2856-98-U Rakeeb Mohammed, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-CANADA), Responding Party v. Collins & Aikman (formerly Manchester Plastics), Intervenor.

BEFORE: Patrick Kelly, Vice‑Chair.

APPEARANCES: Charles Morison for the applicant; Dawn Cartwright and Greg Burton for the responding party; Steven McCormack, Mark MacKay and Suzanne Golec for the intervenor.

DECISION OF THE BOARD; May 5, 2000

1. This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (“the Act”), alleging a violation of section 74 of the Act.

2. 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.

3. This matter proceeded by way of consultation on April 5, 2000.

4. With the assistance of the Board, the parties to this matter agreed that a number of material facts were not in dispute. These are set out below.

5. On May 22, 1989, the applicant (also hereinafter referred to as “Mr. Mohammed”) was hired by Manchester Plastics (now known as Collins & Aikman Plastics Inc., hereinafter referred to as “the company”) as a Machine Operator, and received several promotions throughout his employment. He was also elected to several positions in the union. At the time of his termination from employment on October 27, 1997, Mr. Mohammed occupied the elected union positions of financial secretary, health and safety representative, bargaining committee member and delegate to CAW-Canada council.

6. Mr. Mohammed was terminated by the company for allegedly having attempted to extort from the company $150,000 in U.S. funds in exchange for the applicant’s undertaking to facilitate an undisruptive collective bargaining process resulting in the completion of a collective agreement. The company informed the union on October 27, 1997 of its intention to terminate Mr. Mohammed, and of the basis for that termination. The union requested to see the company’s evidence upon which it was basing its decision to dismiss Mr. Mohammed, and on October 28, 1997 the company provided to the union the evidence in the form of an audio-visual tape recording (“the video”) of a meeting on October 27, 1999 in which the company contended that Mr. Mohammed committed the extortion attempt.

7. On or around October 29, 1997, in anticipation of filing a grievance, the union’s national representative, its local chairperson and its local president met with Mr. Mohammed. He explained the circumstances leading up to the creation of the video. At the consultation, he could not recall what his explanation was at the time of the meeting. Whatever it was, it was not the same explanation that he revealed at the consultation before me. At the consultation, Mr. Mohammed contended that he and the union local president had become concerned about rumours of the company allegedly bribing other union officials. They agreed that Mr. Mohammed should test the rumours, and see if the company would indeed offer similar inducements to Mr. Mohammed. Apparently the October 27 meeting between the applicant and the company representatives was part of the plan. Mr. Mohammed did not mention this plan at the October 29 meeting with the union, which, as noted above, included the very person with whom Mr. Mohammed had planned to expose the company. Mr. Mohammed claimed to have been fearful at the meeting with his union because of his knowledge of what the video contained, and the possibility that the local union president would not acknowledge the plan described above.

8. It was common ground among the union and the applicant that at this same meeting, the union invited Mr. Mohammed to view the videotape with the union representatives. The union’s claim at the consultation that it had not viewed the video up to this point in the meeting was not disputed by the applicant. Mr. Mohammed declined the union’s invitation, and apparently left the meeting, following which the union viewed the video. After reviewing the video, the union considered what it claims Mr. Mohammed told them by way of explanation. The union claims that Mr. Mohammed told its representatives two contradictory things. The first assertion was that Mr. Mohammed had intended the whole matter to be a joke. The second explanation related to Mr. Mohammed’s claim that he had feared for his life because the company had advised him that a “hit man” had been contracted to kill Mr. Mohammed unless he withdrew from the union executive. It bears repeating that during the consultation of April 5, 2000, the applicant’s position was that, if he were to testify, he would say that he could not remember what he offered by way of explanation to the union on October 29, 1997, possibly due to the acute anxiety that he experienced that day, knowing that he was in considerable jeopardy if the union local president remained silent or, in any other way, left Mr. Mohammed unfairly exposed. The applicant did not seriously dispute the fact that he may have given contradictory statements to the union on October 29. In fact, counsel for the applicant stated that it was all the more incumbent upon the union to have conducted a full investigation, given the applicant’s contradictory explanations.

9. Having considered the video and the applicant’s explanations, the three union representatives determined that there was no basis for the vigorous pursuit of Mr. Mohammed’s ’s reinstatement. On October 31, 1997, the union sent to Mr. Mohammed’s residence a registered letter advising Mr. Mohammed that it was closing its investigation into his termination because it was of the view that Mr. Mohammed had not provided the union the basis for filing a complaint on his behalf. The applicant claims that he never received any such letter, until a copy was requested by his counsel sometime in 1998. But it was not disputed that the union sent the letter to the applicant’s residence. It also was not disputed that the applicant had been in Florida for four or five weeks in total between the time of his termination on October 27, 1997 and late December, 1997, and that he had not left any forwarding address with the union, or otherwise informed the union of his whereabouts. The applicant claimed at the consultation that there was no need to advise of a forwarding address because it was common knowledge throughout the workplace that he frequently vacationed in Florida. In any event, the applicant admitted that his family remained behind in Canada at his residence the whole time that he was in Florida.

10. Notwithstanding the union’s position regarding the lack of any basis for making a complaint on Mr. Mohammed’s behalf, it filed a grievance on November 5, 1997 with respect to his termination. The grievance, filed at Step 2 of the grievance procedure outlined in the collective agreement alleged that Mr. Mohammed had been entrapped by the company. The union claims that it did this to preserve Mr. Mohammed’s rights in the event that he brought new evidence to light concerning the circumstances giving rise to his termination. The applicant’s counsel did not seriously dispute the union’s motives in this regard, although he alleged that the filing of the grievance was mere tokenism, given the union’s already fixed attitude towards the applicant.

11. Although Mr. Mohammed says that he did not receive proper notice, on or about November 24, 1997 the union sent a letter to the applicant’s residence advising that Mr. Mohammed was being charged with conduct unbecoming of a union member, that as a result he would lose all union office positions, and advising further that he could appeal the decision pursuant to the union’s constitution and/or at the November 30, 1997 membership meeting where the charges and recommendation for removal from office would be put to the bargaining unit members in attendance. The applicant stated that he did not receive this letter until returning to Canada from Florida around Christmas 1997. (He also stated that shortly after his termination, he was asked to return to the union certain union property, from which request he inferred that the decision to remove him from union office had already been taken). The applicant offered no information at the consultation with respect to any objections he may have made in respect of the filing of the charges, nor did he take any appeals in connection therewith. He acknowledged that as a union executive, he had been given a copy of the union constitution. Notwithstanding his apparent total lack of reaction to news of his ouster from union office, his application contends that the filing of charges and the quick preparations the union made to plan elections for the positions vacated by the applicant, are evidence of the union’s rush to judgement concerning his grievance, and may also be viewed as evidence suggesting that certain ambitious union officials were more than happy to have Mr. Mohammed out of the way, thereby facilitating their chances to fill Mr. Mohammed’s union positions. At the consultation, the applicant alleged that two of the three successfully elected individuals were members of the union’s grievance committee. The union agreed that that was indeed the case, but asserted that, in fact the grievance committee had never actually debated the merits of Mr. Mohammed’s grievance, because that decision had already been made by the union officials in attendance at the October 29, 1997 meeting with the applicant. Those union officials had communicated to the grievance committee that they had reviewed the evidence, and that they had concluded Mr. Mohammed had no case. The grievance committee essentially rubber-stamped the decision. Counsel for the applicant did not dispute the union’s description of the internal grievance process, but took the opportunity to submit that it allegedly showed the shoddiness, and perhaps the lack of efficacy, of the union’s investigative methods as they relate to Mr. Mohammed’s grievance.

Decision

11. This is clearly a case that the Board should not inquire into further.

12. The union reviewed not only the applicant’s explanations regarding the circumstances of his termination, but also the entirety of the evidence against the applicant that was provided by the company. The parties agreed at the consultation that I should review that evidence for the purpose of determining if the union’s reaction to it, and to the information provided to the union by the applicant at the October 29, 1997 meeting, gives rise to a violation of section 74. I have reviewed that evidence, as well as the pleadings, the admissions of the parties and the agreed or undisputed facts arising out of the consultation of April 5, 2000. I conclude that the union did not violate section 74 of the Act, when, confronted with the applicant’s own contradictory explanations with respect to his dealings with the company, and the company’s evidence with respect to those dealings, it decided that there was no case for a challenge of the termination.

13. The explanations which the union says the applicant provided on October 29, 1997, if those were in fact the explanations offered by the applicant, are contradictory and not believable even if examined in isolation of one another. If, as the applicant claims, he said next to nothing, or cannot recall what he said at that meeting, then he failed to give the union any information or material to counter the company’s assertions. The explanation offered by the applicant at the consultation of April 5, 2000 was never pleaded, and was heard by the union’s representative for the first time that day. Putting aside any consideration of the unexplained delay in having raised these allegations, they are simply not believable either. For if, as alleged, the October 27 meeting at which Mr. Mohammed was to have caught the company bribing a union official – himself – was the one video-taped by the company, it is very strange, in fact incredible, that the company would then turn over evidence of its own wrong-doing to the apparent victim of the apparent wrong-doing, the union. No reasonable interpretation of the video could possibly support the theory that it was Mr. Mohammed who set up the meeting in order to catch the company engaging in egregious conduct. Moreover, the grievance that Mr. Mohammed wants the union to pursue is diametrically opposed to the applicant’s theory in this case, in that the grievance alleges the company entrapped Mr. Mohammed during the video-taped meeting. Counsel for the applicant urged me to conclude that the video contains obvious examples of the company inducing Mr. Mohammed to betray the union. Even if that is so (and in my view, the video points a different picture than that suggested by counsel for the applicant), the applicant’s explanation at the consultation before me, concerning the applicant’s alleged plan worked out with the union local president, makes no sense, and is, in fact, counter-intuitive.

14. The union turned its mind to the applicant’s case. The union filed a grievance on his behalf. The union waited a reasonable period of time between the filing of the grievance on November 5, 1997, and its withdrawal on February 20, 1998, for the receipt of any new evidence that the applicant might provide to build a case for the further pursuit of the grievance. Shortly before deciding to withdraw the grievance, the union claims (and it was not disputed) that it confirmed that no further information had been received since the filing of the grievance. It then notified the company of its intent to drop the matter.

15. I disagree with the assertion of counsel for the applicant that the union in this case was obliged to undertake a much more comprehensive investigation than the one conducted. This is an example of a case where the applicant was in the peculiar position of possessing almost all the information that might have assisted in a challenge to the company’s decision to terminate him. By his own admission, he provided very little in the way of information, and he did not provide the union with the explanation concerning his plan to expose the company until the day of the consultation in this matter. On the other hand, if, as the union contended, he provided the contradictory explanations outlined above, the union was entitled to draw negative inferences about the truth of the applicant’s assertions, in the absence of any other factors which might have suggested confusion or lack of capacity of the applicant. The investigation that the union conducted was reasonable in the circumstances.

16. The union’s course of dealing with the applicant in regard to his removal from union office is not a matter that the Board would normally inquire into, except as it might be relevant to the handling of the applicant’s grievance. The applicant did not dispute the union’s assertion that the decision not to pursue his grievance was made by persons other than the grievance committee members who were elected to the applicant’s vacated union positions. Consequently, even though the union’s decision to plan for an election was made relatively quickly, it was made after the decision not to pursue Mr. Mohammed’s grievance in the absence of further information.

17. The Board determines that it will not inquire further into the application. Accordingly, it is unnecessary to deal with the union and the company’s motion regarding delay in the filing of the application.

18. The application is dismissed.

“Patrick Kelly”

for the Board