[1986] OLRB Rep. June 883
1237-85-U Jeanne St. Pierre, Complainant, v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W. Local 444 and Chrysler Canada Ltd., Respondents
BEFORE: Owen V. Gray, Vice-Chairman.
APPEARANCES: Edward Ducharme and Jeanne St. Pierre for the complainant; Larry Bauer, DavidWilson, James Walsh, Fraser Gillis and Ernie Clayton for the respondent International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, U.A.W Local 444; David Deluzio and Lou Bulat for the respondent Chrysler Canada Ltd.
DECISION OF THE BOARD; June 6, 1986
- On May 2, 1983, Chrysler Canada Ltd. ("Chrysler") terminated the employment of Jeanne St. Pierre for alleged misappropriation of company property. She was then in her late forties, with approximately seven years seniority and an unblemished employment record. Officials of the respondent trade union filed a grievance with respect to Ms. St. Pierre's discharge and pursued that grievance through all three pre-arbitration steps of the grievance procedure set out in the applicable collective agreement dated December 11, 1982 between Chrysler and the United Automobile, Aerospace and Agricultural Implement Workers of America and its Locals 444, 1090 and 1459. At each step, Chrysler refused to alter its position. The union decided not to refer the grievance to arbitration, and withdrew it in July, 1983. On August 8, 1985, St. Pierre filed this complaint, in which she alleges that in its representation of her the respondent union violated section 68 of the Labour Relations Act, which provides:
- A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
Chrysler was named as a respondent because it would be affected by the relief claimed in the complaint. Neither respondent argued that the complainant's delay in filing the complaint should lead the Board to dismiss it.
On April 30, 1983, while St. Pierre was working the afternoon shift in the paint shop at Plant 6, her foreman came to her and said that one of the plant guards wanted her to go with him to her car, which was parked in the employee parking lot. Other plant guards and police officers were standing around her car when she and the guard arrived there. She was told that plant guards had found the trunk of her car open. In the trunk were a master brake cylinder, two windshield wiper blades, a gas tank cover, approximately 36 spark plugs wires, and two large boxes containing components of a toilet. St. Pierre told those present that she had purchased the toilet at Beaver Lumber on her way to work. She denied knowledge of the automobile parts. She said that someone must have placed them in her trunk, as they had not been there when she had parked the car. She agreed that the guards could take those parts.
One of the plant guards then asked to look inside the passenger compartment of her car. She unlocked the doors for him. Inside the car were a new distributor cap, six ballast resistors, a windshield wiper time delay relay, a rear amplifier switch and a large pill bottle containing various fuses and other small electrical system components. She explained that the contents of the pill bottle had been in a plastic bag she had bought at a garage sale along with a rim which she had in the trunk. With the exception of the rear amplifier switch, she said the other parts had been obtained for her for use in her car, a Dodge Mirada, either by her son-in-law’s brother, who is the manager of a Dodge dealership, or by a friend in Kingsville who operated an automobile repair shop and could obtain such parts at a discount. She did not then know where the rear amplifier switch had come from, and said so. (She later learned it had been bought by one of her children.) After hearing these explanations, the senior plant guard asked if he could “borrow” the items in the pill bottle and the rear amplifier switch. She agreed to let him borrow them.
Certain written reports apparently prepared by the plant guards who had been in attendance on this occasion were made exhibits during the subsequent testimony of one of the trade union’s officials, as evidence of material he received from the company during the grievance process. The reports were not shown to St. Pierre during her cross-examination. She has never seen them. For the most part, these reports are consistent with St. Pierre’s testimony. There are some inconsistencies between the explanations she says she gave for items found in the passenger compartment of her car and the explanations recorded in the written reports. To the extent those inconsistencies were put to her in cross-examination, she denied the versions recorded in these reports. None of the other participants in the meeting at St. Pierre’s car on April 30, 1983 was called as a witness by any of the parties. To the extent that what actually happened on that occasion is relevant, I give no weight to the written reports as evidence of the truth of their contents where they contradict the evidence St. Pierre gave under oath.
After the meeting in the parking lot, St. Pierre returned to the line and completed her shift. She returned to work the following Monday afternoon, May 2nd. That day her shop steward, Tony Cattai, came and told her that management wanted to see her in the office about what had been found in her car. She had a brief discussion with Cattai before going into the meeting in the office, but does not remember much about that discussion. She had never been in the office before, and the meeting she went to in the office was “a blur” to her afterwards, With reference to a document never put before the Board or seen by St. Pierre but said to be minutes of that meeting, the union's representative asked St. Pierre whether Cattai then said "she's is being set up", and she said that she thought he had said that. She could not recall whether the parts found inside the passenger compartment of her car were discussed at the meeting. She does remember that she was asked to sign a piece of paper but refused to do so on Mr. Cattai's advice. No other participant in this meeting was called as a witness by any of the parties.
Another shop steward, James Walsh, spoke to Ms. St. Pierre before the May 2nd meeting and again about five minutes afterwards. In the latter discussion, he told her to write out a "fact sheet." He explained in cross-examination that this is a standard procedure: "the employee makes their fact sheet and the shop steward makes his fact sheet." About a week later, St. Pierre wrote out and delivered to the union the following undated document:
FACT SHEET JEANNE ST. PIERRE
On or about the month of Aug. 1983 I have been getting phone calls. When I was on afternoon around 9 AM the phone would ring and I would let it ring up to 15 times sometimes as soon as I would answer the party would hang up. When I was on days most every night they would call. Sometimes 1 - 2 - 3 - up to 5 AM and say obscene things and if I would not answer they would let it ring 50 - 50 times so I got to put the answering machine on.
In November when we were on strike I left my house on a Sunday to play cards with a friend around 7:30 p.m. and to my return around 11:301 found my car without any wheels on.
February the 18th the Doctor order me off of my feet for a blood cloth on my leg for two weeks. So naturaly I went to florida while I was off. To my return I found my house was broke in and entered and set on fire.
On about Saturday April the 30th I was at work when I was call by the guard to go with them at my car. When I got there with the police and guard the trunk was open. They found wires. A big black thing and wipers which I dont know how it got there and how my trunk was open. Just prior to my going to work I had bought a toilette for my home at Beaver, and there was deffenetly nothing in my trunk back then.
When I got to work May the 2nd I was suspended.
"Jeanne St. Pierre"
P.S. My phone has been tap by the Windsor Police cause someone is trying to hurt me, this one of the ways by having lose my job.
I told the guard if someone put something in my trunk they will probaly follow me home to get it out.
After the May 2nd meeting, St. Pierre went to speak to Jerry Bastien, who was then first vice-president of Local 444. She told him what the company had found, how they had found it and so on, and he said he would get in touch with her. St. Pierre says Bastien spoke to her by telephone once after that to verify what had been found in her car. She made efforts to see him again, but he was always busy. She left her name and telephone number, but did not see or hear from Bastien again. In fact, she heard from no one on behalf of the trade union until July.
St. Pierre did not say, and was not specifically asked, precisely when she had met with Bastien. The suggestion that this meeting occurred on May 4, 1983, formed part of a long narrative put as fact to St. Pierre by the trade union's representative in cross-examination and denied by her as being inaccurate in other respects. It does seem likely that the meeting occurred within a few days of St. Pierre's termination on May 2nd. I am satisfied it must have occurred prior to May 16, 1983, when Fraser Gillis, St. Pierre's committeeman at the time of the incident and the person who actually launched the grievance on her behalf, dealt with management at step 2 of the grievance procedure.
At that step 2 meeting, Gillis was shown the written reports of the plant guards and photographs of certain items said to have been taken from St. Pierre's car. Gillis did not speak to St. Pierre before going to this meeting. He did not discuss the reports and photographs with her after the meeting. He never spoke to her about the grievance. The reason he gave for not speaking to her was that he had no telephone number for her and she had not contacted him. It is not apparent from the evidence how St. Pierre would or should have known to contact Mr. Gillis. Beyond looking through the material given to him by other union officials before going to the meeting, Gil-us testified that the only effort he made to find a telephone number for Ms. St. Pierre was to ask whether there was one in the file that the Chrysler labour relations officer had, to which he says he received a negative answer. Gillis' awareness of and attitude toward Ms. St. Pierre's grievance is reflected in his statement in cross-examination that he had had her fact sheet, and had assumed that its contents were what she wanted presented and that she would have contacted him if she had any additional information. He explained that the third step in the grievance procedure would ordinarily be and was handled by someone else, who would ordinarily work from the file he passed on.
The person who handled Ms. St. Pierre's grievance at the third step was David "Red" Wilson, third vice-president of Local 444. At the time in question, Wilson handled about 1,000 grievances a year. Of these, between 115 to 200 involved discharges, about 100 of which would have been for failure to report within five days. The remainder would be based on threats, intimidation, insubordination and violation of various company rules. Wilson estimated that only about 15 of the grievances he handled each year would be concerned with discharges for misappropriation or theft.
Wilson testified that when he took over the file he received a telephone number for Ms. St. Pierre - one he understood had been obtained by Jerry Bastien - and made three or four attempts to contact her at that number starting in May. He had no success until July, by which time he had already had his third stage meetings with management and had withdrawn the grievance. Wilson was asked in cross-examination why he did not write a letter to Ms. St. Pierre when he was unable to establish contact by telephone. He said it was not his practice to write letters to grievors he was representing, even if he was unable to contact them by telephone. The union offered no rationale for such a practice.
When Wilson met with management at the third stage of the grievance procedure, he pointed out that St. Pierre could not be held responsible for possession of the items found in the trunk of her car because the trunk was open when the items were discovered by Chrysler's guards. Management then changed tack, and focused on the items found in the passenger compartment of St. Pierre's car. Wilson was concerned that he had no receipts or proofs of purchase to show for those parts. He withdrew the grievance under a provision of the agreement which permits the union to reinstate it within three months.
Wilson's telephone conversation with St. Pierre in July was the only contact Wilson had ever had with St. Pierre before the date of hearing of this complaint. In his cross-examination of her, the union's representative suggested to St. Pierre that Wilson had made specific reference in this conversation to Bastien's having asked her if she could produce receipts for the parts found in her car and to her failure to supply receipts and had said that unless she could come up with new evidence, her grievance would not be pursued. St. Pierre categorically denied that anyone had ever asked her for receipts or any other proof of ownership with respect to the items found in the passenger compartment of her car. She did not recall Wilson asking her for new evidence. She did recall asking Wilson if she could see him personally, as the fire damage to her house was still being repaired and it was difficult for her to speak with him on the telephone. Her assertion that she had sought to discuss the matter further was not challenged in cross-examination or contradicted by Wilson, nor was her statement that when she went to his office and called him thereafter he was never available.
Wilson's own version of the telephone conversation is that he told St. Pierre that with the facts the union had it was impossible to go to arbitration, but if any new evidence emerged, he had ninety days within which to reinstate the grievance. He says she replied that she was being harassed and that he could check her statement with the Windsor police and fire departments and that the events she recited would support her position that someone else must have put those parts in her trunk. Wilson said he told her he would check that out. Significantly, Wilson did not claim to have asked St. Pierre for receipts or that he had mentioned to her that Bastien had made such a request. His evidence on this point was merely that he had been informed when the grievance was passed to him that St. Pierre had been requested to present the union with further evidence, namely receipts or proofs of purchase of the items in her car.
After the initial meeting of May 2, 1983, and in accordance with the practice of these parties and the terms of their collective agreement, Ms. St. Pierre was not present at any meeting at which her discharge was discussed by representatives of her union and of management. Her impression of the reason for her discharge was formed at the initial stages. She thought she had been discharged because Chrysler believed she had misappropriated the items found in the trunk of her car - the items which she said must have been put there by someone else. She did not attach any importance to the items found in the passenger compartment of her car, and made no reference to them in the "Fact Sheet" she prepared at that time at the union's request. From the evidence of both Gillis and Wilson, it is apparent that the main thrust of management's case up to the third stage of the grievance procedure was, indeed, that St. Pierre had misappropriated or participated in the misappropriation of the items found in her trunk. As Wilson acknowledged, however, the focus of the case shifted dramatically at the third stage, after any discussions with St. Pierre and before the decision was made to withdraw the grievance.
Wilson acknowledged in cross-examination that he had not confronted St. Pierre with the company's allegations concerning parts found in the passenger compartment of her car. He justified this by saying that St. Pierre had had an opportunity to explain her possession of those parts to Bastien. When questioned whether he had ever asked St. Pierre to share her views with the union's executive, Wilson replied that Ms. St. Pierre had been given an opportunity to share her views with Bastien. Wilson had no direct knowledge of the content of St. Pierre's discussion with Bastien - he was not present. When it was put to Wilson in cross-examination that St. Pierre thought the contents of the trunk were what was in issue when she had spoken to Bastien, he acknowledged that that was what had been in issue at that time.
Bastien was not called as a witness. When asked what had become of him, Wilson said he was a staff representative for the U.A.W. in Windsor. There was no suggestion that anything stood in the way of his testifying at the Board's hearing, which was conducted in Windsor. In the circumstances, Bastien was conspicuous by his absence.
Ms. St. Pierre heard nothing from Wilson after July 1983. In October 1983, she ran into Walsh at a local hotel and he told her her grievance had been withdrawn. In the first few months of 1984 she went to a lawyer who eventually wrote a letter saying she had no case. She sought out the firm now representing her in the early months of 1985. This complaint was filed in August 1985.
Ordinarily, as in this case, the collective agreement by which employees are bound does not give them the right to decide whether their grievance will be pressed to arbitration - that is exclusively for the trade union to decide. The Labour Relations Act does not require that a trade union carry a grievance through to arbitration merely because the grievor wishes that this be done. In making its decision whether or not to proceed to arbitration, the trade union's obligation to the grievor is that it must not act in a manner which is arbitrary, discriminatory, or in bad faith. These terms were described in Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, 6 CLRBR (NS) 134:
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.
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 this 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.
With these thinking process hidden from direct examination, a review of the behaviour of a trade union official must necessarily focus on what he did and the context in which he did it, as well as on what he says he thought. The result of the decision-making process is weighed against the facts and circumstances on which it is said to have operated. If the resulting interpretation of facts or of a collective agreement is found by the Board to be "reasonable" (Clifford Renaud, [1976] 2 Can. LRBR, [1976] OLRB Rep. Jan. 967, 22; Jay Sussman, [1976] OLRB Rep. July 349 11; 1. T. E. industries Ltd., [1980] OLRB Rep. July 1001, 20), "not unreasonable" (ivan Pletikos [1977] OLRB Rep. November 776, 3), "not to open to challenge" (Oil Chemical & Automic Workers Int'l Union and its Local 9-698, [1972] OLRB May 521, 3), or at least "not implausible" (CUPE Local 1000 - Ontario Hydro Employees Union, [1975] May 444, 32), then the Board is inclined to find that the decision is not arbitrary. Where the decision maker, on the other hand, misapprehends facts and circumstances which the Board considers "patent" and arrives at an "almost perverse" understanding of the facts and circumstances, the Board will conclude that union effectively barred itself from "directing its mind to the real question", and that in so doing it has acted in an arbitrary fashion: The Corporation of the County of Hastings, [19761 OLRB Rep. November 1072, 22. Where it is difficult to see a rational pathway between the facts and circumstances said to have been taken into account and the interests said to have been balanced on the one hand, and the result on the other, then there arises a rebuttable presumption that the decision was arbitrary.
The required thought process may involve more than the simple application of logic to the information then at hand. Decision making may be arbitrary if, before making its decision, the union fails to identify and seek out sources of further relevant information which should be taken into account in making that decision: CUPE Local 2327, 11981] OLRB Rep. June 623, 30; Alvin Plummer, [[1983] OLRB Rep. Nov. 1920, 5 CLRBR (NS) 108].
The Board has recognized that considerations relevant to a decision whether to press a grievance to arbitration include the merits of the grievance, the likelihood of its success, the financial commitment involved in proceeding to arbitration and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the arbitration proceedings and their possible results: see, for example, Catherine Syme, [1983] OLRB Rep. May 775 at 20 ff.
- In Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920, 5 CLRBR (NS) 107, the Board made these observations about the union's duty in a case in which a discharge grievance is abandoned:
Discharge is the ultimate sanction in collective bargaining. Through it an employee forfeits not only his livelihood but also valuable accrued rights including seniority and benefits, acquired sometimes over years of service. For this reason the law in some jurisdictions gives discharged employees an absolute right to have their terminations reviewed at arbitration. (See Division V.7 (Unjust Dismissal) Section 61.5 of the Canada Labour Code, R.S.C. 1970, C. L-1, amended S.C. 1977-78, C.27, applicable to employees not covered by a collective agreement). Some maintain that the duty of fair representation should be interpreted as requiring a union to carry the grievance of any discharged employee to arbitration (see Weiler, P. Reconcilable Differences, (1980) pp. 137 ft.). In Brenda Haley [1980] 3 Can. LRBR 501; (1980), 41 di 295, [1981] 2 Can. LRBR 121; 41 di 311 (Plenary Board Review), however, the Canada Labour Relations Board declined to adopt Professor Weiler's view.
This Board does not view the language of section 68 of the Act as guaranteeing to every employee the arbitration of his or her discharge....
46 In our view, however, the law has evolved beyond the point where the union may simply assert that it has "considered" an employee's request for help and "decided" not to help him.
The decision not to process a grievance for an employee who has been disciplined or discharged may, depending on the circumstances, be a justified and responsible exercise of a union's prerogatives. Where, however, an employee has been discharged there is an obligation on a union to provide a satisfactory explanation for its decision not to process a grievance. While the legal burden in a section 68 complaint is on the individual complainant, once it is established that a union member has suffered the ultimate sanction of discharge, this Board expects a persuasive account from the union to justify its refusal to file a grievance, or having done so, to carry the grievance to arbitration.
The union's explanation in the instant situation that it did not grieve Plummer's termination because Plummer had received verbal warnings about his work performance and because none of his fellow employees would support him is inadequate because, as detailed above, the union did not ascertain from Plummer his side of the story. The union cannot be said to have directed its mind to the merits of a grievance or potential grievance if it has not ascertained the grievor's version of the situation.
[emphasis added]
In his examination of Wilson in chief, the union's representative did not directly ask Wilson why he had decided to abandon St. Pierre's grievance. He did ask Wilson "Would a person need six ballast resistors?" and "Would they require a pill bottle of fuses, [etc.], for the operation of their vehicle?", to which Wilson answered "no" in both cases. In the context of his other testimony, these questions and answers only highlight the inadequacy and superficiality of Wilson's investigation and consideration of the complainant's grievance. The importance Wilson attached to the ballast resistors is troubling, since it does not appear from the evidence before me that Chrysler treated the ballast resistors as stolen property. St. Pierre explained that she had obtained the six resistors from her son-in-law's brother or her friend in Kingsville because the ballast resistor in her car kept blowing out - she had gone through three of them already. The plant guards seemed to accept that explanation at the time. It is most curious that Wilson would not. There is no suggestion that Chrysler offered the union any evidence other than the mere presence of the items in the car to support the theory that St. Pierre had stolen any of those items from Chrysler or obtained any of them from someone who had. There is no suggestion that Wilson knew of or was given by management any reason to suppose that the items found in the passenger compartment could not have been obtained, as St. Pierre says they were, from a Chrysler dealer or from an auto repair shop or, indeed, at a garage sale. The crux of Wilson's concern seems to have been that St. Pierre had never produced receipts or other proofs of ownership with respect to these items. Her uncontradicted evidence is that she was never asked to do so, by Wilson or anyone else. St. Pierre was not at the stage 2 and stage 3 meetings at which the employer revealed its case against her. She had no way of knowing that the focus of the dispute has shifted at stage 3 from the items in the open trunk to the items in her locked car. Even if I prefer Wilson's version of the July telephone conversation to that of St. Pierre, one thing remains critically clear: there is no evidence that the union ever asked St. Pierre to explain how she came to have the items found in the passenger compartment of her car or to respond to any specific allegation made to the union by Chrysler with respect to any of those items during the grievance process or to address the specific concerns which led the union's decision maker (Wilson) to decide that her grievance should not go to arbitration. In those circumstances, that decision was arbitrary and constituted a violation by St. Pierre's bargaining agent of section 68 of the Labour Relations Act.
The appropriate remedy for this kind of breach of section 68 is to direct that the grievance be reinstated and submitted for arbitration and that the employer party not raise any objection based on the earlier withdrawal or failure to meet collective agreement time limits: Leonard Murphy, [1977] OLRB Rep. Mar. 146, [1977] 1 Can LRRB 422; Savage Shoes Ltd., supra, at 63ff; and see Gerald Lucuyer, [1985] OLRB Rep. July 1099 at 66-78. In the event the grievance is successful, the union's violation of section 68 and the complainant's delay in filing this complaint will have extended the period of time for which an award of compensation for lost earnings might be awarded by an arbitrator, and the employer should not bear any increased liability attributable to those causes. Fairness requires that the portion of that increase attributable to the union's breach should be paid by the union and that the portion attributable to the complainant's delay should be foregone by her. The translation of those principles into a formula applicable to the facts of a particular case is a matter on which there can be differences of opinion and approach. In this case, the respondents addressed a similar problem in the collective agreement in force at the time of the complainant's discharge. One of the letters of understanding which forms part of that agreement deals with circumstances in which the union decides, as a result of internal procedures, that it wishes to reinstate and continue processing a withdrawn grievance. The employer agrees to permit reinstatement, on terms that it will not be held liable for compensation with respect to the period prior to the date the grievance is reinstated. Having regard to that understanding between the respondents, the respondent employer's liability should be restricted to the period after the date of release of this decision. The union should be responsible for compensation awarded with respect to the period from the date of discharge to the date this complaint would have been decided had it been filed promptly. The Board will retain jurisdiction to determine that date if the need arises and the parties are unable to agree.
Because the union may be liable to pay compensation if the grievance succeeds at arbitration, the union's full-time employed representatives would have a conflict of interest in representing the complainant's interests at arbitration. Accordingly, the respondent union will be required to retain counsel jointly selected by it and Ms. St. Pierre to act in the union's name and at the union's expense to represent her interests at the arbitration of the grievance: see Central tampings Limited, [1984] OLRB Rep. Feb. 215 at 17 and Central Stampings Limited, [1984] OLRB Rep. Oct. 1383 at 8.
The collective agreement contemplates that grievances will be finally resolved by an appeal board consisting of an Impartial Chairman, one or two labour relations executives of Chrysler and one or two official representatives of the International Union. The Impartial Chairman's decision governs only if the union and employer representatives disagree. Because the union and employer have a similar financial interest in the failure of the grievance at arbitration, it would be inappropriate for the arbitration to be dealt with by a tripartite board of arbitration, particularly one in which the sidespersons are union and management employees. Another of the letters of understanding appended to the collective agreement incorporates a Special Arbitration Program, which provides for expedited submission to a single neutral arbitrator of grievances which, like this one, involve no question of interpretation of collective agreement language. In the circumstances, the respondents will be required to submit Ms. St. Pierre's grievance to a sole arbitrator. To the extent that the identity of that arbitrator is subject to the concurrence or control of the union, the union's power of selection will be exercised jointly by the union and the complainant.
In summary, the Board finds and declares that the respondent trade union acted arbitrarily in deciding to withdraw the complainant's discharge grievance, contrary to section 68 of the Labour Relations Act, and orders and directs that:
(a) the respondents forthwith submit Jeanne St. Pierre's discharge grievance to arbitration by a sole arbitrator under the applicable collective agreement, and the respondent Chrysler shall not raise any objection based on the earlier withdrawal or intervening delay;
(b) any control the respondent trade union may have over the identity of the arbitrator shall be exercised jointly by it and the complainant;
(c) the respondent trade union shall retain counsel jointly selected by it and the complainant to act in its name and at its expense to represent the complainant's interest at and in connection with the arbitration of her grievance; and
(d) in the event the grievance is upheld and the arbitrator makes an order for compensation, the respondent union shall pay the complainant the portion of that compensation referable to losses during the period between May 2, 1983, and the date on which this decision would have been released had the complainant acted promptly in filing this complaint and the complainant shall forego that portion of the award which is referable to the period from that date to the actual date of release of this decision.
The Board remains seized of this matter to resolve any dispute arising over the interpretation or implementation of these directions and orders.