Richard Thibodeau, (the “Complainant” or “Thibodeau”) and International Union of Operating Engineers, Local No. 115, (the “Union”) and Columbia Bitulithic Ltd., (the “Employer”)
Thibodeau v. IUOE, Local 115
Heard: November 20, 2012; November 21, 2012; November 26, 2012; January 28, 2013; January 29, 2013; January 30, 2013; January 31, 2013; February 01, 2013; February 25, 2013; February 26, 2013
Judgment: May 1, 2013
Docket: B93/2013
Counsel: Ib S. Petersen, for Complainant
John MacTavish, for Union
Gregory J. Heywood, Michael Kilgallin, for Employer
Leah Terai V-Chair:
- Nature of the Application
1 On April 18, 2012, Thibodeau filed a complaint under Section 12(1) of the Labour Relations Code (the “Code”) alleging the Union acted in breach of its duty of fair representation by failing to pursue a grievance with respect to his layoff from employment on September 23, 2011. Thibodeau alleges the Union represented him in an arbitrary manner by failing to carry out a proper investigation and thereby failed to make a reasoned decision in not pursuing the grievance.
2 This file was re-assigned to this panel on September 21, 2012. I have considered the evidence and the submissions of the parties, however due to its length, I have not set out all of the evidence or all of the submissions in this decision.
- Background
3 The Union is certified to represent employees of the Employer. The applicable collective agreement is the Road Building Industry Standard Agreement (Paving). It does not contain any seniority provisions. In particular, there are no provisions providing for accrual of seniority or the application of seniority in circumstances of selection for layoff. There are no provisions in the collective agreement providing employees with the right to a specific job, classification, position or the right to work at a specific plant. The road building industry is characterized as construction, as opposed to industrial. Union members are dispatched to work for employers through the Union’s hiring hall. The Union has dispatch rules which apply to its members. There are two types of orders an employer can make to the Union; the employer may request a specific individual by name (under certain circumstances) or it can place an open order whereby the Union dispatches workers from its dispatch list who have the skill and ability to fill the order.
4 Thibodeau transferred to the Union on January 7, 1996 having previously been a member of an Ontario local of the Union. The Union’s records show he booked into the Union’s hiring hall on February 27, 1996. He was dispatched to the Employer on May 30, 1996 with a start date of May 28, 1996. Thibodeau is qualified to work as an asphalt plant operator, loader operator and crusher operator.
5 Bob Higgs is a members’ representative with the Union and was assigned to employees of the Employer. Thibodeau worked for the Employer as a foreman in the bargaining unit for a period of approximately ten years ending in June or July 2010. He worked most of that time at the Mitchell Island location of the Employer. After July 2010, the Employer assigned him to its Abbotsford plant and night shifts at Port Kells.
6 Thibodeau testified after he stepped down from the foreman’s position in 2010 he began to receive close call notifications from the plant foreman who is a member of the bargaining unit. Thibodeau testified he ignored the first ten close calls, however it got progressively worse every day while at Port Kells. Thibodeau did not ask the Union to file any grievance with respect to his concerns about the close call notifications. A close call is not a disciplinary warning.
7 At the beginning of September 2011, Thibodeau spoke with the plant manager, Reynold Amey, about what Thibodeau perceived as bullying and harassment by the plant foreman. A meeting with Amey was set up for September 9, 2011 at the White Spot. Approximately two days before the meeting, Thibodeau was told by Amey that Dennis Recksiedler, superintendant, would also be there.
8 Thibodeau’s understanding was the September 9, 2011 meeting was set up so that he could bring his concerns with respect to bullying and harassment to Amey’s attention. Thibodeau testified the discussion inside the White Spot dealt with matters other than his concerns. Once outside, Thibodeau told Amey he was being harassed by the plant foreman, there were ongoing close calls and everything he did was wrong. Thibodeau testified he told Amey if Amey did not want to deal with the plant foreman, Thibodeau would go to human resources. Thibodeau testified Amey responded by saying “it won’t be here”. Thibodeau understood that to be a threat to his job. Recksiedler was not present during this conversation. Shortly after Thibodeau left the White Spot, he called Amey on his cell phone to ask about Amey’s comment that if Thibodeau went to human resources “it won’t be here”. Thibodeau testified that Amey responded he did not say that. Thibodeau then left messages with human resources. At some point Amey arranged a meeting with human resources that was scheduled for September 16, 2011.
9 On the morning of September 16, 2011, Thibodeau advised Higgs he was going to a meeting with the Employer. Higgs advised against it. Thibodeau went to the Employer’s office and met with Jorn Graugaard, General Manager, Pave and Construction and Pamela Bragg, Human Resources. Thibodeau testified Graugaard said he had asked Barry Howard, a shop steward, to attend. Thibodeau testified although he intended to voice his concerns about harassment, the meeting dealt with safety concerns and concluded with the Employer directing Thibodeau to be off work for a week and to undergo a drug and alcohol test.
10 On September 19, 2011, Higgs and Thibodeau met. Thibodeau complained he was being bullied and harassed by the plant foreman. The items brought forward were close call forms from June or July 2010, a first aid record from July 2010, a written warning issued July 26, 2010, being held accountable for fuel going missing and being sent for a drug test. Thibodeau also raised an allegation of missing aggregate. He claimed he was the third person to be singled out for abuse. These matters had not been brought to the attention of the Union at the time they occurred. Thibodeau had not grieved the written warning of July 26, 2010. He also informed Higgs of his meeting with Amey on September 9, 2011. Thibodeau did not ask the Union to file a grievance. He believed Higgs was going to look into his allegations of harassment.
11 On September 20 or 21, 2011, Thibodeau discovered he had inadvertently recorded the September 9 meeting on his cell phone. When he found the recording, Thibodeau contacted Higgs and a meeting was scheduled for September 22, 2011.
12 On September 22, 2011, Thibodeau met with Higgs and Thibodeau reiterated his earlier assertions and provided additional examples of bullying and harassment. He alleged other workers had been displaced or let go under the plant foreman and now the plant foreman was trying to force him out. All plant operators had fuel cards but his had been taken away. His coveralls were cancelled. He had been removed from the foreman’s position in 2010. He was transferred to Abbotsford and was told he would be returning to Mitchell Island. With respect to the written warning issued in July 2010, Thibodeau said he had not been trained. He said he missed three shifts in August due to the plant foreman. He said in or around June 2010, fuel was not delivered and he had been blamed. With respect to missing aggregate, Thibodeau claimed the plant foreman had taken it for use in the production plant without authorization and without advising the foreman from the sales side.
13 Thibodeau also provided the recording of the meeting on September 9, 2011. Higgs listened to the recording. Higgs testified it was of poor quality and he could make out very little of the 20 minutes of recording. Higgs testified the part that stood out the most was three to five minutes before the end of the recording where the Complainant sounded very upset and angry. Thibodeau told Higgs that Amey said if he went to human resources he would not be working at the Employer. Higgs did not hear Amey making that statement in the recording. Higgs could not ascertain what was being said on the recording. Thibodeau advised Higgs the other people on the recording were not aware of it. He did not tell Higgs the recording had been made inadvertently.
14 On September 23, 2011, Thibodeau was laid off from his employment with the Employer. He asked Higgs to investigate it. Higgs said he would.
15 On September 26, 2011, the Complainant sent a letter to Higgs. The Complainant sent it again to Higgs on September 29, 2011. In the letter he stated it was his understanding the Union was conducting a harassment and bullying investigation. He also stated since bringing his complaints to human resources on September 16, 2011, he had been improperly laid off. He stated the Employer had outstanding asphalt paving contracts and in the following months there would be the longest hours available including weekends and overtime. He asserted he is being improperly disciplined resulting from the complaints he brought to the attention of human resources on September 16, 2011. He asked the Union to file a bullying and harassment complaint and improper layoff grievance.
16 On September 26, 2011, Thibodeau attended the Union hall and he was booked in for dispatch. Higgs advised him to contact paving companies to say he was available. Jim Flynn is a dispatcher for the Union and works from the Union’s Burnaby office. On September 26, 2011, Higgs introduced Thibodeau and told Flynn to book him in because he had been laid off from the Employer and there was a possibility of a grievance going forward. Flynn was told no plant operator was to be dispatched to the Employer without clearing it through Higgs. Since that date, no plant operator has been dispatched to the Employer.
17 On October 4, 2011, the Complainant met Higgs and a grievance was signed claiming wrongful dismissal of Thibodeau and seeking reinstatement.
18 Although there was no grievance with respect to the allegations of bullying and harassment, Higgs considered the claims raised by the Complainant. He considered that the close call forms were not disciplinary in nature and did not have a name or date on the form. Thibodeau asserted two of the close call forms were issued by the plant foreman and one was written such that it identified him. In contrast, the third form concerned another worker and did not contain a description by which the worker could be identified. Thibodeau did not deny the conduct described in the close call forms. Thibodeau advised the close calls forms were written in June or July, 2010. In Higgs’ view, the conduct described on the forms consisted of matters that would warrant a close call notification. On the form provided to Higgs, placing the wrong aggregate in the wrong bin would warrant a close call.
19 With respect to the first aid report, Higgs testified when he looked at the form he had a lot more questions than answers because from the description of events it appeared the report had not been written the day the incident occurred. In Higgs’ view, the first aid report did not support the Complainant’s allegation of bullying and harassment because it was a standard report filled out at work, the incident occurred in 2010 and it was not disciplinary in any way.
20 Higgs reviewed the written warning. The warning was issued in 2010 and was not grieved by the Complainant at the time it was issued. From the description contained in the written warning, Higgs was surprised the conduct had resulted in just a written warning. The written warning was signed by Amey. The Complainant asserted that the written warning had really been issued by the plant foreman.
21 The Complainant also advised Higgs that in or about March 2011, the plant foreman starting placing the Complainant on night shift or assigning him less desirable work although junior employees were available. Higgs considered this claim. He testified in this industry, there are no desirable jobs and the Employer will often use experienced workers on night shifts because of the lack of visibility and dangers working at night. Higgs testified the Employer assigns shifts and it was not uncommon for a worker to be put in multiple positions. Further, Higgs testified shifts are not assigned in accordance with desirability or seniority and there is no seniority under the collective agreement. Higgs made inquiries of the Employer as to the Complainant’s work assignments preceding the layoff. According to the records supplied by the Employer, the Complainant was assigned to locations other than Mitchell Island for much of the time during the course of the year.
22 The Complainant also asserted the plant foreman had laid off a number of senior employees. Higgs looked at the Union’s records for the employees identified by the Complainant and they showed they were still employed with the Employer. Higgs did not find any connection between the individuals named by the Complainant and the layoff of the Complainant.
23 The Complainant also raised concerns with respect to aggregate being stolen or missing. The Complainant asserted it was his knowledge of the theft that resulted in his layoff. Higgs made enquires of the Employer with respect to the assertion that aggregate had been stolen or was missing. The Employer expressed no concerns about missing aggregate and made no assertion that the Complainant was responsible for any missing aggregate. The Employer assured Higgs there was no missing aggregate.
24 The Complainant asserted that he had worked for the Employer for 28 years. He provided Higgs with a copy of a letter written by the Employer dated December 23, 2009 addressed to an individual at Scotia Bank. The letter stated Thibodeau was gainfully employed by the Employer as an asphalt plant foreman. It identified his current rate of pay and stated he had been employed by the Employer for 26 years. The Complainant advised Higgs that he had rarely been laid off and only when others were also laid off such as during a shut down at Christmastime and then for only brief periods of time.
25 Higgs looked into the Complainant’s work history and determined he had transferred to the local and been a member of the local since 1996. Before that, he was in Ontario with another local. The Union’s records showed the Complainant was dispatched in 1996. In Higgs’ view because the industry is contract driven and there is no seniority, length of service rarely means anything. It was not uncommon for individuals to work for a multitude of employers. The Complainant provided Higgs with one record of employment which was for the year 2011 indicating his first day worked as being November 29, 2010 and the last day being September 23, 2011.
26 The Complainant also advised Higgs that he had been assigned to Port Kells for a few shifts and then to Abbotsford and at the time of his layoff he was working at Mitchell Island. Higgs looked into the Complainant’s assignments and described the assignments to Port Kells and Abbotsford as frequent. Higgs also looked at where the Complainant was assigned as of the time of his layoff.
27 The Complainant advised Higgs that in other instances of layoff he had never had his credit card, coveralls, cell phone, access to company computers and security codes cancelled. He also advised Higgs he had never been asked to hand in his work keys. Higgs could not speak to what had occurred with previous layoffs of the Complainant. Higgs did not view these actions of the Employer as being uncommon. Higgs questioned the Employer and was provided with reasons including the Employer was changing its coverall provider, it does change credit cards, and that the cell phone had not been returned.
28 The Complainant also advised Higgs that in other instances of layoff he had never been asked not to speak to fellow employees. Higgs made enquiries with the Employer. The Employer denied saying that and they had no control over whether the Complainant spoke with co-workers off the Employer’s site.
29 The Complainant advised Higgs the Employer had outstanding asphalt contracts and weekend and overtime hours were expected in the months after his layoff. He also advised Higgs junior employees continued to work at the Employer. In Higgs’ experience, having contracts and weekend and overtime hours in September is the norm. Higgs monitored the hours remitted by the Employer and monitored the number of employees working. In this case, Higgs saw a steady decline rather than an increase in hours or number of employees.
30 With respect to the Complainant’s assertion that junior employees continued to work, Higgs considered the collective agreement. Under the collective agreement there is no seniority and employees who were working for the Employer would be those with the skill and ability no matter how long they had been working for the Employer.
31 Between September 26, 2011 and October 4, 2011, Higgs and the Complainant spoke almost daily. Higgs testified the Complainant would ask about the progress of his grievance and would get angry and loud. During this period, Higgs was trying to contact the Complainant’s co-workers, was checking the Union’s records and checking into the reduction in workforce. On or about October 4, 2011, Higgs spoke with the Complainant expressing his view that because there was no seniority in the collective agreement, on the surface it would be extremely hard to prove that a layoff was due to disciplinary reasons. Higgs testified he did not want to get the Complainant’s hopes up. The Complainant sent an email to Higgs dated October 6, 2011 disagreeing with Higgs’ view. Higgs responded stating he was under the impression he and the Complainant would be meeting. The Complainant responded he would be able to meet at Higgs’ earliest convenience.
32 After October 6, 2011, Higgs received a copy of the record of employment issued to the Complainant which indicated the layoff was due to shortage of work/end of contract. Higgs continued to monitor the workforce levels with the Employer. Between October 6, 2011 and October 18, 2011, Higgs asked the Employer for its file on the Complainant and statements from the Complainant’s immediate supervisors. On October 11, 2011, the Employer provided its response in an email which included a summary prepared by Amey, the plant manager. Higgs reviewed the email and forwarded it to the Complainant asking him to review the summary.
33 By email dated October 17, 2011 to Higgs, the Complainant raised several points in support of his view that he had been improperly laid off. He states after he told Amey he would be going to human resources a number of actions were taken against him that had never happened in any of his few but previous layoffs. He states he has never been laid off if the depot remained open. He has never had his Employer credit card cancelled, coveralls cancelled, work cell phone cancelled, access to Employer computers cancelled, security codes cancelled, been asked to stay off Employer property, or asked to hand in work keys. The Complainant noted both Port Kells and Mitchell Island had all new locks and keys installed immediately after his meeting of September 16, 2011 with human resources. He states he has never been asked not to speak to his co-workers. In addition, the Complainant attached a portion of the recording of his meeting with Amey on September 9, 2011 “in which he threatens to fire me if I went to Human Resources”. The Complainant stated all of the actions listed add up to being fired. He also indicated he was working on a response to Amey’s summary contained in the email of October 11, 2011.
34 With respect to the Complainant’s assertion that Amey’s threat was on the recording, Higgs listened to the recording several times and could not hear what was said. By this time Higgs had been provided with a very short part of the original 20 minute recording which now included the Complainant’s voice recorded over it pointing to the phrase he asserted was a threat.
35 Higgs spoke with Amey about the meeting of September 9, 2011. Amey’s description of the meeting confirmed what Higgs heard on the original longer version of the recording. Although the original recording had been difficult to hear, Amey’s description confirmed that initially there was quiet discussion then the Complainant becoming angry with his voice raised, starting to swear and getting very loud. Higgs put to Amey that he had made a threat to Thibodeau if he went to human resources he would be fired. Amey denied it. Amey told Higgs he had offered to set up the meeting with human resources for the Complainant. Higgs determined he could not dispute what Amey told him because Higgs could not hear what Amey said on the recording. Higgs then decided to approach Recksiedler. Recksiedler confirmed to Higgs that Amey had offered to set up a meeting between human resources and the Complainant. After listening to the partial recording and having spoken with Thibodeau, Amey and Recksiedler, Higgs decided the recording would not be of use because one could not hear what was said. Higgs asked the Complainant to provide the full recording and he would attempt to make it clear. Higgs never received a full copy of the recording. The Complainant says when he tried to isolate the phrase “it won’t be here” the rest of the recording was inadvertently deleted.
36 On October 18, 2011, Higgs and Howard for the Union met with Graugaard and Bragg for the Employer to discuss the Complainant’s layoff at Step 2 of the grievance procedure. The Union questioned the Employer’s reason for layoff and what could be done to get the Complainant back to work right away. Higgs questioned the Employer that the layoff was as a result of the meeting Thibodeau had with Amey and Recksiedler on September 9, 2011 and pointed out the timing was suspicious. He questioned why Thibodeau was selected for layoff in light of his 28 years rather than junior workers. The Employer’s response was there was no seniority under the collective agreement, it needed to downsize and decided to go in a different direction, and Thibodeau and two others were laid off. Higgs testified the Employer stated the layoff was due to shortage of work, the contract had run out and the Complainant was no longer needed at the Abbotsford plant. The Employer explained it found extra shifts for the Complainant and used him on maintenance until that ran out as well. The Employer advised Higgs that its business was contract-based and the Complainant’s return to work would depend on contracts awarded to the Employer. The Employer indicated the Complainant was eligible to return to work and was only laid off because there was a shortage of work. The Employer advised Higgs they liked the Complainant’s operating skills and thought he was a good worker. Higgs questioned whether personality played a role in the layoff. The Employer advised if that were the case, the Complainant would have been let go earlier and did not view personality clashes as outweighing the Complainant’s abilities as a good worker.
37 In the meantime, Higgs was encountering difficulty contacting or obtaining cooperation from the Complainant’s co-workers. Higgs asked Howard to assist as he was more familiar with the employees. Howard later reported to Higgs he was not having better luck with respect to the co-workers.
38 By email dated October 19, 2011, the Complainant provided Higgs with his response to the Employer’s summary. Higgs reviewed the Complainant’s response which set out his areas of disagreement with the summary.
39 On or around October 20, 2011, Higgs spoke with the plant foreman about what he knew about the Complainant. On or around October 20 and 21, 2011, Higgs spoke with four co-workers of the Complainant on an individual basis. Each individual asked Higgs not to involve them, not to bring up their names or the fact that Higgs had spoken with them.
40 By email dated October 20, 2011, the Complainant asked Higgs whether he had any update on his improper layoff grievance of October 4, 2011. Higgs responded by email of October 20, 2011 in which he advised he had a meeting scheduled with the Employer. Higgs advised the Complainant he heard a rumor the Complainant was working for Imperial Paving and asked the Complainant whether that was correct. On October 21, 2011, the Complainant advised he was at Imperial Paving for an interview and was present when the General Manager, Tim Stewart, telephoned the Employer. The Complainant alleged Amey told Stewart the Complainant was laid off because he could not get along with his co-workers. Higgs questioned Amey about his conversation with Stewart. Amey described the conversation and also pointed out the Complainant had been hired by Imperial Paving. Higgs was not aware the Complainant had been hired. Subsequently, Higgs spoke with Stewart at Imperial Paving about his conversation with Amey. The description of the conversation provided by Stewart was the same as that provided by Amey. Higgs concluded the Employer’s statements to Stewart were not detrimental to the Complainant.
41 On October 24, 2011, Higgs met with the Employer and reviewed records of the Complainant’s work assignments from January 1, 2011 to September 30, 2011. Higgs again questioned the Employer about the meeting at the White Spot between Thibodeau, Amey and Recksiedler. Amey provided Higgs with a description of what happened. Higgs asked about re-employment for Thibodeau and pointed out the timeline leading up to the layoff was suspect (the timeline being the meeting of September 9, 2011, Thibodeau meeting with human resources on September 16, 2011, and the layoff on September 23, 2011). Higgs questioned the Employer as to whether Thibodeau’s meeting with human resources had a bearing on the decision to lay him off. The Employer provided its responses to Higgs’ questions. After the meeting Higgs concluded the Employer had not given any indication the layoff had been done out of malice toward the Complainant and he was unable to make an inroad with respect to the Complainant’s assertions.
42 On October 25, 2011, Thibodeau wrote to Higgs stating he wanted to move forward with his grievance. He also stated he had received no correspondence from Higgs on his bullying, harassment and theft grievance. On October 26, 2011, Higgs responded by email and stated he would try to explain in print what they had discussed in their telephone conversation on October 24, 2011. Higgs expressed his view that the complaint of bullying and harassment based on the recorded conversation between the Complainant and Amey was inadmissible. He stated Amey denied bullying or harassment leaving them with a “he said/he said” argument. Higgs stated the matter of theft was not of concern and was not a grievance. Higgs explained he was told by the Employer the Complainant was working at the Abbotsford plant before his layoff, the site was now closed and there were no longer any employees on that site. Higgs pointed out that there was no seniority attached to the collective agreement and in light of this it was counter-productive to continue with the grievance unless more compelling evidence came to light.
43 With respect to his comment about the inadmissibility of the recording, Higgs testified he consulted with his colleagues about the recording. The information he received from them was the recording could not be used, it was considered unethical and was not condoned by the Union.
44 By the time of his email of October 26, 2011, Higgs had two meetings with the Employer, had spoken with co-workers of the Complainant, spoken with the shop steward, had exhausted avenues and was “running out of things to find out”. Higgs testified he had doubts whether there was some “personality” involved in the Employer’s decision but he could not find evidence of it. At this point Higgs was of the view that given what he had found out it was counter-productive to continue.
45 As of October 26, 2011, Higgs continued to monitor orders placed by the Employer through the Union’s dispatch hall. Higgs testified if the Employer had ordered a plant operator, the Union would have told the Employer Thibodeau would be dispatched to them. In addition, if the Employer ordered a plant operator it was Higgs’ view that it would prove that the Complainant’s layoff was not due to shortage of work.
46 By email dated October 28, 2011, Higgs provided Thibodeau with notes he had typed of his meeting with the Employer on October 24, 2011. Higgs expressed that in view of the collective agreement, it could not be proven “beyond a reasonable doubt” the Complainant was laid off for disciplinary reasons. Higgs states what the Union could and had done was block the Employer from drawing any members from the dispatch list until the Complainant was recalled. Higgs testified he was aware the phrase “beyond a reasonable doubt” referred to criminal matters however his use of the phrase was his attempt to explain there was not enough evidence to go forward in terms which would be more easily understood. Higgs explained in testimony his reference to “any members” from the dispatch list was subject to skill and ability and as the Complainant was a plant operator, he would be placed on the list as such.
47 By email dated October 31, 2011, Thibodeau wrote to Higgs disagreeing with Higgs’ view that it was a matter of “he said/I said”. He reiterated that Amey told him if he went forward to human resources, “it won’t be here” and he was no longer working for the Employer. He reiterated he had Amey’s threat recorded. Thibodeau referred to the allegation of theft and stated it was his knowledge of the stolen aggregate and his concern of the Employer’s property which Amey knew about that resulted in his layoff, not shortage of work. He further stated the actions taken by the Employer demonstrated he was fired, not laid off and referred to his email of October 17, 2011. He asked how he could appeal Higgs’ decision, who Higgs reported to and their contact information and stated he was still in contact with the Labour Relations Board and if the Union did not go forward he would be seeking further legal counsel.
48 By email dated November 17, 2011, Thibodeau sought a response to his email of October 31, 2011. He stated he was going through his file, diaries and Amey’s summary as well as the October 24, 2011 meeting minutes Higgs sent to him. The copies of the email were also sent to Brian Cochrane, the Business Manager for the Union and Lionel Railton, then President of the Union.
49 By letter dated November 18, 2011 Higgs wrote to the Complainant advising:
After a thorough investigation into the circumstances surrounding your lay off, it was determined that currently there is insufficient evidence to continue. In the event the Union does not receive any further information by close of business on December 2, 2011 the Union will withdraw the grievance. If you wish to discuss it in person please come by my office and I will be happy to answer any questions concerning this matter.
50 On November 28, 2011 the Complainant sent an email to Cochrane requesting an extension on the deadline of December 2, 2011. By email dated November 28, 2011, Cochrane responded stating he had not seen the correspondence referred to by the Complainant but understood that Higgs had investigated the grievance and determined the Union could not go any further without additional information.
51 On April 18, 2012 Thibodeau filed this complaint with the Board alleging the Union acted in breach of Section 12 of the Code. With his complaint, Thibodeau attached emails prepared by him dated November 24, 2011 and February 17, 2012. Higgs did not receive these emails.
III. Positions of the Parties
- The Complainant
52 The Complainant says the Union represented him in an arbitrary manner by failing to properly investigate his grievance that his layoff was a disciplinary termination and thereby failed to make a reasoned decision about the grievance and represented him in a manner demonstrating blatant and reckless disregard for his grievance.
53 The Complainant says the reasons provided by the Union for not proceeding with the grievance through to arbitration were that Thibodeau was working at the Abbotsford plant which had been shut down and the collective agreement did not provide for seniority. The Complainant says the Union simply accepted the Employer’s position and it failed to conduct any independent investigation of the merits of the grievance. The Complainant says the facts of the case strongly suggest that he was terminated for disciplinary reasons and that there was merit to the allegations of harassment and bullying. The Complainant says the Union failed to investigate the merits and veracity of the Complainant’s allegations and was therefore unable to make a reasoned assessment of the grievance or properly address the Employer’s arguments in the October 24, 2011 grievance meeting.
54 The Complainant acknowledges that the collective agreement does not provide for seniority. Article 10.01 of the collective agreement provides for dispatch by the Union from the hiring hall operated by the Union. An employer may name request a former employee under certain circumstances. The Complainant notes whether or not the collective agreement contains seniority with respect to layoff and rehiring, it does address unjust dismissal and discipline in Article 14.02 and, in any event, such a provision would be mandated by Section 84 of the Code.
55 The Complainant says the Union also made a legal error which supports the assertion that the Union failed to make a reasoned decision with respect to the grievance. The Complainant says the Union was of the view that it could not prove “beyond a reasonable doubt [Thibodeau was] laid off for disciplinary reasons” rather than the civil standard of the balance of probabilities. The Complainant says it is trite law that in collective agreement arbitrations the employer has the burden to prove just cause on the balance of probabilities.
56 The Complainant says the Union’s lack of investigation of the merits of his harassment allegations and his allegation he was terminated for cause rather than laid off, the Union’s blind reliance on the Employer’s assertions, and the Union’s legal error as to the standard of proof all support the Complainant’s position that the Union failed to make a reasoned decision with respect to the grievance. The Complainant concludes the Union therefore carried out its representation with blatant or reckless disregard for him.
- The Union
57 The Union maintains as a preliminary matter that the complaint was not timely and ought to be dismissed. The Union says on October 26, 2011 the Complainant was advised by Higgs that the Union would not proceed with the grievance. On November 18, 2011, Higgs again told the Complainant the Union would not proceed with the grievance. On November 28, 2011, Cochrane sent an email to the Complainant confirming if the Complainant had no further information the matter would be closed. The complaint was filed April 18, 2012. The Union argues this is one week short of six months after the Complainant was told the Union would not be proceeding with the grievance. The Union says the complaint contains no explanation for the delay and that the Complainant had advised the Union on October 31, 2011 that he was in contact with the Labour Relations Board and would seek legal advice if the Union did not proceed. The Union cites several cases which it says support its position that a delay of five or six months is a significant delay and have resulted in dismissals on the basis of untimeliness.
58 The Union’s position is that it did not represent the Complainant in an arbitrary manner. It says it fully investigated the Complainant’s assertion that he was selected for layoff for disciplinary reasons. It determined that the layoff was as a result of a valid reduction in the workforce following the closure of one of the Employer’s asphalt production plants. In addition to looking at whether or not there had been a valid layoff, the Union says it followed up on the concerns raised by the Complainant with respect to his allegations that he was being bullied and harassed by the plant foreman, who is also a member of the bargaining unit.
59 The Union submits the context of this case is important. Road building is part of the construction industry and shares the characteristics which have resulted in collective agreements that contain a hiring hall provision rather than a seniority provision. In this case, the Complainant was laid off from his position with the Employer. The collective agreement contains no restriction on the selection of who will be laid off. There is no form of quasi-seniority under the collective agreement.
60 The Union says its job was made more difficult by the Complainant’s own conduct. It says despite the Complainant’s concern about incidents he perceived as harassment, he never brought them to the Union’s attention or asked that grievances be filed at the time those incidents occurred.
61 The Union says it provided reasons for its decision not to pursue the grievance. While the reasons are brief the crux of the Union’s reasons was that there was insufficient evidence to convince an arbitrator that the layoff was not a legitimate one. It submits there was a reasonable and rational connection between the considerations it took into account and its decision not to pursue the grievance. For these reasons the Union submits it did not act in an arbitrary manner when it decided not to pursue the grievance.
- The Employer
62 The Employer agrees with the Union that the Complainant has not explained his delay in bringing the complaint.
63 With respect to the merits of the complaint, the Employer submits what is critical in assessing what the Union had to consider regarding the layoff was the reality that there is no seniority clause in the collective agreement. The Employer submits the Complainant alleges a form of quasi-seniority however there is zero evidence of quasi-seniority. It submits the evidence confirmed there is no seniority under the collective agreement and the Employer is free to reduce its workforce as it sees fit. The Employer submits the Union’s evidence is unchallenged with respect to the Abbotsford plant being closed and no plant operator has been dispatched since the Complainant’s layoff. The Employer submits the Union took reasonable steps to confirm the layoff was bona fide. It submits the circumstances above constituted a massive obstacle in the success of the grievance.
64 The Employer submits the evidence from the Complainant was he had no idea what the Union did to investigate. The Employer submits the Complainant was pigeon-holed in his view as to what the result should be and ignored what steps the Union took. The Employer submits the Complainant is ultimately second guessing the Union’s decision and that is not a proper use of Section 12 of the Code.
- Analysis
65 The Complainant alleges the Union acted arbitrarily contrary to Section 12 of the Code by not pursuing a grievance concerning his layoff from employment. The Complainant’s view is that the layoff was a termination. In Judd v. C.U.P.E., Local 2000, BCLRB No. B63/2003, (2003), 91 C.L.R.B.R. (2d) 33 (B.C. L.R.B.) (”Judd”) the Board defined arbitrariness at paragraph 61:
Arbitrariness essentially encompasses three requirements. The 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.
66 The Board explained the requirement that the union must ensure it is aware of the relevant information at paragraphs 62 to 64:
The requirement that the union must “make sure it is aware of the circumstances [and] the possible merits of the grievance” is often referred to in shorthand form as “conducting an adequate investigation”. It is important to note, however, that not every case will necessarily require an “investigation”. There may be some grievances where the relevant information is already in the union’s possession.
In the more typical case, however — for example, when an employee is suspended for alleged misconduct — gathering the relevant information will require an “investigation”. An adequate investigation may include considering the sequence of events, learning the grievor’s point of view, obtaining information from potential witnesses, and offering the grievor a chance to respond. There may also be, depending on the circumstances, other ways of testing the employer’s assertions. An employee is expected to cooperate and participate with the union in the investigation.
The key is that the union must take reasonable measures to ensure it is aware of the relevant information. What is “reasonable” will depend on the particular circumstances — including the significance of the issue for the employee. (added text in original)
67 With respect to the requirement that the union must make a reasoned decision, the Board explained at paragraph 65 and 66 as follows:
Once it has the relevant information, the union must “put its mind to the case and come to a reasoned decision whether to proceed.” In other words, the union’s decision must be based on reason. A reasoned judgment is demonstrated by a reasonable and rational connection between relevant considerations and the decision made. It may include considering collective agreement language, the practice in an industry or the workplace, taking into account how similar grievances have been handled in the past, and supplying reasons for a decision. A union may weigh the credibility of the grievor and potential witnesses in reaching its decision. In cases of discipline or dismissal, a union should consider mitigating circumstances and whether the punishment fit the crime. A legal opinion is not required but, if obtained, may be considered as some evidence that the union took a reasoned view of the grievance.
Typically where a union gives reasons for its decision it will not be arbitrary. Although it is possible for a union to consider a matter and give “reasons” for rejecting a grievor’s position that are so unresponsive to the topic or so divorced from reason that they amount to arbitrariness, it is rare.
68 In describing the requirement that a union must not carry out representation with blatant or reckless disregard, the Board explained at paragraphs 68 to 70 as follows:
If the union does decide to proceed with the grievance it must do so in a non-arbitrary manner. A union which demonstrates blatant or reckless disregard for the interests of an employee in carrying out an employee’s representation, will be guilty of arbitrary conduct within the meaning of Section 12.
However, that does not mean it is a violation of Section 12 for a union to make a mistake or to handle a matter poorly. Typically, unions must handle a large volume of employee issues with the limited resources provided by members’ dues.
As well, unions are not law firms. Unions are not expected to meet the standards required of a lawyer in respect to either procedural or substantive matters. It is only when the alleged carelessness of a union reaches the level of blatant or reckless disregard for the employee’s interests that the union can be said to be misusing its exclusive bargaining agency and acting arbitrarily within the meaning of Section 12.
69 The question in this case is whether the Union made itself aware of the relevant circumstances and possible merits of the grievance regarding the Complainant’s layoff. Although no grievance was filed with respect to the Complainant’s allegations of bullying and harassment, the Union considered the claims as part of the layoff grievance.
70 On September 19, 2011, prior to his layoff, the Complainant advised Higgs that he was being bullied and harassed by the plant foreman, a member of the bargaining unit. The Complainant provided Higgs with three close call forms from June and July 2010. He provided a copy of a first aid record dated July 12, 2010. He provided a copy of a written warning that had been issued to him for an accident with the loader hitting a private car dated July 26, 2010. In addition, the Complainant referred to being the third person to be singled out for abuse. He also referred to being held accountable for missing fuel. In addition he referred to missing aggregate. He also provided the Union with a copy of a letter dated December 23, 2009 from Amey to the Complainant’s bank referring to 26 years of employment.
71 Higgs considered the close call forms provided to him. The Complainant said two of the reports related to him and the third was an example of a report issued with respect to another employee. These were examples from June or July 2010. Higgs did not consider the close call forms to be unusual. The events described in the forms would have warranted a close call. The forms were not disciplinary in nature, did not contain names of the employees involved, and did not contain the name of the person who wrote it. Higgs concluded the close call forms did not support the allegation of bullying and harassment.
72 Higgs reviewed the first aid report. It was dated July 12, 2010. There was no indication from the Complainant or the Employer that there was discipline associated with the first aid report. When Higgs reviewed it he found he had more questions than answers in that from the timeline indicated on the form it appeared it had not been written the same day. Higgs did not view the first aid report as supporting a claim of bullying and harassment because it was a standard report filled out at work and was not disciplinary in any way.
73 Higgs reviewed the written warning issued to the Complainant on July 26, 2010. From the circumstances described, Higgs was surprised that just a written warning had been issued. In Higgs’ view the written warning was not supportive of the Complainant’s claim of bullying and harassment. The incident and warning had occurred in July 2010. The Complainant had not brought it to the Union’s attention nor had he grieved it at the time.
74 With respect to the Complainant’s allegations of missing or stolen aggregate, the Complainant asserted it was his knowledge of this that resulted in his layoff/termination. Higgs made enquiries with the Employer as to whether they had any concerns about aggregate that had gone missing. The Employer did not have any concerns and assured Higgs no aggregate had gone missing.
75 With respect to the Complainant’s allegation that fuel had gone missing and he was being blamed, there were no allegations raised by the Employer that fuel had gone missing or that the Complainant was to blame.
76 With respect to being singled out, the Complainant provided the names of employees who the Complainant said were long service and alleged the plant foreman was involved in having them let go. When Higgs reviewed the Union’s records with respect to these individuals, the records did not show they had been let go.
77 The Employer laid off the Complainant from his employment on the basis of shortage of work/end of contract. A grievance was filed alleging the Complainant had been wrongfully dismissed. The Complainant asserted the Employer had outstanding asphalt contracts and weekend and overtime hours were expected in the coming months. In addition, junior employees continued to work for the Employer.
78 Higgs met with the Employer to discuss the Complainant’s layoff. The Employer advised the Complainant’s layoff was due to shortage of work, the contract had finished and the Complainant was no longer needed at its Abbotsford plant. The Employer advised it found extra shifts for the Complainant and had used him on maintenance until that work ran out. The Employer also advised that other employees had been laid off as well. The Union asked whether and when the Complainant would be recalled to work and the Employer’s response was the business was contract oriented and the Complainant’s return to work would depend on whether contracts were awarded to it.
79 Apart from meeting with the Employer, Higgs began monitoring the Employer’s list of employees and hours worked which is sent to the Union. He consulted these records on a daily basis. The hours reported continually went down. In addition, Higgs advised the Union’s dispatcher that no plant operator was to be dispatched to the Employer without clearing it through him. The Employer did not place any orders for plant operators.
80 The Complainant advised Higgs that Amey threatened him at the meeting at the White Spot on September 9, 2011 that if the Complainant went to human resources with respect to his concerns about bullying and harassment he would no longer be working for the Employer. The Complainant produced a recording on his cell phone which he said contained the threat. Higgs sat with the Complainant and listened to the recording. Higgs could not hear the threat. Subsequently the Complainant attempted to isolate the phrase he asserted was the threat. In attempting to isolate that phrase the Complainant spoke over the recording in order to point it out and the balance of the recording disappeared. The portion the Complainant isolated and retained was provided to Higgs. Higgs was unable to make out the phrase the Complainant claimed it contained. Apart from the quality of what remained of the recording, after consulting with his colleagues, Higgs was of the view the recording would not be admissible at arbitration.
81 During his meeting with the Employer, Higgs questioned Amey about the threat. Amey advised Higgs that he did not make a threat to the Complainant’s employment. In addition, Amey advised that he was the person who made arrangements for the Complainant to meet with human resources. Higgs confirmed the latter point with the other individual at the meeting, Recksiedler.
82 Higgs considered the factors the Complainant identified as indicating he had been terminated rather than laid off. The Complainant said the Employer had rarely laid him off and only when everyone else was laid off such as during a shut down at Christmastime. He said he had never been laid off if the depot remained open. He said at the time of his layoff he was working at the Mitchell Island plant. He had been assigned to Port Kells and to the temporary portable plant in Abbotsford for a brief time. He provided Higgs with a copy of a letter from the Employer to his bank stating the Complainant had worked for the Employer for 26 years. The Complainant advised he had never before had his credit card, coveralls, cell phone, access to company computers and security codes cancelled. He had not in the past been asked to hand in his work keys. The Port Kells and Mitchell Island plants had new locks and keys installed on September 16 prior to his layoff. He said in other instances of layoff he had not been asked to not speak to fellow employees.
83 Higgs considered the Complainant’s assertions. Higgs looked into the Complainant’s work history and on the basis of the Union’s records saw the Complainant had been dispatched to this Employer in B.C. since 1996. Higgs looked into the Complainant’s assignments and determined the Complainant had been assigned to Port Kells and to Abbotsford frequently rather than briefly as described by the Complainant. With respect to Employer property such as keys, cell phone, credit card and coveralls, Higgs questioned the Employer and obtained its explanation. In addition, Higgs considered in his experience it was not uncommon for an employer to ask for such items to be returned to it.
84 With respect to the Complainant’s claim there were outstanding contracts and weekend and overtime hours were expected in the coming months, Higgs considered this was normally true in September. Higgs monitored the hours remitted by the Employer as well as the numbers of employees working. What Higgs saw was a steady decline rather than an increase.
85 With respect to the Complainant’s assertion junior employees were working, Higgs took into account the collective agreement which does not provide seniority rights. Under the collective agreement the employees working would be those with the required skill and ability no matter how long they had been dispatched with the Employer. Higgs questioned the Employer about the Complainant’s assertion during the grievance meeting. The Employer maintained that the layoff was due to shortage of work and if work became available, the Complainant would be recalled.
86 Higgs met with the Employer on two occasions. Higgs asked the Employer to provide everything in its file regarding the Complainant. In response, the Employer provided a summary prepared by Amey as well as the first aid report from July 2010 and the written warning that had been issued to the Complainant on July 26, 2010. The information provided by the Employer summarized the Complainant’s performance and attitude. The Employer also advised the Union it was going in a different direction with respect to its layoff. Higgs did not view this statement as indicating the Complainant had been singled out because other workers had also been laid off at the same time.
87 In considering the Complainant’s allegations he had been bullied and harassed by the plant foreman, Higgs spoke with the plant foreman. He attempted to speak with the Complainant’s co-workers and also asked the shop steward to speak with the Complainant’s co-workers as he was more familiar with them. Higgs did speak with the co-workers, however, he was unable to obtain any information from them in support of the Complainant’s allegations.
88 Higgs also considered the collective agreement and the fact it did not contain a seniority provision and did not restrict the Employer’s selection for layoff. Higgs took the step of advising the Union’s dispatch hall that no plant operator was to be dispatched to the Employer before the Complainant.
89 By letter dated November 18, 2011, Higgs advised the Complainant that after a thorough investigation into the circumstances surrounding his layoff there was insufficient evidence to continue. He advised in the event the Union did not receive any further information by close of business on December 2, 2011 the Union would withdraw the grievance.
90 In the circumstances outlined above, I find the Union conducted a reasonable and adequate investigation as to the merits of the Complainant’s layoff grievance and his assertions of bullying and harassment. Further, I find the Union investigated the Employer’s assertion that the Complainant was laid off was due to shortage of work/end of contract. I find the Union made itself aware of the circumstances and possible merits of the grievance. As noted in Judd (at paras. 62-64) not every case will require an “investigation”. In some instances relevant information is already in the Union’s possession. Further, an adequate investigation may include considering the sequence of events, learning the grievor’s point of view, obtaining information from potential witnesses, and offering the grievor a chance to respond. Viewing the Union’s conduct as a whole, I find it conducted an adequate investigation and took reasonable measures to ensure it was aware of relevant information.
91 I do not find, as argued by the Complainant, that whether or not the recording was admissible at arbitration, the Union did not consider the recording in its assessment of the Complainant’s assertions about bullying and harassment. I find it did consider the recording. Further, even if the Union was incorrect with respect to the admissibility of the recording at arbitration, a union is not expected to meet the standards of a lawyer with respect to procedural or substantive matters. I do not accept the Complainant’s assertion the Union applied an incorrect standard of proof in making its decision not to proceed. The Union explained it was trying to express its decision in terms the Complainant would appreciate, however it was aware that the civil standard of proof applied.
92 Once it has the relevant information, the union must put its mind to the case and come to a reasoned decision whether to proceed (Judd at paras. 65 and 66). The Union took into account the absence of seniority provisions under the collective agreement and weighing the circumstances put forward by the Complainant in relation to the Employer’s reason for layoff, it decided there was insufficient evidence to support a grievance that the layoff was in fact a disciplinary termination or that the Complainant had been bullied or harassed and that there was a connection between the bullying and harassment and alleged termination. In the circumstances described above, I find the Union put its mind to the case and came to a reasoned decision not to proceed.
93 As set out in Judd, it is not the Board’s role to decide if the union was right or wrong (at para. 30). Further, Section 12 is not an avenue of appeal of the merits of the union’s decision (at para. 44). In assessing the union’s conduct the Board considers the union’s conduct as a whole, not whether it has committed isolated acts that may fit within the description of arbitrary, discriminatory or in bad faith (at para. 45). In the case at hand, considering the Union’s conduct as a whole I do not find it represented the Complainant in an arbitrary manner within the meaning of Section 12 of the Code. Accordingly, the complaint is dismissed.
Timeliness
94 The Union raises a preliminary issue that the complaint was not timely. The Union says the Complainant was advised by Higgs on October 26, 2011 the Union would not proceed with the grievance. On November 18, 2011, Higgs again told the Complainant the Union would not proceed with the grievance. On November 28, 2011, the Union’s business manager confirmed with the Complainant that if he had no further information the matter would remain closed.
95 The complaint was filed on April 18, 2012, one week short of six months after the Complainant was told the Union would not be proceeding. The Union submits the complaint contains no explanation for the delay. Further, the Complainant had been in contact with the Board throughout the period. The Complainant had advised the Union on October 31, 2012 that he was in contact with the Board and would seek legal advice if the Union did not proceed. The Union submits the Board ought to dismiss the complaint as untimely. It cites Judd (at para. 96) in support of its submission that a delay of five or six months constitutes a significant delay. It submits the Board regularly dismisses complaints where the delay is significant and where, as here, there is no explanation for the delay. The Union also cites cases where complaints have been dismissed on the basis of timeliness with delays of five or six months (Thompson v. B.C.N.U. [2003 CarswellBC 3613 (B.C. L.R.B.)], BCLRB No. B227/2003; James, Re [(May 27, 1998), Doc. B214/98 (B.C. L.R.B.)], BCLRB No. B214/98; D’Souza v. IWA-Canada, Local 1-417 [2001 CarswellBC 3485 (B.C. L.R.B.)], BCLRB No. B220/2001 (Leave for Reconsideration of BCLRB No. B130/2001 [2001 CarswellBC 3484 (B.C. L.R.B.)]); and Kaufmann v. CUPE, Local 3338 [(June 27, 2007), Doc. B131/2007 (B.C. L.R.B.)], BCLRB No. B131/2007).
96 The Complainant submits there is no specific time limit in the Code and the application of timeliness is discretionary. The Complainant argues the issue of timeliness is not applicable in the circumstances. The Complainant says it is clear the communication from the Union at all times left the question of whether the matter was concluded open. The Complainant points to the correspondence from Higgs dated November 18, 2011 in which he did not indicate the matter was closed and advised that in the event the Union did not receive further information by December 2, 2011, the grievance would be withdrawn. Further, the Complainant says the correspondence from Cochrane dated November 28, 2011 did not convey the matter was closed.
97 The Complainant says he wrote to the Union on February 17, 2012. The Union did not respond by advising the Complainant was out of time. He says that is why he filed his complaint with the Board. He submits the delay rests with the Union.
98 The Complainant submits the time runs from December 2, 2011. He submits that is a four-month period to the date of filing the complaint with the Board and falls within the timeframe contemplated by the Board. In the circumstances the Complainant submits there was no delay or if there was, it was not such that ought to result in a dismissal.
99 Section 12 complaints must be filed in a timely manner. As noted in Judd “[i]f there is unreasonable delay in filing the complaint, it will be dismissed, unless there is a compelling explanation for the delay” (para. 96). The period for filing a complaint is measured in months, not years, and the Board assesses delay from the time a complainant knew or ought to have known the facts giving rise to the alleged contravention of the Code (Frank, Re, BCLRB No. B236/99, (1999), 51 C.L.R.B.R. (2d) 255 (B.C. L.R.B.) (”Frank”) at para. 48).
100 In Judd (at para. 97), the Board set out excerpts from the Board’s Practice Guideline with respect to the timeframe for filing a complaint which states in part:
For example, a complaint filed within two months is generally acceptable; a delay of several months may cause the complaint to be dismissed; and a complaint filed a year after the event will generally be dismissed unless very compelling reasons for the delay are provided. Where there is significant delay (i.e., more than 3 or 4 months) the complaint should include the explanation for the delay (e.g., if the complainant was pursuing the union’s internal appeal process).
101 In the case at hand, I find there has been a significant delay in the filing of the complaint. On October 26, 2011 the Complainant was advised the Union was not proceeding with the grievance. On October 31, 2011, the Complainant advised the Union he continued to be in contact with the Board and if the Union did not go forward he would be seeking further legal counsel. On November 18, 2011, the Union repeated to the Complainant there was insufficient evidence to continue and repeated this again to the Complainant on November 28, 2011. The Complainant filed the complaint on April 18, 2012.
102 In the circumstances set out above, I find the delay to be unreasonable whether it is calculated as slightly more than four months or almost six months. The Complainant has not provided a compelling explanation for that delay. As of October 31, 2011, the Complainant was aware of the availability of a process under the Code because he advised the Union he continued to be in contact with the Board and would seek further legal counsel if the Union did not go forward. Accordingly, even if I had not dismissed the complaint on its merits, I am dismissing the complaint on the basis the complaint is untimely.
- Conclusion
103 For the reasons set out above, the complaint is dismissed.