[1982] OLRB Rep. January 113
1621-81-U Gurnam Dhanota, Complainant, v. International Union United Automobile, Aerospace & Agricultural Implement Workers of America, (U.A.W.) Local Union No. 1285, Respondent, v. Sheller-Globe of Canada, Ltd., Intervener.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
APPEARANCES: Charles Roach, Gurnam Dhanota, Nasib Nanvan, Mohinder Singh Dhanota and Jaswant Vanvat for the complainant; Robert Pattison, Terence Gorman and Joseph C. Maloney for the respondent; J. R. Hassell and P. Jovanovich for the intervener.
DECISION OF THE BOARD; January 26, 1982
1This is a complaint under section 89 of the Labour Relations Act, alleging a violation of section 68 of the Act on the part of the respondent trade union. Section 68 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 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.
2The complainant, Gurnam Dhanota, had been an employee of the intervener, Sheller-Globe of Canada, Ltd., and as such had been a member of a bargaining unit represented by the respondent. On or about March 8, 1979, the complainant was discharged. Her complaint alleges that the respondent violated the provisions of section 68 of the Act when it refused to grieve her discharge. The present complaint was not filed, however, until October 27, 1981, some two years and seven months after the discharge in question. The complainant now seeks an order from the Board requiring the respondent to follow through on its duty of fair representation and obtain some sort of third-party adjudication of her grievance, so that she can achieve reinstatement (and whatever other relief is appropriate) from the intervener.
3Both the respondent and the intervener take the position that the Board ought to refuse to entertain the present complaint, given the extreme delay on the part of the complainant in filing it. Both claimed prejudice if the matter had to be inquired into after the passage of so lengthy a period of time, and submitted that as a matter of labour-relations policy, the Board ought not to countenance a delay of this magnitude. In the circumstances, the Board ruled that it would first entertain the evidence of the complainant with respect to the issue of delay, prior to inquiring into the merits of the complaint.
4The evidence establishes that the complainant and her husband, who acts as her interpreter, attended at the office of the intervener's Personnel Manager on the day they learned of her discharge. The Personnel Manager indicated she would not be taken back, as she had been warned three times, including a three-day suspension only the day before. The complainant's husband, Singh Dhanota, stated that the complainant's foreman had been discriminating against her, and that they wanted to file a grievance. The Personnel Manager then told them to go outside and file their grievance with the union.
5Mr. Dhanota approached the respondent's Plant Chairman, Bob Pattison, who had attended the suspenion meeting with the complainant the day before, and told him that the complainant had just been fired. Mr. Pattison responded: "I know". Mr. Dhanota indicated that his wife wished to file a grievance, but Mr. Pattison answered that there was no ground for filing a grievance. The next day, Mr. Dhanota phoned Terry Gorman, the Union President, and explained what had happened. Mr. Gorman was not familiar with the matter, but said that he would talk to Bob Pattison and the steward, who would take the grievance. Nothing more came of it, however. Mr. Dhanota works with Mr. Pattison, and asked .him every day for a week about the grievance. Finally Mr. Dhanota told Mr. Pattison that he was going to a lawyer to ask him to file a grievance for them.
6The complainant and her husband did, in fact, retain a lawyer, a Mr. Philp. They were referred to him by the complainant's brother, who was assisting the complainant as well at this time, and who explained to the Board that he was an engineer with Atomic Energy of Canada, and possessed a certain degree of knowledge of employer-employee relations. Mr. Philp advised the complainant that it was best to write to the union and again request them to take up a grievance on her behalf, and Mr. Philp did so on March 23rd. The union, through Mr. Gorman, responded by letter of March 26, 1979, which read:
Dear Mr. Philp:
Your letter concerning Mrs. Gurnam Dhanota and her discharge from the employment of Sheller Globe of Canada Limited was received in this office on Friday, March 23, 1979.
Under the collective agreement I as President of the Local Union do not have the right to file a grievance for an employee. I have spoken with the Chairperson representing the Union