1246-00-U Surinder Dhall, Applicant v. Bakery, Confectionary Tobacco Workers and Grain Millers International Union Local 264, Responding Party v. Morrison Lamothe Inc. (Fine Foods Division), Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: Subodh Bhardwaj for the applicant; Tim Rock, Ron Piercey and Todiak Bidyadhar for the responding party; Chris Eames and John Foster for the intervenor.
DECISION OF THE BOARD; December 18, 2000
This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.
A consultation was held on November 9, 2000. At the outset, the Board explained the consultation process.
The applicant’s complaint is that the union failed to pursue his termination grievance to arbitration. The applicant also alleges that the union conspired with the intervenor against him because he had raised accusations that the intervenor was changing expiry labels on its products.
The events leading to the termination of the applicant’s employment are relatively straightforward and many of them are not in dispute.
The applicant was employed by the intervenor Morrison Lamothe Inc. (Fine Foods Division) as a general labourer. He was granted a leave of absence on February 19, 1999 to travel to India. The leave was to end on May 2, 1999. However, on April 24, 1999, the applicant requested an eight-week extension of the leave. On June 20, 1999, the employer received a doctor’s note by fax from India stating that the Applicant was suffering from “superficial hand burns 2%” and “ he has been advised rest for 6 weeks”. On July 30, 1999, the employer received another fax from India extending the rest period for an additional 6 weeks from July 30, 1999. On September 20, 1999, the employer received another fax from a different doctor in India stating that the applicant “has been advised rest for a period of 1 month from 14.9.1999.”
The employer terminated the applicant for not returning to work. On November 30, 1999, after intervention by the responding party union, the employer agreed to re-hire the applicant under certain conditions set out in a written memorandum of settlement signed on December 1, 1999, namely:
The Company, due strictly to your specific work experience at MLFF, agrees to consider you exempted from the 60 days of work probationary period;
Your date of first employment is Wednesday, December 1, 1999;
You are able to work completely without restriction and that all health ailments contracted in India have totally healed;
Your are qualified only in the General Labour job classification; and
This agreement is the final and full resolution of all discussions, existing grievances, and future grievances resulting from your termination.
In late January, 2000, the applicant made a verbal request for another leave of absence. This was denied by the employer. The employer asserts that in February, 2000, the applicant requested to be laid off and this request was also denied. The applicant denies making a request for lay-off.
On February 5, 2000, the applicant slipped on some ice and injured his back, at home. The employer received a doctor’s note dated February 7, 2000 stating that the applicant “is not feeling well and advised rest for 2 day, back to work on Wednesday, 9th February.” The applicant worked five hours on February 9 and 2 ¼ hours on February 10, 2000. The employer received a doctor’s note dated February 10, 2000 stating that the applicant would be off work “for two weeks due to a back injury.” The applicant worked for 2 ¼ hours on February 14, 2000.
The employer received a note signed by Dr. R. S. Rana, dated February 21, 2000 extending the absence from work “for 3 weeks due to medical reasons”. The employer asserts that it attempted to contact the applicant’s doctor for clarification on February 29, March 1 and March 6, 2000 without success.
On March 29, 2000, the employer had a discussion with the applicant about his absence from February 14 to March 20, 2000. The employer asserts that the applicant stated at this meeting that he had been disabled throughout this period and was recuperating at home. The applicant denied this version of the meeting and states that the meeting was only a short exchange for a couple of minutes.
On March 30, 2000, the applicant was granted a leave of absence to resolve family difficulties. On April 14, 2000, the employer suspended the applicant from employment pending further investigation as to whether he was in fact recuperating at home during his absence from February 21 to March 20, 2000. The employer terminated the applicant’s employment on May 8, 2000 on the grounds of falsified information and insubordination. In essence, the employer discovered that the applicant had been in India during his period of recuperation.
The union filed a grievance dated May 8, 2000, on the applicant’s behalf with respect to his termination.
On May 15, 2000, the employer, the union and the applicant met to discuss the applicant’s grievance. The applicant asserts that this was a short meeting and that he had met with Mr. Rock in the company cafeteria prior to the meeting with the employer. Mr. Rock confirms that he discussed the grievance with the applicant in the cafeteria prior to the meeting held with the employer in the company’s boardroom. The employer states that the May 15th meeting with the union and applicant lasted about 30 minutes.
On May 15th, the union requested that the applicant provide medical information to support the entire three-week period of absence, and requested air ticket information showing when the flight to India had been arranged.
On May 16, 2000, the employer received a note signed by Dr. Rana on May 16th stating:
“This is to acknowledge that Mr. Surinder Dhall was seen in my office on February 21, 2000. He had back strain and was advised to go for physiotherapy and stay off work for three weeks. He also had some mental stress. He could use local public transportation. He had x-ray of (illegible).”
The employer was not satisfied that this note supported the absence from February 21 to March 20, 2000.
A letter from Globe Travels Inc. dated September 8, 2000, filed, shows that the applicant purchased an air ticket to India on February 25, 2000 for travel that same day. This is confirmed by a copy of a VISA statement showing the purchase. This information was not provided to the union until a meeting with a Labour Relations Officer to discuss the instant complaint, well after the grievance had been disposed of.
Another meeting was held by the union, employer and applicant on June 16, 2000 in order for a senior executive (Mr. Mifflin) to be present at the applicant’s request. The employer again denied the grievance.
The union states that because it did not receive the information from the applicant that it had requested concerning his medical condition and travels, it decided not to proceed with the grievance. In making its decision, it considered the applicant’s past work record and previous termination. He had gone to India after being denied time off. He did not return to work within three weeks. It appears he did not return from India until March 16th, whereas the three-week period expired on March 13, 2000. Moreover, he had insufficient medical information to support his absence on medical grounds. The union states that it explained to the applicant on more than one occasion the importance of obtaining detailed information to support the absence. The union (i.e. the business manager and the business agent) came to the conclusion that the grievance was unlikely to succeed at arbitration.
The applicant asserts that the union should have proceeded to arbitration with his grievance. He further states that the union’s failure to press forward with his grievance was motivated by the fact that he had raised allegations that the company was switching expiry labels on its products. He alleges that the union’s representative, Tim Rock, told him to keep quiet about his concerns or he (the applicant) would be fired. The applicant alleges that he gave Mr. Rock a letter dated December 16, 1999 addressed to John Foster (plant manager) stating that on December 11th he had witnessed persons changing product into new boxes with new expiry dates and that:
“Since last two years I informed plant managers and informed Tim Rock that is wrong and should be stoped (sic) but no action has been taken.”
Both the company and union deny ever seeing this letter until a meeting with a Labour Relations Officer to discuss this application. Both deny any knowledge of the labelling allegations prior to the instant complaint being filed. The company explained, however, that it does on rare occasions provide new expiry dates on its products that have been frozen because the products are still safe and up to the company’s standards. The union denies that its treatment of the applicant was motivated by any sort of conspiracy between the union and employer.
Decision
The issue in this application is whether or not the union acted toward the applicant in a manner that was arbitrary, discriminatory or in bad faith, contrary to section 74 of the Act.
In the instant application, the union filed a termination grievance on the applicant’s behalf. It held two formal meetings with the employer to discuss the grievance during which the applicant was present. It met with the applicant in the cafeteria prior to the first meeting. The employer had already terminated the applicant once for unauthorized absence. It was now faced with a situation in which the applicant, having been denied leave, apparently decided to go to India anyway. The applicant provided a medical note that provided virtually no details as to why it was necessary that he must be away for three weeks, nor as to whether or not the doctor recommended for or against international travel during the medical absence.
The employer and union had good reason to suspect the applicant’s bona fides, given his past record. His failure to return within three weeks was the final straw. The union asked the applicant to provide information in support of his version of events. He failed to do so.
The Board is satisfied that the union investigated the matter thoroughly and that its decision to withdraw the grievance was not arbitrary, discriminatory or in bad faith.
I now turn to the allegation that Mr. Rock conspired with the company against the applicant because the applicant was raising concerns about product labelling. Even if I assume (without deciding) that expiry labels were being changed and that the applicant did raise this with the union and employer prior to his termination (which the union and employer emphatically deny), it is not clear what interest the union would have in quieting the applicant so that he could not raise his concerns. Moreover, it is alleged by the applicant that Mr. Rock advised the applicant not to voice these concerns or else the applicant would be fired. If that is true, it might well exhibit an intent to protect the applicant, rather than to harm him. These are very serious allegations indeed. It is one thing to disagree with a union about its handling of a grievance. It is quite another to allege a conspiracy. There is nothing before the Board to explain why the union would engage in a conspiracy or why it would be motivated to harm the applicant through such a conspiracy. Indeed, the union had already successfully interceded to have the applicant reinstated in December 1999. Why would it have done that if the applicant had (as he asserts) been raising his labelling concerns for two years and if a conspiracy existed?
Mr. Rock’s efforts on behalf of the applicant were both appropriate and competent.
The application is dismissed.
“Anthony Brown”
for the Board