2889-99-U Byron R. Green, Applicant v. Canadian Auto Workers Union Local #222 and C.A.W. National Union, Responding Party v. General Motors of Canada Limited, Intervenor.

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: Byron Green on his own behalf; no one appearing for the responding parties; Jennifer Lamb, Randy Giroux and Justin Wintle for the intervenor.

DECISION OF THE BOARD; September 15, 2000

1. This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding parties (referred to as the “union”) have violated section 74 by not proceeding with three grievances filed by the applicant over the course of a year.

2. A consultation was held in this matter on August 24, 2000. Correspondence was received from John Graham, the National Representative of the union indicating that he would not be participating as he had another union matter to attend to that day. Mr. Graham had earlier requested an adjournment and had been advised by the Board that he would have to seek the consent of the other parties. The applicant did not consent. No one else appeared for the union at the consultation so this decision is based only on information provided by the applicant and the intervenor (referred to as the “company”) as well as the materials filed by the parties. However, the only response to the application which the Board received was from Mr. Graham on behalf of Local 222. It is very brief and merely indicates that the applicant’s termination grievance has been referred to an arbitrator. Nevertheless, no arbitration has yet taken place and no one was present to advise the Board of the union’s plan with respect to this grievance. The Board’s Rules and Notices to the parties set out clearly that if they fail to attend a proceeding the Board may decide the matter without them or without considering any materials filed.

3. The following are the relevant facts. The applicant commenced employment with the intervenor (referred to as the “company”) on March 18, 1983. In February, 1988 his shoulder was injured at work. He underwent surgery for a torn rotator cuff. In November, 1995 he was awarded a 10% permanent partial disability pension from the Workplace Safety and Insurance Board (“WSIB”). He was absent from work for several weeks at the end of 1995 again due to his shoulder injury. By that time he was also having problems with his right shoulder. He received a disability payment for that injury as well. He was laid off in December, 1996. In January, 1997 he was returned to work but to a different job. The applicant had problems with the supervisor on this job from the first day and on March 7, 1997 he was given a two week suspension for unsatisfactory work. He filed a grievance. This grievance was denied by the company at step three and according to the company was withdrawn by the union in writing. Mr. Green was never informed that the grievance was withdrawn let alone given any explanation as to why it was withdrawn. In the union’s response it did not even refer to this grievance even though the applicant included it in his complaint and noted that he did not know what had happened to it.

4. Mr. Green was due to return to work on Tuesday, September 4, 1997 after a two week vacation. His spouse had given birth a day or two before and he called the company to advise that he would be off until Thursday to look after her and the baby. The applicant followed the prescribed procedure for making such a call. He called the main number at the plant and was issued a reference number. He returned to work on Thursday, September 6, 1997 but was four hours late according to the company. He was given a 30 day suspension for missing the two days. He filed another grievance. According to the company, the union withdrew this grievance on November 19, 1997 shortly after his termination. The applicant was never informed that the grievance was withdrawn. He returned to work on October 7 and was given a new job to do. The applicant had been assigned to modified work since at least 1995 and this job was also considered to be modified work. However he found that the job caused him considerable pain and he asked for a medical review. The company physician was unavailable but its ergonomist evaluated the job and determined that it fell within the applicant’s restrictions if he performed it in a particular way. The applicant disagreed, primarily, as I understand it, as it required repetitive reaching or pushing. He attempted the job for another 20 minutes in the way proposed by the ergonomist and then left. He followed the company’s procedure and went to the Sickness and Accident department where he filled out the required forms. He also took a form to be filled out by his doctor the next day.

5. On October 7, his doctor filled out a form indicating that his shoulder was injured, that he had an MRI scheduled on October 21 and that he was to have surgery on December 11. The doctor indicated that he should be off work until the surgery. That form was submitted to the company. His doctor also sent a form to the WSIB indicating that his situation was deteriorating and that he could do no work involving his left shoulder. In a form to WSIB in August, his doctor had indicated that the applicant was being seen by a specialist. The WSIB had a specialist report from that time. The applicant was under the impression that all of the medical reports his doctor sent to the WSIB went to the employer. While this is not necessarily true, at some point he did sign a release so his WSIB reports could be disclosed to the company and the union. Nevertheless, the company indicated at the consultation that it never received the specialist report from August 1997 from the WSIB. The applicant advised that he thought the company and the union both had it.

6. Subsequent to the applicant going on sick leave, the company’s doctor examined the job he was assigned and decided that it did fit his restrictions. However, it appears that the doctor and the ergonomist were using the restrictions set out in a medical report from August. There was nothing to indicate if they considered that his situation might have deteriorated as he was scheduled for further surgery on December 11.

7. The company’s insurer asked that Mr. Green have a medical examination. He therefore attended an appointment with Dr. Clark on October 15. In his written report Dr. Clark indicates that he had not reviewed any x-rays or MRI’s. He notes however, that the applicant is scheduled for another arthrogram and MRI. He says that he offered the applicant more surgery but was informed that he was already scheduled for surgery on December 11. He concludes as follows:

I would hazzard [sic] a guess today, that this man may well have a bit of an AC arthritis bilaterally in his shoulders. From his history, he seems to have some rotation cuff problems on the left side and I think that he would be fit to return to work, provided he was not required to work above shoulder level, undergo frequent pushing/pulling, no heavy lifting and no repetitive tasks with his left upper extremity.

The day after the appointment with Dr. Clark, the company was verbally advised by his office that the applicant could work with restrictions. It does not appear that the company was told what kind of restrictions. The company immediately cancelled his medical leave. It attempted to telephone him three times on October 16 but was unsuccessful. It then sent a letter by courier indicating that if he did not return to work within five days or provide further medical information he would be terminated pursuant to Article 54(e) of the collective agreement. The applicant states that he did not receive that letter and the company was unable to show otherwise. On October 30, 1997 he was terminated according to Article 54(e) of the collective agreement which provides as follows:

54. An employee’s seniority shall be broken:

(e) if the employee fails to report for work within five (5) working days after the expiration of any leave granted to the employee, unless a satisfactory reason is given; provided, however, that in the case of leaves of absence granted under Paragraphs (69), (70), (71), (72) and (72)(a), Management will send, by registered mail, clear written notification to the employee’s last know address as shown on the Company records, that the employee’s seniority has been broken and that it can be reinstated, if, within three (3) specified working days after delivery or attempted delivery of such notice, the employee reports for work or properly notifies Management of such employee’s absence. A copy of such Management notification will be furnished promptly to the Chairperson of the Shop Committee. If the employee complies with the conditions set forth in the notification, the employee’s seniority will be reinstated if it has not otherwise been broken; however, such reinstatement shall not be construed as limiting the application to the employee’s case of the Shop Rule regarding absence without reasonable cause

8. The company indicated that it does not matter if an employee actually receives the letter warning him that medical leave has been cancelled as the collective agreement only requires it to attempt to provide such a letter. In fact, according to the company’s interpretation all of the provisions of the above article following the words “reason is given” only apply to the leaves specified in the Articles set out in the next line which do not include sick leave. Therefore arguably no notice is required in such a case, or conversely leave cannot be cancelled unless notice is actually received, if it is not a leave under one of the listed articles. It does not appear that anyone turned his or her mind to this interpretation issue. The company says that if it is unable to deliver a letter advising of a cancellation of sick leave it terminates the employee after the five days and then expects the matter to be resolved through the grievance procedure. That is exactly the applicant’s situation. However, two years later no arbitration has been held. He advises that he met with Mr. Graham, the union’s national representative last March and that he was told that the union could do nothing without more medical information. Mr. Graham also sent a letter to Mr. Green in May, 2000 indicating that the union would not be proceeding with the grievance unless he provided more medical documentation. However, the company is certain that the grievance has not been withdrawn and is one of 23 outstanding grievances in line for arbitration.

9. The company explained that its practice with the union is to set arbitration dates but not to assign a particular grievance to a date. The parties then agree to prepare five outstanding grievances for that date. As a result of this process they are able to resolve most or all of the grievances prior to the date. If any are not resolved, the parties agree about which one they should pursue. The company indicated that Mr. Green’s grievance was scheduled for arbitration last March, however, the union decided not to proceed with it at that time.

DECISION

10. Section 74 of the Act provides as follows

11. 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.

12. No explanation has been provided by the union as to why it withdrew the applicant’s two suspension grievances. According to the applicant he was never advised that they had been withdrawn. The grievances are not obviously without merit. The only conclusion the Board can draw, therefore, is that the decision to withdraw those grievances was at least arbitrary. Furthermore, by not advising Mr. Green that the grievances were withdrawn, or why, the union acted in bad faith in representing him. The Board is also troubled by the union’s decision to withdraw the grievance with respect to the 30 day suspension shortly after the applicant’s termination thereby possibly allowing the company to rely on that suspension in justifying his termination. In the context of a termination, one would expect the union to force the company to justify that suspension at arbitration. No explanation has been provided by the union for this puzzling strategy. The Board finds that the union has violated section 74 of the Act by withdrawing the two suspension grievances and by failing to inform Mr. Green of these decisions or provide him with any explanation for them.

13. The Board also finds that the union has violated section 74 of the Act by failing to proceed with Mr. Green’s termination grievance. It appears that he was discharged by the company for not returning to work, however he never received notice that his leave was cancelled. The company cancelled his leave on the basis of one medical report from a doctor who only examined him briefly, reviewed no x-rays, no MRI’s and none of his medical records. The doctor noted that Mr. Green was due for another MRI, an arthroscope and further surgery. In fact, the doctor believed surgery was warranted as he offered to do it himself. Furthermore, his final conclusion is hardly proclaimed with certainty and could be interpreted as prohibiting the repetitive job the applicant was assigned to do. The company relied on Article 54(e) of the collective agreement to terminate the applicant. However, that Article refers to termination for failing to return to work “unless a satisfactory reason is given”. The union has not explained why it has not been prepared to argue at an arbitration of the termination of this 14 year employee with a documented shoulder injury that a “satisfactory reason” has been given. Apparently the union will not proceed without further medical information. However, it has not clearly explained to the applicant why it needs more medical information or what kind of information it needs. The applicant had documentation from his own doctor in the relevant period indicating that his situation was deteriorating and that he would be undergoing further surgery. In fact Mr. Green did subsequently have surgery for a torn rotator cuff which apparently improved his condition. The union has not provided an explanation as to why it would not proceed to arbitration on the basis of Mr. Green’s doctor’s report. Furthermore, there is no evidence that the union considered whether the ergonomist and company doctor were acting on current information about the applicant’s condition in evaluating the modified work. There is no evidence that the argument that the job required repetitive pulling or pushing which both his own doctor and Dr. Clark prohibited has been considered by the union. It does not appear that Dr. Clark was even given a description of the job.

14. Furthermore, it does not appear that the union has given any guidance to Mr. Green as to what other medical information he could seek. It is not sufficient for a union with a disability grievance to tell a member to “get more evidence” without explaining to the member why that is necessary, as well as the kind of evidence required and where it might be obtained. The union does have a duty to investigate a grievance and merely telling a member to get evidence about a period of time one and half years previously is not sufficient. In this case a quick perusal of the documents the applicant provided to the Board showed that in August, 1997 he saw a specialist and the specialist scheduled the surgery. In the end, although scheduled for December the surgery took place in February, 1998. It should be obvious to anyone responsible for presenting this grievance at arbitration that information from the specialist could be useful. It would not necessarily be obvious to a lay person. It is also not that easy to write the letter necessary to get the kind of medical information from a specialist that can be useful. However, it does not appear that Mr. Graham who was responsible for the grievance, ever suggested that Mr. Green seek such information or offered to assist him to obtain it. Mr. Green suggested that he might already have a post-operative report but that no one had ever asked for it.

15. In conclusion, the Board finds that the union has represented Mr. Green arbitrarily by withdrawing his suspension grievances and by failing to proceed with his termination grievance. By failing to inform Mr. Green that it had withdrawn his grievances or offer any explanation for those decisions the union acted in bad faith. The Board has therefore decided to exercise its discretion to direct that the union and the company proceed to arbitration on all three grievances.

16. Furthermore, given the union’s behaviour with respect to Mr. Green’s grievances, as well as its failure to file a full response or to attend the consultation the Board has serious doubts about the kind of representation the union would provide at an arbitration. The Board, therefore, directs the union and the applicant to agree to counsel to represent him at the arbitration (or arbitrations if the parties elect to deal with them separately.) The applicant’s agreement should not be unreasonably withheld. The union is responsible for any costs incurred by retaining counsel and its share of the arbitration. The Board further directs that the grievances may only be settled with the agreement of Mr. Green.

17. In summary the Board makes the following declarations and orders:

The Board declares that the Canadian Auto Workers Union #222 and C.A.W. National Union violated the Labour Relations Act, 1995 section 74 in their representation of the applicant.

The Board orders that the responding party and the intervenor proceed to arbitration with respect to grievances B-40838;

B-35390 and B-35168.

The Board directs that the intervenor waive any objections to proceeding with the arbitration of the suspension grievances which stem from them having been withdrawn contrary to the Act.

The Board orders that the union and the applicant agree to counsel acceptable to both parties to represent him at the arbitration. The union is responsible for any costs incurred by retaining counsel.

The Board directs that the grievances may only be settled or withdrawn with the agreement of the applicant.

17. The Board remains seized for the purpose of entertaining the representations of the parties with respect to the amount of compensation to be paid by the union, if any, in the event an arbitration award provides for compensation to be paid to the applicant. The Board also remains seized with respect to the implementation of the above orders.

“Laura Trachuk”

for the Board