An Alberta construction worker, let go after throwing a ladder in the wake of a verbal confrontation, has lost his duty of fair representation claim after he alleged his union didn’t properly advocate for him post-termination when it refused to file a grievance.
The incident occurred on Feb. 26, 2020, when JC, a carpenter working on the South West Calgary Ring Road project, refused to work in an area with silica dust due to safety concerns, according to the Alberta Labour Relation Board’s findings.
A co-worker insulted him for his work refusal, leading to a verbal altercation. JC went to work in another area, taking a ladder with him, and the foreman watched him throw the company property.
JC said he realized he needed the ladder on the other side of the fence and, since it was heavy, chose to toss it over the fence and walk around. But the foreman believed the incident was related to the verbal altercation over the work refusal.
Worker told to ‘cool off’
The aftermath of the incident became increasingly complex. The foreman suggested that JC take a break and “cool off,” which he interpreted as being told to go home. Feeling that he had no other option, JC took a few days of sick leave and informed the union’s business agent, DL, about the events that transpired.
Things took a more serious turn when DL received a call from an employer superintendent, CF, who indicated that the employer might terminate JC for the ladder-throwing incident. DL also learned that four of JC’s co-workers expressed a reluctance to work with him.
Offer to transfer
In an effort to prevent termination, the union proposed transferring JC to work on another bridge to address the interpersonal issues. The employer agreed to this option. However, JC was dissatisfied with the outcome, as he felt it reflected negatively on his reputation. This dissatisfaction ultimately led him to call in sick for Feb. 27 and 28, further complicating communication between him and the union.
As the situation unfolded, the union began investigating the termination and engaging in discussions with the employer. Despite initial indications that JC was terminated for job abandonment, it became evident that the employer was basing the termination on the ladder-throwing incident. The employer argued that behaviour violated its policies on harassment, discrimination, and violence.
It’s also worth noting JC had only been on the job for six months, so long service wouldn’t be a mitigating factor in this case.
Union weighed strengths, weaknesses
DL and the union’s representatives evaluated the strengths and weaknesses of potential arbitration cases, and considered the risk of reverting JC’s record of termination from a “layoff” to “dismissal for cause.” After careful consideration, the union ultimately decided not to file a grievance against the employer.
The board’s ruling focused on the union’s conduct rather than the merits of the grievance itself. It determined that the union’s decision was not arbitrary or seriously negligent, leading to the summary dismissal of the complaint.
“Unions have a wide discretion to decline to advance grievances based on such an assessment, even against the wishes of their member, so long as they did so fairly, without discrimination, arbitrariness, bad faith or serious negligence,” it said.
In this case, the union thoroughly investigated the circumstances surrounding the complaint, and discussed it at a high level — including with legal counsel. It also weighed the risks and noted it could jeopardize the benefit of having the dismissal recorded as a layoff, rather than a termination, which allowed JC to collect employment insurance (EI) benefits.
“The Board cannot say here that the assessment was arbitrary or seriously negligent: high level officials with the Union reached a conclusion on the facts before them, and that conclusion is based on relevant considerations and thus cannot be said to be arbitrary,” it said.
It dismissed the complaint.
For more information, see Christensen v United Brotherhood of Carpenters and Joiners of America, Local Union No. 1999, 2023 CanLII 62978 (AB LRB)
