Reasons for decision
Mohammad Mughal,
complainant,
and
International Association of Machinists and Aerospace Workers, Transportation District 140,
respondent,
and
Air Canada,
employer.
Board File: 26433-C
CITED AS: Mohammad Mughal
Neutral Citation: 2008 CIRB 418
September 18, 2008
This is an application pursuant to section 37 of the Canada Labour Code, Part I (the Code).
Duty of fair representation–Practice and procedure–Complainant alleged that his bargaining agent had acted in an arbitrary and bad faith manner in failing to prepare adequately for arbitration– Complainant further alleged that the union failed to notify him of a time limit the arbitrator had allegedly provided for him to submit further evidence–Board does not sit in appeal of decisions that trade unions must make when they represent their members–Board will not second guess the manner in which a trade union may have presented a case at arbitration unless its conduct reaches the level of having been arbitrary, discriminatory or in bad faith–Board does consider the process a union followed in coming to its determinations–Union provided representation to the complainant that meets the requirements of the Code–Union met with the complainant in advance of the hearing, filed at the hearing the materials that the complainant had provided to them, attempted to have the arbitrator mediate a solution, and sent the arbitrator the complainant’s documentation following receipt of the award–Board has not been convinced that the steps taken by the union to assist the complainant in this case could amount to arbitrary, discriminatory or bad faith conduct–Board also considered the complainant’s argument that the union, by failing to adduce more evidence after the hearing, violated its duty under the Code–Board has not been convinced that the union’s tactical decision to let its case rest, rather than asking to be allowed to add further evidence, amounted to a Code violation–Board examined the allegation that the union changed its position regarding the opportunity to file further evidence before the arbitrator once the complainant had retained legal counsel–If a bargaining agent had received an opportunity to file further evidence, but failed to advise the grievor and, more critically, later attempted to deny that this opportunity ever existed, then the Board would have serious concerns about a Code violation–Board concludes that the union received no such explicit opportunity–Board dismissed the complaint.
Evidence–Practice and procedure–Union in its submissions referred to events that took place during mediation with a labour relations officer of the Board–Union mentioned an offer that was on the table from them to settle the case–The mediation process before a labour relations officer is strictly privileged–If parties are unable to speak frankly to a labour relations officer out of a fear that their settlement position will later be communicated to the panel of the Board hearing the case, then cases simply will not settle–The Code foresees the importance of all mediation and settlement discussions before labour relations officers to be privileged and confidential– Those discussions will never be communicated to a panel of the Board–Parties cannot communicate the content of settlement discussions to the panel of the Board hearing the case–Adherence to these well-known principles will ensure the Board continues to settle many of the cases that come before it–Board dismissed the complaint.
The Board was composed of Mr. Graham J. Clarke, Vice-Chairperson, and Messrs. Patrick J. Heinke and Daniel Charbonneau, Members. A hearing was held in Toronto on July 17, 2008.
Appearances
Mr. Raj Anand, for Mr. Mohammad Mughal;
Mr. Jim Coller, for the International Association of Machinists and Aerospace Workers, Transportation District 140;
Ms. Jennifer Black, for Air Canada.
These reasons for decision were written by Mr. Graham J. Clarke, Vice-Charperson.
I–Background
[1] On August 3, 2007, the Board received from Mr. Mohammad Mughal a duty of fair representation complaint filed pursuant to section 37 of the Code:
37. A trade union or representative of a trade union that is the bargaining agent for 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 with respect to their rights under the collective agreement that is applicable to them.
[2] In that complaint, Mr. Mughal alleged that his bargaining agent, the International Association of Machinists and Aerospace Workers, District 140 (the IAMAW) had acted in an arbitrary and bad faith manner in failing to prepare adequately for arbitration.
[3] Mr. Mughal further alleged the IAMAW failed to notify him of a time limit the arbitrator had allegedly provided for him to submit further evidence. Mr. Mughal alleged this latter failure was compounded by the IAMAW later denying the existence of this opportunity.
[4] The Board held a one-day evidentiary hearing on July 17, 2008. By August 5, 2008, the parties had submitted to the Board their final arguments in writing.
II–Facts
[5] Mr. Mughal worked for Air Canada for approximately six years.
[6] In a December 7, 2006 decision, Arbitrator M.B. Keller upheld Air Canada’s discharge of Mr. Mughal. According to the award, Air Canada and Mr. Mughal had signed a “last chance agreement.” Arbitrator Keller concluded: “I am satisfied that the grievor violated, not once but twice his last chance agreement, has difficulty with anger and has irreparably breached his employment relationship.”
[7] Following the award, Mr. Mughal provided the IAMAW with further documentation in support of his case.
[8] The three documents, which were attachments 2, 3 and 4 to his complaint, expressed support for Mr. Mughal from his wife, a clinician at the Toronto Western Hospital, as well as from an MD.
[9] The IAMAW sent the three documents to Arbitrator Keller by letter dated January 11, 2007.
[10] On January 17, 2007, Mr. John Beveridge, Manager, Labour Relations at Air Canada, who had pleaded the employer’s case at arbitration, wrote to Arbitrator Keller:
... Our position is that the Company and the Union were afforded a period of time after the hearing in which to submit additional evidence and documentation. An award has been ordered and we feel the case can no longer be reopened. We respectfully request that the case remain closed.
[11] On January 19, 2007, Arbitrator Keller wrote to the parties and advised that once his award had been issued, he then became functus officio. He accordingly declined to consider the IAMAW’s new evidence.
[12] On February 5, 2007, Mr. Mughal wrote to the President of Air Canada and stated, in part, “Since the decision I have been able to acquire additional information in my case. The Union sent this information to Arbitrator Keller but he was unable to review it unless both parties agreed.”
[13] Mr. Mughal requested that Air Canada consent to allow Arbitrator Keller to review the new information.
[14] On February 22, 2007, Mr. Mughal wrote again to Air Canada’s President and stated in part:
... Since the decision I have been able to acquire additional information to support my case including with this letter and the following information below. ...
...
... I am asking for another opportunity to present my case to the arbitrator and I assure you that I will abide and will satisfy the arbitrator’s decision. ...
[15] On May 8, 2007, Air Canada responded to Mr. Mughal. Mr. Frank Szemenyei, Director, Labour Relations, who had not been present at the arbitration hearing, wrote in part:
As I understand it, your case was heard by Arbitrator Keller. During the arbitration he offered you a final opportunity to submit any additional evidence and documentation or evidence prior to the Award being issued.
[16] Faced with an impasse, it appears Mr. Mughal retained legal counsel at this time who first wrote to the IAMAW on May 14, 2007.
[17] The confusion about what was said at the Keller hearing regarding the submission of additional evidence is central to this case.
[18] Mr. Mughal, as illustrated by his legal counsel’s May 14, 2007 letter, logically assumed, based on Air Canada’s correspondence, that he had been given an opportunity to file additional information with Arbitrator Keller before the decision be issued. Mr. Mughal took the position that the IAMAW had failed to advise him of this opportunity or to act on it.
[19] Mr. Mughal testified that, at some point after the arbitration hearing, and before Arbitrator Keller issued his decision, Mr. Terry Hanson, who was an IAMAW shop committee member in 2006, and who attended the arbitration hearing, had talked to him about submitting further information.
[20] The facts surrounding the additional evidence became less clear when the IAMAW sent a June 19, 2007 letter to Mr. Mughal’s legal counsel which stated, in part, “After reviewing your file, Arbitrator Keller agreed to a request by Air Canada at the end of your hearing to wait until the end of November 2006 before rendering his decision.” The IAMAW advised that Air Canada did not file anything additional and that that ended the matter. On July 11, 2007, the IAMAW reiterated its position, which is difficult to reconcile with Air Canada’s written correspondence, regarding the opportunity to submit additional information to Arbitrator Keller:
The Union’s position is that the Company requested additional time to further investigate alleged pending criminal charges that they wished to be brought forward as evidence. At no time did the Union request any additional time to provide any further evidence from you.
[21] In its November 19, 2007 response to Mr. Mughal’s complaint, the IAMAW maintained its position that only Air Canada had an opportunity to file further evidence.
[22] On December 6, 2007, Air Canada filed its response to Mr. Mughal’s complaint and commented on the issue of submitting further evidence:
Mr. Beveridge was referring to the company’s time-limited right to submit additional evidence concerning criminal charges it believed had been laid against Mr. Mughal and the IAMAW’s right to respond to any such additional evidence. In summarizing these facts in the way he did, Mr. Beveridge did not mean to suggest that the union had an independent right to submit new evidence and documents.
(emphasis in original)
[23] In essence, Air Canada agreed with the IAMAW’s version of events about the submission of additional information following the November 8, 2006 hearing before Arbitrator Keller.
III–Duty of Fair Representation
[24] The Board has a specific role in a duty of fair representation complaint.
[25] The Board does not sit in appeal of the important decisions that trade unions must make when they represent their members. It is up to a trade union to determine matters such as whether a grievance will proceed to arbitration, whether a matter should be settled and how to plead a particular case.
[26] The Board will not second-guess the manner in which a trade union may have presented a case at arbitration unless its conduct reaches the level of having been arbitrary, discriminatory or in bad faith.
[27] The Board does consider the process a union followed in coming to its determinations. In terms of that process, a union cannot act in an arbitrary, discriminatory or bad faith manner with regard to the rights of its members under the collective agreement.
[28] The Code is also very strict in terms of the time limits for the filing of a duty of fair representation complaint. Section 97(2) reads as follows:
97.(2) Subject to subsections (4) and (5), a complaint pursuant to subsection (1) must be made to the Board not later than ninety days after the date on which the complainant knew, or in the opinion of the Board ought to have known, of the action or circumstances giving rise to the complaint.
[29] The Board’s case law is consistent that the time limit runs from the date of the illegal act (see BHP Diamonds Inc., Securecheck and Klemke Mining Corporation, 2000 CIRB 81).
[30] The Code at section 16(m.1) gives the Board a discretion to extend the time limit for the filing of a complaint:
16.(m.1) to extend the time limits set out in this Part for instituting a proceeding;
[31] The Board has interpreted this provision restrictively and will only extend time limits in exceptional circumstances (see Louise Galarneau, 2003 CIRB 239). The short delay for complaints in the Code demonstrates that it is imperative that employers, unions and individual employees raise labour disputes promptly.
IV–Analysis and Decision
[32] The Board might have had concerns about Mr. Mughal’s complaint being out of time if it had been limited solely to contesting the quality of the representation he received leading up to and at his arbitration hearing on November 8, 2006. A significant part of Mr. Mughal’s argument before the Board concerned the IAMAW’s preparation for the grievance and how it pleaded the case in November, 2006. There was also a case put forward that the IAMAW ought to have put in more evidence following the hearing as a result of a discussion it had had with the arbitrator.
[33] Rather than filing a complaint about the quality of the representation within 90 days of receipt of Arbitrator Keller’s decision, or even from the date when the learned arbitrator refused to consider the new evidence, Mr. Mughal instead wrote letters to Air Canada asking that it give its consent so that Arbitrator Keller could consider the new documentation.
[34] It is highly likely that the time limit for the filing of a duty of fair representation complaint, if there was concern about the quality of the representation received in November, 2006, would have been running during this time (see John Presseault, 2001 CIRB 138).
[35] However, the Board does not need to decide this potential timeliness issue.
[36] The Board is satisfied that the IAMAW provided representation to Mr. Mughal that meets the requirements of the Code. The IAMAW met with Mr. Mughal in advance of the hearing, though the evidence was not consistent about the number of occasions on which they met. The IAMAW filed at the hearing the materials that Mr. Mughal had provided to them, attempted to have the arbitrator mediate a solution, and sent to the arbitrator Mr. Mughal’s documentation following receipt of the award.
[37] The Board has not been convinced that the steps taken by the IAMAW to assist Mr. Mughal in this case could amount to arbitrary, discriminatory or bad faith conduct as those terms are set out in the Code and as the Board’s case law interprets them.
[38] The Board has also considered Mr. Mughal’s counsel’s argument that the IAMAW, by failing to adduce more evidence after the hearing, violated its duty under the Code.
[39] Even if the Board were to agree with counsel that further steps could have been taken, the issue remains whether the IAMAW’s failure to take that route was arbitrary, discriminatory or in bad faith. In the Board’s view, such a failure, if there were one, would still not cross the high threshold established by section 37 of the Code.
[40] The Board has not been convinced that the IAMAW’s tactical decision to let its case rest, rather than asking to be allowed to add further evidence, amounted to a Code violation, given all the circumstances of this case.
[41] The Board has examined very seriously the allegation that the IAMAW changed its position regarding the opportunity to file further evidence before Arbitrator Keller once Mr. Mughal had retained legal counsel.
[42] If a bargaining agent had received an opportunity to file further evidence, but failed to advise the grievor and, more critically, later attempted to deny that this opportunity ever existed, then the Board would have serious concerns about a Code violation.
[43] The Board has considered thoroughly the arguments of Mr. Mughal’s legal counsel on this issue. It is indeed difficult to reconcile Air Canada’s January 17 and May 8, 2007 letters with its December 6, 2007 response. The first two letters suggest both Air Canada and the IAMAW had an opportunity to present further evidence after the hearing. The much later response from Air Canada took the position that only it, and not the IAMAW, had this opportunity.
[44] The Board accepts, as argued by Mr. Mughal’s counsel, that Mr. Hanson spoke to Mr. Mughal about getting more information. But accepting this fact does not convince the Board that the IAMAW therefore had an entitlement to submit further information to Arbitrator Keller.
[45] The written documents do not demonstrate that the IAMAW had such an entitlement. Mr. Mughal’s letters to Air Canada dated February 5 and 22, 2007, indicate only that he had obtained more information since the decision. Similarly, if the IAMAW had received a delay to submit more information, neither Air Canada in its January 17, 2007 letter nor Arbitrator Keller in his January 19, 2007 letter, mentioned that the IAMAW failed to respect the delay it had received.
[46] The Board has considered whether Mr. Mughal, who bears the burden of proof, has demonstrated that the IAMAW did in fact receive at the arbitration hearing a delay to provide further information on his behalf to Arbitrator Keller.
[47] The Board concludes that the IAMAW, whose position has been consistent throughout this case, received no such explicit opportunity.
[48] For the Board to find a violation in this case, it would have to conclude:
(i) that Arbitrator Keller gave both the IAMAW and Air Canada the opportunity to present further evidence;
(ii) the IAMAW sought to obtain this further evidence from Mr. Mughal; and
(iii) the IAMAW later falsely denied the existence of this opportunity when Mr. Mughal retained legal counsel to question the quality of the representation he had received.
[49] The Board agrees with counsel for Mr. Mughal that Air Canada’s written letters cause significant confusion when compared with its written response and the testimony given on July 17, 2007.
[50] However, the confusion arising from Air Canada’s documentation does not lead the Board to doubt the IAMAW’s consistent position, both in writing and from the testimony of two IAMAW representatives who were present at the hearing, that only Air Canada had the opportunity to present further evidence. Mr. Beveridge of Air Canada also confirmed this fact in his oral testimony. The Board accepts the IAMAW’s position that its case, from an evidentiary perspective, had been closed at the end of the Keller hearing and that it related honestly to Mr. Mughal’s counsel what had occurred at the hearing.
[51] As mentioned at the beginning of this decision, the parties filed written argument following the one-day hearing held on July 17, 2008.
[52] The IAMAW in its submission referred to events that took place during mediation with a labour relations officer of the Board. The IAMAW mentioned an offer that was on the table from them to settle this case. Counsel for Mr. Mughal described those submissions as “surprising and improper.”
[53] The mediation process before a labour relations officer is strictly privileged. If parties are unable to speak frankly to a labour relations officer out of a fear that their settlement position will later be communicated to the panel of the Board hearing the case, then cases simply will not settle.
[54] The Code foresees the importance of all mediation and settlement discussions before labour relations officers to be privileged and confidential. For example, a party cannot call a labour relations officer as a witness:
119. No member of the Board or a conciliation board, conciliation officer, conciliation commissioner, officer or employee employed by the Board or in the federal public administration or person appointed by the Board or the Minister under this Part shall be required to give evidence in any civil action, suit or other proceeding respecting information obtained in the discharge of their duties under this Part.
[55] The Board reminds all parties that their settlement discussions with the Board’s labour relations officers are privileged. Those discussions will never be communicated to a panel of the Board. Similarly, parties cannot communicate the content of settlement discussions to the panel of the Board hearing the case.
[56] Adherence to these well-known principles will ensure the Board continues to settle many of the cases that come before it.
V–Conclusion
[57] For the reasons set out above, the Board has dismissed Mr. Mughal’s complaint.