0608-99-U Timothy S. Bonner, Applicant v. United Steelworkers of America, Responding Party v. Olsen Technology Inc., Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Timothy S. Bonner, Tim Quinn and Darrel Wilson for the applicant; Cathy Braker, Bill Steep, Mark McLarty, Don Holcombe and Roger Simpson for the responding party; Andrew P. Reko for the intervenor.
DECISION OF THE BOARD; March 3, 2000
The style of cause is amended to reflect the correct name of the intervenor: “Olsen Technology Inc.”.
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.
Section 74 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.
The consultation in this matter commenced on December 22, 1999. Both the applicant and the intervenor were unrepresented by counsel. I explained to the applicant and the intervenor that they were welcome to represent themselves, but that the consultation is a legal proceeding affecting the interests, rights and obligations of the participants, and as such, they bore the risk of proceeding without representation by counsel.
The Facts
- Following a further explanation of the nature, possible outcomes and conduct of a consultation, I attempted to determine the extent to which there was agreement between the parties regarding the facts. The following facts were not disputed.
(i) The allegations with respect to the responding party’s ( the “union) representation of the applicant (“Mr. Bonner”) relates to the union’s withdrawal of two of Mr. Bonner’s grievances concerning recall and job posting respectively.
(ii) Mr. Bonner commenced employment with the intervenor (the “company”) on August 11, 1983.
(iii) Mr. Bonner was at all material times an employee in the bargaining unit represented by the union.
(iv) In January 1995, Mr. Bonner injured his back in a workplace accident, and as a result, was absent from the workplace until March 6, 1997, when he returned to work with no loss of seniority. Throughout the period of his absence he received benefits under what was then the Workers’ Compensation Act.
(v) In April 1997, Mr. Bonner was temporarily laid off with approximately 60 to 70 of the company’s employees, and was recalled in August of that year. On December 8, 1998, Mr. Bonner was one of about thirty employees temporarily laid off from employment. These layoffs were routine, and related to the company’s business cycle.
(vi) On December 15, 1998, the company recalled an employee less seniority than Mr. Bonner to replace an injured employee in the position of Group Leader. The union grieved the recall (hereinafter referred to as “the recall grievance”) on behalf of Mr. Bonner.
(vii) Article 13.02 of the collective agreement between the company and the union states that in all cases of job posting, and layoff or recall of one week or more, the employee with the most seniority shall be given preference provided he or she has the qualifications, skills and physical ability to do the job.
(viii) In response to the recall grievance, the company took the position that Mr. Bonner was both unqualified and physically unable to perform the tasks of Group Leader.
(xiv) The union processed the recall grievance through the grievance procedure and indicated to the company that it would refer the matter to arbitration.
(x) On February 2, 1999 the company posted the position of Group Leader, to which Mr. Bonner and other company employees applied.
(xi) The company notified the union on February 9, 1999 that it took the position Mr. Bonner was physically precluded from performing the Group Leader position.
(xii) On February 10, 1999 the company appointed another employee to the Group Leader position.
(xiii) On February 11, 1999 the union grieved the company’s hiring decision on behalf of Mr. Bonner, alleging that the company had breached the collective agreement, the Ontario Human Rights Code and the Workplace Safety and Insurance Act.
(xiv) The company denied the grievance.
(xv) On May 21, 1999 the union’s grievance committee met to discuss the two grievances. The committee decided that it could not proceed further with the grievances in the absence of the medical documentation which, it is alleged, Mr. Bonner refused to provide. The union informed the employer the same day that the grievances were withdrawn.
(xvi) Mr. Bonner took a leave of absence from the company in June 1999 to pursue another job. His employment with the company terminated on July 19, 1999. There is no issue in this matter with respect to the union’s representation of Mr. Bonner concerning his termination from employment.
The Disputed Facts
- There were disputes between the parties on several points. These are set out below:
The conditions under which Mr. Bonner returned to work in March 1997.
- Mr. Bonner claims he simply resumed his pre-injury job without modification or limitations. The company claims that since his return to work, Mr. Bonner has claimed that his injury prevented him from doing certain work. The union claims no knowledge regarding the conditions of Mr. Bonner’s return to work.
Mr. Bonner’s knowledge of the reasons for the company’s denial of his grievances.
- Mr. Bonner claims never to have known the company’s reasons for denying his two grievances. The company and the union maintain that Mr. Bonner was fully aware of the company’s reasons.
The February 8, 1999 meeting between Mr. Bonner, the union and the company.
- The company contends in its pleadings that at a February 8, 1999 meeting (which Mr. Bonner admits attending with union representatives Steep and Holcombe) the company informed Mr. Bonner that he would not be permitted to train for the posted Group Leader position (the subject of Mr. Bonner’s second grievance) in the absence of a waiver indicating that he had no medical restrictions and was able to fulfill the physical demands of the Group Leader position. Mr. Bonner disputes the company’s account of this meeting.
The May 13, 1999 meeting.
- The union contends that on May 13, 1999, union representatives Steep and Holcombe met with Mr. Bonner (Mr. Bonner acknowledges that he spoke with them) and informed Mr. Bonner of the position taken by the company in both grievances regarding his alleged physical limitations. Mr. Bonner denies being so informed.
The May 18, 1999 meetings.
- There is no dispute that on May 18, 1999, at a meeting involving Mr. Bonner and his union representatives, Mr. Bonner was informed by the union that the company was raising alleged physical limitations as grounds for denying his grievance concerning the job posting. Mr. Bonner says that this was the first occasion on which that issue was brought to his attention. He claims the union asked him whether the union could review his “WCB” documents held by the employer, to which he alleges he answered that he wished to review them first. At the ensuing third-step grievance meeting of the same date with the company, the union and Mr. Bonner, Mr. Bonner claims that he refused to allow the company to release the documentation because he was prevented by the company from reviewing it first.
The union’s allegations concerning requests made of Mr. Bonner to provide medical documentation.
- In paragraphs 21 and 22 of Appendix A of the union’s response, the union contends that it made several attempts to obtain from Mr. Bonner documentation regarding his alleged medical restrictions. Mr. Bonner denies the union’s claim. In paragraph 22 of Appendix A , the union refers to a meeting in which Mr. Bonner, the company’s representative Reko, and the union’s representative, McClarty are alleged to have discussed Mr. Bonner’s ’s recall grievance.
Mr. Bonner’s allegations concerning the union’s human rights committee’s assistance.
- Mr. Bonner alleges that he asked for, and was denied the union’s assistance in having its human rights committee investigate his concerns.
Board Directions
The Board directs Mr. Bonner to provide to the Board and the other parties in this matter detailed particulars of the concerns he wished the union’s human rights committee to investigate, including what the concerns consisted of, when they arose, with whom and when he discussed those concerns, and when and by whom he was refused assistance, including what was said to him with respect to the refusal(s) to provide assistance. These particulars are to be provided on or before March 21, 2000.
At the consultation on December 22, 1999 the Board gave some indication that it would be necessary to hear evidence on all the factual disputes listed above. Upon further reflection, the Board is of the view that there are two key disputes, and possibly a third, regarding the facts in this matter. One such dispute is whether Mr. Bonner had or professed to have any physical limitations upon and after his return to work on March 6, 1997. As indicated above, Mr. Bonner claims that there were never any such limitations, while the company took the position that it had information that suggested otherwise. To the extent the parties in this matter possess or have within their control any documents relating to this dispute, they are to produce and deliver such documents to one another, and to file same with the Board, on or before March 21, 2000. Any objection to producing such documents must be filed with the Board on or before March 14, 2000, and the Board will provide further direction.
The second key dispute concerns the circumstances surrounding the alleged refusal of Mr. Bonner to provide or permit to be provided to the union the medical documentation that it sought for the purpose of processing his grievances. To the extent the parties in this matter possess or have within their control any documents relating to this issue, they are to produce and deliver such documents to one another, and to file same with the Board, on or before March 21, 2000. This order includes any documents within the possession and control of the company that it claims it would have provided to the union but for the objection of Mr. Bonner. Any objection to producing any such documents must be filed with the Board on or before March 14, 2000, and the Board will provide further direction.
A potential third key area of dispute concerns the allegations relating to the union’s human rights committee. Whether this allegation is material to this matter will depend on the particulars that Mr. Bonner is obligated to provide pursuant to paragraph 14 above.
Mr. Bonner will proceed first. He must give all of his evidence on the issues outlined in paragraphs 15 and 16 above. He must also be prepared to proceed first on the issue outlined in paragraph 17 above if the Board indicates that the issue is material to this matter. The union and the employer will then follow.
Remedies
- Finally, in closing, the Board notes that at the consultation on December 22, 1999, Mr. Bonner indicated that he was seeking by way of remedy the referral of his grievances to arbitration, the awarding of his costs, which he estimated to be approximately $900.00, and $10,000.00 for embarrassment and loss of dignity. In the proper circumstances, and where there is a finding of a violation of section 74 of the Act, the Board has ordered grievances to be referred to arbitration. However, the other monetary relief sought by Mr. Bonner is not a remedy that the Board is inclined to order.
Continuation of Consultation
To the extent any party seeks particulars from another party concerning the two key issues identified above, either pursuant to the pleadings or to the positions taken by the parties on these issues on the first day of the consultation, all such requests are to be made of the party in question on or before March 28, 2000. Any objections to providing said particulars are to be filed with the Board on or before April 4, 2000, and the Board will provide further direction if necessary.
The continuation of this consultation is scheduled for May 1, 2000, commencing at 9:30 a.m., in the “Board Room”, 2nd Floor, 505 University Avenue, Toronto, Ontario M5G 2P1.
I remain seized.
“Patrick Kelly”
for the Board