UFCW justified in withdrawing grievance in light of video evidence of worker’s time theft: Board

Illustration of surveillance cameras in a warehouse. Image: HR Law Canada

The United Food and Commercial Workers (UFCW) union was justified in withdrawing a grievance after a worker was caught on camera engaging in time theft twice, the Alberta Labour Relations Board has ruled.

The ruling underscores the fact that not every grievance needs to be pursued through arbitration, and employers can also skip steps in their progressive discipline policies when warranted.

The time theft

The employee was a lead hand at a warehouse in Calgary, and was terminated for time theft that was alleged to have occurred on Jan. 18 and Jan. 19, 2022. He was suspended on Jan. 20 pending investigation and fired on Jan. 25.

He was scheduled to work the evening shift on Jan. 18 and 19 from 3 p.m. to 12:05 a.m. There was no supervisor on duty.

The accusation from the employer was that he spent excessive time in the lunchroom when he should have been working, and was not honest during the subsequent investigation.

A union rep attended the Jan. 25 termination meeting, and UFCW grieved the termination on Jan. 27. Outside that process, it attempted to negotiate a lesser penalty and a return to work.

Video evidence: 5 hours of time theft

The employer had video of the alleged offence. From reviewing the video, the UFCW concluded he left the work floor around 9:17 p.m. He entered the lunchroom at 9:38 p.m. wearing street clothes, and not the usual PPE worn in the warehouse.

He remained in the lunchroom until 11:46 p.m., when he briefly left the building. He returned to the lunchroom and clocked out at 12:07 p.m.

On Jan. 19, he left the floor at 9:50 p.m. and entered the lunchroom a few minutes later. He was wearing some, but not all, of his PPE. He remained in the lunchroom until midnight, left the building briefly, and returned to punch out at 12:06 a.m.

Based on this, and the fact he had been paid for the five or so hours he didn’t work, the union concluded the employer’s allegations were true and there was little likelihood of success at arbitration.

It withdrew the grievance on May 13, 2022.

The employee’s response

The worker was given 21 days to file an internal appeal against the union’s decision, but he never did.

In the complaint to the board, the worker raised several issues. Among them, he said all the work required by his employer was completed on both Jan. 18 and Jan. 19. And he said the union did not process their grievances through all the steps listed in the collective agreement.

He also noted he was terminated without the employer going through its four-step disciplinary process.

The board’s response

The board noted that unions are not obligated to take every grievance to arbitration. Pointing to the ruling in Reid v. United Steelworkers of America Local Union No. 7226, [2000] Alta. L.R.B.R. LD-064, it said: “The union is entitled to assess the merits of the grievance, the chances of success at arbitration, the costs of the arbitration process and other factors.”

In this case, UFCW immediately filed a grievance and attempted to settle with the employer.

“After reviewing the Employer’s video recordings, the Union concluded that the factual allegations of the Employer were true,” the board said. “The Complainant had spent between 2 and 3 hours on two consecutive nights in the lunchroom during time that he was paid to work.  Even setting aside the authorized break time, the video recordings supported the Employer’s allegation of time theft. “

Whether the worker completed all the tasks required by the employer was not “relevant,” it said. The complaint is on the conduct of the union, not the merits of the grievance.

It also said employers are not bound to go through every step in progressive discipline.

“The well understood concept of progressive discipline is that an Employer may impose discipline at any level in the disciplinary scale based on the relevant circumstances of both the offence and the offender,” it said.

The worker may not have been happy with the union’s conclusions and decision, but that’s not the standard, it said. The complaint was dismissed,

For more information, see Gebreusseus v United Food and Commercial Workers Canada Union, Local No. 401, 2023 CanLII 2728 (AB LRB)

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