United Brotherhood of Carpenters v. Joiners of America, Local, 2017 ABQB 286

Court of Queen’s Bench of Alberta Citation: United Brotherhood of Carpenters and Joiners of America, Local Union No 2010 v Mwemera, 2017 ABQB 286 Date: 20170424 Docket: 1603 04714 Registry: Edmonton Between: United Brotherhood of Carpenters and Joiners of America, Local Union No. 2010 Applicant - and - Patrick Mwemera and Alberta Labour Relations Board Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] The Alberta Labour Relations Board (the Board) found that the United Brotherhood of Carpenters and Joiners of America, Local Union No. 2010 (the Union) failed to fairly represent Patrick Mwemera (Mwemera) in relation to the termination of his employment. The Union seeks judicial review of the Board’s decision. Facts [ 2 ] Mwemera commenced employment with Lafarge Canada Inc. (Lafarge) in May 2014. He was laid off in November 2014 and returned to work in January 2015.

[ 3 ] Mwemera’s employment was terminated on May 1, 2015, ostensibly because he fell asleep twice during a forklift training course he attended on April 29, 2015. [ 4 ] A Lafarge manager informed Union representative Rick Orrell (Orrell) of Mwemera’s termination, and the reason for it, on May 4, 2015.

The manager also indicated that Lafarge had recently reviewed its Rules of Conduct with its employees, including the Rule that listed “[s]leeping while on duty” as an offence that “may result in immediate dismissal”: Exhibit 1 (Record at Tab 17). [ 5 ] Orrell spoke with Mwemera about his termination the next day (on May 5, 2015). During their telephone call, Mwemera told Orrell that he believed he was wrongfully dismissed and wanted the Union to contact Lafarge to see what could be done.

Mwemera suggested that “the real motivation for his termination was that his supervisor wanted to be rid of him”: Board Decision at para 6. [ 6 ] Orrell asked Mwemera if he had fallen asleep during the forklift training course. Mwemera responded by suggesting that others had done so and not had their employment terminated. Orrell asked Mwemera to focus on his own actions, and Mwemera admitted that he had fallen asleep during the course.

Given this admission, Orrell concluded that there was nothing he could do about Mwemera’s termination. [ 7 ] Orrell advised Mwemera that the Union could not do anything about his termination but might be able to help him find other work. Mwemera got very upset and Orrell ended the telephone call. [ 8 ] Orrell spoke to Lafarge management about Mwemera’s termination a couple of days later (on May 7, 2015). However, that discussion was not “aimed at gathering information that could be used to fairly assess the viability of a termination grievance”: Board Decision at para 17.

Orrell did not reconnect with Mwemera after his discussion with Lafarge management. [ 9 ] Orrell did not take any other steps to investigate Mwemera’s concerns before Mwemera filed his duty of fair representation complaint with the Board on July 27, 2015. Relevant Legislation [ 10 ] Subsection 153(1) of the Labour Relations Code , RSA 2000, c L-1 (the Code ) sets out the duty of fair representation.

It provides that: 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 unit 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.

Board Decision (Record at Tab 1) [ 11 ] A panel of the Board heard Mwemera’s duty of fair representation complaint on January 26, 2016 and issued a decision finding that the Union breach its duty a month later (on February 26, 2016): Mwemera (Re) , [2016] Alta LRBR LD-018, [2016] ALRBD No 20 (QL). [ 12 ] In its reasons, the Board: • quoted subsection 153(1) of the Code ; • acknowledged that its role was “to examine and decide whether the Union represented [Mwemera] fairly – that is without discrimination, arbitrariness, bad faith or serious negligence” (para 21); • referenced some of the key principles underlying a union’s duty of fair representation (as summarized in Reid (Re) , [2000] Alta LRBR LD-064, [2000] ALRBD No 114 (QL) at para 3); and • quoted a passage from its Information Bulletin #18 which discusses an employee’s corresponding duty to cooperate with his or her union. [ 13 ] The Board went on to consider, and reject, the Union’s argument that Mwemera failed to cooperate with it (the Union).

In so doing, the Board held that: • “there was enough information conveyed during the May 5th phone call for the Union to understand [that Mwemera] objected to the termination of his employment and wanted the Union to take action to assist him” (para 25); • Mwemera’s behaviour during the May 5th phone call was best described “as expressing upset over his job loss and anger regarding the Union’s swift refusal to look into his concerns” (para 26); and • during the May 5th phone call, which was short, Mwemera “admitted, with little prompting, that he had fallen asleep during class” (para 29). [ 14 ] Next, the Board considered whether the Union breached its duty of fair representation.

It noted that: In determining whether to proceed with a grievance, a union is required to take into account the significance of the grievance and its consequences for the complainant. Cases involving job loss require a level of attention commensurate with the critical importance of the issue to the employee: para 31, citing Dezentje (Re) , [1999] Alta LRBR 267 at 399, [1999] ALRBD No 12 (QL) [ Dezentje ].

[ 15 ] The Board went on to say that the potential grievance in this case “was of critical importance” to Mwemera and, consequently, “[a] thorough investigation of the facts and a thorough assessment of the merits of the potential grievance were required”: para 32. It concluded that: The level of attention the Union gave to [Mwemera’s] concerns fell far short of what was required to meet the duty under

section 153. The Union rushed to judgment, concluding there was nothing it could do about [Mwemera’s] termination, after engaging in a very brief conversation with [Mwemera] about his concerns. ... [N]o meaningful attempt was made to look into [Mwemera’s] concerns at any time prior to the filing of the

section 153 complaint: para 32. [ 16 ] Later in its decision, the Board held that: [T]here is no suggestion in the evidence before us that the Union gathered relevant information that it could use to assess the viability of a grievance.

Instead, the Union decided, during a brief phone conversation that it unilaterally ended, that the grievance lacked merit”: para 35. [ 17 ] The Board concluded that the Union’s approach in this case was arbitrary, after quoting this definition of arbitrary conduct from Rousseau v International Brotherhood of Locomotive Engineers , 95 CLLC 220-064 at 143, 558 (CLRB) [ Rousseau ]: Arbitrary conduct has been described as a failure to direct one's mind to the merits of the matter; or to inquire into or to act on available evidence; or to conduct any meaningful investigation to obtain the data to justify a decision.

It has also been described as acting on the basis of irrelevant factors or principles; or displaying an indifferent and

summary attitude. Superficial, cursory, implausible, flagrant, capricious, non-caring or perfunctory are all terms that have also been used to define arbitrary conduct. It is important to note that intention is not a necessary ingredient for an arbitrary characterization. [ 18 ] The Board ultimately held that: The Union’s approach to [Mwemera’s] concerns about his termination fell short of its obligation under

section 153 of the Code . It lacked the thorough investigation and assessment the duty demands in a case such as this. We view the Union’s approach here as arbitrary and in breach of its duty of fair representation: para 37. [ 19 ] Regarding the appropriate remedy for the Union’s breach, the Board held: 40 In our view, a declaration alone would not go far enough to remedy the particular breach at issue here. The Union did not engage in a fair investigation and assessment of [Mwemera’s] concerns about his termination.

The Board's goal in crafting a remedy is, to the extent possible, to put [Mwemera] in the position he would have been in if the Union had not breached its duty of representation. ... 41 Given the dismissive and hostile approach already displayed by the Union towards [Mwemera], we do not find it appropriate to send this matter back into the early stages of the grievance process.

The only fair remedy here is to permit [Mwemera’s] grievance to be presented at arbitration and have the merits assessed by an independent third-party arbitrator. 42 To that end, we direct the Union to immediately file a termination grievance. The matter is to proceed directly to arbitration. ... 43 [Mwemera] shall be entitled to legal counsel of his choice to represent him at the arbitration. The Union shall pay all reasonable legal costs incurred at arbitration on a solicitor and client basis including disbursements.

Judicial Review Application [ 20 ] The Union seeks judicial review arguing that it was unreasonable for the Board to: (

i) conclude that the Union breached its duty of fair representation, and (ii) determine that the appropriate remedy was to order the Union to: a. advance a termination grievance to arbitration, and b. pay for Mwemera’s arbitration counsel of choice. [ 21 ] It is the Union’s position that Orrell’s decision to forego filing a termination grievance for Mwemera “was based on a reasoned assessment that the Union would not be able to overturn the termination of a short term employee for twice sleeping on the job without any excuse”: Union’s Brief at para 4.

Consequently, the Union argues that it was unreasonable for the Board to conclude that it (the Union) acted arbitrarily and, in so doing, breached its duty of fair representation. The Union says the relevant facts and the applicable law (including labour arbitration authorities about sleeping on the job) do not support the Board’s conclusion. [ 22 ] The Union also argues that the Board imposed an unreasonable remedy for the breach of duty it found. It is the Union’s position that the Board granted “Mwemera a free arbitration that he was never going to receive”: Union’s Brief at para 7.

The Union says there was no basis on which the Board could presume that, but for the relevant breach of duty, “the Union would have filed a grievance, pursued it all the way through the grievance process, and arbitrated it”: Union’s Brief at para 7. Consequently, it argues that the Board’s remedy was over-compensatory; that is, it went far beyond attempting to put Mwemera in the position he would have been in but for the relevant breach of duty. [ 23 ] The Union asks that I set the Board’s decision aside and remit the matter to a new panel of the Board.

Alternatively, it asks that I set the Board’s remedy aside and remit that issue to a new panel.

Standard of Review [ 24 ] The parties all submit that reasonableness is the applicable standard of review for the Board’s (

i) conclusion that the Union breached its duty of fair representation and (ii) choice of remedy.

I agree: see Thompson v Alberta (Labour Relations Board) , 2017 ABQB 205 , [2017] AJ No 297 (QL) at paras 22-24 ; United Assn of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v Radke , 2013 ABCA 436 , [2013] AJ No 1387 (QL) at paras 1 and 3-4 [ Radke ]; and UNITE HERE v Alberta Labour Relations Board , [2012] Alta LRBR 205, [2012] AJ No 1452 (QL) at paras 1 , 18 and 20. [ 25 ] In Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 at para 47 [ Dunsmuir ], the Supreme Court provided this description of the reasonableness standard of review: Reasonableness is a deferential standard animated by the principle that ... certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 26 ] Later, in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 SCR 708 at para 16 , the Supreme Court held that the Dunsmuir criteria will be met “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes”.

Application of the Reasonableness Standard Breach of the Duty of Fair Representation [ 27 ] The Union acknowledges that the Board correctly set out the law regarding the duty of fair representation. What it takes issue with is how the Board applied that law to the facts of this case. The Union challenges the Board’s findings that: (

i) it (the Union) failed to conduct a thorough investigation of Mwemera’s concerns; and, consequently, (ii) was not in a position to thoroughly assess the merits of a grievance when it decided it could not do anything about Mwemera’s termination. It is the Union’s position that it conducted a sufficient investigation, obtained all the relevant information, and made a reasoned assessment of the merits (or viability) of a termination grievance. [ 28 ] The Union’s argument is premised on two assumptions.

The first assumption is that, in this case, the only facts relevant to an assessment of the merits of a termination grievance were: the fact that Lafarge’s Rules of Conduct said sleeping on the job could result in immediate dismissal, the fact that Mwemera fell asleep twice during a training course, and the fact that Mwemera was a short-term employee. The second assumption is that, given those facts, Mwemera’s termination was a foregone conclusion.

It is clear from the Board’s reasons that it was not working on these assumptions. [ 29 ] The Board found that, instead of gathering information it could use to assess the viability of a termination grievance, “the Union decided, during a brief phone conversation that it unilaterally ended, that [such a] grievance lacked merit”: Board Decision at para 35.

Earlier in its reasons, the Board found that: Had the Union contacted [Mwemera] to engage in a more fulsome discussion of his concerns and seek his input on what it claimed to have learned [from Lafarge] on May 7th, [Mwemera] would have told the Union that he: got along well with fellow employees; was concerned about the way he had been treated by his immediate supervisor just days before his termination; was slow to learn some tasks when he first started his employment but had improved over time; and had not previously been in trouble at the plant. [Mwemera] would have also explained that, early in his employment, he was moved around the plant with other employees as [Lafarge] tried to find the best fit for new hires [and that employees] tended to be moved to other areas when there was a shortage of work: Board Decision at para 19 (emphasis added).

Together, these findings indicate that the Board thought the Union should have made efforts to obtain additional information from Mwemera and, had it done so, it would have obtained information that could have been used to thoroughly assess the merits of a termination grievance (that is, it would have obtained relevant information). [ 30 ] The Board also indicated that the Union could, and should, have obtained additional relevant information from Lafarge.

For example, it noted there was no evidence suggesting that the Union reviewed, or asked Lafarge to provide, any documents it relied on to support Mwemera’s termination: Board Decision at paras 12 and 33. [ 31 ] Contrary to the Union’s suggestion that nothing would have turned on any additional information it could have obtained from Mwemera or Lafarge, the Board stated that “the context of [Mwemera’s] workplace infraction was of fundamental importance to assessing the merits of [a termination] grievance”: para 35.

Having reviewed the Union’s labour arbitration authorities dealing with employees who slept on the job, I am satisfied that the Board’s statement was reasonable. The labour arbitration authorities demonstrate that there are a range of appropriate disciplinary responses to an employee’s act of sleeping on the job, and that where a particular

infraction falls in that range depends on the nature of the employee’s duties at the relevant time and the circumstances surrounding his orher act of sleeping. For example, they suggest that the harshest disciplinary penalty – termination – is reserved for employees who hadsignificant work responsibilities and deliberately slept on the job.

See Re Calgary Womens' Shelter Assn and CUPE, Loc 38 (1996), (AB GAA), 53 LAC (4th) 75, [1996] AGAA No 6 (QL) at paras 20-28; and Dupont Canada (Maitland Site) vCommunications, Energy and Paperworkers Union of Canada, Local 28-0 (Huskinson Grievance) (2011), 208 LAC (4th) 174, [2011]OLAA No 235 (QL) at paras 96-126. [32] In addition to acknowledging that the context of Mwemera’s act of sleeping on the job was vital to an assessment of the merits(or viability) of a termination grievance, the Board properly acknowledged that a union’s duty of fair representation is more onerous incases involving job loss: see Board Decision at para 31 (citing Dezentje at 399); and Noël v Société d’énergie de la Baie James, 2001SCC 39, [2001] 2 SCR 207 at para 53 [Noël].

With these things in mind, the Board determined that a thorough investigation ofMwemera’s concerns, and a thorough assessment of the merits of a termination grievance were required. [33] On considering the evidence and facts before it (including the brevity of Orrell’s telephone conversation with Mwemera, thequestionability of some of Orrell’s evidence, the further investigative steps the Union could have taken, and the additional informationthe Union could have obtained had it taken further investigative steps), the Board found that the Union: (

i) failed to thoroughly investigate Mwemera’s concerns, and (ii) failed to thoroughly assess the merits of a termination grievance. In the circumstances, I am not persuaded that these findings were unreasonable. [34] The Board concluded that the Union’s failures amounted to arbitrary conduct after referencing a definition of “arbitraryconduct” (from Rousseau) which clearly includes such failures. And, finally, the Board concluded that the Union’s arbitrary conductconstituted a breach of its duty of fair representation.

This final conclusion was a given as arbitrary conduct is one of the four types ofconduct that the duty of fair representation prohibits: see Board Decision at para 21 and Noël at para 48. [35] At the end of the day, I am satisfied that the Board’s conclusion that the Union breached its duty of fair representation wasreasonable. As our Court of Appeal held in Radke, “[t]he Board gave reasons why the duty of fair representation was not met and thatconclusion was available to it on the facts found in the record and the applicable law”: para 5.

Remedy [36] I am also satisfied that the remedy the Board imposed for the breach of duty it found was reasonable. Again, as our Court ofAppeal held in Radke, “the choice of remedy is within the discretion of the Board and, while other remedies may have been available toit on this record, the selection of this particular remedy” was not unreasonable: para 7. [37] It is clear from the Board’s reasons, at paragraphs 40 and 41, that it considered other remedies and why they were notappropriate in the circumstances of this case.

The Board was convinced that the only fair remedy was to allow the merits of Mwemera’sgrievance to be assessed by an independent arbitrator. It was so convinced because of “the dismissive and hostile approach” the Unionhad displayed towards Mwemera: Board Decision at para 41. [38] The Union suggests there was no basis for the Board to describe its approach towards Mwemera as “dismissive and hostile”,but that is simply not the case.

The Board found: • that the Union “rushed to judgment, concluding there was nothing it could do about [Mwemera’s] termination, after engaging in avery brief conversation with [Mwemera] about his concerns (para 32); • that the Union made “no meaningful attempt” to investigate Mwemera’s concerns before he filed his duty of fair representationcomplaint (para 32); and • that Orrell made this note following his May 5th telephone conversation with Mwemera: “Patrick Mwemera – idiot – hung up onhim – would not answer my questions – blames another guy who was not fired??” (para 9). [39] In these circumstances, it was not unreasonable for the Board to determine that the appropriate remedy was to direct theUnion to immediately file a termination grievance; proceed directly to arbitration; and pay for Mwemera’s counsel of choice for thearbitration (the arbitration remedy).

This type of remedy has been proposed by unions, imposed by the Board, and upheld as reasonableby judges of this Court and the Court of Appeal, in other cases: see Bridges (Re) (2011), 196 CLRBR (2d) 273, [2011] ALRBD No 32(QL) at para 4; Reason (Re), [2013] Alta LRBR LD-045, [2013] ALRBD No 53 (QL) at paras 31-32; and Radke at paras 3 and 7. Whileother remedies may have been available to the Board, I am satisfied that the Board’s selection of the arbitration remedy was reasonable. Result [40] The Union’s judicial review application is dismissed.

Costs [41] The Board does not seek costs and none are awarded to it. Mwemera seeks costs and, as the successful party, he is entitled tothem. If the Union and Mwemera cannot agree on what those costs should be, they may speak to costs within thirty days of this decision.

Heard on the 7 th day of April, 2017. Dated at the City of Edmonton, Alberta this 24 th day of April, 2017. Peter Michalyshyn J.C.Q.B.A. Appearances: Patrick Nugent for the Applicant Kelechi Madu for the Respondent, Patrick Mwemera Jeremy Schick for the Respondent, Alberta Labour Relations Board