3671-00-U Tony Fomenko, Applicant v. Local 222 of National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Responding Party v. General Motors of Canada Limited, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Tony Fomenko appearing on his own behalf; Jim Hoy and Chris Buckley for CAW-Canada; Kim Motyl, Rick Monteith, Jim Goard and Danielle Kristensen for the intervenor.
DECISION OF THE BOARD; September 14, 2001
1The style of cause is hereby amended to reflect the correct name of the responding party: “Local 222 of National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada)”.
2This is an application filed under section 96 of the Labour Relations Act, 1995, as amended (“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.
3The applicant’s chief concern in this matter was the responding party’s (“the union”) handling of his discharge from employment with the intervenor (“General Motors” or “the company”) in January 1999. Thus, the only remedy sought by the applicant (also referred to as “Mr. Fomenko”) in this matter was reinstatement with General Motors with no loss of pay, benefits or seniority.
4Mr. Fomenko and the union were not represented by legal counsel. General Motors was assisted by a student-at-law. Accordingly, I advised the parties that, though they were entitled and welcome to participate in the consultation without the assistance of a lawyer, this was a legal matter that would have consequences with respect to their rights, interests and/or obligations.
5Mr. Fomenko was a line worker with General Motors since 1983, until his termination in January 1999. At some point towards the end of his employment he was injured, and an issue arose between the applicant and General Motors concerning his capacity to work. Apparently, General Motors’ on-site physician was of the view that there was no medical basis for the imposition of restrictions on the range of normal physical activities routinely performed by the applicant as a line worker. Mr. Fomenko disagreed, and apparently so did his personal physician. The union filed a grievance (which I shall refer to as “the medical restrictions grievance”) on his behalf, pursuant to paragraph 38 of the Master Agreement between the union and General Motors. Paragraph 38 reads as follows:
(38) Any grievance involving a dispute regarding an employee’s job assignment which has resulted in a loss of work, (except as provided in (a) below) or a refusal of Management to return an employee to work from sick leave of absence by reason of the medical findings of a physician or physicians acting for the Company, will be initiated at the Third Step, if such findings are in conflict with the findings of the employee’s personal physician with respect to whether the employee is able to do a job to which such employee is entitled in line with seniority or do the disputed job assignment as the case may be. Failing to resolve the question, the parties may refer the employee to a Local clinic or physician mutually agreed upon for an impartial medical opinion whose decision with respect to whether the employee is or is not able to do a job to which such employee is entitled in line with seniority or do the disputed job assignment as the case may be, shall be final and binding upon the Union, the employee involved and the Company. The expense of such examination shall be paid one-half by the Company and one-half by the Union. Any retroactive pay due the employee shall be limited to a period commencing with the date of filing of the grievance, or the date the employee became able to do a job to which the employee is entitled in line with seniority, whichever is later.
(a) This procedure will also be applicable at the request of either party, to a situation where:
(1) an employee is prevented from being transferred to a job classification because of a medical finding by a physician acting for the Company if the employee’s personal physician disagrees with the findings of the physician acting for the Company.
(2) the medical findings or advice of the employee’s personal physician dispute the appropriateness of an assignment approved by a physician acting for the Company.
(3) during discussions concerning any grievance at the Third Step of the Grievance Procedure or beyond, it becomes evident that the findings of an employee’s personal physician are in conflict with the findings of a physician or physicians acting for the Company.
6It would appear that at the time of the filing of the medical restrictions grievance on October 16, 1998, the applicant was working in some capacity, although the position at the time was not made clear to the Board.
7There was no dispute that the union pursued the medical restrictions grievance with due diligence. I will return to the resolution of that matter shortly. Before that grievance was finally resolved, however, General Motors imposed two lengthy suspensions on, and ultimately discharged, Mr. Fomenko for allegedly failing to comply with written company rules. Details of the suspensions were not put before the Board, and though it appears that Mr. Fomenko disputed the merits of, and the justification for those suspensions, he does not appear to dispute that the suspensions were in fact imposed. (Interestingly, there was no evidence placed before me that those suspensions were ever grieved by the applicant). The company disciplined the applicant with a two-week suspension in November 1998 following an alleged failure to report an absence, and with a 30-day suspension in December for the alleged breach of a company rule, referred to as Plant Rule #10. What then followed are the events that led to the decision to discharge the applicant. General Motors alleged that Mr. Fomenko had failed to report for work on January 20 and 21, 1999, and had failed to report his absence in accordance with the company’s written plant rule respecting sick call-in procedure. On January 22, 1999 the company, the union and the applicant met, at which time the company indicated that it was of the view that the applicant had breached the company rule, and that his employment was terminated as a result. General Motors offered to substitute the discharge with the placement of a 30-day suspension on his record “with time served”, but the applicant declined that offer.
8The union immediately filed a discharge grievance on behalf of the applicant. At the grievance meeting of January 28, 1999 the union disputed that Mr. Fomenko had failed to abide by the company’s call-in procedure. The union also argued that the circumstances and new developments surrounding the medical restrictions grievance had clouded the facts surrounding the applicant’s discharge, and that, had the union and the company known about those new developments, the discharge might have been averted. General Motors was not swayed by those arguments, although it repeated its offer of a 30-day suspension on the applicant’s record, which was again declined by the applicant. The grievance was denied. The union referred the matter to arbitration. The hearing was scheduled for October 20, 2000.
9At this point, I return to the medical restrictions grievance. Apparently some time prior to the discharge of the applicant on January 22, 1999, his physician sent unspecified information to the in-house physician for General Motors. It would appear that that information challenged the conclusion that the applicant could work without restrictions. In any event, on February 15, 1999, Mr. Fomenko, General Motors and the union entered into a memorandum of understanding (“the settlement”) with respect to the medical restrictions grievance. The terms of the settlement are set out below:
MEMORANDUM OF UNDERSTANDING
RE: GRIEVANCE NO. B50200
Entered into this day February 15, 1999
BETWEEN:
General Motors of Canada Limited,
Oshawa, Ontario
Hereinafter referred to as the “Company”
AND:
National Automobile, Aerospace and
Agricultural Implement Workers Union of
Canada (CAW Canada), Local No. 222,
Oshawa, Ontario
Hereinafter referred to as the “Union”
WITNESSETH:
The parties hereby agree that the provisions of Paragraph 38 of the current Master Agreement will be utilized to resolve the medical dispute that presently exists between the parties that is the subject of Grievance No. B50200. In this regard the parties agree that the provisions outlined below will govern the resolution of the above-mentioned grievance:
The parties agree to the selection of AssessMed Inc. of NORTH YORK, Ontario, to provide the impartial medical opinion which will resolve the current medical dispute between the parties. It is understood that such impartial medical opinion shall be final and binding upon the Company, the Union, and the employee Tony Fomenko, Serial #41611.
The parties agree to direct AssessMed Inc. to make a medical determination concerning whether the employee, Tony Fomenko, Serial #41611, at any time on or after September 23, 1998, required medical restrictions
It is agreed that AssessMed Inc. is directed to base its impartial medical opinion on an examination of the employee, a review of the medical documentation provided with this Memorandum of Understanding, any further consultation with Company Physician, or the employee’s physician, as AssessMed Inc. deems necessary to clarify their respective findings.
It is agreed that all fees related to the rendering of the impartial medical opinion of AssessMed Inc. will be divided equally between the parties.
It is agreed that all aspects of this Memorandum of Understanding are entered into without prejudice to the positions of either party in any other case.
IN WITNESS WHEREOF, the parties have cause their names to be subscribed by their duly authorized officers and representatives.
FOR LOCAL 222 GENERAL MOTORS OF
CANADA LIMITED
“R. Gibson” “Danielle Hellmeister”
(R. Gibson) (Danielle Hellmeister)
Area Chairperson Labour Relations Representative
“Tony Fomenko”
Tony Fomenko
10Attached to the settlement was a document that Mr. Fomenko knew was an adjunct to the settlement, but which he refused to sign. The terms of that document, which I shall refer to as “the authorization” are reproduced below:
AUTHORIZATION TO RELEASE FROM GM MEDICAL RECORD
IN ACCORDANCE WITH THE PROVISIONS OF
PARAGRAPH (38) OF THE GM-CAW MASTER AGREEMENT
I, Tony Fomenko, GM Serial No. 41611, hereby authorize Dr. R.A. Batten to release copy of all information in my GM medical record concerning the medical condition(s) which relate to my grievance.
The said medical condition(s) is/are:
- All Musculo-skeletal complaints
I authorize the GM Physician to release the said information to the Management of General Motors of Canada Limited and to the Canadian Autoworkers’ Union, so as to make the information available to an Impartial Physician in accordance with grievance procedure.
I further agree that in consideration for the release of the said information, I will forever release and hold harmless GM, General Motors Corporation and their respective directors, officers, successors, assigns and employees, including all current or future members or associates of the GM Medical Staff, from all claims, both in law and in equity, which I may have as a result of the release of the said information. This indemnity will survive the expiry of the Consent.
The expiration date of this Consent will be the date on which my grievance is closed.
Signed:
Witness:
Date:
Form revised Feb. /98
11There was no dispute that the authorization form used in Mr. Fomenko’s medical restrictions grievance was a standard form used for similar purposes involving other bargaining unit employees of General Motors, with the union’s knowledge and consent.
12There is an attachment to, but not forming part of the collective agreement that outlines General Motors’ understanding of how the parties intend to implement paragraph 38 of the collective agreement. It contemplates memoranda of settlement of the kind executed by the workplace parties on February 15, 1999. The attachment goes on to state the following:
Such Memorandum shall include sufficient detail of the job duties required and any other pertinent information concerning the dispute as may be necessary for the impartial medical opinion.
13There was little information placed before the Board concerning events between February 15, 1999 and the late Fall of that year. On October 10, 2000, Mr. Fomenko met with the union. He anticipated that the meeting was in preparation for the arbitration. However, according to Mr. Fomenko, the union representative indicated to the applicant that the union would not proceed with the arbitration of the discharge grievance because it had found a job for the applicant at his then rate of pay. All that was required was that the applicant sign the authorization permitting the release of his medical information by General Motors for the purposes of the impartial medical opinion contemplated by the settlement. Again, Mr. Fomenko refused to do so. At the consultation, he claimed that the union’s indication that it had a job for him was unclear in the sense that he was not certain what entity the job was with. He also maintained his refusal to sign the authorization, because, in his view, by signing the authorization he was forfeiting any right to sue the company with respect to any matter related to his employment.
14On October 20, 2000, the union and the company reached an understanding that General Motors would reinstate Mr. Fomenko to a job consistent with whatever the independent medical opinion disclosed. That understanding was contingent upon the applicant signing the authorization and reporting to the impartial medical expert. The union instructed Mr. Fomenko to report to General Motors’ medical office on November 6, 2000. He did so, but he still refused to sign the authorization. As a result, the company wrote to the union on November 8, 2000, and indicated that it was no longer willing to reinstate the applicant, and that it considered the discharge grievance withdrawn. On November 13, 2000, the union wrote to the company and indicated that, indeed, the discharge grievance was withdrawn.
Decision
15For the reasons that follow, I find that the applicant has failed to establish a violation of section 74 of the Act.
16The medical restrictions grievance and the discharge grievance were inextricably linked once the parties entered into the February 15, 1999 settlement of the medical restrictions grievance. As of that date, Mr. Fomenko had already been discharged, and his grievance on that matter was being dealt with in the grievance procedure. The resolution of the medical restrictions grievance would have had no meaning if the parties had not given some thought to the connection with, and the resolution of, the discharge grievance.
17The applicant voluntarily entered into the settlement concerning his medical restrictions grievance, with full knowledge that, as part of that arrangement, he was required to permit General Motors to release his medical information. Yet, he refused to do that, because he erroneously believed that the authorization form effectively deprived him of the right to sue General Motors for any matter arising out of his employment. No reasonable reading of the authorization leads to such a conclusion. The company’s protection from liability is confined to the consequences flowing from its release of the applicant’s confidential medical information. The authorization does not extend protection from liability beyond the release of that information. Accordingly, the applicant had no reasonable excuse not to sign the authorization.
18On October 10, 1999, the union informed Mr. Fomenko that it would not proceed with his discharge grievance because it had a job for him if he were willing to sign the authorization. Mr. Fomenko’s assertion that he did not know what job or which employer the union was talking about is not credible. Clearly, based on the information the union provided on October 10, 1999 (as well as the evidence of General Motors’ willingness earlier to take the applicant back if he would agree to the insertion of a suspension on his record) the union had secured a commitment from General Motors to reinstate the applicant in a position he could perform at his normal rate of pay. That the union was unable to say with specificity what the job would be was understandable because the applicant had yet to be examined by an independent third party with respect to the issue of medical restrictions. The applicant’s own actions in refusing to permit the necessary flow of medical information prevented the resolution of that issue, which in turn led to the withdrawal of the discharge grievance. The union cannot be held accountable for that unfortunate result.
19The application is dismissed.
“Patrick Kelly”
for the Board