John Neary v. United Steelworkers of America, Local 4605
2457-00-U John Neary, Applicant v. United Steelworkers of America, Local 4605, Responding Party v. Dana Canada Inc., Wix Filtration Products, Intervenor.
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: John Neary on his own behalf; Andrea Bowker and Virgil Oliveira for the responding party; Peigi Ross, Paul Teeple and Joanne Doucet for the intervenor.
DECISION OF THE BOARD; May 10, 2001
1This is an application under section 96 of the Labour Relations Act, 1995 (the "Act") alleging that the responding party (referred to as the "union") has violated section 74.
2The applicant claims that the union represented him arbitrarily, discriminatorily or in bad faith by withdrawing his termination grievance. The Board finds that the union did not commit a violation of the Act by withdrawing the grievance. The union reasonably believed that it could not succeed at arbitration because Mr. Neary had resigned his employment. That belief was based on a recorded telephone message from Mr. Neary to the intervenor on April 17, 2000 in which he states the following:
Hello, this is John Neary, Clock Number 94. I do not wish to work day shift anymore. I wish to work 3 to 11 shift. And I'm not coming in today. Um. I know the Company is good. And I appreciate the Company, but I'm not coming in today. And I wish to change my shift from 3:30 to 2:00. Work around it. If you want me as an employee, work around it. Um. That's all I got to say. I'm not coming in today. And I'm not working no more day shift. So, the Company has a move. They can fire me if they wish. I'm not working no more dayshift. I don't like it. It doesn't suit my schedule. And I prefer to be on 3 to 11 shift. I'll work a couple of hours extra to make up for work 3-11. If the company does not like that then I guess you're gonna have to find someone else. Goodbye. Have a nice day.
3The intervenor claims, and the union concurs, that when Mr. Neary left the above message, there was no longer a three to eleven shift for a tool and die maker. Whether or not that was the case the applicant clearly told the intervenor that if it would not change his shift he was not returning to work. There was no obligation on the intervenor to change Mr. Neary's shift and it was not prepared to do so. Therefore, the intervenor accepted the applicant's decision not to return to work the day shift. It was reasonable for the union to withdraw the grievance faced with the position Mr. Neary took in the taped phone message.
4Mr. Neary claims that he did not quit and the union should have pursued his grievance in which he claimed he was terminated. However, there is no dispute that he said what is set out in paragraph 2 above. He therefore stated clearly that he was not coming to work until his shift was changed. The intervenor was entitled to take that as a resignation. The union could not credibly argue that the words meant something else.
5The applicant also complains that the union withdrew some grievances in which he claimed that the union was outsourcing tool and die work and not providing enough equipment for tool and die workers. The union made the reasonable assessment that those grievances had no chance of success based on the language of the collective agreement and therefore committed no violation of the Act by withdrawing them.
6For all of the above reasons the Board finds that there was no violation of section 74 of the Act. In light of the Board's determination it is not necessary to address the significance of a decision of a Board of Referees denying employment insurance benefits which was issued two months before this application was filed.
7This application is hereby dismissed.
"Laura Trachuk"
for the Board