It is tempting to think of employment in binary relationships – between employer and employee; between management and the union, and between the union and its membership. In truth, a unionized workplace has a tripartite structure where each party has obligations and rights with respect to the other two:
The three-way nature of this relationship was highlighted in a series of decisions of the Alberta Labour Relations Board (the “ALRB”) released in early August.1 In each case, a terminated employee complained that their union had breached the duty of fair representation set out under section 153 of the Alberta Labour Relations Code2 (the “Code”) by failing to grieve the dismissals or abandoning already filed grievances.
Section 153(1) of the Code reads as follows:
No trade union or person acting on behalf of a trade union shall deny an employee or former employee who is or was in the bargaining union the right to be fairly represented by the trade union with respect to the employee’s or former employee’s rights under the collective agreement.
In each case, the ALRB dismissed the claims.
What the duty of fair representation requires
Each of the decisions turned on the principle that the union’s duty to fairly represent its members does not mean that every potential grievance must be brought to arbitration. Even if the union’s decision not to grieve is “wrong”, the ALRB will not interfere so long as the decision was approached fairly and reasonably. A fair and reasonable approach includes giving the member a fair opportunity to present his or her case. It does not extend to taking direction or instruction from the member about the conduct of the grievance.
In one decision, an 11-year employee at a food processing facility was terminated after failing to follow a safety procedure designed to protect workers while equipment was being cleaned. The first incident occurred in early January 2016. The employee was given a one-day suspension and re-training. Less than a month later, a second incident resulted in the employee’s immediate dismissal. That dismissal meeting included the employee’s shop steward. Although a grievance was filed (in order to protect the timeline for grieving under the subject CBA), it was withdrawn after the union considered the evidence, employer policy, past discipline for similar matters, and a legal opinion it had received on the grievance. The ALRB said the union’s decision was reasonable and fair, confirming that a union has “significant discretion in how they deal with a griever’s concerns”. So long as the decision is not “arbitrary, capricious, discriminatory or wrongful”, the Board is not likely to interfere.
Another decision involved a journeyman scaffolder working for a unionized contractor at an oil sands facility on a “fly in/fly out” basis. After engaging in aggressive and abusive behaviour towards camp facility staff, he was permanently banned from the site and dismissed. The union filed a grievance and was able, after several months, to negotiate an interim resolution with the employer and site owner to have the site ban lifted. Within two weeks, the same individual, now working on site for another contractor, became involved in another dispute with camp staff. He was again dismissed and banned from the site. The union abandoned the grievance over the earlier incident, determining the new ban made the grievance unwinnable. The ALRB’s decision found that, in the circumstances, there was no indication that the union acted capriciously in withdrawing the grievance and the decision was made in good faith.
A separate decision concerned an electrician working on a construction site who had a number of “interpersonal disputes” with various individuals on the project site, including management. In the words of the ALRB, the “Complainant was unhappy with a variety of aspects of the worksite and the conditions of work and voiced his concerns”. The employer construction company terminated the employee for “threatening other Craft and Colleagues”. A union representative was present for the termination meeting. After reviewing written statements from the employer, work site owner and several of the people who had interactions with the electrician, the union determined a grievance would not succeed and advised none would be brought. Again, the ALRB found the union thoroughly investigated the matter and gave thoughtful consideration (including seeking out and receiving information from the employer which supported the termination) to the prospects of success. The ALRB supported the union’s decision, confirming “the Board’s task is not to second-guess that decision if a fair and proper investigation has been conducted.”
The ALRB also considered the case of a construction site employee who was dismissed after crossing a “red tape” safety barrier in order to access a washroom. The employee argued that the employer had blocked off all other exit points, leaving him with no other egress. His union commenced an investigation of his dismissal, including seeking information from the employer. The employer’s statements indicated that although other access points had been blocked for a period, all had been cleared and declared safe for passage before the incident. The union declined to grieve since it was apparent the employee had not made a diligent effort to find an alternate route. In reviewing the union’s decision, the ALRB stated that the Board will uphold a union’s decision not to grieve where the union:
- investigated the grievance and obtained full details of the case, including the employer’s side of the story;
- put its mind to the merits of the claim; and
- made a reasoned judgement about the disposition of the grievance.
A complainant’s disagreement with a factual determination made by the union, in this case that the employee had other exit routes available to him, is not sufficient to find the union acted unfairly.
How employers can best engage with unions in the dismissal process
The common thread running through each of these cases is that employers were responsive to the requirements of the governing CBA, responsive to union requests for information and involved the union early on in the dismissal process wherever possible. Full information will assist the union in making a fair and reasonable assessment of the likelihood that a grievance will or will not succeed. If union representatives believe a grievance is unlikely to succeed, the union is unlikely to bring (or carry on with) a grievance. More to the point, it is in the employer’s interest to ensure the employee’s union understands the reasons for a disciplinary decision involving its membership, as this will help the employer avoid potentially costly grievance proceedings.
- Complainant v Union of Calgary Co-operative Employees, 2017 CanLII 50275 (August 3, 2017)
- Abdullah v Miscellaneous and Employees, Teamsters Local Union No. 987 of Alberta and Wholesome Harvest Baking, 2017 CanLII 50397 (August 4, 2017).
- Complainant v United Brotherhood of Carpenters and Joiners of America, Local Union No. 1325, 2017 CanLII 51586 (August 9, 2017).
- Romano v Local Union 424, International Brotherhood of Electrical Workers, 2017 CanLII 51875 (August 10, 2017).
- Complainant v United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 496, 2017 CanLII 52286 (August 11, 2017).
- Zawalski v Canadian Union of Public Employees, 2017 CanLII 52409 (August 14, 2017).
- Complainant v Alberta Union of Provincial Employees, 2017 CanLII 52552 (August 14, 2017).
- Primeau v United Brotherhood of Carpenters and Joiners of America, Local Union No. 1325, 2017 CanLII 52996 (August 15, 2017).
- Hersi v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers), Local 1-207, 2017 CanLII 52997 (August 15, 2017).