GSB#2011-2125

UNION#OCC-11-19

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

United Steelworkers (Vorobej)

Union

• and -

The Crown in Right of Ontario (Ottawa Convention Centre)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

David Lipton United Steelworkers Staff Representative

FOR THE EMPLOYER

Brett Christen Filion Wakely Thorup Angeletti LLP Counsel

HEARING SUBMISSIONS

January 16, 2012. April 12, 2012.

Decision

1Mike Vorobej, the grievor, disputes the propriety of the five-day suspension imposed on him by the employer. The employer relies on the grievor’s impugned conduct on four separate occasions as the basis for the suspension. The grievor has been employed by the employer (and its predecessor) for some twelve years. He has no prior discipline. Indeed, the union asserted and the employer did not dispute, this is the first occasion of any discipline during the course of his entire employment history.

2The case features two curiosities. The first relates to the structure of the workplace, a matter that bears some relationship to the events in question, or at least their background.

3The employer, as noted, is the Ottawa Convention Centre (the “OCC”). However, the OCC has entered into a long-term contract with Aramark Canada Ltd. (“Aramark”). As a consequence, the day-to-day functioning and management of the OCC's operations are in the hands of Aramark. However, pursuant to a Letter of Agreement between OCC, the trade union, and Aramark, it was agreed that the OCC's bargaining unit employees, who are Crown employees under the Crown Employees Collective Bargaining Act (“CECBA”), would continue to be covered by the terms of the existing collective agreement between the employer and the trade union and that, for labour relations purposes, Aramark is acting as agent for OCC. Thus, Aramark (as agent for the employer) is the employer spokesperson for collective bargaining and has full responsibility for managing labour relations and administering the collective agreement.

4The grievor has been and continues to be a vocal opponent of this arrangement. In short, he is of the view that the operation of a public facility such as the OCC ought not to be delegated to a private company. In that respect, I note that, as the grievor himself acknowledged, the current arrangement falls well short of a typical contracting out, as the parties involved have agreed to keep the bargaining unit work within the bargaining unit, to retain the bargaining unit employees and to continue to apply the terms of the collective agreement. However, while the grievor expressed the view that this arrangement was the best that could be achieved in the circumstances, he was still quite clear about his dissatisfaction with it.

5These concerns figure, not only in the background of this case, but are, according to the grievor and the trade union, a factor in the discipline imposed.

6Shortly before the new convention facility opened in April 2011, a brief item was included in a CBC news broadcast regarding the facility. The item included comments from the facility's general manager, a trade union representative and two bargaining unit employees, one of whom was the grievor. The item noted the acclaim accompanying the opening of the new facility but also referenced some union and employee discontent. The grievor’s comment included in the item was, in its entirety, as follows:

So what they've done interestingly enough is transfer work from people who were making $14 an hour to people making $9 an hour. So they save $5 an hour while the work is being done.

7The curiosity attached to the claim of lower pay in the face of the preservation of the collective agreement and its terms was not explained, either in the news item or in the evidence before me.

8The item aired on April 18, 2011; the instant discipline was imposed on July 6, 2011. The union and the grievor claim that the instant discipline is an improper reprisal for the grievor’s negative comments, an assertion denied by the employer.

9The second curiosity in the case is the evidentiary terrain that was (or, perhaps more accurately, was not) traversed during the course of these proceedings.

10The only viva voce evidence proffered by the employer was the testimony of Jennifer McCrary, who is employed by Aramark and performs the functions of the OCC general manager. While she authored the letter of discipline and testified in that capacity, she was not in a position to provide any direct evidence regarding the alleged improprieties relied upon by the employer in support of the discipline imposed. Quite a number of documents were filed relating to the events in question. However, insofar as these documents relate directly to the events giving rise to the discipline, they are, virtually without exception, hearsay, frequently multiple hearsay, in nature.

11Notwithstanding this evidentiary lacuna, the grievor, no doubt as a function of his view that his conduct was utterly beyond reproach and in an apparent effort to vindicate his position and the correctness of his views, chose to testify.

12While he did, in many instances, challenge the contents and characterizations contained in many of the hearsay documents, there were other circumstances in which he acknowledged the accuracy of the contents of these reports.

13At one point in his evidence the grievor expressed his desire that the hearing in the matter might have provided the opportunity for all of the authors/witnesses the employer relies upon to attend at the hearing and be subject to cross-examination on their statements. He expressed his disappointment that the employer chose not to facilitate that opportunity.

14I have a certain sympathy for the grievor’s expressed concerns. It is reflected, of course in the general legal proposition that evidence that is not subject to cross-examination may be of significantly limited probative value. However, in the present case and to the extent the grievor has corroborated the contents of hearsay reports, that evidence, taken cumulatively, provides a sound basis for findings of fact. I turn now to the facts, as I have found them in view of all of the evidence before me.

15The grievor has continuing concerns about the manner in which Aramark manages the OCC operations. He does not hold any official trade union position. Indeed, he has been a critic of the union’s conduct: the manner in which stewards he views as inexperienced are appointed and, again in his view, the failure to file grievances to enforce the collective agreement. He has expressed these concerns to co-workers, including in the form of an email “newsletter” distributed to them. He has, at least in the past, advocated the replacement of the union. His current focus, however, is on changing the union leadership from within. He believes the local union executive should be replaced and that he is the ideal to effect the task.

16I turn now to the specific incidents the employer relies upon to support the discipline imposed.

The Four incidents

i. The Email to Paul Keogh

17Paul Keogh is the Senior Vice-President of client Services for the OCC. He is also Aramark’s direct “client liaison”. On June 29, 2011 the grievor sent an email to Mr. Keogh, who, in turn, forwarded it to Ms. McCrary. It read as follows:

HI Paul

I have an early shift so this is the only chance I will get to send you a brief message. By the time my shift is over I will probably be too tired to type.

In any case, if you felt like talking to someone in direct customer service who remembers:

a) When the OCC got more things right than wrong,

b) When we had the best service in town

and

c) Understands how much is at stake if we keep screwing up then please look me up.

I have a 6 AM - 2 PM shift today.

I'm sure you are well aware of the fact that I have protested how blatantly Aramark has disregarded the CBA and our established rights. However it is getting to the point where our lack of ability to execute our normal standards of customer service will make contractual matters largely irrelevant if our repeat customers disappear.

Mike

18Ms. McCrary testified that the proper procedure for employee complaints was to raise any such matter with the manager and, failing a response, the HR manager and, next, to her, the general manager. OCC personnel were not appropriate contacts. She offered no evidence, however, and neither was the matter canvassed in the grievor’s evidence, that the grievor was aware of this protocol or that it had been brought to his attention. The grievor testified that it was his concerns about the quality of service standards and the feared loss of business that motivated his email to Mr. Keogh. He had already discussed “operational matters” with Ms. McCrary. Someone the grievor declined to identify suggested to him that he contact Mr. Keogh to discuss his concerns. He did.

ii. The Marcom Incident

19This event was held from May 31 to June 2, 2011. A written complaint from one of the exhibitors at that event is contained in an email dated July 6, 2011 and addressed to Mr. Latimer, an account manager. Although Ms. McCrary testified that prior to receiving the email the employer was entirely unaware of any such complaint, it does appear from the chain of email then forwarding this document (and from some of its contents) to higher levels of management, that this complaint, or at least its reduction to writing, was solicited by the employer. In any event the complaint was as follows:

The Banquets person in question (cannot remember his name) was very open about his distaste for the union and management of the centre overall. He made numerous comments about how poorly planned and managed they were, that the staff didn't know what they were doing and were overstaffed and tripping over themselves. Made comments about the process of how the centre closed and how it re-opened and he felt it was in a bad location, the lack of parking etc… He commented about how he had been interviewed by the CBC and how his story had been cut short but if it had not that the union would have been exposed. He went on to talk about how sales (sorry) did not know what they were doing because none of them had worked in operations and how whichever is your largest space was being marketed that it cannot actually hold that amount. [sic]

This is how my brain works sadly (Coles notes version). If I think of anything else I will be sure to let you know.

20The grievor, for his part, acknowledged that he had had a number of conversations with the exhibitor in question. He felt she was a willing participant in those conversations, that the communication was between peers (both “in the business” – the exhibitor represented a local hotel) and confidential in nature. He acknowledged having made comments that were critical of both Aramark and the union. He did not challenge the veracity of the email reproduced above.

iii. The Algonquin College Convocation

21Algonquin College held a series of convocation events over three days from June 20-22. 2011. In an email dated June 29, 2011, the client representative registered some concerns, including the following:

We were quite surprised by the negative comments and responses received from some staff during the event. Here are some examples:

There seemed to be pockets of staff relations issues and these disgruntled staff members shared their dissatisfaction with management throughout the event. This was particularly noticeable in our staff dining room, most notably from the person who appeared to be the lead in that room.

22There is further documentation (in widening hearsay layers) suggesting that the employer had other conversations with this client amplifying some of the concerns. In any event, while the grievor may not have accepted all of the allegations – particularly those that related most directly to quality of service – he did acknowledge making comments less than complimentary about Aramark. For example, in response to a client complaint about the chicken being served, the grievor took the opportunity to articulate his own dissatisfaction with a change in the employer’s meal policy for its employees, explaining to the guest that he could not personally comment on the quality of the food because he was no longer being permitted to eat it.

iv. The Women’s World Event

23This event was held on July 4 and 5, 2011. Over the course of those days, the employer alleges that the grievor had been engaged in heated conversations with other bargaining unit employees. These conversations took place in the workplace area where clients were in attendance. The grievor, while acknowledging that he may have been animated in his presentation, claimed that “heated” was an inappropriate characterization. He acknowledged, however, that he speaks in a loud voice and is prone to using animated hand gestures. Among the matters he acknowledged complaining about in these conversations were his concerns about what he viewed as contract violations, loss of contracts for the employer and loss of rights for employees. He further acknowledged that he (as the other participants) was not complimentary about the employer or about the trade union’s efforts at contract enforcement. He also acknowledged that (at least some portion of) the conversations might have been overheard by a supervisor. While he expressed the opinion that it was highly unlikely that any clients heard or paid attention to any part of the conversations, he could not dispute that having happened. Finally, he did acknowledge, in cross-examination, that complaining about the employer or the trade union in earshot of clients does not project the best professional image.

The Positions of the Parties

24The employer asserts that the grievor’s conduct, in all four instances, exhibits a recurring pattern and theme. His free and unrestrained complaints about the manner in which the employer conducts its business, directed to or accessible to its clients while performing his work are a clear breach of the grievor’s duty of fidelity to his employer. Reliance is placed on the formulation of Arbitrator Weiler, cited (among other cases) in Re Camosun College [1999] B.C.C.A.A.A. No. 490 (QL) (Metcalfe) at paragraph 87:

What is this the duty of fidelity? In general terms, an employee must display a certain degree of loyalty to his employer. Malcontents and troublemakers can be so disruptive of normal production on the workplace that they thwart the desires of both employer and fellow employee to get on with the job. These kinds of employees have no constructive role to play in a productive workplace and their disloyalty destroys their usefulness as employees.

25The union claims that no discipline is warranted in the case or, alternatively, that the discipline imposed was excessive in all of the circumstances.

26In support of the alternative submission, the union relies on the lack of progressive discipline, the dramatic nature of the penalty in relation to a long service employee with no prior discipline, improper motivation on the employer’s part (i.e. a reprisal for the grievor’s comments aired on the CBC), and asserted differential discipline levied against the grievor (when compared to the complete absence of discipline imposed on any other bargaining unit employees who participated in some of the events).

27In support of its view that no discipline was warranted, the union makes a number of points. First, the June 29 email to Mr. Keogh is distinguished from other events. We are reminded that this communication, unlike others, involved no communication with or overheard by employer clients. Rather, it was a direct communication between the grievor and his employer, motivated out of common concerns. While, the grievor may have avoided the proper “chain of command”, this is not worthy of discipline. The union also underscored that there was no allegation that the grievor did not complete any of his assigned work tasks or that his performance was substandard in terms of delivery of service to clients. The union also asks that I strike the proper balance between the grievor’s loyalty to his employer and his freedom of expression, particularly given that the employer is a public entity.

Decision

28For the reasons that follow, I have determined that the grievance must be allowed, in part.

29For clarity, my ruling should not be taken as vindication for the grievor or as an endorsement of his views. There is no doubt whatsoever that the grievor’s conduct merited some discipline. I have determined, however, that, in all of the circumstances of the case, it is appropriate to reduce the penalty imposed.

30The concerns articulated by Arbitrator Weiler above are clearly at play in the instant case. It is simply not appropriate for the grievor to be taking opportunities to voice negative comments about his employer, or its agent, to or in the earshot of its customers. This, of course, is particularly so where the grievor, an experienced employee in the hospitality industry is, whether or not he is comfortable with the role, part of the public face of his employer while he is at work. And while some of the cases may accord a certain latitude to statements made in the capacity of trade union representative or even in the exercise of free speech qua citizen, the grievor was acting in neither capacity. The employer has a legitimate business interest in insuring that its employees do not malign management in conversations with or within earshot of clients while those employees are at work. Neither should clients be subjected to employees on the job who are engaging in debates about internal trade union politics or matters of collective agreement enforcement.

31The grievor obviously has an extensive workplace and labour relations agenda. He is entitled to his views and he is entitled to engage in legitimate trade union activities, including, should he so choose, seeking trade union office and engaging in the politicking that may attend those efforts. That freedom, however, is not absolute and does not provide him with a license to freely express his views at work to, or within the earshot of, the employer’s customers or guests. The grievor clearly did not and, I fear, still does not understand this.

32Notwithstanding that concern, a number of factors militate in favour of reducing the penalty imposed. I will briefly enumerate the chief considerations.

33First, while it is no (and was not suggested to be any) “fault” of the employer, events did unfold in a manner that precluded the grievor enjoying the benefit of progressive discipline. Had the four separate events been more temporally distinct and had they been treated as individual disciplinary matters, the penalty the grievor might have attained in respect of the last incident could easily have been a 5-day suspension. What we cannot know for certain, however, is how the grievor might have responded to the imposition of discipline and whether, in its early stages, it would have had its principal desired effect, i.e. to cause the grievor to re-evaluate and modify or control his behaviour.

34Second, the grievor is an employee with significant amount of service and without any prior discipline on his record.

35Finally, while I am not persuaded that the discipline ought to be vacated in either instance, there is merit to the union’s submissions in respect of two of the incidents.

36The email to Mr. Keogh is, as the union pointed out, in a category quite different from the other events. It is, even if procedurally improper, a communication between an employee and his employer. While the reality of the contractual arrangement makes Aramark’s concern about employee communication with OCC understandable, the entire scenario is quite different from communications with third party clients that may jeopardize the employer’s business interests. The (somewhat inapt) analogy in the context of the public service governed by CECBA might be the OPS employee who chooses, rather than discussing the matter with his supervisor, to communicate directly with the Minister or Premier. While it is not difficult to comprehend that such communication would likely not be welcome by the employer, it does not raise the same sorts of concerns as the other events with which we are dealing.

37I also find some of the union’s submissions regarding differential application of discipline to have merit. Apart from that of the grievor, there is no direct evidence whatsoever from any of the participants in the discussions between bargaining unit employees. Had the employer opted to present such evidence, the picture before me might well have been different. In the end, there is nothing before me to directly contradict the grievor’s evidence that other employees were willing participants and took the opportunity to voice their own complaints. None but the grievor was disciplined. While this does cause some concern, based on the grievor’s evidence and admissions, I am satisfied that, more likely than not, he was the chief and certainly the most vocal and enthusiastic participant. Thus, some difference in the disciplinary response may well have been warranted. However, the difference between something and nothing still remains troubling.

38I have not, however, accorded any weight to the union’s suggestion that the discipline imposed on the grievor was a reprisal for his interview with the CBC almost three months earlier (a point on which the employer witness was not cross-examined). There were ample grounds for the employer to respond with a justifiable disciplinary response in this case. I am satisfied that is what it did and was entitled to do.

39Having regard to these considerations, I am persuaded that a reduction in penalty is appropriate.

40But for one significant factor, I might well have been inclined to be far more liberal in my modification of the penalty. But the grievor failed to demonstrate much, if any, appreciation for the improper nature of his conduct. He demonstrated no contrition and, frankly, may well have simply viewed the entire process as providing yet another platform for the expression of his views. If the grievor has any intention of remaining a member of this bargaining unit, he will need to re-examine his attitudes and workplace conduct. He need not alter his views or abandon his opinions. He must, however, fulfil his employment obligations, which include being part of the public face of an employer in the hospitality industry.

41Having regard to the foregoing, the five-day suspension in this case is hereby reduced to a three-day suspension. The grievor’s record is to be adjusted accordingly and he is to be compensated for the difference between a five-day and a three-day suspension. I will remain seized in the event the parties encounter any difficulties in the implementation of this award.