[1988] OLRB Rep. February 215
2292-86-U Deiphis W. Vandette, Complainant v. The Corporation of the Township of St. Joseph and Labourer's International Union of North America Local 1036, Respondents
BEFORE: Ken Pet ryshen, Vice-Chair.
APPEARANCES: Orlando Rosa for the complainant; L. Steinberg and Jimmie Lewis for Labourer's International Union of North America, and Gladys Pardu for The Corporation of the Township of St. Joseph.
DECISION OF THE BOARD; February 17, 1988
- This is a complaint under section 89 of the Labour Relations Act in which it is alleged that the Corporation of the Township of St. Joseph ("the Township") contravened sections 50 and 67 of the Act and that the Labourer's International Union of North America, Local 1036 ("Local
1036") contravened section 68 of the Act. Once a panel dismissed the allegations in the complaint against the Township, the Vice-Chair proceeded to hear the section 68 aspect of the complaint alone. The reasons for dismissing the complaint against the Township relating to the sections 50 and 67 allegations are contained in a separate decision.
Local 1036 and the Township took the position that the complainant, at the relevant time, was not an employee in the bargaining unit and, accordingly, Local 1036 did not owe D. Vandette a duty under section 68 of the Act. The parties agreed that the Board deal with this issue first and then with the merits of the section 68 complaint if necessary. After entertaining the evidence and submissions directed to whether or not Vandette was an employee in the bargaining unit at the relevant time, the Board reserved its decision and proceeded to hear the evidence and argument on the merits of the complaint.
With respect to the issue of Vandette's status to bring a section 68 complaint, Local 1036 called Jimmie Lewis, the Secretary-Treasurer and Business Manager for the Local, to testify. Allan Rousseau, the road superintendent, and Michael Jagger, the clerk, gave evidence on behalf of the Township. Counsel for the complainant called Mr. Vandette to testify. In making its factual determinations, the Board has weighed and assessed all of the evidence, including the credibility of the witnesses. In essence, there was little dispute on the facts relevant to the preliminary issue.
Vandette's employment with the Township began in June 1984 when he was hired as a temporary part-time labourer in the Township's road department. The Township required a temporary part-time labourer at that time since one of the road department employees, Mr. Lloyd Aikens, was off work due to an injury and because temporary help might be required for holiday replacement. While working for the Township, Vandette essentially performed the duties of a labourer and truck driver, but did operate equipment on an infrequent basis. For the period from June 1984 until January 11, 1985, while Aikens was off work, Vandette worked on a regular basis. With the return of Aikens, the Township laid Vandette off effective January 11, 1985. Subsequent to the January 11,1985 lay-off, Vandette was called in to work on a very infrequent and sporadic basis.
During the relevant period of time, Vandette was treated by the Township, without any complaint from the union, as a person who was not covered by the terms of the collective agreement. When hired, there was no discussion between representatives of the Township and Vandette regarding a probationary period. The Township did not give Vandette the status of a probationary employee nor did it ever advise him that he successfully completed a probationary period. It is the practice of the Township to advise the union when it hires a probationary employee, but the union was not so advised when Vandette was hired. Although not officially advised by the Township, Lewis was aware of the Township's resolution to hire Vandette as well as the circumstances of his employment. The Township never checked off union dues from Vandette's pay and remit same to the union. In January 1985, the Township forwarded Vandette's initiation fee to the union in response to a request from Vandette to do so. After becoming a member of the union, Vandette paid his dues directly to the union. The Township never submitted payments to the union for health and welfare benefits on behalf of Vandette, nor did it make OHIP payments on his behalf. Vandette was paid a wage rate identical to the rates set out in the collective agreement. Jagger testified that Vandette received the rate set out in the collective agreement not because he was in the bargaining unit but because the Township took the view that it was appropriate to pay him the collective agreement rate since he performed the same work as the bargaining unit employees.
In April 1986, the position of equipment operator became vacant upon the resignation of Lloyd Aikens. Vandette was one of a number of applicants who applied for the job. The Township selected Harold Brown for the job rather than Vandette. Prior to applying for the job, Vandette contacted Lewis who gave him some advice regarding how he should apply for the job. Lewis testified that at the time he gave the advice to Vandette he told him he was not an employee in the bargaining unit. Although Vandette denied that Lewis advised him that he was not in the bargaining unit when he testified in chief, he admitted in cross-examination that it was possible that Lewis told him something to this effect but that it had no impact on him since he considered being a union member and being in the bargaining unit as the same thing. After discovering that he was an unsuccessful applicant, Vandette again contacted Lewis for assistance. The alleged unresponsive position of Lewis forms the basis of Vandette's section 68 complaint. After reviewing the evidence regarding the discussions Vandette had with Lewis on the two occasions referred to above, the Board found it to be of little assistance in determining whether Vandette was an employee in the bargaining unit at the relevant time.
Vandette testified concerning the circumstances of his employment with the Township and various discussions he had with Township employees and bargaining unit employees, particularly the union's steward. We reviewed this evidence carefully in order to determine whether the parties to the bargaining relationship had ever acted in a manner inconsistent with the position that Vandette was not an employee in the bargaining unit. Vandette's evidence in this respect was of little assistance to the Board on the status issue. The Board is satisfied that his decision to join Local 1036 was not forced upon him, but was one he made freely since he felt it would be in his long-term best interests. Vandette testified that no one had advised him that he was not in the bargaining unit or that there was a distinction between being a member of the union and being an employee in the bargaining unit. He conceded that he was aware of the benefits paid to bargaining unit employees and that he never complained to the Township or Local 1036 concerning the fact that he did not receive any of the benefits.
Lewis and Jagger both testified concerning the scope of the collective agreement. Lewis has been the business manager for Local 1036 for approximately fourteen years and he has been involved in negotiating and administering the collective agreements covering the Township's road department employees since 1973. He testified that the collective agreement covers all permanent employees of the Township, i.e. those who served a probationary period and work 40 hours a week. In his view, the collective agreement never was intended to cover part-time or casual employees and was never applied to such employees. Lewis noted in his evidence that the collective agreement had never been applied to students as well as other employees of the Township, such as firemen. In a similar vein, Jagger testified that the collective agreement was never intended to cover an employee in Vandette's position. Jagger referred to a previous occasion in which the Township employed a part-time labourer for a few months and did not treat that person as falling within the scope of the collective agreement.
Although the Board reviewed the entire collective agreement, those terms which are particularly relevant are as follows:
ARTICLE 2-SCOPE
A This Agreement shall apply to all employees of the Corporation of the Township of St. Joseph, save and except persons above the rank of road superintendent and office staff.
ARTICLE 3- UNION RECOGNITION
A The Corporation hereby recognizes the Union as the Sole Collective Bargaining Agent for all employees covered by Article 2 - Scope, in respect to hours of work, wages and all other conditions pertaining to this Agreement.
ARTICLE 9- UNION SECURITY & DUES CHECK OFF
A It is agreed and understood by the parties hereto that there shall be a compulsory check-off upon all employees who come within the limit to which this Agreement applies for and it shall continue during the period of this contract.
ARTICLE 10- SENIORITY
F In hiring and promotions, it is agreed and understood that all employees will be on a sixty (60) working days probation period.
ARTICLE 16- HOURS OF WORK
A The normal hours of work for all employees covered by this Agreement between May 1st to October 31st shall be forty (40) hours per week to be worked between 12:01 A.M. Monday to 12:00P.M. Friday.
B The normal hours of work for all employees covered by this Agreement between November 1st to April 30th shall be forty (40) hours per week to be worked between 12:01 A.M. Saturday 12:00P.M. Friday.
C It is understood by and between both parties that employees shall be entitled to a ten (10) minute coffee break in the morning and also a ten (10) minute coffee break in the afternoon.
Said coffee break to be on Company time.
ARTICLE 18- ONTARIO HEALTH INSURANCE PLAN
A The Corporation agrees to contribute 100% of the employees cost for the Ontario Health Insurance Plan (OHIP).
ARTICLE 19- HEALTH & WELFARE
A The Employer agrees to contribute for welfare to Local Union 1036, Welfare Fund, at the rate of $25.00 (twenty-five dollars) per month for each Employee covered by this Agreement, commencing February 29, 1984.
ARTICLE 28- DEFINITIONS
A A PERMANENT EMPLOYEE is an employee who has successfully completed the maximum probationary period of sixty (60) days (working as per Article 16).
B A PROBATIONARY EMPLOYEE is an employee who is serving a maximum probationary period of sixty (60) days (working as per Article 16) with the Corporation prior to being considered as a permanent employee.
Section 68 of the Act provides:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith, in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
Section 68 creates a duty on a trade union with respect to the representation of employees in a bargaining unit. If Vandette was not an employee covered by the relevant collective agreement, Local 1036 does not owe him a section 68 duty. The wording of the section makes it quite clear that membership in the union is not what attracts the section 68 obligation. The Board made this point in Cameron Douglas Wonch, [1984] OLRB Rep. Nov. 1659 at paragraph 4:
4.... Membership in a union is not the same as membership in a particular bargaining unit. Nor, for the purposes of section 68, is membership in the union a material consideration. The obligation under section 68 is owed to employees in the bargaining unit whether or not they are union members and, conversely, no section 68 duty is owed to union members who are not also members of a bargaining unit which the union is obligated to fairly represent.
In an effort to determine whether a person is employed in the bargaining unit, the Board inevitably must focus on the terms of the collective agreement, primarily the scope clause. Interpreting the scope clause in itself may provide the answer, but then again it might not. The language used in the scope clause when viewed with the terms of the collective agreement generally may indicate that the language of the scope clause does not reflect the realities of the relationship between the parties. To a considerable extent, the scope of the collective agreement is determined by the parties to a collective agreement not only with respect to the language they use in the collective agreement, but also with respect to their practice which may extend over a long period of time. One must often, therefore, examine the collective agreement as a whole in conjunction with the practice of the parties in order to make an assessment regarding the bargaining unit status of certain individuals.
Support for the general comments contained in the preceding paragraph can be found in a number of Board cases and in arbitration decisions. A useful review of this jurisprudence is found in the following paragraphs in Ben Bruinsma and Sons Limited, [1984] OLRB Rep. March
404 beginning at page 409:
In seeking to ascertain the scope of the bargaining unit covered by a collective agreement, generally one need look no further than the recognition clause contained in the agreement. However, at times a collective agreement when read as a whole may indicate that the agreement was not in fact meant to cover certain employees, even though they were not expressly excluded by the terms of the recognition clause. For example in Re Town of Markham and Canadian Union of Public Employees, Local 1219 (1973), 1973 CanLII 2094 (ON LA), 3 L.A.C. (2d) 237 (Brandi), the issue arose as to whether temporary employees were covered by a collective agreement. The scope clause of the agreement stated that the employer recognized the union as the bargaining agent for "all employees" except for a number of enumerated exclusions, one of which was not temporary employees. After reviewing a number of subsequent clauses in the agreement, however, the arbitration board concluded the parties had intended to exclude temporary employees from the unit, and that the term "all employees" in the recognition clause "does not extend to temporary employees". A somewhat similar conclusion was reached by this Board in Re Murphy & Morrow Limited [1962] OLRB Rep. March 415. In that case a local of the Operative Plasterers and Cement Masons International Association had entered into a collective agreement with a recognition clause which appeared to cover all employees of an employer. However, a number of other provisions in the collective agreement, particularly one which stated that the agreement applied to all work included in the jurisdiction of the union as outlined in its constitution, led the Board to conclude that the agreement was only intended to cover plasterers and plasterers' apprentices and not any other classes of employees.
Just as other provisions in a collective agreement may detract from a scope clause, so also they may indicate that the parties intended a broadly written scope clause to be applied literally.
In Rockwell International Corporation [19811 OLRB Rep. June 780 a collective agreement negotiated in the United States had a scope clause with no geographic limitation. Certain articles in the agreement including a reference to transportation costs and differing pay levels depending on whether one was working in the United States or Canada or elsewhere led the Board to conclude that the parties had in fact intended the agreement to apply outside of the United States.
In certain cases, the Board has looked beyond the terms of a collective agreement in determining the bargaining unit covered by the agreement and has also taken into account the practice of the parties. For example, in Toronto Plastering Company Limited [19681 OLRB Rep. Feb. 1108 a collective agreement entered into by the Operative Plasterers' and Cement Masons' International Association of the United States and Canada purported in its recognition clause to cover "all employees" of a company. However, based on evidence that the provisions of the agreement, including the stipulated wage rates, had been applied to plasterers and apprentice plasterers employed by the company but not labourers, the Board concluded that the parties had not intended that labourers be bound by the agreement.
A case similar in certain respects to the one now before us was Evans Lumber and Builders Supply Ltd. 58 CLLC ¶18,117. In that case a collective agreement purported to cover all employees of a company. The agreement, however, contained no wage rates for resilient floor layers and their apprentices. In a brief decision relating to the status of the resilient floor layers, the Board stated:
"After carefully reviewing all the evidence, including the fact that wages and other working conditions of the resilient floor layers and their apprentices are not governed by this agreement, the Board is satisfied that it was not intended to apply and does not in fact apply to the resilient floor layers..."
Although the decision is not clear with respect to the issue, it appears that the Board based its decision on more than just a lack of a wage schedule for floor layers in the collective agreement.
The lack of a set wage in a collective agreement for a classification of employees does not of necessity lead to a conclusion that those employees are not within the bargaining unit covered by the collective agreement. Rather, it is possible that the parties contemplate that such wages will be arrived at in consultation between the employer and the union, or between the employer and the employees concerned, and that failing any such agreement, the wage rates will be unilaterally set by the employer. In Re Stearns - Roger Canada Ltd. and Millwrights Union, Local 2736 (No. 1) (1972) 1972 CanLII 2035 (ON HCJDC), 2 L.A.C. (2d) 102 (Lindholm), it was held that a foreman who was an "employee" for the purposes of the British Columbia Labour Relations Act, but for whom no wage rate had been set out in the collective agreement (the foreman settling his wage directly with the employer), was an employee in the bargaining unit covered by the collective agreement. It is also possible that the parties may not have included a wage schedule for certain employees in a collective agreement simply because they neglected to put their minds to the issue. In Re International Chemical Workers, Local 552 and Emery Industries (Canada) Ltd. (1970) 1970 CanLII 1681 (ON LA), 21 LAC. 163 (Weatherill) there were two truck drivers who appeared to be covered by the general wording in the scope clause of a collective agreement. The schedule of wage rates attached to the agreement, however, made no mention of truck drivers. The arbitrator was of the view that the truck drivers had not been in the minds of the parties when they negotiated the collective agreement. Nevertheless, the arbitrator concluded that the drivers did come within the bargaining unit covered by the collective agreement.
We believe that the various Board and arbitration cases stand for the following principles. The scope of the bargaining unit covered by a collective agreement can generally be ascertained by the recognition clause in the agreement. However, a consideration of the remainder of the collective agreement may indicate that the recognition clause is not in fact an accurate reflection of the bargaining unit covered by the agreement. Where a reading of the agreement as a whole leaves an uncertainty as to the scope of the bargaining unit, one can seek to ascertain the intent of the parties to the agreement by way of extrinsic evidence, including evidence as to how the agreement has been applied. The fact that a collective agreement does not contain a wage rate for certain employees is one indication that the agreement was not meant to cover those employees, although the lack of a wage rate by itself may not be sufficient to support such a con-elusion.
There is support in the case law for the proposition that one cannot ignore the evidence
of the parties to the bargaining relationship to the effect that certain employees are not covered by a particular collective agreement. In Gerald M. Massicotte and Teamsters Union Local 938, [1980] 1 Can. LRBR 427 (C.L.R.B.), the Canada Board noted that the evidence before it from the union and employer representatives regarding their intention is strong evidence, although not conclusive. In Consolidated Fastfrate Limited, [1984] OLRB Rep. May 691 at paragraph 16, the Board noted that "'where the parties to the collective agreement agree, as they do on the facts before us, that it was never their intention to grant recognition or be recognized for a certain group of employees, the Board must have compelling evidence to lead it to a conclusion contrary to this position'. In both cases, the Boards cautioned that such evidence must be carefully reviewed in light of all of the facts. The Board must be satisfied that such evidence is not conveniently being tendered in order to avoid an unfavourable result in a particular case. In addition, I would also note that in reviewing all of the circumstances, the fact that the terms of the collective agreement were never applied to a particular individual or group of employees is also not determinative. Such a situation may arise as a result of a mistake or simply the inadvertence of the trade union. With respect to these issues, only a review of all of the facts and the terms of the collective agreement will determine the probable intention of the parties.
The scope clause of the collective agreement in this matter does not exclude temporary, part-time or casual employees. But in order to decide the issue before the Board, it is necessary to ask whether the scope clause was intended to include such a category of employees. Article 28 of the collective agreement defines a permanent employee as a person who has successfully completed the probationary period and a probationary employee as a person who is serving a probationary period prior to being considered a permanent employee. Article 10(F) provides that all employees will be on a sixty working days' probationary period. When reference in Article 28 is made to the probationary period, it is explicitly noted that the employee must be working as per Article 16. In essence, Article 16 provides that the normal hours of work for all employees covered by the agreement shall be 40 hours per week. A review of these provisions raises some doubt concerning whether the parties to the collective agreement in using the word "employees" in Articles 2 and 3 intended to cover temporary, part-time or casual employees. It would be highly unlikely for the parties to have intended that certain employees in the bargaining unit would not have to satisfactorily complete a probationary period. It would appear that the probationary period is based on an employee working a regular forty-hour work week. These considerations at least lead the Board to conclude that the question of whether the parties intended to cover temporary, part-time or casual employees is not free of ambiguity. The practice of the parties to the collective agreement, however, is anything but ambiguous.
The Board is satisfied that the collective agreement has never been applied to Vandette. Between June 1984 and January 1985, Vandette worked on a temporary basis in the sense that he was taking the place of a permanent employee who was on Workers Compensation Benefits. After his lay-off in January 1985, he was not called in until June 1985 and worked approximately thirty-seven days in the remaining months of 1985. From January 1986 until the Township hired Brown for the equipment operator position, Vandette worked approximately eleven days and earned $563.36 from the Township in 1986. During the time he worked for the Township, the only term of Vandette's employment consistent with the terms of the collective agreement was a wage rate. With respect to this matter, the Board accepts the evidence of Jagger that Vandette was paid the same as bargaining unit employees for the work he performed, not because he was considered to be in the bargaining unit but because an independent decision was made that such a rate was fair in the circumstances. The Township, with the knowledge of the union, did not pay health and welfare benefits nor OHIP on Vandette's behalf, and it did not check off union dues. The conduct of the Township and Local 1036 is consistent with the evidence their representatives gave before the Board to the effect that it was never their intention to cover employees in Vandette's position by the terms of the collective agreement. The manner in which V~ndette was treated by the Township is consistent with the way in which it treated a previous casual employee and students. Vandette's conduct is consistent with a view on his part that he was not covered by the terms of the collective agreement. The Board is satisfied in the circumstances of this case that the evidence of the parties' representatives to the effect that they never intended the collective agreement to cover persons in Vandette's position is reliable. In addition, the Board is satisfied that the non-application of the collective agreement to Vandette is consistent only with the conclusion that the parties to the collective agreement did not intend persons in his position to be covered.
After reviewing the terms of the collective agreement and the practice of the parties, the Board finds that Vandette was not an employee in the bargaining unit during the relevant period of time. Thus, this complaint as it relates to the section 68 allegation against the union could be dismissed on the basis of the complainant's lack of status. However, in deference to the able submissions of counsel regarding the merits, the Board finds it appropriate to note that, for the reasons set forth below, the complaint would not be successful even if the complainant did have status to bring it.
D. Vandette, Lloyd Aikens and Denis Reid were called to give evidence in support of the section 68 matter. J. Lewis testified for the respondent trade union. In making its factual determinations on this aspect of the case, the Board again has weighed and assessed all of the evidence, including the credibility of the witnesses. As will become evident, the disposition of the merits of the section 68 matter is in large part determined once one has decided who to believe. As a general comment, the Board prefers the evidence given by Lewis where that evidence was in conflict in any material way with the evidence given by Vandette.
As previously set out in paragraph 4 of this decision, the position of equipment operator became vacant in April 1986 when Lloyd Aikens resigned. Prior to applying for the job, Vandette contacted Lewis since he had heard rumours that the Township had already determined who would be hired. In their brief conversation, Vandette explained why he was calling and Lewis advised him to put in two applications, one when the job was posted internally and one if and when the job was advertised externally. The conflicts regarding this conversation concern whether Lewis raised the issue of Vandette's bargaining unit status and explained why Vandette should put in two applications. Lewis testified that he told Vandette that he was not in the bargaining unit but that he should, in effect, cover all the bases by putting in two applications. When Vandette testified concerning the preliminary matter, he admitted in cross-examination that it was possible Lewis told him that he was not in the bargaining unit but it had no impact on him since he considered being a union member and being in the bargaining unit as the same thing. When he gave his evidence on the merits of the section 68 matter, Vandette testified that he was positive Lewis did not say anything about his bargaining unit status and that Lewis did not explain why he should put in two applications. The Board is satisfied that during this conversation, Lewis did raise the issue of Vandette's bargaining unit status as well as explain why Vandette should put in two applications. Vandette's evidence when testifying on the merits of the complaint was not consistent with his earlier evidence on the matter. Moreover, it is highly improbable that Lewis would advise Vandette to make an external application without Vandette asking why and without Lewis giving an explanation which involved mentioning Vandette's bargaining unit status.
The Township Council met to consider the applications for the equipment operator position on May 6, 1986. It was shortly after this date that Vandette was advised he was not the successful applicant and that the Township had hired Harold Brown, a former employee of the Township.
A considerable amount of evidence was called by the complainant to prove that he was
qualified to perform the equipment operator job. The primary focus of a fair representation complaint is not on whether an employer has actually contravened the collective agreement but rather on the conduct of the trade union. However, it is inevitable that some evidence relating to the alleged breach of the collective agreement will be called to give the complaint some context. Such evidence may also be of some relevance to the issue of whether the union has breached section 68 of the Act. For instance, evidence which established a clear violation of the collective agreement may have an impact on the Board's assessment of the union's decision not to arbitrate a grievance. The evidence relating to the complainant's qualifications as an equipment operator did not assist the complainant in establishing a contravention of section 68.
Apart from driving a truck, Vandette operated a grader relatively infrequently between June 1984, when he was hired, and January 1985 when Lloyd Aikens returned from an absence due to injury. When Aikens returned, Vandette no longer operated the grader for the Township. Prior to working for the Township, Vandette never operated a grader. While giving his evidence-in-chief, Vandette testified that no one complained about the way he operated equipment. However, in cross-examination he admitted that a rate-payer complained about his operation of the grader on one occasion. D. Reid, a Council member until November 1985, who was called to give evidence by the complainant, never observed Vandette operate the grader but recalled that the Reeve expressed the view that Vandette was not adapting and was slower than others. On behalf of the complainant, Lloyd Aikens testified that Vandette did a good job "for a guy with his experience". During cross-examination, Aikens admitted that some of the other applicants for the job were better qualified than Vandette. Prior to the equipment operator position becoming vacant, Vandette worked for another Township and early in 1985 was fired for damaging road equipment. Rather than supporting the complainant's section 68 allegation, the evidence raises concerns about Vandette's credibility and his qualifications as a grader operator.
Vandette was quite unhappy about not getting the equipment operator position. He wrote the Council, contacted his job superintendent as well as a local MPP in order to express his concerns. He also sought out legal advice which resulted in the initiation of an unlawful dismissal action in September 1986 and the filing of this complaint in late October 1986. Vandette also contacted Jimmie Lewis. After some unsuccessful attempts, Vandette was able to communicate with Lewis on May 15,1986 by telephone. There is considerable conflict between Vandette and Lewis concerning the substance of this conversation. According to Vandette, the conversation lasted approximately twenty-three minutes and began with Vandette telling Lewis that the Township hired a friend for the equipment operator job rather than himself. Vandette testified that Lewis only responded by saying that he was not going to do anything about it. The discussion to this point took less than a minute. For the remaining time, Lewis talked about an unrelated matter, namely the way the chief and council of the Garden River Indian Reserve were acting. Vandette, who was paying for this call, testified that he did not ask Lewis to explain why he would not assist him and that Lewis offered no such explanation. Vandette agrees he did not ask Lewis to file a grievance on his behalf, or for that matter, to do anything on his behalf.
The evidence of Lewis concerning the May 15th discussion is significantly different from Vandette's. Lewis agreed that the telephone conversation lasted more than twenty minutes and began with Vandette advising him that a person who was related to a Council member got the equipment operator job. Since Vandette mentioned that he had the qualifications and should have been awarded the job, they got into a discussion of Vandette's qualifications. Vandette advised Lewis that he was not very specific regarding his qualifications in his applications. Lewis told Vandette that if he had greater qualifications than the successful applicant, he would go and discuss the matter with the Clerk of the Township, even though he felt Vandette was not in the bargaining unit. It was decided that Vandette would provide Lewis with a letter from an employer regarding Vandette's qualifications and when Lewis received such information he would discuss the matter with the Clerk. Lewis could not recall discussing the Garden River Indian Reserve with Vandette. Lewis did not receive any information from Vandette, and the next time he heard about the matter was when he received notice of this complaint from the Board approximately five months later. Lewis did not raise Vandette's concerns with the Township. He testified that in his experience there was no point in having such a discussion with respect to a matter such as this unless one had some evidence to work with. This was why he asked Vandette for some supporting documentation and indicated to Vandette that he would await receipt of the information before raising the matter with the Township.
With respect to their conversation of May 15, 1986, the Board prefers the evidence of Lewis. Vandette's version of the conversation is quite improbable. It is difficult to accept that Lewis's response was simply "I'm not going to do anything about it". Vandette would have the Board believe that when faced with this response he did not ask for a reason. He also would have us believe that he listened to Lewis talk about an unrelated matter for over twenty minutes at his expense. The response attributed to Lewis by Vandette is inconsistent with the earlier discussion between them when Lewis was quite prepared to provide Vandette with some advice regarding applying for the job, even though he was of the view that he was not in the bargaining unit. It is not surprising that Lewis would respond in the way he describes during the discussion since although he felt Vandette was not in the bargaining unit, he was still a member of the union. Counsel for the complainant suggests that the Board accept Vandette's evidence since it is unbelievable that Vandette would not comply with Lewis' request for information given the other efforts he has made in pursuit of his goal. But this presumes Vandette was able to obtain a reference from an employer concerning his qualifications to operate equipment. The evidence concerning Vandette's qualifications suggests that he might well have been unable to secure the kind of evidence Lewis requested.
Having accepted Lewis' version of the May 15, 1986 conversation, the Board turns to the question of whether the union contravened section 68 of the Act. Counsel for the complainant argued that Lewis was aware of Vandette's concerns and should have pursued the matter with the Township. His failure to do so, counsel submits, is arbitrary within the meaning of section 68. The Board does not agree. Vandette did not request Lewis to do anything. After discussing the matter, there was an understanding between them that Vandette would provide some evidence of his qualifications before Lewis approached the Township Clerk. In reviewing all the circumstances, the Board does not find Lewis' rationale for not approaching the Township without further evidence to be unreasonable. Having regard to all of the evidence, the Board finds that the complainant has not established that the conduct of Lewis was arbitrary, discriminatory or in bad faith. Therefore, even if Vandette was an employee in the bargaining unit at the relevant time, the section 68 aspect of this complaint would fail.
Accordingly, this complaint is dismissed.