0619-00-U Geoffrey William Dillon, Applicant v. Bakery, Confectionary, Tobacco Workers & Grain Millers Local Union No. 154-G, Responding Party.

BEFORE: Stephen Raymond, Vice-Chair.

APPEARANCES: Geoff Dillon and Wayne Mori for the applicant; Jeanine LeRoy, Bob Thompson and Pat Blaney for the responding party; B.R. Baldwin, Mike Ward and John Mcleod for the interested party.

DECISION OF THE BOARD; November 9, 2000

1This is an application brought by Geoffrey Dillon (“Mr. Dillon”) pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) that the responding party Bakery, Confectionary, Tobacco Workers & Grain Millers Local Union No. 154-G (the “union”) has violated section 74 of the Act in its representation of him.

2A consultation was held on November 7, 2000. A summary of the parties’ respective positions was presented by each party.

The Issue

3Mr. Dillon was given a three day suspension by his employer Kellogg Canada Inc. (“Kellogg’s”) for an incident involving an altercation with another employee. Mr. Dillon is represented by the union in his employment relationship with Kellogg’s. It is the union’s representation of him in relation to the three day suspension which is the subject matter of this application.

4Mr. Dillon seeks by way of remedy that the issue of his three day suspension be taken to arbitration by the union and that he be able to choose his own legal representation at the union’s expense. He also seeks the suspension of the chief union steward, Mr. Bob Thompson (“Mr. Thompson”) and punitive damages. The issue in this application is whether the actions of the union constitute a breach of its duty of fair representation.

The Facts

5The facts as outlined by Mr. Dillon are that he was involved in an altercation with another employee in which he rubbed the other employee’s head. Kellogg’s was of the view that he hit the other employee. Mr. Dillon was suspended for three days. Mr. Dillon believes he should have only received a written warning. At some point during the disciplinary interview or following it, Mr. Thompson refused to identify the identity of a witness and in so doing, stated something such as “what so you can hit him on the back of the head too”.

6Mr. Thompson admits that he made this statement about Mr. Dillon hitting someone else. He says that he should not have said it and that at the time tempers were very short and Mr. Dillon was agitated. Mr. Thompson was not prepared to disclose, at that time, the identity of the witness for fear of the safety of that witness. Mr. Thompson said he spoke to one of the witnesses the day of the altercation and that witness said that Mr. Dillon did not hit the other employee. At that point, Mr. Thompson had conflicting reports as to what had occurred. He did not speak to the other four witnesses until much later.

7Mr. Dillon further indicates that the next day the union was holding a ratification meeting following collective bargaining with Kellogg’s. Prior to the commencement of the meeting, Mr. Dillon approached Mr. Pat Blaney (“Mr. Blaney”), the local Union President, to complain about his suspension and to request that Mr. Thompson be removed as his steward on his case. Mr. Blaney said that Mr. Dillon must have more enemies than he thinks because apparently 5 of 6 witnesses in that room said you hit him.

8It is clear that Mr. Thompson spoke to Mr. Blaney about the incident prior to the ratification vote. It is not clear what was said between Mr. Blaney and Mr. Thompson, but it is clear that Mr. Blaney said to Mr. Dillon that apparently Mr. Dillon has more enemies than he knew. Mr. Blaney did not say anything to Mr. Dillon that suggested that Mr. Thompson had lied to Mr. Blaney or to Mr. Dillon. Mr. Dillon jumped to the conclusion that he had been lied to and that the union was trying to make sure the discipline was successful rather than to fight on his behalf.

9Nevertheless, as a result of the grievance procedure, it became clear that Mr. Dillon had not hit the other employee but had rubbed his head. Whether Mr. Thompson investigated the matter fully or formed pre-conceived ideas about what had transpired, the finding of Kellogg’s was that Mr. Dillon had only rubbed the head of the other employer. This was the position that Mr. Dillon had taken from the outset.

10Mr. Dillon also says that the members of the Executive of the union that decided not to have his case go to arbitration did not discuss his case in full at their Executive Meeting where they determined not to pursue this matter to arbitration. This fact was not pleaded and there were no witnesses who could attest to this fact.

11It is undisputed that the union filed a grievance on behalf of Mr. Dillon. Pursuant to the collective agreement between Kellogg’s and the union, there are four steps to the grievance procedure. The grievance proceeded through all four steps. The union produced a transcript of the fourth step meeting. It is clear from that transcript that the union attempted to reduce the penalty imposed by Kellogg’s but was unsuccessful in doing so. Following the fourth step meeting, the union executive met and decided not to take Mr. Dillon’s grievance to arbitration because they were of the view that the penalty was appropriate given prior discipline in the workplace and the general arbitral jurisprudence.

Decision

12It is Mr. Dillon’s view that he was lied to by either Mr. Thompson or Mr. Blaney or by both and that combined with the statement made by Mr. Thompson at the time of the disciplinary meeting, there is evidence of bad faith of the union.

13I do not agree. There is nothing even on the facts as presented by Mr. Dillon which suggests a finding of bad faith.

14Even if all of the factual disputes are resolved in favour of Mr. Dillon, his application does not set out facts which support a finding of a violation of the Act by the union. While some of the actions of the union (including the statement by Mr. Thompson) are not the appropriate actions to have been taken at the time, they are not serious enough to support a finding that the Act has been violated.

15In the circumstance, I am satisfied that Mr. Dillon cannot establish any breach of the union’s duty of fair representation to him under Section 74 of the Act. The Board should inquire no further into the matter.

16The Board orally dismissed this application at the conclusion of the consultation. That ruling is hereby affirmed.

“Stephen Raymond”

for the Board