3671-00-U Tony Fomenko, Applicant v. CAW Canada, Canadian Auto Workers, Responding Party v. General Motors of Canada Limited, Intervenor.

BEFORE: Patrick Kelly, Vice-Chair.

DECISION OF THE BOARD; May 25, 2001

1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 ('the Act') alleging a violation of section 74 of the Act.

2By decision dated May 2, 2001 the Board directed the applicant to file submissions in response to paragraphs 3, 7 and 8 of Schedule “A” of the intervenor’s response, for the purpose of dealing with the intervenor’s motion to dismiss the application without a hearing for failure to disclose a prima facie case of a violation of section 74. The applicant filed submissions concerning each and every paragraph of Schedule “A”.

3In response to paragraph 3 of Schedule “A”, the applicant disputes the intervenor’s assumption concerning the identity of the grievance that informs this complaint. However, it would appear that there is no dispute concerning the substance of the grievance itself, which dealt with the applicant’s termination from employment.

4In paragraph 7 of Schedule “A”, the intervenor alleged the existence of a memorandum of understanding dated February 15, 1999, which purported to resolve the applicant’s grievance through the intervention of an independent medical opinion concerning the applicant’s physical capabilities. The intervenor alleges that the memorandum of understanding required the applicant to consent, via a waiver, to the release of certain medical information held by the intervenor’s company doctor, but that the applicant has refused to give his consent, and thus his grievance remains unresolved. To this the applicant stated in his submissions, “The evidence of the so called waiver is in my application. How ever [sic] I will send you another copy”.

5In paragraph 8 of Schedule “A”, the intervenor states the applicant’s grievance remains “open at Step One of the Grievance procedure” and unresolved because of the applicant’s refusal to sign the waiver, referred to above, thus clearing the way for the submission of the applicant’s medical information for the purpose of the independent medical opinion, also referred to above. To this, the applicant replies: “The evidence of the so called waiver is in my application. How ever [sic] I will send you another copy. My interpretation of they [sic] above statement means for me to go and see a medical Doctor for an examination. I have never refused to so [sic] this.”

6The application itself makes a rather fleeting reference to the waiver referred to above. According to the applicant, he admits refusing to sign the waiver, but he states that his reasons for refusal relate to the “bottom paragraph” in the waiver. An alleged copy of the waiver was provided with the application. It reads as follows:

Exhibit (“A”5)

AUTHORIZATION TO RELASE FROM GM MEDICAL RECORD

IN ACCORDANCE WITH THE PROVISIONS OF

PARAGRAPH (36) OF THE GM-CAW MASTER AGREEMENT

I Tony Fomenko, GM Serial No. 41611 hereby authorize Dr. Michael Schweigart to release copy of all Information in my GM medical record concerning the medical conditions(s) which relate to my grievance.

The said medical condition(s) is/are:

1. All Musculo-skeletal

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:

Witness:

Date:

Form revised Feb. /99

7It is not clear what it is in the waiver that gives rise to the applicant’s concerns. What is clear, however, is that the applicant does not dispute that he signed a memorandum of understanding which, had its terms been implemented, would have resolved his grievance. The applicant’s grievance remains unresolved because of the applicant’s refusal to abide by the terms of that settlement which apparently bind him.

8I am reluctant to dismiss the application without a consultation for failing to disclose a prima facie case of a violation of section 74 of the Act, as urged by the intervenor. The intervenor did not file the memorandum of settlement, and while its existence is not in dispute, the terms of that settlement have not been adequately described or proven at this point. However, to the extent that the intervenor is able to establish that the applicant has failed to abide by the terms of the settlement to which he is apparently a signatory, and that that failure, not the union’s conduct, is at the root of the lack of progress in the applicant’s termination grievance, the application may well be dismissed ultimately.

9The intervenor’s motion to dismiss the application is denied.

10This matter is referred to the Registrar, to be processed in the normal course.

“Patrick Kelly”

for the Board