January 21, 2011 Directed to: Michael Thomas, Aecon Lockerbie & Hole - Garland Curtis, Local Union

424, International Brotherhood of Electrical Workers - Kevin Levy/Steve Whiteley RE: A Duty of Fair Representation complaint brought by Michael Thomas affecting Local Union 424, International Brotherhood of Electrical Workers, Kevin Levy and Steve Whiteley Board File No. GE-06001

OUR VISION The fair and equitable application of Albertas collective bargaining laws. MISSION To administer, interpret and enforce Albertas collective bargaining laws in an impartial, knowledgeable, efficient, timely and consistent way.

[1] On November 12, 2010, Michael Thomas (the Complainant) filed a duty of fair representation complaint against Local Union 424, International Brotherhood of Electrical Workers (the Union), and its representatives, Kevin Levy and Steve Whiteley (collectively the Respondents). He alleges the Respondents failed to fairly represent him with respect to the termination of his employment by Aecon Lockerbie & Hole Industrial Inc. (the Employer). [2] A response to the complaint was filed on behalf of the Respondents after which the Complainant replied to that response. Thereafter, in accordance with the Boards usual practice, the file was sent to a panel of the Board (Lucas, Basken, Williams) for review to determine whether the complaint should be sent to hearing or should be summarily dismissed pursuant to section 16(4)(e) of the Labour Relations Code as being without merit. We have carefully considered the materials presented and conclude the complaint has no likelihood of success and should be summarily dismissed. Our reasons follow. Background [3] The Complainant brought to the attention of the Union an extract from his personal blog containing complaints about the camp provided by Suncor Energy Services Inc. (Suncor) at its Firebag job site. On October 1, 2010 the Union advised the Complainant he should not continue to post more blogs of a similar nature as it may adversely affect his employment. Notwithstanding this advice the Complainant posted a further blog containing complaints about the camp which apparently included photographs or video of camp conditions. [4] On October 5, 2010 Suncor sent an e-mail to the Employer which stated: Please be advised that Mr. Michael (Mike) Thomas Suncor no. 441601 is no longer welcome on any Suncor site. Mr. Thomas was found to be using a camera/recording device to film videos on Suncor property. This type of behaviour will not be tolerated. Notice to the Employer: This is your notice to remove the above mentioned individual from site immediately. Whether and where you choose to continue their employment is a separate decision on your part. Lastly, please notify him of his site suspension. [5] The Employer informed the Complainant of Suncors site ban on October 6th and he then told the Union he had been wrongfully dismissed by the Employer. At the same time the Complainant requested the Union obtain certain

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documents for him and his request was passed on to Steve Whiteley, an assistant business manager, who sent him some of the requested documents on October 7th, except for the camp handout and the new hire sign-on handout. At the same time Mr. Whiteley had the Employer provide him with a copy of the Suncor site ban. [6] The Complainant also sent an e-mail to Kevin Levy, the business manager, on October 7th in which, among other things, he indicated he wanted his job back and the bans lifted, and that stated: At the very least, Suncor should lift my bans, clarify their policy, and pay me two weeks salary in lieu of notice for termination without cause. I would be interested in going for more, and fighting in court to establish the boundaries of what policies are allowed to set, in balance with journalistic needs, human rights, health and safety requirements etc. This has not been established by caselaw as of yet and we could very well set a pro-union precedent. We should grieve this, and sue if necessary in my opinion to reach an acceptable resolution. [7] Mr. Levy replied that same day pointing out several of the Unions staff members had cautioned the Complainant his activities may result in exactly what has transpired. He also said a legal opinion was being sought but he did not hold out much hope for a favourable opinion as it was Suncor and not your employer asserting their claimed property rights. The Complainant replied to Mr. Levy stating he was aware his removal from the site was an expected result. [8] When the Complainant informed Mr. Whiteley he had not received his ROE or last paycheque or his tools, Mr. Whiteley contacted the Employer to find out what had happened. He was told in the Employers e-mail of October 12th that the paperwork to end the Complainants employment with the Employer was completed on October 8th. [9] On October 13th the Union sent the Employer a copy of the Complainants grievance, dated October 12th, in which the grievance was described as follows: Wrongful termination. The violation took place as follows: On October 6, 2010 Mike Thomass employment was terminated due to the decision of the project/property owner (Suncor) to suspend Mr. Thomas from the Firebag site for video taping on Suncor property without Suncors consent. At the same time the Union requested an extension of time limits to discuss possible resolve of this matter and the Employer agreed to an extension of three weeks, to November 5th. [10] The Complainant received a telephone call from the Employers Edmonton office informing him that his paycheque was in their possession and he requested they send it to him by registered mail. When Mr. Whiteley was next at the Firebag site he sent the Complainant his tools and informed him by e-mail dated October 21st the Employer advised it had no employment opportunities other than working for Suncor at the Firebag site and a confirming letter would be forthcoming. Mr. Whiteley also told him he was informed by the Employer the ROE indicated the reason for issuing it was the site access ban issued by Suncor. Finally, he informed the Complainant that in view of the Employers advice it was Suncors ban of the Complainant from the site that resulted in the termination of employment the wrongful dismissal grievance would have to be dismissed.

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[11] The Complainant continued to press Mr. Whiteley to obtain copies of the orientation or sign on documents from the Employer or from Suncor but Mr. Whiteley was not having much success in getting the copies. Ultimately, on November 4th, the Complainant did receive copies of what he had been seeking. [12] The Complainant also contacted Legal Aid Alberta and on October 27th a staff lawyer wrote to the Union urging that the Complainants grievance not be withdrawn until the Union received the legal opinion it was seeking. He also asked that both he and the Complainant be afforded an opportunity of reviewing that opinion and possibly offering a rebuttal should it support the withdrawal of the grievance. The Union informed the Complainant it did not intend to respond to this letter unless the lawyer could provide some relevant case law but, otherwise, it intended to act on the advice given by its legal counsel. [13] By letter dated November 3rd the Employer confirmed to Mr. Whiteley that at the time of the Complainants release from employment it did not have any work within the scope of his job and classification within the Unions jurisdiction that was not on a Suncor owned site. [14] The Union received the legal advice from its lawyer that it had been waiting on, to the effect there was very little chance of the Complainants grievance succeeding, and informed the Complainant of that advice. Acting on that advice and based on Mr. Whiteley investigation that disclosed there was no breach of the Complainants rights under the terms of the collective agreement he made the decision on November 4th to withdraw the grievance. That same day Mr. Levy prepared what is called a peer review of the actions of Mr. Whiteley in which he found no fault in the way Mr. Whitely conducted himself throughout the investigation and he concurred with his recommendation to withdraw the grievance. Decision [15] The complaint filed by the Complainant rests upon section 153(1) of the Code which states: 153(1) 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 employees or former employees right under the collective agreement. [16] The Board has summarized a unions responsibilities and its legal obligations to its members in Information Bulletin #18. It reads in part: This duty of fair representation requires unions to act in good faith. This means unions may not act arbitrarily or discriminatorily. Employees or former employees who feel their union has not fairly represented them cannot bring court action. Instead, they may file a duty of fair representation complaint with the Labour Relations Board. When a complaint is made, the Labour Relations Board examines the fairness of the unions conduct. The question before the Board in these is, did the union deal fairly with the employees grievance? This is an examination of the unions behaviournot an appeal of the unions decision. Grievances are dealt with through the grievance and arbitration process outlined in the collective agreement.

II. THE DUTY OF FAIR REPRESENTATION The Labour Relations Code requires unions to fairly represent all employees in a bargaining unit. This is called the duty of fair representation. The Supreme Court of Canada has set the principal features of the duty in five points: The exclusive power conferred on a union to act as spokesperson for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent employees comprised in the unit. When the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and for the union on the other. The unions decision must not be arbitrary, capricious, discriminatory or wrongful. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

In essence, this means unions have a large amount of discretion when they deal with grievances. For example, unions may settle or drop grievances even if the affected employee disagrees. To counterbalance this power, the Labour Relations Code requires unions to fairly treat all members of a bargaining unit. This duty of fair representation requires unions to exercise this power in good faith. This usually means unions must carefully examine grievances. The union must also consider the significance of the case and its consequences for the union and the employee. The representation by the union must be fair, genuine and not merely apparent. The union must act with integrity and competence as well as without serious or major negligence. The union must act without hostility towards the employee. This also means the unions decision must not be arbitrary, capricious, discriminatory or wrongful. IV. THE UNIONS DUTIES Unions Must Not be Arbitrary In deciding whether or not to pursue a grievance, a union must avoid arbitrary, capricious, discriminatory or wrongful conduct. It must not act in bad faith.

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It is arbitrary to give only superficial attention to the facts or matters in issue. It is arbitrary to decide without concern for the employees needs and interests. It is arbitrary not to investigate. It is arbitrary to make no effort to discover the circumstances surrounding a grievance. It is arbitrary to fail to assess the merits of an employees grievance. A union should thoroughly investigate all of the facts and evaluate the probable outcome of arbitration before deciding to abandon or settle a grievance. This includes a review of the merits of the grievance and of arbitration decisions for similar grievances. This becomes more important where an employee faces serious discipline or dismissal, particularly a senior employee. Union officials can make honest mistakes. Proof that a union has acted negligently in the handling of a grievance or complaint does not necessarily amount to arbitrary conduct. A union can also wrongly assess a grievance, yet not act arbitrarily. The Board will uphold the unions decision if it concludes that the union: investigated the grievance and obtained full details of the case, including the employees side of the story; put its mind to the merits of the claim; and made a reasoned judgment about the disposition of the grievance.

A union can fulfill its duty by taking a reasonable view of the grievance. This means it must consider all of the facts surrounding the grievance. It must weigh the conflicting interests of the union and the employee. It should then make a thoughtful judgment about the grievance. [17] In this case the Union filed a timely grievance with the Employer alleging the Complainant was wrongfully terminated by the Employer due to Suncors decision to ban him from the Firebag site. It asked for and received an extension of time limits to further investigate the circumstances. The investigation revealed Suncors site ban was imposed because the Complainant had used a camera or video to take pictures on Suncors property without Suncors permission. The Union was also informed the only work being undertaken by the Employer was the work for Suncor at the Firebag site and, consequently, it had no work to offer the Complainant elsewhere. The Employer also informed the Union the ROE issued in respect of the Complainant indicated it was being issued due to the site ban issued by Suncor. Based upon its investigation and the advice received from its legal counsel that there was little chance of success in pursuing the grievance, the Union decided to withdraw the grievance. [18] The Complainants position is that the Union should have challenged the site ban and suggests that Suncor should pay him two weeks salary for terminating him without cause. The difficulty with this position is that it ignores the fact that section 153 only deals with the right to be fairly represented with respect to the employees rights under the collective agreement. The Complainant does not suggest he has any rights under the collective agreement that is binding on the Union and the Employer in respect of which he has not been fairly represented. He seems to be under the mistaken impression that Suncor is party to or bound by that collective agreement which would impose upon Suncor an obligation to have just cause in deciding to remove him from the site. The Union warned the Complainant, on October 7th, it was not

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expecting a favourable opinion from its lawyer because it was Suncor not your employer asserting property rights. [19] Site bans are not an uncommon or unusual occurrence, particularly on industrial sites, and most of the building trades unions are aware of them and the decisions of this Board and of arbitrators that deal with them. Some of this Boards decisions dealing with this topic include: Peters v. Boilermakers Lodge 146 [2003] Alta.L.R.B.R. LD-054, at para [8]; Mogden v. Carpenters Local 1325 [2007] Alta.L.R.B.R. LD-034, at para [4]; and Romalatti v. Labourers Local 92 [2010] Alta.L.R.B.R. LD-013, at para [6]. [20] A review of the current collective agreement binding on the Union and the Employer does not appear to contain any provision that might serve as a basis for a grievance by the Union to challenge the Suncor site ban. There is mention in article 8.05 of camps being provided in which event the parties agree to recognize and be bound by the current Camp Agreement as negotiated between Construction Labour Relations, an Alberta Association and the Alberta and NWT (District of MacKenzie) Building and Construction Trades Council but that agreement expired on December 31, 2008 and has not yet been replaced. Had the Camp Agreement remained in effect the grievance procedure it contained might have provided a means by which the Complainant could have sought redress for the complaints about camp conditions that he was apparently trying to raise in his blog. The other problem with the Camp Agreement was it states the conditions present in the camps at Suncor and Syncrude are grandfathered and the effect of this provision is not clear. [21] In our opinion, the Unions decision to drop the grievance initiated on behalf of the Complainant does not establish that it acted in a way that was arbitrary, discriminatory, in bad faith, or seriously negligent. This duty of fair representation complaint does not suggest the kind of conduct necessary to prove a breach of section 153 and has no reasonable prospect of success. Accordingly, the complaint is dismissed. Gerald A. Lucas, Q.C., Vice-Chair