Canadian Union of Public Employees – Local 1750 (Goslin) v. The Crown in Right of Ontario (Workplace Safety and Insurance Board), 2009 CanLII 59467

GSB#2008-3529, 2008-3530, 2008-3531, 2008-3532

UNION#09-01, 09-02, 09-03, 09-04

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Canadian Union of Public Employees – Local 1750 (Goslin)

Union

• and -

The Crown in Right of Ontario (Workplace Safety and Insurance Board)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Cathy Lace Sack Goldblatt Mitchell LLP Barristers and Solicitors

FOR THE EMPLOYER

William Gale Grosman, Grosman & Gale LLP Counsel

HEARING

September 1, 2, 3, 9, 2009.

Decision

1This decision disposes of four grievances filed by CUPE Local 1750 (hereafter the “Union”) on behalf of Harry Goslin (hereafter the “grievor”). Succinctly put, the grievances arise out of comments made by the grievor, who is CUPE Local 1750 President, to Patricia Homonnay, the Chief Steward of Local 1750. Ms. Homonnay (hereafter “the complainant”) took offence to those remarks and complained to their employer, the Workplace Safety and Insurance Board (hereafter the “WSIB” or the “Employer”), that the remarks offended article 23 of the collective agreement and the Employer’s Workplace Violence, Discrimination and Harassment Policy. An investigation took place, the grievor was disciplined and the four grievances were filed. The Complainant has also filed complaints against CUPE Local 1750, the grievor and the Employer before the Human Rights Tribunal of Ontario (hereafter “The Tribunal”).

2At the commencement of these proceedings the Union and Employer asked for an order that they each disclose to the other copies of any pleadings exchanged in the proceedings before the Tribunal. The Union also asked that these four grievances be dismissed because the conduct complained of, which formed the basis of the discipline and resulting grievances, was not workplace conduct. Accordingly, any discipline imposed would be unjust. This decision deals with those two preliminary matters. The Board was advised that the Complainant and her counsel, Mr. Raj Anand, were aware that these matters had been scheduled for hearing on the dates on which they proceeded. No one appeared for the Complainant.

Production of Documents

3The Union submitted that the Crown Employees Collective Bargaining Act incorporates section 48(12) of the Labour Relations Act, 1995. That section reads as follows:

Powers of arbitrators, chair of arbitration boards, and arbitration boards

(12) An arbitrator or the chair of an arbitration board, as the case may be, has power,

(a) to require any party to furnish particulars before or during a hearing;

(b) to require any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing;

4It also noted that Rule 4 of the Board’s Rules of Procedure is as follows:

4. Disclosure

Upon the motion of any party, the GSB may order the provision of particulars. Upon motion by any party, the GSB may make an order to the production of documents, or for the inspection of documents arguably relevant to the grievance that are not privileged and that are in the possession, control or power of a party or any other person.

5It sought production of the complaint filed by the Complainant against the Employer on the basis that the allegations made against the Employer were highly relevant to the instant grievances and the disclosure of which was required for the Union to put forward its best case.

6The Union referred to the Applicant’s and Respondent’s Guides published by the Tribunal, both of which contain a statement on Freedom of Information and Privacy in the following form:

Freedom of information and protection of privacy

The Tribunal will use the information you have sent us to deal with your Application and to fulfill our responsibilities under the Human Rights Code.

The information in your application, as well as other information about your case, may become public in the course of the Tribunal processes. For example, your information will become public at the hearing and in the Tribunal’s decision.

The law requires the Tribunal to share your Application and any filed Response with the Ontario Human Rights Commission, if requested.

Your information could also become public in response to a request to the Tribunal under the Freedom of Information and Protection of Privacy Act.

The Tribunal has policies for responding to requests for information, as well as requests to keep information private. Our responses are based on balancing privacy interests with the public’s interest in having a transparent legal process.

By signing your Application, you are declaring that you understand your information can become public in these ways.

Signing your Application

When you sign your application, you declare that your application is as complete and accurate as you can make it. Do not sign until you are sure that you can declare this.

If you are filing your application electronically, clicking the box in the Declaration section represents your legal signature.

7Accordingly, the Union submitted that the applications and responses, and any other pleadings before The Tribunal, were amenable to a Freedom of Information Request. That is, those materials are governed by the Freedom of Information and Protection of Privacy Act R.S.O. 1990, Chapter F.31, which permits disclosure under section 42(1)(e):

41(1) An institution shall not disclose personal information in its custody or under its control except,

(e) for the purpose of complying with an Act of the Legislature or an Act of Parliament or a treaty, agreement or arrangement thereunder.

8The Union submitted that the Board may order disclosure for its purposes as has the Tribunal itself.

9The Union relied upon: Ontario Human Rights Commission and Peter Wang and Rosemary Wang and York Regional Police Services, Bob Muir, Andrew Graham, 2007 HRTO 11 (Gottheil); Jody Williams and Law Society of Upper Canada, Jessica Kowalski, Sharon Seenath and Bruce Dunsmuir, 2009 HRTO 326 (Joachim).

10The Employer submitted that the material sought was relevant. It adopted the submissions of the Union.

11I agree with the analysis set out above. In my view the materials sought to be disclosed are arguably relevant to these proceedings. I ordered orally as follows:

The Union and the Employer are to disclose to each other the Complaints of Ms. Homonnay against each of them along with their responding materials and any further pleadings.

Were the Actions Complained of “Workplace Conduct”

12As set out above, the Union brought a motion, essentially for a declaration, that the discipline could not be just in any circumstances because the Employer had no authority to discipline the grievor since the conduct complained of was off-duty conduct having no connection to the workplace. The Union called the grievor and Beth Harris to give evidence. It also filed a Book of Documents containing six items. In all, twenty-five exhibits were filed. One of the documents filed was the report of the investigator, dated October 27, 2008. The Union disputes some of the findings of the investigator. For the purposes of this motion, the nuanced differences are not material. For my purposes, the following account of what took place is sufficient.

13On Friday, March 7, 2008 the parties reached a tentative agreement on the terms and conditions of the renewal of their collective agreement. They reached agreement sometime in the afternoon and negotiations concluded. Bargaining had taken place at the Delta Chelsea Hotel. The Union Committee left the caucus room together. One member of the five person team went up to their room, while the other four waited for an elevator to take them down to leave for their homes. Present were the grievor, the complainant, the National Representative responsible for servicing the Local and another Officer of the Local. When the elevator door opened, the four of them got on. There was then an incident in which the grievor made certain comments to the complainant. Nothing further was said by anyone. However, the complainant took deep offense to the comments made. There was no one else present other than the Union Committee members.

14Over the weekend the grievor reflected on what he had said and became concerned that his remarks were not proper. On the following Monday he attempted to apologize to the Complainant. She would not accept his verbal apology and ultimately refused to accept his written apology, which had been drafted by the grievor with the assistance of the CUPE National Representative. Further attempts were made by the Local Union to resolve the matter. Attempts were also made by the National Union to resolve the matter. The grievor has subsequently delivered an unreserved written apology acknowledging that his comments were inappropriate. The Complainant decided not to use any internal union processes available to her under the Local Union By-laws and/or the National Union Constitution. Instead, she asked the Employer to enforce its Workplace Violence, Discrimination and Harassment Policy. That led to the appointment by the Employer of an investigator, and the preparation of the report by the investigator dated October 27, 2008. The investigator concluded that there had been a breach of the employer’s policies. The grievor was disciplined on the strength of the report and these grievances followed.

15The narrow question before me is whether the grievor’s conduct was workplace conduct, or conduct in which the employer has such an interest that it may regulate the conduct. There has been no need to set out the alleged comments in any detail. If the Union is correct that the conduct was outside the employment relationship, the Employer had no authority to take any action in the matter. If that is so, no discipline could be just and these grievances are moot. In argument before this Board no differentiation was made amongst the grievances. If the Board finds that the conduct was not related to the workplace, it should enquire no further into the circumstances giving rise to the grievances nor the outcomes.

16The Union submitted that the conduct in question occurred at the close of bargaining and was entirely an intra-union matter, notwithstanding that both the grievor and the complainant are employees. They are both on paid time-release to engage full-time in union business, which included their duties as members of the bargaining committee. It was those union duties that took them to the Delta Chelsea Hotel. The Union said that there is no authority for the Employer to discipline for off-duty conduct unless that conduct injures the Employer’s interests. Further, here it was not simply off-duty conduct, but conduct that occurred in the course of union business. Further, the onus was said to be on the Employer to establish the link between the conduct and the Employer’s interests. In these circumstances there was no critical Employer interest impaired such as would justify the Employer’s involvement. The Union also said that there were other avenues of redress open to the grievor, through the Union, further obviating any Employer involvement.

17This latter point was cast in the context of recent jurisprudence which recognizes the independent role of unions as democratic organizations with an important role in a free and democratic society (see Dunmore and Health Services, infra). Trade unions have the right to carry on their business free from employer interference. The conduct complained of was entirely within the Union caucus and the Employer had no standing to oversee it.

18The Union conceded that the Employer did have the right to investigate the situation, but it wrongly concluded that its interests were engaged.

19The Union relied upon the following authorities: Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers Int’l Union, Local 9-670 (Mattis Grievance), [1967] O.L.A.A. No. 4; Port Moody (City) and C.U.P.E., Loc. 825 (Re) (1997) 1997 CanLII 22648 (BC LA), 63 L.A.C. (4th) 203 (Laing); National Steel Cae Ltd. and U.S.W.A., Loc. 7135 (Ryerson) (Re) (2001) 2001 CanLII 62074 (ON LA), 101 L.A.C. (4th) 316 (Shime); Deputy Head (Department of Human Resources and Skills Development) and Shaw (Re) (2006), 157 L.A.C. (4th) 314 (Bilson); Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391.

20The Employer submitted that it has adopted policies designed to promote a safe, healthy and discrimination-free workplace. Those policies are consistent with its obligations as recognized by the Courts. It said that harassment is typically a situation where one person is acting against another, yet the strength of anti-harassment policies is that they recognize the damage done to the entire workforce if such situations go unchecked. Employer policies should be interpreted liberally enough to permit the Employer to manage the workforce in such a fashion as to keep the workplace free of harassment. Accordingly, exclusionary factors ought not to play a strong role, such as whether the conduct was after-hours, off-premises or not in the course of performing work duties. Employers are trying to fulfill human rights obligations and ought to be permitted to do so. In this matter, the Employer did not act precipitously. It appointed an investigator. It deferred its own process until it was determined that the Union processes would not be engaged. The Complainant decided to use the Employer’s processes and it felt duty-bound to protect its interests, being supporting both the collective agreement and the Human Rights Code provisions to protect all employees from harassing conduct.

21The Employer also submitted that being engaged in Union activity does not shield an employee from the application of anti-harassment policies. Union activity may cross the line and properly result in discipline. Here the anti-discrimination and harassment article of the collective agreement was in play and the investigator found that the Employer did have the jurisdiction to take action. Not to have done so would have undermined general employee confidence. The actions taken by the employer might be challenged in proceedings such as these, but not its right and obligation to take action.

22The Employer relied on the following authorities: Robichaud v. Canada 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84 (S.C.C.); Woodstock (City) v. Canadian Union of Public Employees, Local 1146 (2007), 167 L.A.C. (4th) 281 (Barrett); Tudor House Ltd. and Service Employees Union, Local 308 (1993), 1993 CanLII 16801 (MB LA), 35 L.A.C. (4th) 387 (Freedman).

23In reply, the Union submitted that the question to be answered was whether the facts supported a sufficient connection between the event and an employer interest to justify any discipline for clearly off-duty conduct. It is not the case that any infringement of the anti-discrimination, anti-harassment policy justifies discipline. There must be such a connection to the workplace, that the Employer can demonstrate it would have to deal with it in order to direct its workforce. That element is absent here.

Reasons for Decision

24The facts, at this stage, are rather straight-forward. The parties were engaged in collective bargaining and had reached a tentative agreement. In the course of leaving to go home the members of the Union bargaining committee were out of sight and earshot of anyone else, including the Employer, when the Local Union President made inappropriate remarks to the Chief Steward, to which she took deep offense. She subsequently sought out the Employer and triggered an investigation of the remark, which led to discipline against the Local Union President. The Employer’s policy invoked by the complainant reads in part as follows:

Policy Statement

Through communication, education and adherence to this policy, WSIB supports the safety, health and wellness of all employees, which includes a culture of dignity, respect and tolerance that reflects the foundations of WSIB’s history, growth and success. The WSIB does not tolerate or condone prohibited conduct including discrimination, harassment or inappropriate behaviour by any of its employees while performing their duties or as a result of their employment relationship with the WSIB. The WSIB considers an allegation of prohibited conduct to be a serious matter and infractions may result in disciplinary action up to and including termination.

(emphasis added)

25Manifestly, the grievor was not performing duties for the WSIB at the time, and the Employer relies on the second option; “inappropriate behaviour by any of its employees … as a result of [his] employment relationship with the WSIB.” The Employer’s submission is that the grievor was present at the Delta Chelsea and was in a position to make the inappropriate comment only as a result of his employment relationship with the WSIB. The second of the Employer’s policy statements relied upon is contained in the “Code of Business Ethics” which includes the following:

Relationships with Each other

The core values of the WSIB apply not only to relationships with our customers and the outside world, but to relationships with each other as well. All employees want and deserve a workplace where they feel respected, satisfied and appreciated. No WSIB employee shall knowingly participate in acts of discrimination or harassment towards any person that he or she has business relationships with. To achieve this, the WSIB creates, provides and continues to ensure a working environment of honesty, integrity, respect, trust, responsibility and citizenship. Anything less in unacceptable and will not be tolerated.

26The main thrust of the Employer’s submissions is that it had an interest in protecting the integrity of these policies because they are directed at providing a discrimination and harassment free workplace and such a goal should be given a large and liberal interpretation without being hobbled by narrow exclusions.

27Article 23 of the collective agreement between the parties also deals with discrimination or harassment:

23.01 There will be no discrimination or harassment practiced. This includes but is not limited to reasons of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed or religion, sex, sexual orientation, age, marital status, same sex partnership, family status, record of offences, physical or mental disability, or any other reason as outlined in the Ontario Human Rights Code, as amended from time to time.

Harassment is defined as engaging in a course of vexatious comments or conduct that is known, or ought reasonably to be known, to be unwelcome.

Harassment of a sexual nature is comprised of sexual comments, gestures, or contact that the individual knows or ought reasonably to know to be unwelcome, objectionable or offensive. The behaviour may be on a one time basis or series of incidents, however minor. Harassment of a sexual nature is unsolicited, one-sided and/or coercive. Both males and females may be victims of such actions.

28The Union itself also makes statements against discrimination and harassment. The Local Union By-laws include CUPE National’s “Equality Statement” and CUPE Local 1750’s “Respect Statement”:

CUPE NATIONAL – EQUALITY STATEMENT

“Union solidarity is based on the principle that union members are equal and deserve mutual respect at all levels. Any behaviour that creates conflict prevents us from working together to strengthen our union.

As unionists, mutual respect, cooperation and understanding are our goals. We shall neither condone nor tolerate behaviour that undermines the dignity or self-esteem of any individual or creates an intimidating, hostile or offensive environment.

Discriminatory speech or conduct which is racist, sexist or homophobic hurts and thereby divides us. So too, does discrimination on the basis of ability, age, class, religion and ethnic origin.

Sometimes discrimination takes the form of harassment. Harassment means using real or perceived power to abuse, devalue or humiliate. Harassment should not be treated as a joke. The uneasiness and resentment that it creates are not feelings that help us grow as a union.

Discrimination and harassment focus on characteristics that make us different, and they reduce our capacity to work together on shared concerns such as decent wages, safe working conditions, and justice in the workplace, society and in our union.

CUPE’s policies and practices must reflect our commitment to equality. Members, staff and elected officers must be mindful that all sisters and brothers deserve dignity, equality and respect.”

CUPE 1750 – RESPECT STATEMENT

For Local 1750 respect is about every union representative working together to build a trade union in which we can respect one another – where disrespectful behaviour is rare and tackled effectively, and where we can work in a positive supportive environment toward the goal of improved working conditions.

Our culture of respect will:

• Move forward in a positive way where different opinions are valued;

• Show tolerance, acceptance and common decency towards the people around us by seeking to understand others, fostering equality among representatives, and

• Consider the consequences of our behaviour for others by using positive body language, engaged listening, honesty with one another, communicating with a positive tone whether via emails, phone or in person, honouring privacy and confidentiality.

For many unionists respect for others is automatic and ingrained in the habits of our everyday lives. But when respect for self and others breaks down, we all suffer. Understanding and adopting a code of respectful behaviour is what makes our union as a whole stronger and better able to effectively represent our membership.

29The evidence was that these two union statements are read aloud before certain CUPE meetings.

30There was evidence led that behaviour on the Union negotiating team can be a rough-and-tumble affair. If someone becomes offended at someone else’s remarks, they need only say “Respect” and the offending behaviour will stop.

31It seems clear that the parties are committed in their opposition to discrimination and harassment. However, and not surprisingly, there will be situations arise that require an assessment of whether certain behaviour falls below the standards set out above. The circumstances here involve a comment made within the confines of CUPE Local 1750’s negotiating committee. The committee was together at that location because they had just concluded bargaining a renewal collective agreement on behalf of members of the bargaining unit. They were not there on behalf of the Employer, nor engaging in the duties of the Employer. They were there on behalf of the Union and its members. In my view, the Employer’s interests do not extend to regulating the behaviour of the members of the Union negotiating committee. Although the wording of the Employer’s policies is not determinative, it cannot be said that the grievor’s inappropriate conduct arose as a result of his employment relationship with the WSIB. It arose in the context of his position as a union official.

32The old case, Millhaven Fibres, supra, at paragraph 20, sets out five requirements that an employer must establish in order to provide a justifiable reason to discipline an employee for conduct away from the workplace:

(1) the conduct of the grievor harms the Company’s reputation or product

(2) the grievor’s behaviour renders the employee unable to perform his duties satisfactorily

(3) the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him

(4) the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees

(5) places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.

33The Employer submitted that it met that onus because reasons number 1, 3 and 5 were met.

34In Woodstock and CUPE, supra, an employee was terminated for “rude, bullying and harassing” behaviour towards at least a dozen employees of the Parks Department on Thursday afternoon June 21st and Friday morning, June 22nd 2007”. The employees who were the subject of that conduct were all summer students. On June 21 the grievor harassed the students as they tried to vote on the ratification of a renewal collective agreement. The vote was being held at the municipal community centre. Senior Union officials had previously told the grievor that the students had a right to vote. On June 22 the grievor made a “rude middle finger gesture” to some of the students. They were all in the Parks’ Yard, on duty, at the time. He also told a student to “mind your own fucking business” while the grievor rooted through the Park’s office to find a list of students and engaged in other rude, bullying and harassing behaviour to a student employee. Again, all of this took place on the Employer’s premises and the Employer’s time. I do not find this case to be at all analogous to the behaviour before me.

35In Tudor House, supra, employees made a report to management regarding a resident being abused by a fellow employee. The circumstances of that case are summarized at pages 394-5 as follows:

As in most situations like this, this case will ultimately be determined on the facts. It seems to me that it was perfectly permissible for Elliott, the local chairperson of the bargaining unit, to respond to the request of Margaret McCarthy to investigate on her behalf. There was nothing wrong with her calling Pruden and Starodub to inquire about the incidents. There was nothing wrong with her asking why it took four months for Pruden to report resident abuse. But considerable care must be taken in making such calls, as if not handled very carefully they may constitute obstruction, interference or intimidation.

In this situation we have Pruden testifying under oath, with what seems to me to be a clear recollection of the incident, that after telling Elliott that Margaret McCarthy punched the resident Elliott said “Weren’t you told when you started working here that we stick together”; that after she said that she did not think that one did not report abuse, Elliott said “You realize that Margaret is suspended” and that Elliott said “Other girls will give you a hard time when you come back to work”. If those things were said, it seems to me that goes beyond investigation and is tantamount to interference or intimidation.

36The arbitrator went on to find that the behaviour had occurred and was an attempt to intimidate Pruden or interfere in the Employer’s investigation of the abuse of a resident. The Employer here noted that the reasons in Tutor House relied upon the following excerpt from Dominion Stores and RWDSU Local 1065 (1978), 1978 CanLII 3430 (NB LA), 20 L.A.C. (2nd) 353 (Teed) at page 358:

“The grievor’s position is of course that he was merely carrying out his duties as a union officer, and that he should not be penalized for doing his duty as a union representative. While there might be merit in this, on the other hand, if he, in carrying out his duty, exceeds the bounds of propriety, then he may have to pay the penalty … It is the view of the board that Mr. O’Ree, in his exuberant endeavours to fulfil (sic) his union functions, undertook a course of action which did not have to be tolerated by a fellow employee and became subject to some discipline.”

37This quote is relied upon for the proposition that a union official is not immune from discipline merely because he/she was carrying out union duties. The Dominion Stores case involved the collection of signatures on a group grievance. Mr. O’Ree was collecting those signatures on company time and premises. The full flavour of the situation is set out at pages 354 and 355 as follows:

The time which he used in securing the signatures of the cashiers who were on duty, would appear to be really insignificant. The head cashier estimated one hour, but this is more a guestimate. It is not the actual loss of time which was occasioned. But rather that he was doing union business on company time, without any permission, which is the employer’s principal concern.

However, as a result of the grievance being circulated, some cashiers apparently took it upon themselves not to lift tote boxes. The evidence is not clear whether this was actually not lifting any boxes or not lifting boxes they felt were hazardous because of weight. In any event enough negative action resulted to draw the situation to the attention of the employer.

The employer claims that there was a slow-down, brought about by the grievor circulating the grievance for signatures and talking to the cashiers, in violation of s. 5.01 which reads: “ During the life of the agreement there shall be no strikes or slowdowns…”.

Mr. O’Ree, at the changing of shifts, went to the employees’ staff room, and endeavoured to secure more signatures.

In the process of talking to the employees, at their staff room, Mr. O’Ree asked one Sherry Barfoot, a relatively new employee of only three weeks’ part-time employment and one not familiar with unions or their processes, if she would sign the grievance. As she was in a hurry to get to her place of work, before her shift started, she indicated she would have to read it and think about it. Mr. O’Ree obviously wishing to get it all done at once then volunteered the statement to the effect, “that all the other employees would have to know that she had not signed the document”.

This gratuitous comment by itself might have been considered as innocuous. However, Mr. O’Ree then went further. He returned to the location where Miss Barfoot was working, and made a further comment to the effect she was the person who had not signed the agreement, in a voice loud enough to be heard by Miss Barfoot, and any other persons present.

Unfortunately, the grievor could not leave well enough alone, and went further. On seeing Miss Barfoot coming to work the next day, Mr. O’Ree pointed his finger in her direction which she noticed through the window. He does not explain why he did so, although he acknowledges he did. She, observing his finger pointed in her direction, came to the normal and reasonable conclusion that the grievor was pointing her out for some reason.

Finally, on another occasion later that day, on carrying on his duties, he was heard to make a remark in her presence to the effect that she was the one who would not sign. Somewhere in the course of events, Miss Barfoot either heard the comment or conjectured in her own mind that if she did not sign she would be classified by her fellow employees as being against the union.

38Although the arbitrator rejected the notion that O’Ree had caused a slow-down contrary to the collective agreement, there can be no question that the criteria in Millhaven Fibres were met in this case. The intimidating behaviour of O’Ree against a fellow employee went beyond acceptable behaviour of a union official.

39The Port Moody case, supra, dealt with the effect of a criminal conviction for truly heinous behaviour. There jurisdiction was reinstated because there was no “real causal connection, a nexus or linkage between the criminal activity and the duties of the job such as to justify termination”. (pp.224 and 225)

40In National Steel Car, supra, the grievor was disciplined for various activities he engaged in as a union official. Arbitrator Shime found that some of those activities were protected. One such was the grievor’s conduct towards the Employer at a closed-door union-management meeting. Mr. Shime said the following at page 330:

After reviewing the decided cases and after considering the difficult role of Union officials, who are also employees, in representing the interests of Union members I am of the view that considerable leeway should be given to employee/officials in performing their proper union responsibilities. Such employee/officials are entitled to be sheltered from discipline and to requiring an employer to strictly prove either malicious or reckless conduct on the part of the employee/union official in other instances.

Also, some distinction should be made between internal and external speech and conduct. Thus, where an employee/official, acting within the scope of his/her authority as a Union official, engages in abusive speech in a closed door meeting, he/she may be immune from discipline. However, speech or statements made outside to third persons, such as the press, by a Union official, may attract discipline only if the speech or conduct is malicious or reckless.

41In the case before me, the conduct complained of took place entirely within the Union committee. It had nothing to do with the Employer at all and could not justify discipline.

42Turning to the so-called criteria in Millhaven Fibres, there is no evidence that any of those criteria are engaged by this purely private conduct. The Employer’s policy statements cannot reach out to regulate its employees as they navigate the world at large. There must be a real, causal connection, a nexus or linkage between the conduct and the legitimate interests of the Employer.

The Decision

43Here, the Employer submits that the conduct occurred in a context where its employees had been brought together because of their employment relationship. In my view, they were brought together because of their status as Union officials. They were conducting the business of the Union and it is not for the Employer to reach into and regulate how the Union conducts its affairs. There was no justification for the Employer to have disciplined the Local Union President.

Therefore, the discipline cannot stand. Accordingly, there are no matters in dispute between the parties within the jurisdiction of the Board.