Derick M. Gardner v. National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada), CAW Local 222, 2001 CanLII 18693

Derick M. Gardner v. National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada), CAW Local 222

File No.: 3387-00-U Date: May 24, 2001

Applicant: Derick M. Gardner Responding Party: National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada), CAW Local 222 Intervenor: General Motors of Canada Limited

Before: Harry Freedman, Vice-Chair

Decision of the Board

1. The Board, by decision in this matter dated April 30, 2001 dismissed the motion by the intervenor to dismiss this application on the grounds that the applicant had failed to set out a prima facie case. The Board also noted that the intervenor submitted that the application should be dismissed on the grounds of undue delay. The Board, based on the material that had been filed by the parties, could not make that determination because, as the Board stated at paragraph 10 of the decision:

there was nothing in any of the material filed by the parties to indicate when the applicant was advised either by the responding party or the intervenor that the responding party had withdrawn his grievance on October 8, 1998….if the intervenor wishes to seek to have an application dismissed on the grounds of undue delay, it is incumbent to set out when the applicant knew of the withdrawal of the grievance or when the fact of the grievance having been withdrawn was communicated to the applicant.

As a result, the Board directed the responding party and intervenor to set out a concise statement setting out the date when they allege the applicant knew or ought to have known of the decision to withdraw the grievance that is the subject of this application and directed the applicant to advise the Board of the date when he learned of the withdrawal of the grievance.

2. The applicant states in his submission to the Board that he did not receive any communication from the intervenor or the responding party about the status of his grievance until he filed his application with the Board on February 15, 2001. In addition, the applicant submits that when he delivered a copy of his application to the intervenor, he was told that his grievance had been withdrawn in September 1998. The applicant also submits that he spoke to officials of the responding party before he filed his application with the Board who told him that they had no information about the status of the grievance. Finally, the applicant also submits that when he spoke with a National Representative who worked with the responding party, he was told that his grievance had been settled before January 1, 1997, yet the applicant points out that he had received a notice dated January 26, 1998 that his grievance had been appealed to arbitration. (It was not clear when the applicant had that conversation with the National Representative, but it appears to have occurred around the time this application was filed.)

3. The intervenor, in its submissions states that it is not its practice to notify employees when grievances are withdrawn. The intervenor states that any communication about the withdrawal of a grievance is a matter between the responding party and employees. The intervenor submitted that it has no knowledge of any communications between the responding party and the applicant about the withdrawal of the grievance.

4. The responding party’s submissions which were filed by the National Representative stated that:

The applicant’s Local Union was present and aware when grievance B 16733 was withdrawn on October 8/98.

The applicant was in contact with the Local Union throughout 1998, 1999 and 2000 therefore knew or ought to have asked and known the outcome of his grievance. No specific date can be confirmed.

The Local Union Plant Chair has also informed me that the applicant no longer wishes to proceed and that is the reason for the cancellation of the April 10, 2001 meeting.

It is apparent that neither the responding party nor intervenor are able to provide any definitive or even approximate indication about when the applicant was informed or should have known that his grievance had been withdrawn. The intervenor has no knowledge of when the applicant first knew or should have known about the withdrawal of his grievance. The National Representative submits that the responding party knew about the withdrawal of the grievance and because the applicant was in contact with the responding party, he must have known that it had been withdrawn at some time between 1998 and 2000. When one compares that imprecise submission to the specific assertion of the applicant that he was not informed about the withdrawal until after he had filed this application and that the two officials of the responding party with whom he spoke had no knowledge of the status of the grievance, then there is, in my view, no basis for finding that the applicant knew or ought to have known about the withdrawal of his grievance many months or years prior to filing this application.

5. The intervenor sought to have this application dismissed on the grounds of undue delay. In the Board’s decision of April 30, 2001, I indicated that I would determine whether I was in a position to decide that preliminary objection based on the material filed. The parties have filed their submissions with respect to that issue and I am satisfied that I am in a position to decide the preliminary objection to the application based on delay on the basis of those submissions. It is clear that I have the jurisdiction to do so under sections 99(3) and 110(18) of the Act and Rules 76 and 77 of the Board’s Rules of Procedure.

6. The intervenor has no knowledge of when the applicant was advised of the withdrawal of the grievance and the responding party’s submissions are at best vague about when the applicant was advised of the withdrawal of the grievance. Although its submission suggests that the responding party was well aware of the withdrawal, the responding party appears to assume that its knowledge of the withdrawal was imparted to the applicant at some time between 1998 and 2000 without stating how that information would have come into the applicant’s possession. The applicant’s submissions on that point are quite specific and indicate that he only became aware of the withdrawal in February 2001. There is therefore no basis for finding any delay whatsoever by the applicant in filing this application over the manner in which the responding party dealt with his grievance.

7. Therefore, the motion by the intervenor to dismiss this application on the grounds of undue delay is hereby dismissed.

8. A Labour Relations Officer was appointed to inquire into this application and endeavour to effect a settlement. It is not clear from the material whether the Officer has had the opportunity to convene a meeting. Therefore, in accordance with paragraphs 5 and 6 of the Board’s Confirmation of Filing of Application Under Section 74 of the Act (Form B-21) dated February 21, 2001, the Officer is to continue with settlement efforts and advise the Registrar whether a settlement has been effected. This matter is therefore referred to the Manager of Field Services in order to have the Officer continue settlement efforts.

9. This panel of the Board is not seized with this matter.

"Harry Freedman"

for the Board