[1980] OLRB Rep. January 1
0268-79-U Basil Cosgrove, Complainant, v. United Auto Workers, Local1285, Respondent, v. American Motors (Canada) Limited, Intervener.
BEFORE: E. Norris Davis, Vice-Chairman.
APPEARANCES: Basil Cosgrove for the complainant,' Harold L. Hall and Douglas A. Schneider for the respondent; Derek L. Rogers and others for the intervener.
DECISION OF THE BOARD; January 23, 1980.
This is a complaint filed under section 79 of The Labour Relations Act in which the complainant alleges that the respondent has contravened section 60 of the Act. The allegations relate to three discrete instances in which it is alleged the respondent in representing the complainant did so in a manner violative of the Act. These instances relate to a complaint of an unsafe working condition, a complaint that a request by the complainant for a job description was unanswered, and a complaint that a request for removal of a medical work restriction was not acted upon.
The complainant, at all relevant times, was employed by American Motors Limited in a bargaining unit represented by the respondent. The complainant, Basil Cosgrove, was first employed by American Motors on September 6, 1971 and worked as an Assembler.
The first complaint in time arose in August, 1978 when the plant was breaking in a new line for the production of Jeeps and work assignments and times had been established on temporary basis subject to review. Mr. Harold Hall, Cosgrove's steward, testified that he had been called by Cosgrove who complained of not knowing what his job consisted of and requested a "job description". Hall identifies "job description" with "work assignment sheet" which latter lists the job as it has been set up by the Industrial Engineering Dept. together with the tools to be used, protective clothing etc. Hall states that at the time there was an estimated job assignment sheet for Cosgrove's job to which had been added additional work elements by the Industrial Engineering Dept. Hall contacted the Industrial Engineering Dept. which then performed a two day study of the job and "told employees how they were to work". Hall states that subsequently a permanent job assignment sheet was issued and that he had no further contacts with Cosgrove until Cosgrove received a warning notice for not performing his job. This warning notice was grieved in the established grievance procedure and settled at the step immediately preceding arbitration and Cosgrove was informed of its disposition. Hall states he had no further contact from Cosgrove in regard to this matter. While the complainant in cross-examination denied that there had been a two day study of the job by the Industrial Engineering Dept., we are satisfied that Hall's total account of the matter should be accepted. The complainant takes the position that he requested Hall to file a grievance to secure a job description and that action was not taken.
The second complaint occurred in early 1979 when Cosgrove suffered leg injuries by being struck by materials being moved on a dolly. This material movement was an integral part of the assembly line operation and, subsequent to Hall being brought into the matter by Cosgrove, a half-inch railing was installed on the floor which would prevent the dolly from rolling into employees such as Cosgrove. The union also referred to this matter and another matter to the Industrial Health and Safety Branch of the Dept. of Labour. A copy of a letter from this Branch, dated February 20, 1979 was filed with the Board. This letter states, in part, "All of these matters were investigated by our inspector and there was no contravention of the industrial Safety Act 1971". A copy of this letter was given to Cosgrove on April 26, 1979. The complainant does not dispute this testimony but takes the position that he had requested the filing of a grievance and no grievance was filed.
The third complaint involves the issuance by the Company Medical Director, Dr. A. S. Mallam, of a Medical Work Restriction to Mr. Cosgrove on January 29, 1979 and which was in the following terms:
"Too much bending and stooping on job - to be removed from present job (installing body side-step etc.) until job revised. No bending or stooping—preferably work at waist-level."
Dr. Mallam testified that he saw Cosgrove in the Company's Medical Centre on January 29th. The immediate reason for Cosgrove's presence was leg bruises resulting from being struck by moving material (as above referred to) but he also complained of stiff and sore legs from kneeling on the job. Dr. Mallam states, that in reviewing Cosgrove's record, he noted that on January 16th Cosgrove stated he had a job with "lots of bending" and that he felt his blood pressure was up, and Mallam was aware that Cosgrove had been under treatment for high blood pressure since January 1978. Mallam states that on January 29, 1979 Cosgrove's prime concern seemed to be that the bending and squatting required by the job was aggravating the blood pressure, and he therefore issued the work restriction. As a result of the work restriction Cosgrove was moved to another job and worked until January 31st for training purposes with the employee who he was displacing.
On January 31st Cosgrove again suffered a leg bruise which he did not report to anyone in the Company but reported to his family doctor who advised him to remain off the leg. He was then absent from work until April 23, 1979, the extended duration of which was attributed to other medical problems including surgery.
On reporting for work on April 23rd, Cosgrove reported to the Medical Centre, and the Nurse, noting that he had medical restrictions, referred him to Mr. K.J. Rowntree, Hourly Personnel Officer. According to Cosgrove, he was told by Rowntree that if he could not do the job to which he had been transferred to on January 29th he would have to go home. Accordingly, he was issued a "Cease work authorization" as being "medically laid-off" at 4:10 p.m., April 23, 1979. On April 24th, Rowntree talked to Cosgrove by phone and advised him that as there was no change in his restrictions he should return to the same job as he had in January following his reassignment based on the medical restriction, and that job had been cleared by the Doctor, the Safety Inspector and the Nursing Supervisor. Rowntree asked Cosgrove to report for work that night, or as soon as possible, to which Cosgrove responded that he would not come in and would go to his own doctor. Rowntree confirmed this conversation by letter to Cosgrove dated April 24th in which he indicates "on talking with Mr. H. Hall, your Committeeman, he voiced no objection to you being placed on that job". Cosgrove testified that on April 23rd he had called on his steward but no details of this discussion were given.
At this point it becomes difficult to rationalize Cosgrove's position vis-à-vis his employment relationship and his medical condition inasmuch as on the one hand he is complaining of the existence of a Company Medical Restriction in the face of his own doctor's opinion that he was not disabled, and on the other hand, that he was totally disabled between April 23rd and July 3rd. Cosgrove states that "I shouldn't have restrictions when my own doctor said I was medically fit" and he asked the union to have the restrictions removed. Cosgrove testified that he talked with Hall on April 26th and "asked him to write out a grievance to remove medical restrictions, and as he wouldn't put in what I wanted as a violation of the contract I said may be my lawyer should write the grievance." Hall, who testified, corroborated this and filed with the Board a statement of grievance which he had prepared for Cosgrove, and which Cosgrove refused to sign because of his insistence that it include reference to the specific clause of the collective agreement alleged to be violated.
On the same day, April 26th, Cosgrove completed a claim form for Weekly Indemnity Payments supported by his doctor's statement completed the same date and certifying that as of April 23rd Cosgrove was totally disabled and, that at that point, predicting that Cosgrove would be able to return to work on May 3, 1979. As events developed Cosgrove did not return to work until July 3rd and testified that he had been certified as totally disabled by his own doctor for the entire period of the absence. He also testified that between April 26th and July 3rd he had no contacts with either the union or the company. This complaint was filed on May 9th, 1979.
10 We can only conclude that the complaint misconceives the function of the respondent as his bargaining agent: the complainant's position in these proceedings is based on the narrow ground that in respect to the first and second complaints the respondent failed to file a formal grievance as it was requested to do. But it is clear, on the evidence, that the respondent on being presented with Cosgrove's complaints in each case immediately instituted action with the employer resulting in a complete adjustment of the situation about which Cosgrove was complaining. In other words, the conditions of which Cosgrove was complaining as adversely affecting him in his employment relationship were, as a result of the respondent's actions, adjusted so that Cosgrove was no longer adversely affected. It escapes us how the representation of Cosgrove by the respondent could have been rendered any more efficacious by the physical filing of a formal grievance. At the risk of only stating the obvious it must be said that filing a formal grievance is by no means co-extensive with representation of a member of the bargaining unit but is merely one of the available mechanics available to the bargaining agent in securing a satisfactory settlement of issues. In any event, there is no evidence to support the allegation that the respondent in regard to the first and second complaints acted in a manner which was arbitrary, discriminatory, or in bad faith in its representation of the complainant.
In respect to the third complaint, the evidence establishes that no formal grievance was filed respecting work restrictions as a result of Cosgrove demanding that the grievance be so worded as to specifically identify one article of the collective agreement as having been violated, whereas Hall's judgment (in accordance with the union's general practice in such matters) was that the better course was to rely on the blanket allegation of violation of the collective agreement. The differences of opinion between Hall and Cosgrove as to the most effective manner of proceeding resulted in Cosgrove not signing the prepared grievance and thereby precluding its processing. There was not a refusal by the union to process the grievance and secure an adjustment of the complaint but rather a refusal to accept Cosgrove's judgment in place of the union's judgment as to what approach in the grievance wording would be most productive of the desired result. This is the type of judgment which representatives of a bargaining unit are required to make, subject to the statutory limitations imposed by section 60 of the Act. We find no evidence of bad faith, discrimination or arbitrariness tainting the exercise of that judgment in this matter.
The complaint is dismissed.