0721-01-U Saleem Farooqui, Applicant v. Canadian Auto Workers’ Union, Local 1967, Responding Party v. Boeing Toronto, Ltd., Intervenor.

BEFORE: Patrick Kelly, Vice-Chair.

APPEARANCES: Saleem Farooqui and Harry Kopyto for the applicant; Alex Faulos, Doug Tyler, Thomas Graham, Dan Youngs, Ken Bradshaw and Dave Hunter for Canadian Auto Workers’ Union, Local 1967; Peter Iannone for the intervenor.

DECISION OF THE BOARD; December 10, 2001

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

74. 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.

2The consultation in this matter took place on October 17, 2001.

Background

3The applicant (or “Mr. Farooqui”) has been employed with the intervenor (or “the company”) and its predecessor since January 16, 1978. Mr. Farooqui has filed or had his union file many grievances against the company since 1985. Some of these have been withdrawn, but a number remain outstanding. Mr. Farooqui insists that most of them remain outstanding because the responding party (“the union”) is not pursuing them in accordance with its duty of fair representation.

4The grievances fall into three categories. First, there are the grievances dated July 4, 1985, October 10, 1987, February 3, 1988, May 9, 1988, August 30, 1988, April 10, 1989, July 19, 1990, August 17, 2000 and October 24, 2000 which allege discrimination and harassment on the part of the intervenor. In addition, the application refers to grievances 442-88 and 602-91, copies of which were not provided with the application. All of these I shall refer to as “the harassment grievances”.

5Secondly, lying at the heart of this application, are two grievances filed in 1994 and 1995 which relate to alleged recall violations and the accommodation of the applicant’s medical restrictions. I refer to them as “the recall grievances”. Mr. Farooqui claims that the recall grievances had a considerable dollar value to him, that they were meritorious and should have been pursued to arbitration, but instead, and despite his protest, the union unilaterally entered into a settlement with the company on March 30, 2001 that resulted in the payment to the applicant of more than $27,000. (He also received other items of value in the settlement.) The applicant further contends that the union failed to conduct a proper investigation of the underlying facts of these grievances. The union denies this, and counters that it turned its mind to a consideration of the availability of work with the company, as well as Mr. Farooqui’s physical ability to carry out available job duties. The union says it concluded it would not prevail at arbitration because it could not establish there was work available to the applicant at the relevant times, given his medical restrictions.

6The third category of complaint is in respect of a grievance which the applicant filed on his own behalf in February 2001. That grievance refers to events that gave rise to his placement by the company on paid sick leave since January 2001. I shall refer to this dispute as “the sick leave grievance”. Mr. Farooqui contends that his union has done nothing to assist him with that problem. The union contends that it withdrew this grievance for reasons similar to those that caused the union to settle the recall grievances i.e. that it was satisfied that there was no work available for the applicant in light of his medical restrictions, and that being so, he was properly placed on sick leave by the company.

The harassment grievances

7Two of the harassment grievances were filed in 2000, but the bulk of the harassment grievances pre-date 1992. With respect to the harassment grievances that pre-date 1992, I inquired of the applicant why there had been such a delay in bringing this application. The applicant’s representative argued that, so long as the grievances remain “in the system” (that is, not abandoned by the union) there is no obligation on the part of the grievor to complain to the Board at any particular given point in time. He pointed out that the union has acknowledged a backlog of grievances, and has given assurances to the applicant that those grievances will be dealt with. It cannot now claim delay as a defence or excuse for not proceeding with those grievances.

8In November 1990, the applicant was advised in writing by the union that his grievance dated July 19, 1990 would be referred to arbitration. In a 1995 letter to Mr. Farooqui, the union advised the applicant that the harassment grievances dated July 4, 1985, February 3, 1988, August 30, 1988 and (once again) July 19, 1990 would proceed to arbitration. Apparently, the union intends to see those grievances through, but there is a very considerable backlog of other disputes going to arbitration in respect of the bargaining unit to which the applicant belongs (for example, the recall grievances, which fall into this category, have taken six and seven years respectively to be resolved). In the absence of any information that the union is deliberately dragging its feet or is otherwise responsible for the apparently very large backlog of bargaining unit grievances, I cannot conclude that there has been any violation of section 74 as far as these grievances are concerned.

9In the same 1995 letter, the applicant was told that harassment grievance dated October 10, 1987 was withdrawn, and that harassment grievance dated April 10, 1989 had not been properly processed or received by the union’s grievance committee. Moreover, the applicant has been aware since 1997 that grievance 442-88 has not been further processed beyond the final stage of the grievance procedure because, in the union’s view, the applicant seeks remedies that he cannot achieve. However, that grievance has not been withdrawn because the union thinks it (among other grievances) might be used in support of Mr. Farooqui’s human rights complaint filed against the company some time ago. It is not accurate to suggest, as the applicant has, that the union has not long ago made its intentions known with respect to these items. The applicant does not explain his delay in bringing this application in respect of the disputes described in this paragraph.

10The Board’s approach to exercising its discretion to refuse to inquire into an application because of undue delay is premised on the labour relations reality that undue delay in bringing a complaint forward for determination is prejudicial to the relationships that are affected by the complaint. The Board recently in Chrysler Canada Limited, [1999] OLRB Rep. July/August 757 wrote at paragraph 14:

“…anyone who wishes to complain about an alleged violation of the Act or related legislation under which the Board has jurisdiction must do so within a reasonable time, so that the matter can be dealt with in a fair and timely way. It is well established that delay is one basis upon which the Board can (and will) exercise its discretion to decline to inquire into a complaint.”

11See also The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420 in which the Board wrote at paragraphs 20 and 21:

“A collective bargaining relationship is on ongoing one, and all of the parties to it-including the employees-are entitled to expect that claims which are not asserted within a reasonable time, or involve matters which have, to all outward appearances, been satisfactorily settled, will not re-emerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective…

…the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties’ current collective bargaining relationship-quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board’s view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched with a reasonable time, the Board may exercise its discretion pursuant to section 89 [now 96] and decline to entertain them.”

12In the absence of any explanation from the applicant for his delay in bringing a complaint against the union in respect of the grievances referred to in paragraph 10, I conclude that this portion of the application must be dismissed.

13Of the remaining pre-1992 harassment grievances, the union claims in its response that it has no record of the May 9, 1988 grievance. The applicant filed a copy of this dispute, which appears to be signed by a union official, with this application. It refers to the discriminatory impact of the intervenor’s transfer practices upon the applicant. Assuming without finding that this grievance was properly brought to the attention of, and not appropriately dealt with, by the union, I am unable to determine what possible purpose would be served by inquiring into the union’s handling of the grievance thirteen years after the fact. I exercise my discretion not to inquire into this portion of the application.

14That leaves grievance 602-91. The applicant filed no copy of that dispute, nor was it described in the application or during the consultation. The union’s filed response indicates that it appears to know something of it, but contends that the union withdrew this grievance. In the absence of any information provided by the applicant concerning the substance of this grievance or particulars of its handling by the union, I exercise my discretion not to inquire into this portion of the application.

15I now turn to a consideration of the two harassment grievances filed in 2000.

16Although there is no lack of criticism of the union’s handling of the applicant’s grievances in general (notably in paragraph 10 of Schedule A of the application), the application contains no specific pleadings or particulars that assist the Board in understanding how it is the union is alleged to have violated its duty of fair representation in respect of the two harassment grievances filed in 2000. Nor were any specifics offered at the consultation. For these reasons, the Board exercises its discretion not to inquire into the complaint as it pertains to the applicant’s grievances of August 17 and October 24, 2000.

The recall grievances and sick leave grievance

17It would appear that the union took the recall grievances seriously. They were referred to arbitration and scheduled to be heard in 2000, although no adjudication ever took place. In the mind of the union, and perhaps the employer, the recall grievances were part of a larger problem having to do with the accommodation and entitlements under the collective agreement of employees with disabilities. That problem was eventually referred to an arbitrator, and the arbitrator issued an award in 1998 that dealt with the entitlement of disabled employees to ongoing benefit coverage. Believing the arbitrator’s award to be applicable to the applicant’s recall grievances, the union and the company commenced a negotiation that began in early 1999, if not before. That negotiation included an offer from the company to settle in February 1999, which was rejected by the union; and an enhanced offer by the company in December 1999, which was similarly turned down. Finally, the company drafted a memorandum of understanding in February 2001, which increased the monetary value of its last offer by nearly $5,000. The union accepted that offer at the end of March 2001.

18The processing of the recall grievances must be considered in the context of larger labour relations events which occurred in the workplace over the last several years. In 1995 the union became concerned with the possibility of massive job loss within the bargaining unit as a result of the company’s stated desire to contract out bargaining unit work. The union and the company entered into a March 1995 memorandum of understanding that, among other things, set out the principles for a gradual amalgamation of job classifications, including the applicant’s classification. (The applicant appeared to contend that the memorandum of understanding achieved no real amalgamation of jobs, that the alleged amalgamation was a “red herring”. However, the applicant provided no information that would suggest the arrangement between the union and the company was not implemented. In fact, it was the applicant who filed the signed March 1995 memorandum of understanding with the Board in this matter. Moreover, Mr. Farooqui did not seriously challenge the union’s assertion that he was aware of, and agreed with, the amalgamation effort.) In all the circumstances, I accept that the new classification system described in the March 1995 memorandum of understanding fundamentally changed the workplace over time, and had an impact on Mr. Farooqui’s work, including the job he began performing in 1997, described below.

19The parties agreed at the consultation that (either in 1995 according to the union or 1996 according to the applicant) the union, the company and the applicant reviewed the applicant’s capacity to work on a number of machines, and all agreed that Mr. Farooqui could not perform any of that work given his physical restrictions. However, sometime in 1997, the applicant was tested on a machine that he could successfully operate, and he resumed active employment. From that point, he was engaged in conventional milling work. Unfortunately, due to the negotiated classification changes outlined in the paragraph above, the applicant’s milling work ultimately became incorporated into the new classification system, and in that form, the tasks involved more than the applicant could handle given his medical restrictions. The applicant contends that the pure milling work that he did from 1997 continues to exist. That may be so, but it appears that pure milling activities have been subsumed within a broader range of responsibilities that, in their totality, Mr. Farooqui is not able to perform.

20Toward the end of 2000, the applicant was placed into a position vacated by a more junior employee who had been laid off by the company. It became apparent that Mr. Farooqui could not perform the full range of that job’s activities. The union did not abandon the applicant. Mr. Farooqui agreed at the consultation that the union ensured he obtained “reclamation” work from the employer, which, from what I can determine, is temporary clean-up work. The applicant was able to do that work. However, once the reclamation activities were exhausted, there was nothing further available for the applicant to do. That is when, in January 2001, he was placed (and continues to be) on paid sick leave by the company. His sick leave grievance followed in February, and, as has been indicated earlier, the union eventually withdrew that dispute.

21The union provided the applicant with a letter dated February 6, 2001 in which it advised the applicant that it intended, on March 30, 2001 to accept the company’s offer to settle the recall grievances on the terms set out in a memorandum of understanding signed by the company and attached to the February 6 correspondence. By letter dated March 28, 2001, the applicant indicated his disagreement with the settlement (without providing any reasons, and without any criticism of the monetary amount in the company’s offer), and claimed to have documented facts concerning the grievances that would substantiate the merits of those disputes in his favour. However, the applicant provided no further information.

22In my view, the union did not act in bad faith or in an arbitrary or discriminatory fashion in respect of its representation of Mr. Farooqui in respect of the recall grievances or the sick leave grievance. It is clearly established in the Board’s jurisprudence that a trade union’s mere refusal to file or process a grievance or refer a grievance to arbitration does not violate the duty of fair representation. It must be demonstrated that such a refusal is grounded in arbitrariness, discrimination or bad faith, before the Board will find a violation of section 74 of the Act.

23The applicant claims that the recall grievances were worth considerably more than the amount the union obtained from the company. Even if that were so, the applicant never satisfied the Board with respect to his calculation of the damages he says he suffered at the hands of the company. The application itself refers to “over $250,000 in wages and interest”. At the consultation, the applicant’s representative referred to $230,000. The applicant himself quoted the figure of $300,000. No details were offered in support of any of those numbers. Contrary to the assertions contained in the application, I find that the applicant’s failure to articulate the basis for his claim, although given every opportunity to do so following receipt of the union’s February 6, 2001 letter, was indeed at least one good reason to accept the company’s last offer, and not proceed to arbitration.

24In considering the company’s settlement offer with respect to the recall grievances, the union was of the opinion that the arbitrator’s award, referred to earlier in this decision, applied to the applicant, among others. (The applicant appeared to dispute that the arbitrator’s award applied to him, but he offered no reasonable basis for that contention). That award dealt with the rights of disabled employees to benefit coverage. The union fielded several offers from the employer having to do with resolution of the recall grievances in light of that award. The initial monetary offer was $10,000. The union rejected it. The second reached $27,500, but that too was rejected by the union. The third offer, which formed the basis of the settlement, had a monetary value to the applicant of $32,247.79 when one takes into account that it included a waiver of a claim that the company had against the applicant for certain court costs awarded in the company’s favour in litigation unrelated to this application. In my view, the union acted reasonably in all the circumstances when it settled the recall grievances.

25With respect to the sick leave grievance, the applicant’s pleadings indicate that he filed that grievance on his own, because the union refused to advance his claim. At the heart of that grievance is the same allegation which grounded the recall grievances, i.e. that there was available work for the applicant. The union did not believe that to be the case when it decided to settle the recall grievances. There was no further information provided by the applicant to support what was fundamentally the same contention rejected by the union in its decision not to litigate the recall grievances. The union cannot be faulted for not supporting the sick leave grievance, or for withdrawing it.

Conclusion

26For all the reasons set out above, the application is dismissed.

“Patrick Kelly”

for the Board