union is unlikely to represent the employee fairly at the arbitration hearing and in such a situation the Board may decide to hear the matter itself...

72. Against this background, in Nick Bachiu, [1975] OLRB Rep. Dec. 919, the Board again said that the merits of a grievance and the merits of a complaint that the grievance had not been processed could not be separated as a matter of procedure:

We do not believe that the merits of the grievance and the merits of a s. 60 complaint can be, or should be separated as a matter of procedure. The Board has to know all the circumstances surrounding a grievance to assess whether the trade union has dealt with it in a proper manner. The employer's version will usually be very helpful in making this determination. However, in those cases where the Board finds that a violation of s.60 has been made out, a judgment on the merits of a complainant's grievance will not follow automatically. The Board may adjudicate a grievance where the outcome of grievance arbitration is beyond doubt (Joseph Pap...) or it may do this where there is a concern that grievance arbitration will not provide an effective remedy (as explained in Imperial Tobacco). For example, this latter possibility may arise if the violation of s.60 is based on either the bad faith or discrimination of a trade union. But in other cases, where the outcome of arbitration is problematic and the Board is assured that the trade union will represent the complainant fairly, the more appropriate remedy, in light of the policy underlying s.37 of the legislation, may be to refer the matter to arbitration under the agreement and not for the Board to give its opinion on the merits (although it may retain jurisdiction). Of course this will depend on the peculiar nature of each matter that comes before the Board. (In fact, a successful complainant may not be entitled to a judgment on the merits - see dissent in Pedalino and United Steelworkers of America, [1975] OLRB Rep. Nov. 874.) However, this is not to deny that, with experience, the Board may come to the conclusion that, for reasons of economy and expedition it should finally dispose of all established violations. In our opinion the Board and the parties should be prepared to experiment with remedies and no clear rule needs to be articulated - at least we see no need for remedial certainty at this time.

73. The Board first directed referral to arbitration as the primary remedy in a fair representation complaint in Leonard Murphy, [1977] OLRB Rep. Mar. 146. In that case, the Board found that the union, through the actions of its "Union Committee", had acted arbitrarily and in bad faith in failing to process the grievances of Murphy and his complainant Shaw against their August 28, 1976, discharges from long-standing employment at The Kingston Whig-Standard Co. Ltd. The Board discussed remedy at paragraphs 35 to 41 of its decision:

74. In this case that arbitrary and bad faith conduct of the Union Committee denied the grievors their chance to have their grievances heard on the merits in arbitration. What remedy will most appropriately rectify this loss?

75. An isolated order for damages against the union would not be an appropriate remedy in the circumstances of this case; it is only in the event that the grievances are ultimately successful at arbitration the grievors will have suffered financially from the union's violation of section 60. If the grievors were properly discharged, the union's mis-management will not have prejudiced the grievors beyond delaying the ultimate resolution of their rights.

76. Since the Board found that the violation of section 60 stemmed from the failure of the Union Committee to direct its minds to the merits of the grievances the Board might direct the union to reconstitute a Union Committee and reprocess the grievances under the terms of section 9 of the collective agreement. On reconsideration the decision might be made either to affirm the company's decision to discharge, to settle the grievances or to submit them to arbitration. The evidence indicates to the Board, however, that the positions of both the union and the company have been solidified over the six month period in question to make any resolution short of arbitration most unlikely. The company has repeatedly indicated that it does not intend to re-evaluate or modify its decision to discharge the two grievors. As well, the general membership of the union voted both on October 7, 1976 and January 6, 1977 to submit the matter to arbitration and has already appointed Mr. R. Sievers as its nominee. It is the opinion of this Board that a direction to the union to reprocess the grievances from the stage of establishing the Union Committee would occasion the repetition of considerations which have already been made by the union in good faith and in a non-arbitrary manner and would not have the effect of persuading either the company or the union to a position of compromise. The prejudice occasioned by further delays involved in remitting the grievances into the ordinary stream of the grievance procedure would not, in these circumstances, be counter-balanced by the prospect of a settlement short of arbitration.

77. Accordingly, the Board finds that a direction to the parties to arbitrate forthwith the grievances will most effectively remedy the violation of the Act. This order is made notwithstanding either the possibility that the Union Committee may not yet have fulfilled its section 9 duty under the collective agreement or the possibility that the Union Committee has already in fact confirmed the employer's decision to discharge the grievors. The order therefore overrides the collective agreement in that [1] it dispenses with the requirement of the parties to proceed through the Union Committee stage as set out in section 9 of the collective agreement in order to advance to arbitration and [2] it nullifies the effect that section 9 might have in preventing a grievance from proceeding to arbitration if it be found that the Union Committee has properly confirmed the company's decision to discharge the grievors.

78. In the event that the grievances are successful at arbitration, the Board orders that the union pay the compensation covering the period of time occasioned by the union's violation of section 60. The Board takes the view that the union's violation of section 60 began on September 3, 1976 with the meeting between the company, the Union Committee and Mr. Shaw, and that it is being remedied by this decision. Thus if the grievances of either Mr. Murphy or Mr. Shaw are successful the Board orders that the union bear the responsibility for their compensation from September 3, 1976 to the date of this decision.

79. Because of the inherent conflict of interest resulting from the Board's contingent order of damages against the union, the Board further orders that the union be required to engage counsel, jointly chosen by the grievors and the union, to represent the union in the arbitration of the grievances of both Mr. Shaw and Mr. Murphy. While the Board has complete confidence in the union's present intention and ability to represent the grievors in good faith, justice demands that the grievors be protected against the apparent conflict of interest.

80. The Board remains seized of this complaint to resolve any matter arising out of the interpretation of its order.

81. Very shortly after the release of the Board's decision in Leonard Murphy, the procedural approach advocated in Nick Bachiu was reviewed and disapproved of in Massey-Ferguson Industries Limited, [1977] OLRB Rep. Apr. 216. In that case, after reviewing the Board's prior jurisprudence as we have done here, the Board observed:

82. .. The Bachiu dictum did not stand for the proposition that the Board would always adjudicate the merits of a successful section 60 and the merits of the underlying grievance in one fell jurisprudential swoop. However, the uncertainty about whether the Board would do this in a particular case, or whether it would decide instead to refer the grievance to arbitration resulted in a noticeable tendency toward protracted section 60 proceedings. The problem was that some counsel (complainant, trade union and employer alike), felt compelled to put in all their evidence on the merits of the complainant's grievance so as not to risk an unfavourable disposition on the grievance based on . 'insufficient evidence". Although much of the evidence which the Board received in respect of the merits of the grievances which came before it under section 60 had, for the reasons outlined in paragraph 18, a very real bearing on the question of whether the trade unions involved were in violation of section 60, some of it was completely without relevance to that issue and would probably not have been introduced but for the possibility of preemptive and automatic grievance arbitration by the Board.

83. Not only did the Bachiu dictum result in protracted section 60 proceedings, it was also regarded in some quarters, and we think with some justification, as unfair to the employer who is, after all, only a party to a section 60 complaint because its rights might be affected thereby. Lest there be any misunderstanding on this point, we want to make it clear that the Board holds to the position that an employer should not be permitted to shelter behind a trade union's breach of its duty of fair representation, and thereby escape from its contractual obligation made mandatory by section 37 of The Labour Relations Act to answer in arbitration for "its alleged violations of the collective agreement". Accordingly, the Board will continue to use its powers under section 79 of the Act, which include the power to override the specific provisions of a collective agreement, to ensure that an aggrieved complainant is not in that way deprived of the opportunity to obtain full and effective redress for a trade union's wrongful failure to carry his grievance to arbitration (for the Board's initial exercise of this remedial authority, see Leonard Murphy and International Printing and Graphic Communications Union, Local 482, Board File No. 1687-76-U discussed infra). But that notwithstanding, we do not think it entirely fair to require an employer to defend itself against an alleged contract violation before a contravention of section 60 has been established.

84. With this analysis of the problems inherent in the procedural format suggested in Bachiu, we can now outline the procedure which the Board intends to adopt when dealing with section 60 complaints.

85. Where the Board determines that a trade union has violated its statutory duty of fair representation by failing to take an employee's grievance to arbitration, and where it further determines that arbitration is the appropriate remedy in the circumstances, (which it will not always be, see paragraph 28), the Board will exercise its remedial authority under section 79 of the Act to make an order directing the union to arbitrate the grievance with whatever modifications of the collective agreement appear necessary to ensure that a fair and expeditious arbitration on the merits of the grievance takes place. If the union's denial of fair representation has aggravated the complainant's financial loss, the Board will also, at that time, make an order for damages, apportioning liability as between the trade union and the employer in the event that the grievance succeeds at arbitration, together with whatever further orders that contingent order for damages may necessitate.

86. The implication of the procedure which the Board utilized in Murphy, and which the Board is now adopting, is that a party to an unfair representation proceeding (be it complainant, trade union or employer), need no longer feel compelled to present to the Board all its evidence on the merits of the complainant's grievance against the employer. The reason is that it will have a full opportunity to introduce that evidence before an arbitration board if the union is found to have committed a breach of its statutory duty and arbitration is indicated. We realize, of course, that many section 60 complainants appear before the Board without benefit of legal representation and that they will be no more familiar with this new procedural format than they were with the old. So as not to deny a complainant a full and fair opportunity to make its case, the Board has not been in the past, and will not be in the future, unduly restrictive with respect to the evidence which it allows to be introduced in a section 60 proceeding. The adoption of the new procedure, however, will mean that neither the union nor the employer will be required to respond to evidence which is of no relevance to the issue of whether the union is in breach of its duty of fair representation.

87. To summarize, the procedure which we have adopted for the adjudication of section 60 complaints is designed to avoid the twin pitfalls inherent in the procedure suggested in Bachiu - unduly protracted hearings and need for the employer to come forward with evidence to defend its actions in respect of the alleged contract violation before a violation of section 60 has been made out.

88. It should be emphasized that the procedure outlined in this decision does not mean that the parties to an unfair representation proceeding will now have no need of adducing evidence on the merits of the grievance underlying the complaint. The parties (particularly the complainant and the union) will still have an interest in conveying to the Board, through their evidence, a sense of how the complainant's grievance against the employer was likely to have been perceived by the trade union. There is in many section 60 cases, however, a great deal of evidence which, while very pertinent to the question of whether the complainant's grievance would be successful at arbitration, is not relevant to the issue of whether the union has dealt with that grievance in a proper manner.

89. Before concluding, we would add these further comments about the significance of the procedure which we have adopted within the framework of the Board's developing section 60 jurisprudence. Before Gebbie, the remedy of referring the grievance of a successful complainant to arbitration was not regarded as available, the Board taking the view that an employer was not a proper party to a fair representation complaint, since section 60 imposed no duty upon it. In order to assess the complainant's damages, the Board, therefore, was required to make a judgment about whether the complainant would have secured a favourable arbitration award. Imperial Tobacco then held that an employer, although under no statutory duty to the complainant, could be joined as a party for remedial purposes; and, from that point on, it was no longer necessary for the Board to speculate on the outcome of arbitration.

Nevertheless, the option of final adjudication by the Board was preserved: first, because there was a concern that a trade union which had violated its duty of fair representation by failing to take an employee's grievance to arbitration might not do a sincere job of presenting that employee's case at an arbitration hearing; second, because the Board was concerned about referring unmeritorious grievances to arbitration with the expense, delay and duplication of evidence which that would entail; and, finally, because the remedy of the Board finally disposing of an established section 60 violation had always existed in theory, if not in practice, and the Board saw no immediate need to abandon that remedy simply because it was no longer restricted to an award of damages against the offending trade union.

28. With hindsight, the Board can now see that the uncertainty which was created by the preservation of that remedial option, with its unforeseen procedural ratifications, was neither necessary nor desirable. Should there be a concern now that a successful complainant will not be represented fairly by his union at arbitration, that concern can be met by the Board making an order directing the union to retain counsel acceptable to the complainant, as was done in Murphy.

29. It is true that the abandonment of the remedy of final adjudication by the Board of the grievances which come before it under section 60 may serve to delay and increase the costs to the parties in cases where a section 60 complaint succeeds. But that sacrifice is something which we believe, on balance, to be unavoidable. It should be emphasized, though, that not every successful section 60 complaint requires the remedy of arbitration. As we stated in Murphy, the whole point of a remedy for a violation of section 60 is to, as nearly as possible, put the parties into the position they would have been in had the unfair representation not occurred. Stated another way, the Board does not view section 60 as conferring upon a successful complainant an automatic right to have his grievance arbitrated. If the grievance is not one which his union would have been required to carry further had it not breached its duty of fair representation, the union should not be required to proceed to arbitration if it decides, after proper consideration, that it still does not wish to do so....

30. The Board has recognized that there are limits to the efficacy and propriety of referral to arbitration as a remedy for breach of section 68. The complainant in Toronto Hydro Electric System, [19801 OLRB Rep. Oct. 1561 had been removed from a supervisory position within the bargaining unit represented by the respondent union, after that union presented his employer with a petition threatening illegal work stoppages if he was not removed from that position. The Board found that the union's conduct violated section 68 of the Act. The Board ordered that the employer immediately reinstate the complainant to his former position, and directed that the union compensate him for the monetary loss he had suffered as a result of his removal from that position. In choosing to deal with the termination directly, the Board made these observations:

31. The Board views the union's conduct in this complaint as reprehensible to a degree that necessitates an unequivocal remedial order. The Board's order in any complaint must respond to the special circumstances of the case. This is not, as is common in section 60 complaints, a grievance first arising out of an imputed breach of the collective agreement by the employer followed by a refusal of the union to process the grievance to arbitration. In cases of that kind the Board is reluctant to assess the merits of an employer's conduct in the course of framing a remedial order under section [68] of the Act. The Board generally will not, therefore, dispose of a dispute between employer and employee that is essentially a matter for arbitration. Rather, where the breach of section [68] is grounded in a union's refusal to advance a grievance to arbitration the Board will make an order, with or without procedural conditions, requiring it to do so. (For a review of the Board's rationale for this approach see Massey­Ferguson Industries Limited, [1977] OLRB Rep. Apr. 216).

32. This is not that kind of complaint. In this case the grievor's rights were initially violated by the union. The grievor' s economic loss arose only when the employer acceded to the union's demands. While there were obvious economic reasons for the employer's capitulation, it was the employer's response in the end that allowed the union's conduct to work its result.

33. An employer can, in a number of ways, become a participant in a breach of an employee's rights under section [68] of the Act. It can become involved by collusion or, as in this case, by becoming the instrumentality by which the unlawful end is achieved. When an employer's actions are an integral part of the conduct that is being complained of under section [68] any order that redresses the breach of the union's duty of representation by returning the parties to the status quo that preceded the breach may, of necessity, affect the employer.

In Toronto Hydro Electric System the union had not refused to process a grievance; the complainant had not filed one because he saw it as a futile exercise in the circumstances. However, it is apparent that the Board's decision to deal directly with the complainant's discharge was not influenced by that factor and turned, instead, on the nature of the dispute which gave rise to the discharge and the identity of the real disputants.

76. The remedial approach described in paragraph 20 of the decision in Massey-Ferguson Industries Limited has since been followed in Consumers Glass Company Limited, [1979] OLRB Rep. Sept. 861, Corporation of the Town of Hastings, [1979] OLRB Rep. Nov. 1072, Bedard Girard Ontario, [1981] OLRB Rep. Oct. 1338, North York General Hospital, [1982] OLRB Rep. Aug. 1190, Phillip Wayne Bradley, [1983] OLRB Rep. Mar. 323, Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920, Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, Central Stampings Limited, [1984] OLRB Rep. Feb. 215, J. M. Schneider Inc., [1984] OLRB Rep. Mar. 467, The Corporation of the Town of Oakville, [1984] OLRB Rep. May 731, and Windsor Western Hospital, [1984] OLRB Rep. Nov. 1643. In Savage Shoes Ltd., the complainant's recall rights, and hence her employment status, were threatened by her employer's interpretation of the seniority provisions of the collective agreement. In each of the other cases, the employer had discharged the complainant on grounds the complainant sought to challenge.

77. In most of these cases, the union's breach of section 68 resulted from its having acted arbitrarily in failing to sufficiently investigate, consider or discuss with the complainant the merits of the grievance before deciding not to pursue it. The union's object in considering the merits had only been to determine whether the union was likely to win the grievance. There was no suggestion in any of these cases that any group interest entered into the decision, other than a general concern that the union not squander its credibility and limited financial resources on the arbitration of grievances with insufficient prospects of success.

78. In each of these cases, the complainant's grievance concerned action taken by the employer on its own initiative, action which the employer proposed to defend if the matter went to arbitration. In each case, damages and reinstatement to employment or the employee status were sought by the employee and resisted by the employer. Where the Board ordered that the union bear part of any damages awarded at arbitration, the employer was only relieved of exposure to any increase in the complainant's damages which arose as a result of the union's initial failure to process the grievance. The employer retained an active interest in defending its position at arbitration. In the typical case, an initial decision by the union to take the complainant's claim to arbitration would not itself have resolved the claim; the complainant would only have achieved what he or she was after if his or her position prevailed over that of the employer at arbitration. What the complainants in such cases lost when their union decided not to pursue their grievances was the opportunity to contest their employer's position on the underlying dispute. The likely result at arbitration was the critical contingency in an assessment of the loss the complainant had suffered as a result of the union having made its decision in an improper manner. There is an obvious logic to assessing that contingency by having the parties actually arbitrate the dispute. Of course, a direction to that effect dispenses with assessment of another contingency: the likelihood that the union would have decided to pursue the complainant's grievance had it made the decision in a manner consistent with its duty under section 68 of the Act. This makes sense where the union's decision would also have turned largely, if not entirely, on an assessment of the likely outcome at arbitration, the merits of the grievance are at least debatable and the Board is not satisfied that it would be appropriate to give the union a second opportunity to make that decision in a proper manner, having regard to the nature of the union's violation and the conflict of interest created by exposure to a liability which would now hinge on that decision: see Savage Shoes Ltd., supra, at paragraph 63, and compare The Four Seasons Hotels Limited, [1984] OLRB Rep. Oct. 1406.

79. This case differs from those in which the Board has directed that the trade union and employer process the complainants' grievance to arbitration. The fundamental difference is that the underlying dispute is not between complainants and their employer; the real dispute is internal to the union. If the union had decided to advocate the complainant's interpretation of the collective agreement, the evidence now before us suggests very strongly that Abitibi would have accepted and acted on that interpretation. As a result, when assessing the damages to the complainants which result from the union's breach of the Act, the likely outcome of a grievance supported by the union is a much less critical contingency than the question whether the union would have decided to support the grievance if it had dealt with that question in a manner which was not arbitrary, discriminatory or in bad faith.

80. With the possible exception of the layoffs in July, 1982, the layoffs which the complainants wish to challenge at arbitration were carried out in accordance with a procedure the employer adopted or continued at the union's request. A challenge in the union's name to the employer's use of that procedure after that request was made and while it remained outstanding would surely be answered with the defence that the union is estopped from challenging the procedure it approved in the October meeting on the Landversitch grievance. It would clearly be unfair for us to fashion a remedy which exposes the employer to liability to the complainants for the adverse consequences to them of a layoff procedure requested by their union. If we were to direct arbitration and require that the employer not raise the estoppel defence, then we would also have to direct that the union bear liability for any damages awarded in arbitration with respect to claims against which the estoppel defence would have been successful. This would leave Abitibi with no reason to resist the position which our order would permit the complainants to assert in the union's name, unless we were also to take up Abitibi's rhetorical request that we tell it what position to take if we direct a referral to arbitration. This all seems a highly artificial and unsatisfactory way to assess damages for which only the union would ultimately be responsible.

81. The dynamics of an arbitration with respect to the July, 1982 layoffs might be different. We have not heard Abitibi's version of the discussion about mill seniority at the union-management meeting of June 23, 1982, and do not know whether a challenge to the July layoffs might be met with an estoppel defence arising from that discussion. Even assuming that it would not, Abitibi's second step answer to the Landversitch grievance does not leave much room for dispute in an arbitration in which the position taken in the name of the union is the same as the position set out in the second paragraph of Abitibi's letter.

82. In short, with the possible exception of losses resulting from the July, 1982, layoffs, it is the union, and not the employer, that will be liable for any damages to which any of the complainants can show they are entitled for layoff out of seniority. Whatever value an arbitration between the employer and the complainants acting in the name of the union might have in assessing whether Abitibi should pay damages to Podlewski in respect of the July, 1982 layoffs, that procedure could not be expected to fairly assess the contingencies which affect an assessment of the union's liability to the complainants for damages in respect of any of the other layoffs. For all these reasons, we doubt whether any direction to proceed to arbitration should form part of the remedy in the circumstances of this case, and we are certain it should not be the means by which the union's liability for damages is ascertained.

83. Accepting at face value the union's claim that its object in deciding whether to support the complainants' position was to act in a manner consistent with the language of the collective agreement and the parties' past practice, one way to determine the appropriate remedy for the union's breach might involve a determination by this Board of the meaning of the collective agreement. This could not and would not be done without first hearing any evidence or argument which any of the parties wish to add to what we have already heard. If we were to find in favour of the complainants' interpretation, we would then go on to assess the damages payable by the union with respect to layoffs after July, 1982, and to determine whether either the union or the employer is responsible for any loss in respect of the July, 1982 layoffs.

84. As the parties' arguments did not address the possible alternatives to a referral to arbitration, we do not propose to come to any final conclusion on this aspect of remedy before having the benefit of their submissions. Each party's written submissions on this issue, if any, are to be delivered to the Board and to the other parties within twenty days of the date of release of this decision. Any party who has filed representations-in-chief within that time may file a written reply to the other parties' timely representations-in-chief within ten days of receipt thereof. It should be clear that one of the alternatives we are prepared to consider and on which we wish the parties to address argument is that the Board proceed to adjudicate the questions raised by the complainants' grievances.

85. Although the means by which the complainants' damages are to be assessed remains to be determined, there should be no doubt that the respondents are liable to compensate the complainants for any loss or damage which can be shown to result from their breach of the Labour Relations Act. It is also clear to us that the remedy in this case should include a Notice to Employees prepared by the Board and signed on behalf of the respondents, advising the Mill employees represented by the respondents of the outcome of the Board's findings, their rights under the Labour Relations Act and the steps that will be taken by the respondents as a result of the Board's decision. We will defer finalizing the terms of that Notice, however, until we have received and dealt with the further representations contemplated by paragraph 84 of this decision.

86. In addition to preparing and delivering their submissions, if any, in accordance with paragraph 84 of this decision, the parties should now consider whether they can settle or narrow the issues which remain outstanding. To facilitate settlement discussions, we direct that the complainants provide the respondents and intervener with full particulars of the amount and method of calculation of each complainant's damage claim within 30 days of the date of

release of this decision, or such further period as the parties may agree in writing. In that connection, we also direct that the intervener provide the complainants with any information concerning the subject layoff periods which they may reasonably require in order to prepare the required particulars.

DECISION OF BOARD MEMBER L. C. COLLINS;

I dissent from my colleagues' finding that the respondents breached section 68. I would have dismissed this complaint.