Ex-worker goes after union for misrepresentation

Worker claims union failed to properly represent him when he was fired
|Canadian Labour Reporter|Last Updated: 12/09/2013

Jeffrey Westmoreland, an employee at a technical services provider in Edmonton, believed he was wrongfully fired. So he launched a fight at the provincial labour relations board — against his union.

Westmoreland alleged his union, the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 488, failed to properly represent him after he was let go from his job at Jacobs Industrial Services, a technical services company.

While the union argued Westmoreland’s complaint was frivolous and untimely, the worker said he was not fairly represented during the initial grievance processes.

Mark Asbell, the arbitrator presiding over the case, sided with the union and dismissed the grievance as untimely.

And besides — Westmoreland’s case (alleging discrimination) was already before the Alberta Human Rights Commission.

The case began in May of 2012, after Westmoreland was dispatched to a job site. As part of his sign-in documentation, he stated he had no conditions nor did he take any medication that would affect his ability to carry out his day-to-day duties.

As it turned out, that was not entirely truthful. Two days later, Westmoreland met with the foreman and revealed he suffered from occasional epileptic episodes.

He was directed to the safety representative at Jacobs’ and went to see a doctor who cleared him for work, with various limitations.

But that was not good enough for his employer. Following the evaluation, he was fired from his position on the basis that he "failed to disclose medication he was on that could impair his ability to work in a safety sensitive position."

But because his job steward had not been present at the meeting in which he was terminated, Westmoreland said his union had not done its duty to represent him.

In fact, Westmoreland alleged the union refused his request to grieve the termination.

In an email, the union advised Westmoreland to move on.

"What you really need to do is the physical demands analysis before taking a job referral for anyone at this point and best leave the Jacobs issue behind you," the union head said. "You have taken a situation that may have been rectifiable with Jacobs and exacerbated it to a point where you may have an indefinite no-hire with them.

"As a prospective member, I am asking you to provide Local 488 with the documentation of the physical demand analysis before any further dispatch’s (sic), to avoid this very type of interaction."

After some more medical tests that summer, the grievor provided the union with the documentation — but it was not enough to alleviate the no-hire status Jacobs had placed on him. The union also failed to represent Westmoreland and grieve the no-hire status.

According to the Alberta Labour Relations Code, "The board may refuse to accept any complaint that is made more than 90 days after the complainant knew, or in the opinion of the board, ought to have known of the action or circumstances giving rise to the complaint."

So the complaint that a job steward was not present when Westmoreland was fired was dismissed by Asbell as untimely. The same also went for the no-hire grievance.

"Even if it had been sufficiently clear to the union the complainant wanted it to grieve this concern with the employer, the filing of the complaint with the board was again untimely," the decision reads. "The complainant provided further information to the employer with the assistance of the union in July of 2012. That attempt was clearly unsuccessful. The complainant was then in further contact with the union no later than Oct. 4, 2012, although we have no information about the nature or content of those discussions.

"At some point shortly thereafter, the complainant knew, or it ought to have been apparent to him, the union would not be taking any further steps whatsoever in relation to the complainant’s dispute with the employer," he continued. "As above, none of the reasons offered for delay raises countervailing considerations that would justify delay of this magnitude."

Cases involving fair representation, Asbell went on to say, may only be considered by the labour relations board as it relates to a collective agreement.

So he dismissed Westmoreland’s grievance — which is currently before the human rights commission.

Reference: Jeffrey Westmoreland and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 488. Mark L. Asbell – arbitrator. Nov. 6, 2013.