BCLRB No. B15/2017
BRITISH COLUMBIA LABOUR RELATIONS BOARD
TK (the “Complainant”) -and- UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 247(the “Union”) -and- 8424365 CANADA LIMITED (YOUR INDEPENDENT GROCER STORE NO. 1878) (the “Employer”)
PANEL: Jennifer Glougie, Vice-Chair
Ib S. Petersen, for the Complainant
E. Murphy Fries, for the Union
Israel Chafetz, Q.C., for the Employer
DATES OF HEARING: November 1-2, 2016
DATE OF DECISION: January 18, 2017
DECISION OF THE BOARD
- NATURE OF APPLICATION
1 The Complainant applies under Section 12 of the Labour Relations Code (the “Code“) alleging the Union failed to fairly represent him with respect to his initial termination grievance, which resulted in his reinstatement under a last chance agreement, and his subsequent termination for violating the terms of that last chance agreement.
2 The Union denies it breached Section 12 in its representation of the Complainant. It says the Complainant accepted the terms of the last chance agreement in order to be reinstated but then breached those terms by failing to complete an anger management course as required. It says the Complainant’s application is without merit.
3 The Employer participated in the hearing into the Complainant’s application. The Employer says the Complainant was content to accept and live under the terms of the last chance agreement while it suited him and that he only challenged its propriety when he was terminated for breaching its terms. The Employer says that does not amount to a breach of Section 12.
4 The Employer operates a franchise of Your Independent Grocer Store. At the time of his termination, the Complainant worked as a full-time Frozen Clerk at the Employer’s operation and had accumulated 11 years of service.
5 On or about September 18, 2015, the Complainant was involved in an incident with another store employee, Ashraf Omeria. The Complainant said that Omeria yelled at him for discarding ice cream containers in the garbage can in the Employer’s warehouse. The Complainant did not believe he had done anything wrong and felt humiliated by the exchange with Omeria, who was not the Complainant’s supervisor. After the ice cream container conversation, the Complainant says he approached Omeria in the store to tell Omeria not to order him around. There is no dispute that the confrontation occurred during business hours and in view (or in potential view) of the Employer’s customers and resulted in yelling and swearing. The Complainant says Omeria was the aggressor in the incident. He says Omeria yelled and swore at him and ultimately challenged him to a fight in the store’s underground parking lot. The Employer says the Complainant was the aggressor and that it was he who yelled and swore at Omeria. The Employer says it concluded the Complainant was at fault on the basis of written statements it received from Omeria, Terrance Mosley (the Employer’s Produce Manager), and a customer who claimed to have witnessed the altercation. The Employer further relied on video footage of the store, which it says captured the altercation.
6 Lyle Miller is the owner and operator of the Employer. Miller was absent on vacation at the time of the incident. On his return, he scheduled a meeting on October 2, 2015, to terminate the Complainant for his role in the altercation with Omeria.
7 Bruce Jackson is the Union Representative responsible for servicing the Employer’s bargaining unit. The Complainant testified that Jackson is friends with both Miller and Omeria. He says Jackson gave Omeria his cell phone number but refused to give it to other members of the bargaining unit. The Complainant testified that he had Jackson’s cell phone number and used it to call Jackson during the grievance process but that he had to get it from another bargaining unit member. He says, when he called, Jackson told him to delete the number from his phone. Jackson and Miller both testified that they are business acquaintances but not friends. Jackson further testified that he is not friends with Omeria.
8 In any event, Miller contacted Jackson in advance of the October 2, 2015 disciplinary meeting and Jackson attended the store to represent the Complainant at the meeting. Jackson testified that, prior to the meeting, he spoke to the Complainant, Omeria and Mosley, reviewed the written statements provided to the Employer in the course of its investigation, and reviewed the video footage of the incident. Jackson testified that all of the evidence he reviewed demonstrated the Complainant confronted Omeria on the shop floor with customers nearby and was the aggressor throughout the incident.
9 The Complainant denied any wrongdoing at the disciplinary meeting. However, Jackson says after Miller left the room and Jackson explained he had reviewed the video footage of the incident, the Complainant admitted he yelled and swore at Omeria and said he was scared he would be in trouble. The Complainant denies making any such admission. The Complainant, Miller and Jackson all testified that, when Miller returned to the meeting, Jackson told him the Complainant confessed to being the aggressor during the altercation. The Complainant did not say that he challenged Jackson’s assertion that he confessed. In any event, Miller terminated the Complainant’s employment at that meeting and Jackson filed a grievance in response (the “Initial Grievance”).
10 On the same day he was terminated, the Complainant wrote an email to the Union’s President, Suzanne Hodge. He told her “I need the Union to help me with getting my job back because I have worked there for many years and I can’t just go find another job”. On October 5, 2015, three days after he was terminated and after he missed his first shift of work, the Complainant emailed Jackson, saying “I am missing my work a lot. Is there any news for me to know?”. On the following day, October 6, 2015, he emailed Jackson again, saying “What is the next step that we are waiting for?”. Jackson replied explaining that grievances take time and that he should attempt to find other work during the grievance process.
11 Jackson testified it was clear to him from his grievance discussions with Miller that the Employer would only reinstate the Complainant under the terms of a last chance agreement. As a result, he and Miller negotiated a last chance agreement which provided, in part:
This letter will serve to confirm the Company has concluded its investigation specific to the incident of September 18, 2015 regarding allegations of inappropriate conduct in the workplace and concludes the claim is with merit.
To refresh your memory, a meeting was held on October 2nd to discuss the alleged inappropriate conduct. In this meeting on multiple occasions you were less than truthful and put forth a position that you had done nothing wrong. Even after the Company demonstrated through various witness statements the true version of events, you maintained no wrong doing. After speaking with your union representation you admitted to inappropriate conduct on the sales floor towards your coworker in front of customers. The aforementioned meeting led to the termination of your employment.
The Company has zero tolerance for incidents of this nature and the anger you demonstrated was quite alarming. However, after taking into consideration your tenure amongst many other variables including those brought forward by yourself and your Union representative, the Company has agreed to allow you a final opportunity to demonstrate you can conduct yourself in an appropriate manner in the workplace under the following conditions.
- You will be required to attend and successfully complete an anger management course/program. Proof of completion will be required and the cost of the program is your responsibility. Unpaid time off may be granted to attend such course/program.
- Should you fail to complete the course/program within 6 months of the date of signing, your employment will be terminated.
* * *
In the event of any dispute between the parties as to a breach of the conditions outlined in this agreement, or whether the incident occurred that resulted in the Company terminating your employment, the issue may be submitted to arbitration in accordance with the grievance and arbitration provisions of the existing collective agreement. The jurisdiction of the arbitrator or arbitration board shall be limited to a determination of whether or not there has been a breach of this agreement.
(the “Last Chance Agreement”, reproduced as written)
12 Jackson called the Complainant to explain the terms of the Last Chance Agreement on October 20, 2015. The Complainant believed it was inappropriate for him to have to pay for and complete an anger management program because, in his view, Omeria was the one with anger issues. On October 20, 2015, he emailed Charles Pratt, the Assistant to the President of the Union, asking if there were any way to settle the Initial Grievance “so it can be more fair” to him. Jackson testified that he did not believe the Employer would be willing to reinstate the Complainant’s employment without the Last Chance Agreement and that he explained as much to the Complainant.
13 The Complainant met with Miller and Jackson on October 22, 2015, to review and sign the Last Chance Agreement. The Complainant testified he did not object to the Last Chance Agreement at the meeting because he had already expressed his concerns to Jackson. He said he believed that there was no point to objecting further. The Complainant, Miller and Jackson all testified that, after signing the Last Chance Agreement, the Complainant thanked them for giving him his job back and shook Miller’s hand.
14 The Complainant said he accepted the terms of the Last Chance Agreement but he did not agree with them. He was adamant in examination-in-chief and in cross-examination that he should not have been required to take an anger management course. He said he understood the promise he was making by signing the Last Chance Agreement but felt it was “Machiavellian” and inappropriate. The Complainant testified that he felt like he had no choice but to sign the Last Chance Agreement because he was not confident that the Union would pursue the Initial Grievance to arbitration. In cross-examination, he agreed his termination left him in a dire financial position and he was desperate to get his job back. In any event, the Complainant signed the Last Chance Agreement on October 22, 2015 and did not challenge the Union’s handling of the Initial Grievance until after his subsequent termination on April 28, 2016.
15 The Complainant neither registered for nor completed an anger management program within six months as required by the Last Chance Agreement. He testified that the Employer refused to allow him to take the course on-line and the only in-person anger management courses he could find locally were offered through the Jericho Professional Counselling Services Inc. (“Jericho”). Those courses, he said, were offered as individual sessions on Wednesday and Saturday evenings and as group sessions (if enough people enrolled) on Tuesday evenings. All of those courses conflicted with his regular work schedule, which was Tuesday through Saturday, 12:30 p.m. to 9:00 p.m. The Complainant testified that he would have been able to attend the Jericho program if he had been assigned to the day shift that came available in February 2016. He testified he told Miller he wanted the day shift but that Miller “secretly” gave it to a junior employee. In any event, the Complainant testified he asked Miller for time off on three occasions so he could take the anger management course at Jericho and was refused. He agreed in cross-examination that he did not grieve Miller’s refusal to grant the time off. The Complainant also agreed in cross-examination that, during the six months after it was signed, he did not tell Jackson or anyone else at the Union that he was having difficulty fulfilling the requirements of the Last Chance Agreement or that the Employer was refusing to allow him time off to attend an anger management program.
16 Miller testified that the Complainant never asked for time off to attend an anger management program during the six-month period set out in the Last Chance Agreement. Rather, Miller’s evidence was that during those six months, the Complainant never told him he was having any difficulty arranging for or attending an anger management course. With respect to the day shift that came available in February 2016, Miller testified the shift was only part-time.
17 On or about April 22, 2016, the six-month period set out in the Last Chance Agreement, during which the Complainant agreed to complete an anger management program, expired. On April 28, 2016, Miller asked the Complainant whether he had completed an anger management course and the Complainant admitted he had not. As a result, Miller terminated his employment on the basis he breached the Last Chance Agreement by failing to complete an anger management program within six months.
18 The Complainant called Jackson after he was terminated for the second time. The Complainant and Jackson agreed that Jackson asked the Complainant whether he had completed the anger management program and the Complainant said he had not. They agreed that Jackson asked the Complainant whether he had signed up for an anger management course and the Complainant said he had not. They agreed that the Complainant told Jackson that the course was costly and inconvenient, since he was scheduled to work the times of the program. The Complainant testified he told Jackson he asked for time off to attend the Jericho program and the Employer refused. Jackson denied the Complainant told him he asked for time off work.
19 The Complainant met with Jackson and Pratt on April 29, 2016, to discuss the second termination and a grievance was filed the same day (the “LCA Grievance”). Jackson testified that the Complainant never said that he asked for or was denied time off to attend an anger management program. After the meeting, the Complainant emailed Jackson saying he made an appointment with a counsellor at Jericho for the following day. At the hearing, the Complainant submitted an invoice from Jericho showing he began an anger management program on April 30, 2016.
20 On May 2, 2016, Jackson wrote to the Complainant telling him the Union decided not to pursue the LCA Grievance. In that letter, he said he and Pratt agreed they would likely be unsuccessful at arbitration, given the clear violation of the Last Chance Agreement.
21 The Complainant appealed Jackson’s decision through the Union’s internal appeal process by way of an email dated May 2, 2016. In that email, he offered his explanation of what occurred in the September 18, 2015, altercation with Omeria. With respect to the Last Chance Agreement, he said:
At the time my employer was going ahead with my termination but I contacted the Union.
My employer then drafted a Last Chance Agreement, in which he required me to take an Anger Counseling Course.
The incident was isolated and much of it was initiated by my co-worker but I accepted to sign the Last Chance Agreement.I desperately needed to get my job back.
Ever since I got back to work,I have been saving money for the required Course in the Last Chance Agreement.
It is a fairly expensive Course and not too many places offer it.It is not covered by MSP and no one gives a loan for it.
To make the matter worse,my Employer continued to schedule me to work Tuesday to Saturdays 12:30 noon to 21:00 the entire time.
Several requests were made by me to modify that schedule to create time in the evening/afternoons but my Employer refused to accommodate it.He told me he needed me to be onsite for evenings to help with receiving when managers are not working.The Course is not available in day time before noon.It is available in the evenings.
The combination of the above 2 factors made the practicality for taking the Course beyond my means.
I was doing my best to deliver that promise I had signed.
Last Thursday my Employer called me to the office and told me my time is finished for showing him the Certificate and he terminated me at once. I told him I never had free time available to take the course and I needed more time to be able to pay for the costs for it but he did not care. … (reproduced as written)
22 A hearing before the Grievance Appeal Committee (the “GAC”) took place on June 7, 2016. The GAC was chaired by Dean Patriquin, the Union’s Director of Bargaining. The Complainant testified that Jackson brought a large file with him to the hearing, dropped it on the desk and told the GAC it was the Complainant’s discipline file. Jackson told the GAC that the Complainant’s coworkers were unhappy that Jackson got him his job back after the Initial Grievance and that a coworker had quit over the Complainant. Jackson and Patriquin agreed Jackson had such a file with him but said the only document the GAC reviewed from that file was the Last Chance Agreement. Patriquin explained that the only issue before the GAC was whether to proceed with the LAC Grievance and no prior discipline was relevant to the determination of that issue.
23 Patriquin gave the following evidence about the Complainant’s testimony at the hearing before the GAC. Patriquin said that, when he was presenting his case, the Complainant told the GAC that his work schedule made it difficult to attend an anger management program. When Patriquin specifically asked the Complainant whether he asked for and was denied time off, the Complainant replied that he did not ask for specific days off but was scheduled to work. Patriquin explained to the Complainant the difference between the Employer scheduling him for work and denying his request for time off. Patriquin asked him again what dates he asked to have off to attend the program. The Complainant replied he did not request specific days off but that he had difficulties attending because of his work schedule. Patriquin then put to the Complainant that he never once requested time off work and the Complainant agreed.
24 By letter dated June 13, 2016, Patriquin advised the Complainant that the GAC denied his appeal. The reason for its decision was as follows:
When you were terminated from your employment at Davie Street Independent Grocer, a grievance was filed on your behalf and investigated by your Union Representative. The Representative sought to have your employment reinstated, however, the Company refused and relied on language in the Final Chance Agreement that you had signed on October 22, 2015. The Agreement clearly stated that you would attend and complete an anger management course within six months. Should you fail to complete the course within six month time frame [sic], your employment would be terminated. The testimony that you provided was that you never completed, nor did you ever enroll in the anger management course. The Final Chance Agreement states “The jurisdiction of the Arbitrator shall be limited to a determination of whether or not there has been a breach of this agreement.” The Arbitrator’s decision would be based solely on a violation of the Final Chance Agreement. Your failure to complete the provisions of the Final Chance Agreement led to the termination of your employment.
The GAC concluded, in the circumstances, it was unlikely the Complainant’s termination would be overturned at arbitration. Patriquin advised the Complainant that the LAC Grievance would be withdrawn.
III. POSITIONS OF THE PARTIES
25 For the most part, the parties agree on the legal principles that apply in the circumstances. At issue is whether the facts disclose a breach of Section 12 with respect to how the Union represented the Complainant in the Initial Grievance and the LCA Grievance.
26 The Complainant says the Union’s conduct in representing him throughout his grievances was arbitrary, discriminatory and in bad faith. He says Jackson failed to investigate the September 18, 2015, incident, preferring to blindly accept Miller’s and Omeria’s version of events. He says Jackson’s failure to investigate was motivated by his personal friendship with both Miller and Omeria and amounts to discriminatory representation on the basis of personal favouritism. Finally, he says Jackson was dishonest with him throughout the handling of his two grievances.
27 The Complainant concedes he did not advise the Union that he was having difficulty complying with the Last Chance Agreement. He says his previous dealings with Jackson did not inspire confidence. When he met with Jackson and Pratt to discuss and file the LCA Grievance, he says Jackson was dismissive of his concerns, both with respect to the cost of the anger management program and the scheduling challenges he faced in registering for one. He says Jackson decided to withdraw the LCA Grievance without properly considering the fact that he had researched anger management programs and enrolled in one.
28 The Complainant says the Union further breached Section 12 when the GAC refused his appeal and withdrew the LCA Grievance. He says Jackson manipulated the GAC process by bringing an excessively large file with him, slamming it down on the table, and declaring it to be the Complainant’s personnel file. He says the GAC did not consider the appropriate factors when it denied his appeal but rather was improperly influenced by Jackson’s manipulation.
29 By way of remedy, the Complainant seeks an order that the Union violated Section 12, an order that both the Initial Grievance and the LCA Grievance proceed to arbitration with all time-limits waived, and an order that the Complainant be represented at arbitration by independent counsel of his own choice at the Union’s expense.
30 The Union says the Complainant accepted the Last Chance Agreement as a resolve to the Initial Grievance. It says he accepted the terms by both signing the Last Chance Agreement in order to ensure his reinstatement and working under them for the following six months. The fact the Complainant had second thoughts about the Last Chance Agreement after he was terminated for breaching its terms does not amount to a violation of Section 12.
31 The Union says it properly investigated both the Initial Grievance and the LCA Grievance. With respect to the Initial Grievance, Jackson interviewed witnesses and reviewed the witness statements and video footage. On the basis of his investigation, he determined the Complainant likely committed the misconduct for which he was terminated. Jackson nonetheless sought the Complainant’s reinstatement and, when it became clear the Employer would only consider reinstatement under the terms of a Last Chance Agreement, negotiated one to get the Complainant back to work. He explained the terms of the Last Chance Agreement to the Complainant and the Complainant accepted those terms. The Union argued there was no merit to the Complainant’s assertion that Jackson was influenced by a friendship with Miller or Omeria or was otherwise dishonest with the Complainant during the Initial Grievance or at all.
32 With respect to the LCA Grievance, the Union argues the Complainant committed a clear violation of the Last Chance Agreement by failing to register for or complete an anger management program within six months as required. It says the Complainant never told Jackson or anyone else at the Union that he was having difficulty complying with the terms of the Last Chance Agreement. It says the evidence demonstrates the Complainant never told either Jackson or the GAC that he had requested time off and been denied. Rather, it says, the Complainant’s evidence was that he started an anger management program on April 30, 2016, the day after he met with Jackson and Pratt to file the LCA Grievance. The Union says Jackson considered the relevant factors in determining that the LCA Grievance was unlikely to succeed and withdrawing it on that basis.
33 The Union says the GAC considered the relevant factors in determining the LCA Grievance was unlikely to succeed at arbitration. While Jackson brought a file with him to the hearing and claimed it was the Complainant’s personnel file, the only document the GAC reviewed was the Last Chance Agreement. Patriquin’s evidence was that the GAC limited its consideration to the issue of whether or not the Complainant breached the LCA and concluded he had. It did not breach its duty of fair representation by withdrawing the LCA Grievance in the circumstances.
34 The Union says the Complainant’s application has no merit and must be dismissed.
35 The Employer says the Complainant’s application with respect to the Initial Grievance is really a case of buyer’s remorse. It says Miller investigated the September 18, 2015, incident and made the decision to terminate the Complainant’s employment. It says Miller took a hard position with respect to reinstatement and was only willing to consider doing so on the terms set out in the Last Chance Agreement. The Complainant wanted a better deal, but he was desperate to get back to work. Accepting the Last Chance Agreement got him back to work and he accepted its terms willingly. That does not amount to unfair representation by the Union or a breach of Section 12.
36 With respect to the LCA Grievance, the Employer limits itself to providing certain facts in evidence. It says the Complainant never asked Miller for time off work to attend an anger management program. The terms of the Last Chance Agreement were clear that the Complainant had to complete an anger management program within six months. When he did not do so, he was terminated.
- ANALYSIS AND DECISION
12(1) A trade union or council of trade unions must not act in a manner that is arbitrary, discriminatory or in bad faith
(a) in representing any of the employees in an appropriate bargaining unit.
38 The Board’s approach to the duty of fair representation was established in Rayonier Canada (B.C.) Ltd., BCLRB No. 40/75,  2 Canadian LRBR 196 and endorsed at paragraph 7 of James W.D. Judd, BCLRB No. B63/2003, 91 C.L.R.B.R. (2d) 33 (“Judd“):
…a union is prohibited from engaging in any one of three distinct forms of misconduct in the representation of the employees. The union must not be actuated by bad faith in the sense of personal hostility, political revenge, or dishonesty. There can be no discrimination, treatment of particular employees unequally whether on account of such factors as race and sex (which are illegal under the Human Rights Code) or simple, personal favouritism. Finally, a union cannot act arbitrarily, disregarding the interests of one of the employees in a perfunctory manner. Instead, it must take a reasonable view of the problem before it and arrive at a thoughtful judgment about what to do after considering the various relevant and conflicting considerations. (pp. 201-202)
39 Applications under Section 12 often involve allegations that a union acted unfairly in handling a member’s grievance. The Board has consistently recognized that the union, and not the member, has the authority to decide how and if to proceed with a grievance. As the Board held at paragraph 42 of Judd:
When a union decides not to proceed with a grievance because of relevant workplace considerations — for instance, its interpretation of the collective agreement, the effect on other employees, or because in its assessment the grievance does not have sufficient merit — it is doing its job of representing the employees. The particular employee whose grievance was dropped may feel the union is not “representing” him or her. But deciding not to proceed with a grievance based on these kinds of factors is an essential part of the union’s job of representing the employees as a whole. When a union acts based on considerations that are relevant to the workplace, or to its job of representing employees, it is free to decide what is the best course of action and such a decision will not amount to a violation of Section 12. (emphasis in original)
40 Section 12 is not an avenue to appeal a union’s decision on its merits. Rather, the Board’s role is to ensure that a union exercises its judgment and acts on proper considerations when representing its members: Judd, at para. 44. Provided it does so, a union will not breach Section 12 simply because it comes to the same conclusion as the employer about the merits of a grievance: Judd, at para. 52. As long as the union did not act arbitrarily, discriminatorily or in bad faith in doing so, the Board has no jurisdiction to overturn or change the union’s decision: Judd, at para. 44.
41 The Board explained the concepts of arbitrary, discriminatory and bad faith representation in Judd. Representation in bad faith will typically involve either representation with an improper purpose or representation with an intention to deceive the employee: Judd, at para. 49. However, the Board only has authority to intervene where the union’s dishonesty affects the quality of the union representation: Judd, at para. 53. Discriminatory representation includes both the types of discrimination prohibited by the Human Rights Code, R.S.B.C. 1996, c. 210 and discrimination on the basis of personal favouritism: Judd, at para. 56. Arbitrariness encompasses three requirements. A union must: (i) ensure it is aware of the relevant information; (ii) make a reasoned decision; and (iii) not carry out representation with blatant or reckless disregard: Judd, at para. 61. In the present case, the Complainant says the Union engaged in all three of the behaviours prohibited by Section 12 in representation of the Complainant in both the Initial Grievance and the LCA Grievance.
42 The Complainant says Jackson’s failure to properly represent him was motivated by Jackson’s personal friendship with both Miller and Omeria. The Complainant’s evidence in this regard was that both Miller and Omeria had the Complainant’s cell phone number and were entitled to call him at any time, whereas the Complainant was not. Even if I accept the Complainant’s evidence in that regard, I am not satisfied that it amounts to a friendship, let alone one that unduly influenced Jackson’s decision-making. I am not satisfied the Complainant has established, on the evidence, that Jackson’s decision-making was tainted by personal favouritism.
43 Similarly, I am not persuaded that Jackson was dishonest with the Complainant during the grievance processes. As the Board held in Judd, the union’s deception must go to the quality of the representation. For the most part, the Complainant’s allegations of dishonesty are with respect to the evidence Jackson gave before the Board and were offered as a challenge to Jackson’s credibility. I find the Complainant has not established, on the evidence, that Jackson was dishonest with him during the Initial Grievance or the LCA Grievance in a way that affected the quality of the representation.
44 With respect to the Initial Grievance, I am satisfied on the basis of the Complainant’s evidence that he was anxious about losing income after the October 2, 2015, termination, was desperate to return to work and expressed his desperation to the Union in his October 2015 emails to Hodge, Jackson and Pratt. I am also satisfied on the basis of Miller’s testimony that the Employer was unwilling to reinstate the Complainant’s employment, except under the terms of the Last Chance Agreement. As the Employer argued, the Complainant was desperate and the Employer took advantage of that desperation by taking a hard position with respect to his reinstatement. In the circumstances, I find that, regardless of whether the Complainant agreed with the terms of the Last Chance Agreement, he was willing to sign it when it became clear the Employer would not agree to reinstate him otherwise. Moreover, the Complainant did not challenge the appropriateness of the Last Chance Agreement until six months after he signed it, when he was terminated for violating its terms. I find on the evidence that the Complainant accepted the terms of the Last Chance Agreement as a resolve to the Initial Grievance. The Complainant has not established a breach of Section 12 in the circumstances.
45 With respect to the LCA Grievance, there is a disagreement on the evidence about whether the Complainant asked Miller for time off to attend the Jericho program and whether the Complainant told the Union his requests for time off had been denied. The Complainant testified he told Jackson, both on the phone after he was terminated and the following day at the meeting with Pratt, that his requests for time off were denied. Jackson testified the Complainant never told him he made any such requests or that they had been denied. I prefer the evidence of Jackson in this regard. The Complainant’s evidence that he was denied time off and that he told the Union as much is not only inconsistent with Jackson’s evidence, but is also inconsistent with the testimony of Miller and Patriquin.
46 The Complainant testified he asked Miller for time off to attend anger management and was denied, whereas Miller testified the Complainant never asked for time off. The Complainant testified that he told the GAC he requested time off for the Jericho program and those requests had been denied. Patriquin testified that the Complainant did not tell the GAC about his requests for time off had been denied and that, when asked directly, the Complainant admitted he had not asked for specific days off. Indeed, the Complainant conceded in final argument that he told the GAC he did not request specific days off work. I find on the evidence that the Complainant did not ask for specific time off work to attend the anger management program and did not tell Jackson otherwise. To the extent the Complainant’s evidence conflicts with Jackson’s, I prefer Jackson’s in this regard.
47 I am satisfied Jackson considered the relevant factors in his assessment of the merits of the LCA Grievance before deciding to withdraw it. I accept the Complainant’s evidence that he felt unable to fulfill his commitments under the Last Chance Agreement because he could not afford to do so and that he told Jackson as much on April 28, 2016. Nonetheless, the Complainant testified he understood the promise he made when he signed the Last Chance Agreement. If he was having difficulty fulfilling the terms of the Last Chance Agreement, it was incumbent on him to contact the Union for advice before the six months expired. Rather, he testified that he had no contact with the Union until after he was terminated on April 28, 2016. I find that, by the time the Union was made aware of the Complainant’s challenges complying with the Last Chance Agreement, the six-month deadline had passed. As noted above, I accept Jackson’s evidence that the Complainant never told him he had requested time off to attend the anger management program and those requests had been denied. I am further satisfied on the evidence that Jackson was aware the Complainant did not start the Jericho program until April 30, 2016, after he had already been terminated. I find that Jackson believed the Complainant violated the Last Chance Agreement without a reasonable excuse and made the decision not to pursue the LCA Grievance on that basis. I find no breach of Section 12 with respect to Jackson’s representation of the Complainant throughout the LCA Grievance.
48 With respect to the Complainant’s appeal to the GAC, I accept Patriquin’s evidence that the GAC limited its inquiry to the question of whether to pursue the LCA Grievance. For the reasons given above, the Complainant told the GAC he did not ask for time off to attend an anger management program. In the circumstances, I am satisfied that the GAC’s decision not to pursue the LCA Grievance to arbitration was motivated by appropriate considerations and was not arbitrary, discriminatory or made in bad faith.
49 The Complainant has not established that the Union breached its duty of fair representation with respect to how it handled the Initial Grievance, which resulted in the Last Chance Agreement, or the LCA Grievance. As a result, the Complainant’s application under Section 12 of the Code is dismissed.
50 For the reasons given above, the Complainant’s application is dismissed.
LABOUR RELATIONS BOARD