George Xerri v. Local 112 UAW Canada, 1987 CanLII 3036

[1987] OLRB Rep. March 444

0641-86-U George Xerri, Complainant v. Local 112 UAW Canada, Respondent

BEFORE: Judith McCormack, Vice-Chair.

APPEARANCES: George Xerri on his own behalf; John Bettes and Jerry Dias for the respondent.

DECISION OF THE BOARD; March 9, 1987

1. This is a complaint under section 89 of the Labour Relations Act in which the complain­ant alleges that the respondent union has violated section 68 of the Act by failing to properly pur­sue his grievance and refusing to refer it to arbitration. The employer, De Haviland Aircraft of Canada Limited did not appear in this matter although duly notified of the proceedings.

2. At the commencement of the hearing, Mr. Bettes raised an objection to the jurisdiction of the Board to hear the complaint on behalf of the respondent. He argued that since the previous collective agreement and the statutory freeze had both expired on June 22, 1984, there was no col­lective agreement in effect between the respondent union and the employer at the time Mr. Xerri's grievance was filed on September 14, 1984. A new collective agreement was not entered into until May 23, 1985, and its terms are stipulated to be effective as of March 9, 1985. It is somewhat diffi­cult to determine when the events occurred which gave rise to his grievance. Mr. Bettes submitted an arbitration award De Havilland Aircraft of Canada Limited, June 25, 1986 (unreported) in sup­port of his position.

3. Mr. Xerri did not dispute the facts described by Mr. Bettes, although he opposed the preliminary objection. The Board then ruled as follows:

Under section 68 a union which is entitled to represent employees has cer­tain responsibilities and obligations with respect to that representation. Those responsibilities are enforced, in the words of the section "so long as it continues to be entitled to represent employees in a bargaining unit". This phrase refers to the union's representation rights which flow from the various procedures stipulated under the Labour Relations Act including certification and voluntary recognition. In this case, there is no suggestion that the union was not certified to represent the complainant during the period in question or that the complainant was outside this scope of the bargaining unit. As a result, its responsibilities under section 68 continue to operate regardless of whether the collective agreement had expired or not. Of course, the respon­sibilities may take on a different character depending on the kind of repre­sentation the union has the power to provide in various circumstances. How­ever, this is an issue that goes to the merits of the case rather than one which deprives the Board of jurisdiction.

4. Turning now to the merits of the case, Mr. Xerri gave evidence on his own behalf. He advised the Board that he commenced employment with De Havilland Aircraft of Canada Limited in October of 1983 and worked there in various capacities until he was laid off on March 9, 1984. There was no dispute that during this period he was an employee in a bargaining unit represented by the respondent.

5. At the end of August 1984, he discovered through casual conversations that two of his co-workers had been recalled to work. As a result, he approached Dave Spalding, the union's plant chairman, for assistance. Mr. Xerri was advised that a recall letter dated March 3, 1984 had been sent by the employer by registered mail to a number of employees including Mr. Xerri. Mr. Xerri maintains that he did not receive notices alerting him to the fact that there was a registered letter in his name waiting for him at the post offices and thus did not receive the letter itself.

6. Mr. Spalding referred him to Martyn Rix, the employer's supervisor of industrial rela­tions, who asked Mr. Xerri to produce a statement from the post office. Mr. Xerri obtained a statement which was somewhat equivocal and submitted it to Mr. Spalding.

7. Mr. Spalding in turn took it to Robin Nagel, the employer's manager of labour rela­tions, and subsequently informed Mr. Xerri that the company did not accept this letter as evidence that notices of the recall letter had not been delivered. Mr. Spalding then suggested that Mr. Xerri sign a grievance, which he did. Mr. Spalding also asked him for proof that he was not working at the time of the recall.

8. On September 21st, Mr. Xerri called Mr. Spalding and received no answer. Several days later, he called Mr. Spalding again who told him that he had also signed the grievance and that it would take some time to process. On October 2, 1984, Mr. Xerri called Mr. Spalding and left a message since he was not home. Mr. Spalding returned his call that day and they discussed the case briefly. At that time Mr. Spalding advised Mr. Xerri that he would be speaking to the bar­gaining committee about his grievance.

9. On October 3rd, Mr. Xerri called Mr. Spalding and asked if there had been any answer from the bargaining committee. Mr. Spalding said that he had mentioned the case to the commit­tee and told them that Mr. Xerri was "straight", that is, that he was not lying or playing games. He also told Mr. Xerri that his grievance was coming up for discussion sometime within the next week or the following week. Mr. Xern suggested that he was considering calling the Labour Board and Mr. Spalding told him to wait until Mr. Xerri had received some response.

10. A week later he called Mr. Spalding again and was told that he was away on an arbitra­tion case. On October 15th, he called Mr. Spalding and was told that the respondent union and the employer were starting negotiations for a new contract and that the union would present Mr. Xer­ri's case to the employer at negotiations.

11. Several days later, Mr. Xerri visited the union hall for the purpose of seeing Mr. Spald­ing and was told that he was not in. He then spoke to Norm Smart, the union's local treasurer, and Roy Kellette, a member of the bargaining committee, who happened to be in the office at the time. They told him that they had notified the committee of his grievance and that they sympa­thized with him. Mr. Xerri gave Mr. Smart and Mr. Kellette copies of his first and last unemploy­ment insurance benefit stubs in response to Mr. Spalding's request for proof that he had not been working at the time of the recall.

12. On October 24, 1984, Mr Xerri spoke to Mr. Spalding again, and was advised that the latter was doing everything he could. Mr. Spalding also told him that he would be bringing Mr. Xerri's case to the company's attention in the next meeting.

13. The following week Mr. Xerri spoke to Mr. Spalding again and asked him why his case was not being taken to arbitration. Mr. Spalding told him that at the moment his "best bet" was to have his grievance raised at the bargaining table and that Mr. Spalding would raise it again on the following day.

14. On November 7, 1984, Mr. Xerri spoke to Mr. Spalding again and was advised that the union had now commenced that part of negotiations in which grievances were discussed. However, since there were a number of grievances, his case was still a long way from being heard. He told Mr. Xerri that he had heard of a similar case to Mr. Xerri's but did not specify further. Mr. Xerri subsequently wrote again to the Canada Post in an attempt to obtain a more definitive statement without much success. He again received a sympathetic but non-committal letter whichhe took to Mr. Spalding.

15. Mr. Spalding advised him that he did not think the new letter was of much assistance to Mr. Xerri. At that time Mr. Kellette, Merv Gray and Aldo Vendetti, who are also members of the negotiating committee, were present. Mr. Kellette and Mr. Gray suggested to Mr. Spalding that he speak to Lockie Reid, director of industrial relations for the company, to ask whether Mr. Xerri could fill out a new application for employment. Mr. Spalding accordingly called Mr. Reid who agreed to allow Mr. Xerri to complete a new application, which he did.

16. On November 27th, Mr. Xerri called the personnel department and inquired as to whether his application had been reviewed. He was told that there were hundreds of applications, and that his would have to be examined in its turn.

17. The following day he spoke to another person in charge of applications for employment and asked her whether his application form had been brought to Mr. Reid's attention. She advised Mr. Xerri that she had not been informed of any such application and that it was not proper proce­dure. As a result, his application would have to wait its turn.

18. On November 29th, Mr. Xerri again went to see Mr. Spalding and told him what he had learned from the personnel department. Mr. Spalding said that he was not surprised to hear what Mr. Xerri was telling him. When Mr. Xerri asked him to explain further, Mr. Spalding said that he had spoken to Len Bone, the supervisor of the heat treat department where Mr. Xerri had worked prior to his layoff. Mr. Spalding had asked Mr. Bone if he would take Mr. Xerri back and Mr. Bone told him "no way". In fact, when Mr. Xerri filled out his new application form, he applied for a position in the press shop. Mr. Xerri pointed out to Mr. Spalding that Mr. Bone had no authority in the press shop department. Mr. Spalding told him "that's what you think, there's no chance in hell that you can come through those gates as a new start".

19. Mr. Spalding then suggested that Mr. Xerri go and see Mr. Bettes, the local president of the respondent union. Mr. Bettes was not in and as a result, Mr. Xerri spoke to Mr. Smart again. Mr. Smart agreed with Mr. Spalding that there was no chance of Mr. Xerri getting back into the plant as a new hire because of Mr. Bone's personal antipathy towards him.

20. On December 3, 1984, Mr. Xerri spoke to Mr. Bettes at the union hall and explained his situation. Mr. Bettes advised him that there wasn't much that he could do, other than attempt­ing to negotiate a settlement of Mr. Xerri's grievance during contract negotiations. He also told Mr. Xerri that if his grievance was referred to arbitration, it might take up to a year to resolve.

21. Several days later, Mr. Xerri spoke to Mr. Bettes again and he asked if there had been any developments in his case. He was told by Mr. Bettes that contract talks had broken off between the union and the employer.

22. On January 7, 1985, Mr. Xerri called Mr. Spalding again and was told that nothing had changed and that the company and the union were still not talking. Shortly thereafter, Mr. Xerri heard a report on CJRT Radio that 2,000 pieces of mail had been lost or stolen, some dating back as far as 1979. Mr. Xerri then wrote to Brian Long, the acting president of the employer, explain­ing his situation.

23. On January 18, 1985, Mr. Xerri called Mr. Spalding again and asked him if he had heard anything with respect to his grievance. Mr. Spalding told Mr. Xerri that the grievance had been filed and that when the time came, he (Mr. Spalding) would debate it. Mr. Xerri asked when that time would be, and was told that Mr. Spalding did not know.

24. A week later, Mr. Xerri received a letter back from Lockie Reid in response to his let­ter to Mr. Long, advising him that there was no vacancy for Mr. Xerri at that time.

25. On February 8th and February 18th, Mr. Xerri called Mr. Spalding, only to be told that there were no new developments in his case. When he called again in early March, Mr. Spalding advised him that they were looking for an hotel where the union and the employer could meet to discuss the grievances. On March 25th, Mr. Xerri called Mr. Spalding and once again was told that nothing new had occurred.

26. At the end of March, Mr. Xerri called Mr. Bettes again and was told that his case was being taken care of and to have patience. On April 8th, Mr. Xern called Mr. Spalding again and was told that nothing had changed.

27. Several weeks later, Mr. Xerri heard about another employee, Larry Harris, who had similarly failed to respond to a recall notice and had been accepted back by the company. Mr. Xerri called Mr. Spalding to ask about this case. He was told that Mr. Harris had only allowed seven and a half days to expire past the seven days allowed for recall, and that this was the reason why he had been accepted back by the employer. Mr. Spalding told Mr. Xerri that his case was totally different and that the best that he could do was to get Mr. Xerri in as a new start, which would be difficult in itself. At the end of April, Mr. Xerri wrote a letter to Bob White, the respon­dent's Canadian director.

28. In May, Mr. Xerri called Mr. Spalding and was told that the employer had come close to rehiring him as a new start, but since Mr. Xerri was against it, the union did not pursue it. Mr. Spalding told him since Mr. Xerri wanted full redress, the union was going to take his case to arbi­tration. Mr. Spalding had no idea when this would occur. Mr. Xerri explained to the Board that he was afraid to take a position again as a new start because he was concerned that his seniority would be so low that he would be laid off shortly thereafter. By this time he had found a job with another employer and although his seniority position was very low, he did not wish to give up that job for one in which he had even less job security.

29. On June 4, 1985, Jim O'Neil called Mr. Xerri on behalf of Mr. White and advised him that he had contacted Mr. Spalding and told him to present Mr. Xerri's case to arbitration. He told Mr. Xerri that since Mr. Bone had retired, he would call Jerry Dias, the new plant chairman and Mr. Spalding's successor, to see if he could get Mr. Xerri some assistance.

30. On July 10, 1985, Mr. Xerri spoke to Mr. Dias who confirmed that he had spoken to Jim O'Neil. Mr. Dias took photostat copies of Mr. Xerri's material and told him that his only chance was to get in as a new start and that he was going to look into Mr. Xerri's case. A month later, Mr. Xerri called Mr. Dias who told him that he had spoken to the bargaining committee with respect to the chances of his case going to arbitration. He asked Mr. Xern to call him back the fol­lowing Monday. On August 27th, Mr. Xerri called Mr. Dias again and was told that his grievance had been referred to arbitration. He explained that it would be approximately one month before Mr. Xerri heard anything about it. Mr. Xerri told Mr. Dias that Mr. Spalding had already given him the impression that his grievance had been referred to arbitration some months ago, and Mr. Dias replied that he did not know why Mr. Spalding would say that.

31. The following month Mr. Xerri called Mr. Dias and was told that the union was await­ing dates for the arbitration from the company, and that it would be another month before Mr. Xerri heard anything. In October, Mr. Xerri called Mr. Dias and was told that he was off sick for two weeks.

32. In November, Mr. Xerri called Mr. Dias and was told he was still sick. Mr. Dias returned the call the same day indicating that he wanted to set up a meeting to review Mr. Xerri's case with the bargaining committee and Mr. Xerri. Mr. Xerri made arrangements for the meeting with the acting plant chairman, Aldo Vendetti.

33. On November 18th, a meeting took place between Mr. Xerri, Mr. Dias, Mr. Kellette, Mr. Gray, Mr. Bettes and Mike Lewis, another member of the local executive. Mr. Xerri told the Board under cross-examination that most of the meeting was taken up with discussing whether Mr. Xerri had been working in a bakery at the time of the recall. The subject was raised when Mr. Dias asked him about it shortly after the meeting began, and Mr. Bettes, who was not originally in the room, came "charging in" (according to Mr. Xerri) and started arguing with Mr. Xerri about whether he had been working at a bakery owned by himself and three other brothers at the time of the layoff and recall. The meeting lasted a total of approximately three quarters of an hour.

34. On December 9th, 1985, Mr. Xerri called Mr. Dias who told him that no date for arbi­tration has been set as yet. The next time he reached Mr. Dias was on December 19th, when he was told that Mr. Dias had discussed the matter with Mr. Bettes and was advised by Mr. Bettes that the earliest anything could be done was the beginning of February.

35. On February 6, 1986, Mr. Xerri called Mr. Dias and was told that he was at a meeting. Several days later, he called again and was told by Mr. Dias that he was going to discuss Mr. Xer­Ti'S case right away and that Mr. Xerri's case was third in line to be discussed. He told Mr. Xerri to call him in two weeks' time. On February 24th, Mr. Xerri called Mr. Dias and was told that his case had been pushed back to sixth in line to be discussed. He was also told that Mr. Dias had spo­ken to Mr. Bettes and that the latter had told him that Mr. Xerri did not stand a chance in hell of getting back into the plant. Mr. Dias also told Mr. Xerri that he was going to talk to a Mr. Murphy about his case and that he would call him back.

36. At the beginning of April, Mr. Xerri wrote to Jim O'Neil again. On April 23, 1986, Mr. Dias called Mr. Xerri and told him that nobody was going to push his case and that therefore it was "dismissed". Mr. Xerri subsequently initiated the present proceedings.

37. At the conclusion of Mr. Xerri's evidence, the respondent advised the Board that he was not planning to call any evidence. Because neither the complainant nor the respondent were represented by counsel, the Board brought to their attention the fact that only sworn testimony or documents submitted into evidence in the appropriate manner would be relied upon by the Board in arriving at a decision. The parties assured the Board that they understood and were prepared to rely on the evidence tendered to that point. Submissions were then made with respect to the con­clusions the Board should draw from the evidence.

38. The essence of Mr. Xerri's complaint is that over a period of almost 1-1/2 years, little had been done by the union to pursue and resolve his grievance. During that period of time, he had been told a variety of contradictory things about the progress of his grievance by various union officials. In his own words, he felt that he had been "given the run-around".

39. He was particularly concerned that his case was treated differently from that of Mr. Harris without, in his view, good reasons~ and also objected to the extent the union focused on whether he had been working at the bakery after he was laid off. Further, Mr. Xerri pointed to a letter of intent in the collective agreement which provides as follows:

Consideration of Ex-employees

The Company will give consideration as new hires to suitable and qualified ex-employees who lost their seniority due to the exhaustion of their recall rights during the period of 1981 to date of ratification, provided they reapply for employment between date of ratification and April 15, 1985.

Mr. Xerri was not advised of this clause by the union at the appropriate time so as to allow him to

apply for employment again in accordance with this section, although he had previously applied for employment as described earlier.

40. Mr. Bettes argued vigorously that even Mr. Xerri's evidence demonstrates that substan­tial activity was undertaken by the union on his behalf. He agreed that the registered letter system is not infallible and, in his view, the company acted in a highhanded manner with respect to Mr. Xerri's case. However, he also argued that the grievance was so obviously unlikely to be successful at arbitration that the Board should conclude that this was the determining factor in the union's decision not to refer it to arbitration. In this regard, he pointed to what he characterized as an admission by Mr. Xerri that the employer was correct in the position it was taking on the griev­ance.

41. Mr. Bettes further suggested that the question of whether Mr. Xerri was working at a bakery related to his credibility, which was of importance because the nature of his grievance meant that credibility would be a critical issue in that case. In other words, if Mr. Xerri was not telling the truth about working in the bakery, the union was entitled to explore this since it touched upon the question of what he described as the "winnability" of the grievance. Finally, Mr. Bettes specifically noted that he was not relying on the facts relating to the timing of the grievances raised in the preliminary objection as a defence to the merits of complaint.

42. Section 68 provides as follows:

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.

43. The Board elaborated on its approach to section 68 in Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067:

44. Section 68 requires that each trade union decision be grounded on a consideration of rele­vant matters, free from the influence of irrelevant consideration. 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 disciminatory 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.

45. It is well established that section 68 does not require a union to forward a grievance to arbitration solely because an employee desires to have his or her "day in court". As the Board commented in Catherine Syme, [1983] OLRB Rep. May 775:

46. Section 68 requires a trade union to act fairly, inter alia, in the handling of employee griev­ances. But it does not require a trade union to carry any particular grievance through to arbitra­tion simply because an employee wishes that this be done. A trade union is entitled to consider the merits of the grievance, the likelihood of its success, and the claims or interests of other indi­viduals or groups within the bargaining unit who may be affected by the result of the arbitration. The trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and has ramifications beyond the individual case, a trade union is not only entitled to settle grievances, in many cases it should do so. And, as has been pointed out in the number of cases, in assessing the merits of a grievance a trade union official - especially an elected one - cannot be expected to exhibit the skills, ability, train­ing and judgement of a lawyer.

47. Turning first to Mr. Xerri's allegation of discrimination, I do not find that the differen­tial treatment of the complainant's case and Mr. Harris' case constitutes discrimination within the I!neaning of section 68. There was no positive evidence that invidious or unjustifiable distinctions were drawn between the two cases by the respondent. In the same vein, there was insufficient evi­dence on which to conclude that the circumstances of these two individuals were so similar that dif­ferential treatment would reasonably suggest that such distinctions must have been drawn. As a result, that aspect of Mr. Xerri's complaint fails.

48. The emphasis placed by the respondent on whether Mr. Xerri was working in a bakery at the time of the layoff is a matter of greater concern. While there was no evidence from the union to explain their particular interest in this subject, it is clear from Mr. Xerri's testimony that the matter was raised on a number of occasions by union officials.

49. The collective agreement filed does not disclose any obvious reason why such a fact would be relevant in evaluating the merits of a grievance on this point. There was no suggestion that the respondent routinely considered the economic position of grievors in determining whether or not to pursue grievances or that there were other policies or practices involved.

50. With respect to Mr. Bettes' suggestion that the work issue was a matter of credibility, we recognize that it may well be appropriate in some circumstances for a union to assess a grievor's credibility in considering the viability of a grievance. However, there was no evidence to support Mr. Bettes' contention that this was the reason for the respondent's interest. If anything, the evi­dence suggested that Mr. Spalding believed the grievor and vouched for his veracity in discussing the matter with the bargaining committee.

51. The respondent's preoccupation at the meeting in November with whether Mr. Xerri was working in the bakery at the time of his recall is especially troubling because it appears that this was a more formal session convened to hear Mr. Xerri's presentation and to discuss his griev­ance. The fact that most of the meeting was consumed with a discussion of the bakery suggests that an irrelevant factor was considered by the union in determining the fate of Mr. Xerri's grievance.

52. The pattern of the respondent's interaction with Mr. Xerri is also cause for concern. It appears to have taken from September of 1984 until April of 1986 for the respondent to decide whether to pursue Mr. Xerri's grievance to arbitration. Even allowing some time for the processing of the grievance through the grievance procedure and for the intervention of contract negotiations, this seems an unreasonably long time to make such a decision in the absence of any explanation for the delay.

53. This delay was coupled with considerable inconsistency in the information that was given to Mr. Xerri from time to time. We note that there was some turnover in the position of plant chairman which may have played a role in this regard. Again, however, no explanation was forthcoming to reconcile or account for the conflicting statements made to Mr. Xerri about the progress of his grievance.

54. The respondent invited us to conclude that the grievance was so unlikely to be success­ful that the respondent must have made the decision not to proceed on that basis. There was sim­ply no evidence from which we can draw such a conclusion, and I am not prepared to infer such a result in circumstances where evidence on this point could have been called.

55. Nor do I find persuasive Mr. Bettes' suggestion that Mr. Xerri admitted the grievance was without merit in his testimony. It was clear that English is a second language for Mr. Xerri. It would be more accurate to describe Mr. Xerri' s comments as indicating that the position taken by the employer with respect to his grievance was not an inappropriate or surprising position for an employer to take in the circumstances. In any event, the issue before the Board is how the respon­dent came to the decision it did, rather than the complainant's perception of the merits of his griev­ance at the time of the hearing of his complaint against the union.

56. There was no evidence of any malice or deliberate ill will on the part of the respondent towards the complainant. The Board must therefore address whether the respondent's conduct in this matter can be considered arbitrary. This task is complicated by the difficulty in assigning an exact meaning to this branch of section 68. The Board canvassed this problem in Walter Prinesdomu, [1975] OLRB Rep. May 444 as follows:

Some insight is gained from the Vaca case wherein Mr. Justice White juxtaposed the word "arbitrary" with the word "perfunctory" and observed that a trade union, "in a non-arbitrary manner [must] make a decision as to the merits of particular grievances." It could be said that this description of the duty requires the exclusive bargaining agent to put "its mind" to the mer­its of a grievance and attempt to engage in a process of rational decision-making that cannot be branded as implausible or capricious.

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

An approach to a grievance may be wrong or a provision inadvertently overlooked and Sec­tion 60 has no application. The duty is not designed to remedy these kinds of errors. But when the importance of the grievance is taken into account and the experience and identity of the decision maker ascertained the Board may decide that a course of conduct is so implausible, so summary or so reckless to be unworthy of protection...

55. On the limited evidence available in this case, the respondent's treatment of Mr. Xerri was, at the very least, markedly careless. While each of the matters raised above might not alone be sufficient to substantiate a complaint under section 68, taken together they present a pattern of treatment that can only be characterized as cavalier. I do not doubt that Mr. Xerri's unflagging persistence and frequent telephone calls may have been a source of some irritation for the respon­dent. However, it is hard to fault Mr. Xerri's tenacity given the diffidence and inconsistency with which he was faced. The subject of the grievance had serious implications for Mr. Xerri, given that it involved the forfeiture of his job and his seniority rights. In the context of such a grievance, it is difficult to consider the respondent's conduct as merely exhibiting an unbecoming laxness. While I recognize that some efforts were made on Mr. Xerri's behalf, the evidence that it is possible to glean from his testimony indicates that such efforts were intermittent and half-hearted. In the absence of any explanation, such desultory activity falls below the standard of conduct required by section 68.

56. In short, I find that the complainant has established a prima facie case that the respon­dent's treatment of him reflects such a non-caring attitude that it falls within the ambit of arbitrary representation. In that sense this case can be distinguished from Boise Cascade, [1982] OLRB Rep. July 981. As a result, the absence of any explanation or justification for the union's conduct is crit­ical. On the evidence before me, I conclude that the respondent has violated section 68. Pursuant to section 89, the Board directs the respondent and the employer De Havilland Aircraft of Canada Limited to forthwith process Mr. Xerri's grievance dated September 14, 1984, commencing at the first step of the grievance procedure and that the time limits set out in the grievance procedure in the collective agreement shall not bar the processing of his grievance. The Board further directs that any settlement of the grievance by the parties must be concurred in by Mr. Xerri and that fail­ing such a settlement, the respondent union is directed to refer his grievance to arbitration. In the event that Mr. Xerri's grievance is referred to arbitration, any time limits in the collective agree­ment will similarly be of no effect in barring the referral. The Board remains seized of this com­plaint in the event that it becomes necessary to determine any apportionment of compensation between the employer and the union or problems arising out of implementation.