Ontario Labour Relations Board

[1992] OLRB Rep. January 15

2777-91-U Tanya Craig, Complainant v. Aluminum, Brick and Glass Workers International Union, Local 203, and Consumers Glass, Respondents

BEFORE: Robert D. Howe, Vice-Chair.

APPEARANCES: Tanya Craig and Richard Lee for the complainant; Rodney Bezo and Marco Monaco for the respondent trade union; John LaScala for the respondent company.

DECISION OF THE BOARD; January 28, 1992

1. The names of the respondents are amended to read: "Aluminum, Brick and Glass Workers International Union, Local 203" and "Consumers Glass".

2. This is a complaint under section 91 (formerly section 89) of the Labour Relations Act in which the complainant, Tanya Craig, alleges that she has been dealt with by the respondent, Aluminum, Brick and Glass Workers International Union, Local 203 (also referred to in this decision as the “Union" and “Local 203”, for ease of exposition) contrary to section 69 (formerly section 68) of the Act.

3. This complaint was filed with the Board on November 25, 1991, and was heard on January 13, 1992, after a Labour Relations Officer's endeavours to effect a settlement (pursuant to section 9 1(2) of the Act) were unsuccessful. During the course of the hearing, the complainant sought to adduce evidence concerning certain aspects of those settlement endeavours. However, the Board declined to hear it because of the privilege which applies to such evidence (see Sopinka and Lederman, The Law of Evidence in Civil Cases at pages 196-204, and section 113(6) of the Act).

4. During the hearing of this complaint, the Board heard testimony from the complainant and from Richard Lee (who assisted the complainant in the presentation of her case), as well as from Marco Monaco, the President of Local 203, and John LaScala, Human Resources Manager for the respondent, Consumers Glass (also referred to in this decision as the "Company"). In addition to that oral evidence, the Board has before it eleven exhibits which were entered into evidence during the course of the hearing. In making the findings and reaching the conclusions set forth in this decision, the Board has carefully considered all of that oral and documentary evidence, the usual factors relevant to assessing credibility, and the submissions of the parties. The Board has also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence.

5. The collective agreement in force between the Union and the Company from March 29, 1990 to March 28, 1993, includes the following provisions:

Article 2- RECOGNITION

2.01

(a) The Company recognizes the Union as the collective bargaining agent fur its employees at its Hamilton plant and Saltfleet Warehouse, and Mould Design and Manufacture at 215 Hempstead Drive, save and except assistant supervisor, persons above the rank of assistant supervisor, guards, office and clerical staff and sales staff.

Article 4- RESERVATION OF MANAGEMENT RIGHTS

4.01 The Union acknowledges that it is the exclusive function of the Company to:

(a) Maintain order, discipline and efficiency;

(b) hire, discharge for just cause, classify, direct, transfer, promote, demote, lay-off and suspend or otherwise discipline employees, subject to the right of employees to lodge a grievance as herein provided by this Agreement;

Article 5- GRIEVANCE PROCEDURE

5.14 DISCHARGE GRIEVANCE

A claim by an employee who has completed the probationary period that he/she has been unjustly discharged or suspended for three (3) days or more shall be treated as a grievance if a written statement of such grievance is lodged at Step No. 2 within five (5) full working days after the employee ceases to work for the Company....

Article 7- SENIORITY

7.01

(a) PROBATION PERIOD

An employee will be considered on probation and will not be subject to the seniority provisions of the Agreement, nor shall the employee's name be placed on the appropriate seniority list until the completion of either thirty (30) working days of consecutive employment or forty-five (45) working days of intermittent employment within any twelve (12) consecutive calendar months.

Upon completion of such probation period, the employee's name shall be placed on the respective seniority list with seniority entitlement based upon length of continuous service dating as of thirty (30) consecutive working days or forty-five (45) working days of intermittent employment immediately prior thereto.

7.02 DISMISSAL OF PROBATIONARY EMPLOYEE

It is understood that probationary employees may be dismissed by the Company for reasons less serious than might justify the dismissal of an employee who has acquired seniority and, accordingly, the dismissal of a probationary employee will not be the subject of a grievance.

6. Also relevant to the instant case is the following letter of understanding which is one of fourteen such letters included in the collective agreement booklet between the signature page and the appendices which set forth wage rates and classifications:

Mr. R. Bezo,

Executive Officer District 6,

Aluminum Brick and Glass Workers,

230 Lakeshore Road East, Suite 220,

MISSISSAUGA, Ontario.

L5G 1G7

Dear Sir:

Re: Letter of Understanding No.1

REPLACEMENT EMPLOYEE CALL-IN LISTS

Subject to the relevant provisions of the Collective Agreement, this letter will serve as clarification of the various issues associated with the use of "Replacement Employees".

1. General:

(a) The parties recognize the existence and use of three types of "Replacement Employee Call-In Lists" for persons called in to work on a temporary basis to replace permanent employees or to satisfy irregular manning requirements of less than three (3) months duration. These lists include:

i) Seniority Replacement Employee Call-In List.

ii) Non-Seniority Replacement Employee Call-In List.

iii) Student Non-Seniority Replacement Employee Call-In List.

(b) i) It is understood that employees on "Replacement Employee Call-In Lists" will be used to replace permanent full time employees in the positions of Selector and Packer, Pallet Loader, Carton Assembler, Conveyor Loader, Plastishield Attendant (Pallet Loader function).

ii) Seniority employees with the capability to perform the functions of these positions who are currently or about to be laid off, may file a written request with the Human Resources Department to be placed on the Seniority Replacement Employee Call-In List indicating their willingness to work in one or more of the above mentioned positions.

c) Persons called in to work on a temporary basis to replace permanent employees will not be used to fill permanent vacancies until the relevant provisions (Clause 7.15) of the Collective Agreement for filling permanent vacancies have been exhausted.

d) Employees on the "Replacement Employee Call-In Lists" who fail to work 75% of the offered opportunities to work or who cannot be contacted 50% of the time when called to work, may be removed from the list.

e) i) Subject to their availability, employees on the "Replacement Employee Call-In Lists" will be called into work on a rotating basis based on their standing on their respective Call-In List.

ii) Seniority Replacement Employees will be listed in seniority order (most seniority to least). Non-seniority and Student Replacement Employees will be listed on their respective list on the basis of the date they were placed on those lists.

iii) When the need arises to use "Replacement Employees" the Company will refer to the Seniority Replacement Employee Call-In List. When that has been exhausted, it will proceed with the Non-Seniority and then Student Replacement Employee Call-In List.

iv) A Replacement Employee may be used on a regular basis for the duration of a period of casual absence for up to three (3) months, subject to the provisions of Article 7.17(a).

f) i) Replacement Employees called in to replace permanent full time employees or to satisfy irregular manning requirements will not be subject to the seniority provisions of the Collective Agreement except for Seniority Replacement Employees where specific provisions are provided for in the Collective Agreement.

ii) When used, Replacement Employees will not be subject to layoff notice in accordance with Article 7.11.

iii) It is understood that Seniority Employees called in to work as Replacement Employees will not be considered as Recalled in accordance with Article 7.13.

2. Achievement of Seniority or Recall Status:

a) Seniority employees on layoff who are called in to work as Replacement Employees will be recalled in accordance with the provisions of Article 7.13 when permanent work or temporary work which is expected by the Company to last ten (10) consecutive (work) days or more as Isic] available, subject to Article 7.17(a).

b) i) Subject to Article 4, the need for an additional permanent full time position will be established when a Non-Seniority Replacement Employee works a regular shift schedule, in accordance with 1(e)(iv) above, for a minimum three (3) full months.

ii) When the need is established, the Company will apply the relevant provision of the collective Agreement for filling permanent or temporary vacancies.

iii) If A Non-Seniority Replacement Employee is to be hired permanent full time, the most senior qualified individual on the list will be offered the position. Once hired permanent full time, the individual will be considered a Probationary Employee under the terms of this Collective Agreement and shall be required to complete the appropriate provisions of Article 7.01. Upon successful completion of the probationary period, the individual will be credited with seniority equal to the probationary period served plus one (1) day's seniority for each day worked during the previous twelve (12) months of "on call" employment. For this purpose, at least four (4) hours worked in a day shall constitute one (1) day's work.

c) Seniority shall accumulate for seniority Replacement Employees in accordance with Article 7.09(e).

[Part 3 of the letter pertains to pay rates, benefits, statutory holiday pay, and vacation pay.]

4. The Company will provide the Union with a monthly listing of Replacement Employees, except students, and the total hours worked during the month.

Yours truly,

N. A. Baggio

Plant Manager - Hamilton.

7. The purpose of the Company's call-in system is to provide a group of trained employees who can be called in to work when staffing requirements fluctuate on a short-term basis, and when temporary replacements are needed for permanent staff during vacations and other absences of less than three months, such as those caused by illness or injury. Employees who are going to be absent are required to telephone the Company's guardhouse and speak with a security guard (whose services are provided to the Company pursuant to a contract between the Company and a security guard agency). The security guard then contacts the employee's supervisor to ascertain if a replacement is needed. If so, the security guard arranges for a call-in employee to serve as a replacement. As indicated in the letter of understanding, persons on the Seniority Replacement Employee Call-In List are supposed to be the first ones called (on a rotating basis), followed, if necessary, by persons on the Non-Seniority Replacement Employee Call-In List and then by persons on the Student Non-Seniority Replacement Employee Call-In List.

8. The complainant commenced employment with the Company in August of 1990. She assumed, at all material times, that she had been hired as a full-time employee (because she had indicated on her application form that she was seeking full-time employment). However, it is clear from the evidence adduced in these proceedings that her assumption was incorrect, and that she was actually hired on an "as required call-in basis". During her employment interview, she was provided by the Company with a document containing an authorization for Union dues deduction on one side, and various information and acknowledgements on the other side, including the following:

I understand that I have been hired by Consumers Glass on an as required call-in basis and that my employment while on the call-in list is not subject to the seniority provisions of the Collective Agreement.

Furthermore, my employment may be terminated at any time as a casual, call-in, non-seniority employee.

Although the complainant was told to read that document before signing it, in her excitement over obtaining her first job she merely skimmed through it and paid no attention to the above-quoted provisions.

9. After completing ten days of training (during the last two weeks of August of 1990), the complainant worked for only two and a half more weeks (in September) before being laid off. The Company records introduced into evidence at the hearing of this matter indicate that the complainant did not work again until January 31, 1991, and that she worked only two days in February, one day in April, one day in June, and six and a half days in July of that year. They further indicate that of the times that she was called for the purpose of being offered work during the period from September 19, 1990 to July 31, 1991, the complainant was "not home" on fifteen occasions, was "not available" on six occasions, and said "no" on five occasions.

10. The complainant vigorously disputes the accuracy of those records. It was her evidence that she worked far more hours than are shown on those records, and that she was almost always available for work. She acknowledged having declined work on one occasion, when her mother was quite ill and the call offering her work came just as they were leaving for the hospital. However, she denied having declined work at any other time. In support of her contention that the Company's records are inaccurate, the complainant cited instances in which her pay cheques had failed to reflect all of the hours which she had actually worked. It was also her evidence that the telephone at her home very seldom went unanswered as her mother was at home almost all of the time caring for her brother, who was seriously injured in a school bus accident. The complainant further testified that she was very anxious to work as much as possible because her father was an unemployed construction worker and her family was "living on welfare". Thus, when she did go out, she always gave her mother a telephone number where she could be reached. Moreover, the complainant did not merely wait to be called in to work, but frequently telephoned the Company's guardhouse to ask if there was any work available.

11. The complainant also testified that on a number of occasions she was bypassed on the list, with students improperly being given preference for work opportunities. (She did not call any of them as witnesses in these proceedings because some of them were her friends and she feared that they would be terminated by the Company if they testified on her behalf.) She suggested that this occurred as a result of favouritism on the part of the security guards, and because the Company was able to save money by using students whose services were partially paid for by government funding.

12. On or about July 25, 1991, Dolores Elder, the Supervisor of the Company's Human

Resources Department, sent the following letter to the complainant at her home address:

As a result of your unavailability on our call-in list, your name has been removed.

Any monies that may be owing to you will be available during the week of August 10, 1991.

Although that letter is dated July 25, 1991, it is clear from the evidence adduced before the Board in these proceedings that the complainant continued to work for the Company beyond that date. The Company's "absentee and tardiness record" indicates that she worked four hours on July 26, and eight hours on each of July 29, 30, and 31, 1991. Moreover, the complainant testified that she also worked during the first part of August, until August 10, 1991.

13. The complainant was very upset by that letter as she knew that she had almost always been available for work but had seldom been called. Consequently, she went to the Human Resources Department to ask Ms. Elder why the letter had been sent. Ms. Elder's initial response was, "You're fired. That's all there is to it." However, when the complainant continued to assert that she knew nothing about being unavailable, Ms. Elder showed her some records which indicated that she had been unavailable even more times than shown by the Company records introduced at the hearing of this matter. When the complainant asserted that the records were inaccurate. Ms. Elder said that the complainant could not argue with what was written in the records.

14. The complainant also spoke with Mr. LaScala about her termination, but was unable to persuade him to rehire her because his review of her situation led him to conclude that his staff had acted properly in removing her from the list, as her attendance record indicated to him that she was "not available during June and July when [the Company] needed her the most". He also concluded that there had been no violation of the collective agreement or of any applicable legislation.

15. On August 25, 1991, the complainant wrote as follows to the Company's Plant Manager:

I was hired full time on August 19. 1990. I was laid off later due to reduced orders.

I was periodically called back to work during the year and came on all occasions except one day when my mother was coughing up blood when I refused as we were just leaving for the hospital.

I received your letter of July 25/91 effectively terminating me from a call in list of which I had no knowledge. I worked full time after this date up until and including the week of August 11/91.

I received my pay cheque and found it short sixteen (16) hours. I questioned Dolores Elder who refused to believe this error on your companies [sic] records. However these records were later found and I received the payments due; one for two days in one period and one for one day short from the previous week.

I also questioned the reason I was considered unavailable believing it to be the emergency day with my mother. Dolores Elder produced a list that indicated I was unavailable many many times.

I was never contacted any of these times nor was my mother who is practically house bound.

My record of employment shows that I worked mostly undesirable shifts and had nothing but positive comments from my supervisors.

It appears that the call in records are false and to that your data collection is not audited nor controlled. Witness the inability to produce proper pay packages.

I have also asked Dolores Elder to let me speak with my union representative and she has thwarted all attempts or they have refused to answer her memos to have Mr. Monacco call me.

To determine the real reason I will attempt to reach my representative at home or by other channels.

Once I have determined the real truth I will contact the Ontario Labour Relations Board and will issue a formal complaint.

A. The union failed to represent me.

B. The company violated my rights in a number of areas....

As a dedicated employee I did not receive the consideration of the weakest student employee and feel like pursuing this injustice.

16. The Company's response is contained in the following letter dated September 16, 1991 from Mr. LaScala to the complainant:

Thank you for your letter dated August 25, 1991. Many of the accusations you made have been investigated and found to be without merit. Our records indicate that you were unavailable for work for a significant number of opportunities during a period when you were most needed. As a result, you were removed from the Call-In List.

It is extremely unfortunate that our employment relationship was unsuccessful at this time. Never-the-less, you are welcome to re-apply at any time and your suitability for employment will be considered with other applicants.

17. That response prompted the complainant to write the following letter to Mr. LaScala:

Thank you for your letter of September 16/91. Please send an application form.

Obviously, the security guard call in procedure is not audited. They can call in whoever they like and fill in N/A not available for those in the front of the list.

I know of students who worked while I waited for a call at home before you removed my name from the list.

This violates Letter of Understanding #1 e) iii.

Article 7 Seniority

I have fulfilled both requirements to pass through the probation period.

I was told that I was hired as a permanent employee.

Unless you can produce documentation that I signed to the contrary I obviously am full time employee.

Attempts to reach my union representatives have been thwarted at every turn and they have not contacted me even though I made calls to their homes.

An employee can lay a complaint with a company on the Labour Relations Board and one can lay a charge against a union for failure to represent a union member.

I think you have a big problem! You could be asked to reinstate me with full back pay, you could be directed to repay all student grants.

You will definitely have to tighten up your procedures.

The olive branch you offer is not acceptable.

18. Mr. Monaco has worked for the Company for thirty-two years, and has been the President of Local 203 for the last year and a half, during which he has continued to hold a full-time position with the Company. Prior to becoming President, Mr. Monaco was Vice-President of the Local for ten years.

19. The Union filed 99 grievances in 1991, and 121 grievances in 1990, on a variety of matters ranging from discharge grievances to one in which the Union grieved the Company's failure to fix potholes in its parking lot. After confirming that the Company has had a call-in list for many years and characterizing its operation under the previous collective agreement as a "total disaster", Mr. Monaco testified that although he "[doesn't] think it's perfect", under the current collective agreement it "works 100% better than it used to". Prior to April of 1990, when the Company wanted to hire a full-time employee, it selected whomever it wished from the call-in list, often bypassing some of the persons who had been on the list the longest in favour of newer employees whom management perceived to be better workers. However, during the last round of negotiations, the Company agreed to the language that appears in paragraph 2(b)(iii) of the above-quoted Letter of Understanding, which provides (in part) that "[i]f a Non-Seniority Replacement Employee is to be hired permanent full-time, the most senior qualified individual on the list will be offered the position."

20. In accordance with the final paragraph of that Letter of Understanding, the Company provides the Union with a monthly list of replacement employees (other than students), and the total number of hours worked by each of them during the month. Mr. Monaco told the Board that he utilizes that information to monitor the Company's use of replacement employees, but does not take any action on behalf of an individual employee unless the employee complains about not being called in to work, because it has been his experience that some of the employees on that list receive unemployment insurance benefits and do not want to have the Union take any action which would interfere with the continuity of those benefits. It was also his evidence that if a call-in employee does complain to him that s/he is not being called in for work, he goes to the guardhouse and checks to ensure that the proper procedures are being followed.

21. When Mr. Monaco arrived at the plant on the morning of the complainant's last day of work, he was approached by another employee who told him that the complainant had been fired and asked him to speak with her. Mr. Monaco agreed to do so, and proceeded to the complainant's work area. During their brief conversation that morning, the complainant told him she was a fulltime employee (in accordance with her aforementioned assumption that this was her status with the Company), and that she had been fired after working every day they called her. Mr. Monaco told her, "If that's the case there should be no problem", and undertook to do everything for her that he could. During that conversation the complainant also mentioned some of her family's difficulties. Mr. Monaco then spoke briefly with the complainant's co-workers, who told him that she was a good worker. He also spoke with her foreperson, who said, "When she's here she's a good worker." Although Mr. Monaco interpreted the words "when she's here" as a negative comment, it does not appear that he ever sought clarification from the foreperson about what was actually meant by that statement.

22. Mr. Monaco then proceeded to the office, where Ms. Elder told him that the complainant was not a full-time employee and showed him some attendance records indicating that she could often not be contacted, and that she had declined many of the work opportunities which had been offered to her. When Mr. Monaco asked Ms. Elder to meet with the complainant, she at first refused. However, after he stated that the complainant had "a good excuse why she couldn't get off to work" due to "home problems with her mother and her brother", Ms. Elder agreed to meet with her. Mr. Monaco then asked his secretary to telephone the complainant to inform her that Ms. Elder was willing to meet with her.

23. It was Mr. Monaco's evidence that while leaving work on the following Monday, he encountered the complainant as she was entering the Company's premises and told her: "You weren't full-time. I set up a meeting [for you] to talk to Dolores or John LaScala. They're going to talk to you. Maybe they're going to reinstate you. If they aren't, there is nothing I can do for you." The complainant, on the other hand, testified that no such encounter ever occurred. Since it is possible that this encounter did occur, and that the complainant has forgotten about it because it was so brief and casual in nature that it made no lasting impression upon her, the Board is prepared to give Mr. Monaco the benefit of the doubt in that regard.

24. It is clear from the evidence that following her termination, the complainant made numerous attempts to contact Mr. Monaco for assistance. She repeatedly attempted to telephone him at the plant, the Union office, and his residence, and left numerous requests for him to call her. However, Mr. Monaco ignored all of those requests and never called her back. The complainant's repeated calls did ultimately prompt him to speak with Mr. LaScala about her termination. However, when Mr. La Scala reviewed the complainant's attendance records with him and indicated that the Company was not going to rehire her, Mr. Monaco accepted the Company's decision and did not file a grievance or take any other steps to assist the complainant.

25. On October 5, 1991, the complainant sent the following letter to Mr. Monaco:

Please contact Mr. LaScala in Human Relations regarding a serious problem you have been ignoring.

I am happy that our plant is now relatively secure.

It is time for you to act on my grievance.

I have resisted bringing in the Ontario Labour Relations Board and the Minister.

I will settle for reinstatement full time with seniority back to my original date of hire.

Compensation for lost wages may be waived depending on your expedience.

Mr. Monaco received that letter but did not respond to it. The only explanation which Mr. Monaco offered to the Board for ignoring that letter, and failing to return any of the complainant's telephone calls, was that he "had already explained to her that there was nothing [he] could do for her."

26. In reaching the conclusion that there was nothing the Union could do to assist the com-

plainant, Mr. Monaco took into consideration the following response which the Company, through Mr. LaScala, gave to the Union in respect of three non-seniority replacement employees' unjust termination grievances on June 14, 1991:

Following advice from legal counsel, the Company objects to the filing of these grievances for Non-Seniority Replacement Employees.

Letter of Understanding #1, Section 2(b)(iii) indicates that once a non-seniority replacement employee is hired permanent full time, he will then be considered a Probationary Employee under the terms of our Collective Agreement. This confirms the fact that Replacement Employees are only part time employees who have yet to attain Probationary Employee status.

It follows, then, that if the dismissal of a Probationary Employee is non-arbitrable (see Article 7.02) then the dismissal of a Non-Seniority Replacement Employee is also non-arbitrable.

Furthermore, Section 2(b)(iii) of LOU. #1 indicating the Company's intention to offer any permanent full time positions to the "most senior qualified individual on the list" was a result of the 1991 negotiations in which it was emphasized (by the Union and acknowledged by the Company) that individuals found to be unsuitable for employment while on the Call-In list should be removed from the list rather than by-passed for an opportunity for permanent full time employment when it becomes available. It was clearly acknowledged that the Company has the right to [sic] use it's [siel] discretion on whom it retains on the call-in list.

As a result, this will advise you that the Company will not entertain any grievances related to the dismissal of Non-Seniority Replacement employees.

27. After discussing the Company's response to those grievances with a representative of the International, Mr. Monaco dropped them because he was of the opinion that they would not succeed at arbitration. During his testimony before the Board, Mr. Monaco also noted that the Company's records indicated that even if the complainant had been hired as a full-time employee, she would have been a probationary employee at the time of her discharge as the Company's records indicated that she had only worked a total of thirty-four days, which is eleven less than the "forty-five (45) working days of intermittent employment within any twelve (12) consecutive calendar months" required under Article 7.01(a) for completion of the probationary period.

28. Section 69 of the Act 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.

29. In the instant case, there is no evidence of "discrimination" or "bad faith". Thus, the issue is whether the Union, through its President Marco Monaco, acted in a manner that was "arbitrary" in the representation of the complainant. In commenting on the scope of that term, the Board wrote, in part, as follows in I. T. E. Industries Limited, [1980] OLRB Rep. July 1001:

30. Bad faith, malice, discrimination, or subjective ill will are clearly proscribed and readily ascertainable; the real difficulty is to determine when a union's conduct may be properly regarded as "arbitrary" - bearing in mind that the union's affairs may be conducted by laymen with limited formal education, or elected officials who may have been chosen for qualities other than their legal training or understanding of parliamentary procedure. While the Legislature undoubtedly sought to protect the employee from an abuse of the union's authority, I do not think it was intended that every miscalculation, honest mistake, or error in judgment would constitute a breach of a public statute. The standard to which a union must adhere was described in Ford Motor Company Limited, [1973] OLRB Rep. Oct. 519 as follows (at paragraph 40):

"40. In deciding whether a union has violated the Act the standards to be applied are important. We recognize that union affairs are conducted for the most part by laymen. In some situations there are experienced full time officials of a trade union who conduct the union affairs; in other situations, the union affairs are conducted by employees in their spare time, while in yet other situations employees may be given a limited amount of paid time by their employers to engage in trade union matters. This Board does not decide cases on the basis of whether a mistake may have been made or whether there was negligence, nor is the standard based on what this Board might have done in a particular situation after having had the leisure and time to reflect upon the merits. Rather, the standard must consider the persons who are performing the collective bargaining functions, the norms of the industrial community and the measures and solutions that have gained acceptance within that community; see Fisher v Pemberton et al. 1969 CanLII 726 (BC SC), 8 D.L.R. (3d) 521 at p. 546."

Similar views were expressed in Re: Ontario Hydro Employees' Union - CUPE Local 1000 and Walter Prinesdomu, [1975] OLRB Rep. May 444, at p. 462ff, in a long passage which canvassed the intended meaning of the word "arbitrary":

"In using the word arbitrary both the United States Supreme Court and the Legislature of this Province must have envisaged the duty constituting more than the simple castigation of subjective ill-will in that any other interpretation would render the use of this word superfluous. Thus, a well known rule of both statutory and contractual construction militates against the respondent's particular submissions in this regard. But where does this path lead? 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 decisions 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.

26. 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 is extremely difficult to apply. Moreover, attempts at a more precise adumbration have to reconcile the apparent consensus that it is necessary to distinguish arbitrariness (whatever it means) from mere errors in judgment, mistakes, negligence and unbecoming laxness....

On the other hand we do not believe, at least at this time, that all mistakes and careless conduct by trade union officials fall outside the scope of section 60 [now section 69]. It may be difficult to elaborate the precise meaning of arbitrary representation in advance but, as noted above, the very use of the word suggests that some regulation of the quality of decision-making was intended. Accordingly at least flagrant errors in processing grievances - errors consistent with a "not caring" attitude - must be inconsistent with the duty of fair representation. 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. Such circumstances cannot and should not be distinguished from a blind refusal to consider the complaint. However, each case must be decided on its own peculiar facts and it is clear that the duty is not going to be a fertile field for the individual adversely affected be less flagrant conduct.

19. It is clear that in order to establish a breach of section [69], a complainant must do more than demonstrate an honest mistake or even negligence. The union must have committed a "flagrant error" consistent with a "non caring attitude", or have acted in a manner that is "implausible" or "so reckless as to be unworthy of protection". In other words, the trade union's conduct must be so unreasonable, capricious, or grossly negligent, that the Board can conclude that the union simply did not give sufficient consideration to the individual employee's concerns. Honest mistakes or innocent misunderstandings are clearly beyond these parameters and do not attract liability.

20. See also Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, at paragraphs 36 to 39:

21. Section [69] 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.

22. Although this duty is imposed on the trade union as an institution, the trade union observes or breaches the duty through the actions of its officials or decision-making bodies. Especially where an impugned decision is that of a single official, there are obvious difficulties in reviewing the process by which that decision was made. Only the union official knows what his thought processes were and what facts and circumstances he actually took into account in the course of arriving at his decision. His ability to recall and articulate what took place in his mind may be influenced, sub-consciously or otherwise, by self-interest and by the knowledge that he is the only witness to these crucial mental events.

23. With [this] 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] OLRB Rep. Jan. 967. ¶22; Jay Sussman, [1976] OLRB Rep. July 349 ¶11; ITE. Industries Limited [1980] OLRB Rep. July 1001, ¶20), "not unreasonable" (Ivan Pletikos, [1977] OLRB Rep. November 776, ¶3), "not open to challenge" (Oil, Chemical & Automic Workers International Union and its Local 9-698, [1972] OLRB Rep. May 521, ¶3), or at least "not implausible" (Canadian Union of Public Employees Local 1000 - Ontario Hydro Employees Union, [1975] OLRB Rep. 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, [1976] 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.

24. 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: Canadian Union of Public Employees Local 2327, [1981] OLRB Rep. June 623, ¶30; Swing Stage Ltd. re Alvin Plummer, [1983] OLRB Rep. Nov. 1920.

See also Perino Smith, [1991] OLRB Rep. July 912; Bujalski Wtodzimier (Walter), [1991] OLRB Rep. June 735; Maria Mlaker, [1989] OLRB Rep. Nov. 1246; and Angelo Ritrovato, [1986] OLRB Rep. Oct. 1401.

31. In the circumstances of the instant case, reference may also usefully be made to Sofiley Cartage Limited, [1982] OLRB Rep. May 766, in which the Board wrote as follows concerning the effect of a trade union's failure to at least attempt to meet reasonable standards of communication with an aggrieved employee:

32. . . the Board would note that a failure by a trade union to meet reasonable standards of communication with aggrieved employees that it represents, at least in terms of the efforts that it makes, can operate to the trade union's prejudice in a number of significant ways. A failure to consult may, in the first place, cut the trade union off from relevant facts or questions which it is the trade union's duty to consider in order to meet the non-"arbitrary" standard of the duty of fair representation. Or the mere unwillingness [or] lack of effort to communicate, if unreasonable, may in itself point in the direction of conduct which is arbitrary, discriminatory or in bad faith, and cause the Board to view with particular attention the actual level of representation afforded by the trade union. And short, even, of these possibilities, such conduct on the part of a trade union may involve it in lengthy and expensive proceedings before the Board which, through just a little more care in communicating, could conceivably have been avoided....

33. Having carefully considered all of the evidence and the submissions of the parties, the Board has concluded that the Union, through Mr. Monaco, has contravened section 69 in the circumstances of this case. As indicated above, the only feedback which Mr. Monaco gave the complainant concerning his handling of her concerns regarding her termination occurred during a chance encounter which was so brief and casual that the complainant has no memory of it. His failure to respond to her letter and to any of her numerous telephone calls to him was highly unreasonable and demonstrated a "not caring" attitude to the complainant's concerns. Moreover, it cut him off from relevant facts which it was the Union's duty to consider in order to meet the non-arbitrary standard of the duty of fair representation. It is evident (from what he subsequently told Ms. Elder) that Mr. Monaco came away from his brief meeting with the complainant on her final day of work under the mistaken impression that she had mentioned her "home problems" with her mother and her brother in order to indicate that she had a valid excuse for being unavailable for work. However, had Mr. Monaco returned even one of the complainant's many calls and listened to her concerns, he would undoubtedly have realized that the significance of her mother being essentially housebound as a result of her brother's injuries was that it rendered it very unlikely that the telephone would have gone unanswered if the security guards had in fact telephoned her home with offers of work on the numerous occasions indicated in the Company's records. It would also have impressed upon him the unlikelihood that a person in the complainant's economic circumstances would have failed to make herself readily available to accept offers of work from the Company. Speaking with the complainant would also have alerted Mr. Monaco to the fact that she was challenging the accuracy of the Company's records, and would likely have prompted him to investigate the validity of her position by checking to determine whether or not the security guards had been following the proper procedures. A more thorough and less perfunctory review of the complainant's situation might also have prompted Mr. Monaco to recognize that it is at least arguable that the Company does not have an unfettered right to terminate non-seniority replacement employees in view of Article 4.01(b), which only empowers management to "discharge for just cause", and paragraph "d" of Letter of Understanding No.1, which only empowers management to remove employees from the Replacement Employee Call-In Lists where they "fail to work 75% of the offered opportunities to work" or where they "cannot be contacted fifty per cent of the time when called to work". Moreover, quite apart from the arbitrability of a grievance pertaining to the discharge of a non-seniority call-in employee (which may be problematic in view of the provisions of Articles 5.14 and 7.02), it is likely that the Company would have agreed to restore the complainant's name to the Non-Seniority Replacement Employee Call-In List if Mr. Monaco had properly investigated her concerns and, on the basis of the information gleaned through that process, persuaded Mr. LaScala (who impressed the Board as a relatively fair-minded individual) that she should not have been removed from the list. (To the extent that the complainant was seeking "reinstatement full time with seniority back to [her] original date of hire", she was clearly not entitled to that relief, as she had never in fact held a full-time position, nor attained seniority.) Thus, although Mr. Monaco did take some steps with a view to assisting the complainant, his arbitrary failure to even attempt to meet a reasonable standard of communication with her cut him off from relevant facts and information which it was the Union's duty to consider, in order to fulfill its legal obligation to represent her in a non-arbitrary manner. Further evidence of the perfunctory manner in which Mr. Monaco dealt with the complainant's concerns is provided by his failure to even file a grievance on her behalf, and by his reliance upon what he took to be a negative comment by her foreperson, without ever seeking to clarify what was actually meant.

34. For the foregoing reasons, the Board finds and hereby declares that the respondent trade union has contravened section 69 of the Labour Relations Act in the manner described above. Since the parties' submissions were confined almost entirely to the issue of whether the Act had been contravened, and provided the Board with no real assistance in determining what the appropriate remedial relief would be in the circumstances of this case, the Board has decided to defer any further consideration of that issue until after the parties have had an opportunity to attempt to resolve the matter in a manner mutually acceptable to them. In the event that they are unable to do so, the Board, having remained seized of this matter, will schedule a further hearing at the written request of any of the parties, for the purpose of determining the appropriate remedial relief to be awarded to the complainant.