The company called the grievor into a disciplinary interview, but would not explain the purpose of the interview until the grievor waived his rights to union representation. The arbitrator found that the employee's right was substantive and mandatory. The discipline was voided.
A worker on an offshore oil-drilling platform was fired after he was held responsible for a “loss of containment.”
The union grieved, arguing that the termination was null and void because the employer did not properly inform the worker about his right to union representation prior to a disciplinary meeting.
E.F. was a professional engineer employed as a General Field Engineer on an offshore oil-drilling platform. He had 33 years’ service with his employer when he was fired on Sept. 21, 2011 following an incident that happened on the platform three weeks earlier. Prior discipline did not factor into the termination.
Early on Aug. 30, 2011 a number of errors were made on the drilling platform. A loss of containment occurred and a number of employees were sprayed with oil. But for one worker who slipped on an oily hose and hurt his leg, there were no other injuries.
The crew prepared written statements. E.F. slept for a few hours following the incident and then went to the platform’s tool house to prepare his statement.
While E.F. was working on his statement, the manager for east coast operations arrived at the tool house accompanied by the shift supervisor. The manager flew out to the rig directly after being notified about the incident at 4:30 a.m.
No mention of union representation
E.F. and the manager engaged in some discussion about the incident. No reference was made either to the nature of the meeting or to E.F.’s right to union representation.
Via telephone, about two weeks later, E.F. was questioned again about the incident by another manager based in Houston, Texas.
On Sept. 21, 2011, E.F. was ashore at the company’s offices to take an online training course.
Sometime before noon, E.F. was notified that he was to attend a meeting at 3 p.m. Shortly before 3, the operations manager showed up at E.F.’s cubicle and escorted him upstairs to the meeting. E.F. was not informed about the nature of the meeting or about his right to union representation.
Waiting for E.F. and the operations manager were the human resources manager and the manager for North American operations.
The senior manager pushed a form towards E.F. and asked him if he was prepared to waive his right to union representation. E.F. then inquired about the nature of the meeting. The senior manager again asked if E.F. was willing to waive his right to representation. E.F. protested that he needed to know what the meeting was about. The senior manager declined to say what the meeting was about and once more asked if E.F. was willing to sign the waiver.
Not a “strong” union man
E.F. reasoned out loud that he obviously had to sign the waiver in order to find out what the meeting was about. E.F. then quipped that he had never been a strong union man.
E.F. was fired.
The termination letter said that the containment loss occurred because of actions directly under E.F.’s control. The letter said that in the circumstances, the company’s Zero Tolerance Rules called for termination.
The union grieved.
The union said that disciplinary procedures outlined in the collective agreement guaranteed E.F. the right to union representation at a disciplinary meeting. The union characterized the right to representation as a substantive right and argued that the employer had coerced E.F. into waiving his rights. The union said in the circumstances, the discipline should be rendered void.
The right to union representation
The employer argued that it had complied with the collective agreement. There was no requirement in the contract for advance notice of a disciplinary meeting. If the union expected advance notice, it could have negotiated language to that effect. It did not. The employer argued that its duty was satisfied after E.F. had signed the waiver.
The Arbitrator disagreed.
The language of the collective agreement clearly implied that prior notice was required. It would not be possible to satisfy the contract’s requirement that a union representative “accompany” the employee to a disciplinary meeting unless the employee knew before hand that the meeting was to be a disciplinary meeting, the Arbitrator said.
“[T]he procedure of inviting an employee to a meeting, and then informing the employee that the meeting is disciplinary, does not give the employee a meaningful opportunity to exercise the right to union representation,” the Arbitrator said.
“Substantive and mandatory”
The employer was obliged by the collective agreement to inform E.F. that he was to attend a disciplinary meeting. The employer failed to do so and therefore violated the collective agreement, the Arbitrator said.
The remaining issue concerned what effect the violation had on the discipline imposed by the employer.
The Arbitrator ruled that the rights to union representation outlined in the collective agreement were “substantive and mandatory.” The discipline was declared null and void and E.F. was ordered reinstated with full compensation.
The Arbitrator said Appeal Court decisions in both Newfoundland and Labrador (Parsons and Hynes) and Alberta (AUPE) supported such a finding.
“The Board agrees with the finding in the AUPE case that discipline is null and void where there is a breach of union representation rights… In this jurisdiction, an arbitration award that decided the dismissal was null and void was upheld by the Court of Appeal in the Parsons and Hynes case. The result that the dismissal is null and void follows from these authorities, and from the substantive and mandatory nature of the Union representation rights set out in the Collective Agreement.”
Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.
