[1980] OLRB Rep. November 1662
0843-80-M United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Applicant, v. Ontario Hydro, Respondent
BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and M. J. Fenwick.
APPEARANCES: L. C. Arnold and W. Howard for the applicant; Ross Dunsmore, Allen Bell and R. A. McClellan for the respondent.
DECISION OF THE BOARD; November 25, 1980
This is a referral of a grievance to the Board pursuant to section II 2a of The Labour Relations Act.
The grievance alleges that the respondent violated the Provincial Construction Agreement (the "Collective Agreement") which was in force between the parties at all material times, by unjustly suspending Robert Smith (the "grievor") on or about March 21, 1980 for a period of three days, and by unjustly and without cause discharging the grievor on or about March 24, 1980.
At the commencement of the hearing counsel for the respondent stated that there was no objection by his client with respect to the jurisdiction of the Board to hear this matter. He also acknowledged that the grievor was an employee covered by the Collective Agreement, that the grievor had been discharged and that the respondent had the onus of establishing in these proceedings that it had 'just cause" to discharge the grievor.
The hearing of this matter commenced on September 4, 1980, and continued on November 4 and 5, 1980. During the course of the hearing, a total of eight witnesses gave evidence. There are substantial conflicts in the evidence adduced by the applicant and the respondent concerning a number of material factual issues.
The grievor is a forty-five year old welder who is five feet eleven inches tall and is quite robust. He is married and has one child. The grievor's foreman is Brian Bailey, who is one of the seven foremen who reports to piping general foreman Roger Dallaire. Mr. Dallaire is fifty-five years old and has thirty-two years of experience as a supervisor. He is five feet four inches in height and weighs one hundred and fifty-five pounds.
The grievor was employed by the respondent at its Pickering project from February to June of 1979, when his employment was terminated as a result of his failure to report for work due to a medical problem. The (internal) notice of termination, prepared by his foreman on June II, 1979 for inclusion in his employment record, included the following notation: "WILL REHIRE IF TIME KEEPING IS IMPROVED". The grievor was subsequently referred by the applicant to the Pickering project on October 1, 1979, where he worked for the respondent until he was laid off on December 1, 1979 as a result of a shortage of work. He was recalled to work at the project on February 5, 1980, and continued in the employ of the respondent until his discharge which gave rise to the present case.
On March 7, 1980, the grievor was suspended for one day (March 12, 1980) without pay by Mr. Dallaire for violating safety rules by failing to wear safety glasses. Prior to the suspension, the grievor had received two verbal warnings for failing to wear safety glasses. Although the grievor filed a grievance with respect to the suspension and contended that Mr. Dallaire had not seen him without his safety glasses on, the grievor ultimately decided not to pursue his grievance.
Mr. Dallaire testified that on March 19, 1980, at approximately 11:00 a.m. he saw the grievor talking to another employee, Thomas Atherley, on level 274 of the project. This concerned Mr. Dallaire since the grievor was supposed to be working on level 254 (20 feet below). Mr. Dallaire told the Board that he turned around and thought about the situation for 30 or 40 seconds to determine what to do. It was his evidence that he would normally have gone directly to the grievor's foreman in such circumstances. His hesitation that morning resulted from the fact that when he had attempted to telephone Mr. Bailey on the site earlier that day, sub-foreman George Kemp had answered and had advised that Mr. Bailey had not yet arrived. After considering the matter for about half a minute, Mr. Dallaire decided to ask the grievor what he was doing on that level. However, when Mr. Dallaire turned around again, the grievor "had disappeared and Mr. Atherley was back working where he was supposed to be". Mr. Dallaire returned to his office and telephoned Mr. Bailey who had arrived on the project by tha'2 time. Mr. Dallaire told him what he had seen and asked him to tell the grievor that he (Mr. Dallaire) had seen him on level 274 and to warn him that he was to stay at his place of work. According to the grievor, Mr. Bailey told him that Mr. Dallaire had said that he had seen him (the grievor) talking to Mr. Atherley on level 274 "for about an hour". Upon hearing this, the grievor said: "No, it wasn't me." After speaking with Mr. Dallaire again, Mr. Bailey returned and told the grievor that Mr. Dallaire maintained that it was him (the grievor) that Mr. Dallaire 3ad seen. With respect to the disciplinary consequences of this incident, Mr. Dallaire testified: "As far as I was concerned, this was a verbal warning and it was over. I didn't make any formal record. I didn't think it was serious enough to make any record."
The grievor testified that he did not leave his work position on level 254 during the morning of March 19, 1980. He further testified that he did not go up to level 274 and did not have any conversation with Mr. Atherley that morning. In his testimony before the Board, Mr. Atherley confirmed that he did not see or talk to the grievor that morning. It was his evidence that on the morning in question, he and three other persons, including one Leroy Francis, were standing away from the scaffolding where they had been working because some boilermakers were cutting a hole in the grid overhead and they had to get out of the way. Mr. Atherley also testified that while they were standing there, Mr. Dallaire came upstairs, and that as soon as Mr. Francis saw Mr. Dallaire, he (Mr. Francis) ran behind a vessel out of Mr. Dallaire's range of vision. Mr. Atherley's explanation for Mr. Francis' conduct was: "A lot of people at Hydro are afraid of the supervisors; they keep running when they see one of them."
The Board is satisfied that Mr. Dallaire honestly believes that he saw the grievor with Mr. Atherley on level 274 on the morning of March 19, 1980. Although Mr. Francis did not testify before the Board, and although he was described as being somewhat smaller than the grievor, it is possible that Mr. Dallaire mistook Mr. Francis for the grievor since Mr. Dallaire was approximately forty feet away and only observed the person in question for a very short pen d of time. Accordingly, for the purposes of this case, we shall assume without deciding that the grievor was not on level 274 on the morning of March 19, 1980.
The grievor alleged that Mr. Dallaire had been "bird dogging" him by watching him very closely in an attempt to find reasons to discharge him. However, this allegation is not supported by the evidence. In fact, the evidence establishes that Mr. Dallaire arranged for the grievor to work with a different pipe fitter at the request of the grievor when the grievor expressed concern that he might be laid off (as apparently that happened once before) due to the ineptitute of the pipe fitter with whom he was originally assigned to work. If Mr. Dallaire had been eager to have the grievor removed from the site as alleged by the grievor, it is very unlikely that he would have exercised his managerial discretion in this manner so as to fulfill the grievor's request.
The grievor was very concerned about the allegation that he had been seen on level 274 as he was afraid that he might lose his job. Accordingly, before reporting for the next morning, he went to the personnel office and spoke with Bruce Barley, an assistant personnel officer. Mr. Barley advised him to see his steward about filing a grievance if he was unable to resolve the matter satisfactorily by speaking with Mr. Bailey and Mr. Dallaire. Later that morning, the grievor explained the situation to Ron Gard, the chief union steward on the project, and asked him to speak with Mr. Dallaire about it. Mr. Gard agreed to do so; however, before he had an opportunity to speak with Mr. Dallaire, the events occurred which gave rise to the discharge of the grievor.
Mr. Dallaire testified that at approximately 11:00 a.m. on March 20, 1980 while he was in a corner on level 254 waiting for an elevator which would take him up to the level on which his office was situated, the grievor walked up to him and yelled several times in an angry voice: "You fuckin' liar. Get off my fuckin' back". As he spoke, the grievor moved closer to Mr. Dallaire and shook his pointing finger about one half inch from Mr. Dallaire's face. Mr. Dallaire's testimony concerning his reaction to this situation was:
"I said: 'If you want to talk go ahead but I'm not listening.' .. . I was scared because I thought he would use physical force on me. I was scared that if I said anything, he'd think I was fighting back and would hit me.... When the elevator came, I stepped in. I didn't look back to see what Mr. Smith did."
- The grievor's evidence concerning that encounter differed markedly from that of Mr. Dallaire. His evidence was as follows:
"About two hours later at approximately 10:30 a.m. I saw Mr. Dallaire coming around. I said: 'Hello Roger. What's going on? You told Mr. Bailey that you saw me talking to Tom Atherley for about an hour.' I wasn't mad or anything at the time. Mr. Dallaire said: "You called me a fucking liar before and you're not going to get away with it.' I said: 'Are you serious Roger?' He said: 'I don't want to hear anything from you.' He went towards the elevator. I told him I was going to get Atherley to tell him that I wasn't there."
The grievor also denied that he had shaken his finger at Mr. Dallaire.
Following this encounter with the grievor, Mr. Dallaire returned to his office with the intention of telephoning Joseph McCormick, assistant piping superintendent, to discuss the incident. However, when he reached his office, he found Mr. McCormick there talking to a third person. By the time Mr. McCormick concluded his conversation with that person, the grievor had arrived at the office with Mr. Atherley, whom he had approached at his work station with the request that he accompany him to Mr. Dallaire's office to assist him in attempting to prove that he had been falsely accused of being with Mr. Atherley on the previous morning as a result of "mistaken identity". Although the grievor had come to the office with the intention of speaking to Mr. Dallaire, when he found Mr. McCormick there, he told Mr. McCormick that he wanted to speak to him. However, Mr. McCormick, who testified that he observed that "they were quite excited about something" and "could see that it involved Mr. Dallaire", told them that he was going to talk to Mr. Dallaire first. Mr. Dallaire then asked them if they had a referral slip from their foreman (authorizing them to leave their work stations for the purpose of coming to his office). When they replied in the negative, he asked them to return to their foreman to obtain one, and told them that he would talk to them when they returned with the slip. Mr. Gard testified that an employee is required to obtain a referral slip before going to a general foreman's office, but that this requirement may not have been known by everyone on the site since "it does not happen very often".
Mr. McCormick and Mr. Dallaire then discussed what had occurred between the grievor and Mr. Dallaire at the elevator. As a result of that discussion, Mr. McCormick told Mr. Dallaire to discharge the grievor for insubordination. Mr. McCormick advised the Board that in his experience, the practice of the respondent is to immediately discharge any employee who is insubordinate to a supervisor. He also stated:
"We will not tolerate insubordination to any of our supervisors. A foreman has a crew of anywhere from ten to fifteen men. He has to get the work from them. If any of them is insubordinate and other men see this, we wouldn't be in the construction business — we wouldn't be productive."
Meanwhile, the grievor had returned to work on the advice of his foreman who, when asked for a referral slip, told the grievor and Mr. Atherley that they should go back to work before they got themselves into any further trouble. Mr. Bailey also told the grievor that he "would handle it from there". A few minutes later Mr. Bailey, acting on instructions from Mr. Dallaire, gave the grievor a separation slip which indicated that the grievor's employment was being terminated for insubordination.
After eating lunch, the grievor began to gather up his tools. While the grievor was riding down on an elevator with a welding machine and some other tools, Mr. Dallaire entered the elevator along with foreman John Watson. Mr. Dallaire testified as follows concerning the events which occurred thereafter:
"We rode down to [level] 254. I got out of the elevator with my foreman [John Watson]. Mr. Smith had his welding machine with him (on one wheel). He wheeled it out of the elevator and dropped it on the floor in front of the elevator. . . I came out of the elevator and turned left to go to another elevator that goes to [level] 225.... I was about twenty feet from the elevator when I heard Mr. Smith say: 'Hey, I want to talk to you.' I stopped and Mr. Smith walked towards me and stopped about two feet from me. He asked me: 'Why did I get fired?' I said: 'Well, you called me a fuckin' liar.' At that point, he closed both fists and he hit me on both shoulders with both fists and said: 'You're a fuckin' liar.' I fell on my back on the concrete floor. My hard hat fell away about fifteen feet from me. I was lying on my back on the concrete. As I was getting up, he picked up my hard hat and threw it at me and hit me on the head.. .. Mr. Smith then started to come my way again. Mr. Watson kind of restrained him. I picked up my hat and walked away. I didn't turn around. I was just getting out of there. I felt very scared while I was on the floor. I didn't know if he was going to come at me with his fists or his feet."
After calling security to report the incident, Mr. Dallaire went to first aid for examination by a physician. Although Mr. Dallaire was not absent from work as a result of the incident, he had a lump on his head for about a week and also experienced headaches and a sore back for three or four days. Re further testified that the events adversely affected his efficiency for several weeks.
Mr. Watson also testified before the Board. It was his evidence that after he left the elevator with Mr. Dallaire, he heard the grievor say to Mr. Dallaire in an authoritative voice: "I want to talk to you." Mr. Dallaire then turned and walked back toward the grievor while Mr. Watson continued to walk away from the elevator. Mr. Watson heard a commotion and heard the grievor calling Mr. Dallaire a "liar" in a very strong tone. When Mr. Watson turned around, he saw Mr. Dallaire lying on the floor. Mr. Watson further testified that the grievor grabbed Mr. Dallaire's hat from the floor and threw it "hard", striking Mr. Dallaire on the forehead. It was also Mr. Watson's evidence that he went over to the grievor, grabbed him by the arm and told him to "take it easy".
The grievor's testimony concerning this encounter was as follows:
"I went to pick up my tools. I went to the fourth floor. I was coming down to the first floor. Me, Mr. Dallaire and the operator were on the elevator. I didn't see anyone else. . . I went down to the first floor. We got off the elevator. I said 'Roger I'd like to speak to you.' He came over to me. I said: 'Why did you fire me Roger?' He said: 'Because you called me a fuckin' liar. If I had my way I'd get rid of all of you niggers anyway.'... At this point he was close to me. I put both my hands on his shoulders and pushed him away. He fell to the floor and his hard hat fell. I picked it up and threw it - not at him. It bounced off the washroom wall. It didn't hit him."
When asked in cross-examination why he did not speak with Mr. Dallaire on the elevator rather than waiting until they had left the elevator, the grievor stated:
"I have my own way of doing things. I didn't want nobody to hear what I was saying to him. I didn't want to say it in front of the operator."
The grievor also stated that he did not think it was wrong to have pushed Mr. Dallaire.
It was the grievor's evidence that he did not see Mr. Watson but that there were "a lot of people around" on level 254 outside the elevator. He further testified that he did not recall anyone trying to calm him down and that no one touched him. The grievor described his emotional state at the time of the incident as being "in a rage”, "crying”, ''furious'' and ''very angry". Nevertheless, he maintained that he merely pushed him away "not hard" and that Mr. Dallaire must have "slipped" or "tripped" as he did not push him hard enough that he would have fallen. He also stated: "I felt like I could have whipped his ass, I'll tell you the truth. But I just left it and walked away.
Later that day at a meeting between the applicant and the respondent, Mr. McCormick was persuaded by the applicant to substitute for the discharge a "three day suspension without pay pending further investigation." At that meeting the grievor indicated that he had lightly tossed the hard hat and denied that he had thrown it with a great deal of strength. However, at the hearing he testified that the hard hat struck the washroom wall after he threw it. Since the washroom wall was approximately fifty feet from where the grievor was standing when he threw the hard hat, it is apparent the grievor's testimony at the hearing concerning the force with which he threw it is inconsistent with his statement on the day in question. The grievor's testimony concerning the throwing of the hard hat against the washroom wall is also inconsistent with Mr. Watson's testimony concerning the matter.
During the following three days, Mr. McCormick interviewed "everybody that [he] could determine was involved in the incident". After speaking with a total of nine persons and reviewing the grievor's personnel file, he concluded that the grievor should be terminated for cause. Mr. McCormick subsequently notified the grievor of this decision by registered letter dated March 24, 1980. The respondent's (internal) "employee data change" form which was placed in the grievor's personnel file in respect of his initial termination on March 20, 1980 (following the first elevator incident) indicates that the respondent would rehire the grievor, and contains the following "remarks":
"This man could improve his time keeping. He could also control his temper and not make abusive remarks about his supervision. Must be interviewed by superintendent before rehire."
At the hearing, Mr. McCormick confirmed that the grievor would be rehired if he fulfilled those conditions.
As is apparent from the evidence summarized above, credibility is one of the crucial issues in this case. In assessing the credibility of the various witnesses, the Board has considered such factors as the consistency of the evidence of each of the witnesses, their firmness of memory, their ability to resist the influence of interest to modify their recollections clearly and their demeanour.
There were a number of inconsistencies in the grievor's testimony. For example, he stated during examination in chief that he was angry when he told Mr. Dallaire that he would like to speak to him and asked him the reason for his discharge. However, in cross-examination he indicated that he was not angry when he got off the elevator and that he spoke quietly to Mr. Dallaire. When asked during cross-examination why he did not tell Mr. McCormick, at the meeting between the applicant and the respondent held later that day, that he did not hit Mr. Dallaire with the hard hat, the grievor at first stated: "I did say that." However, he subsequently said: "No one mentioned anything to me about a hard hat at that meeting." In his initial testimony as set forth above concerning the racial slur allegedly made by Mr. Dallaire, the grievor testified that Mr. Dallaire used the term "nigger". However, in his subsequent testimony, the grievor indicated that the term allegedly used by Mr. Dallaire was "fuckin' nigger". Although the use of either expression would be utterly reprehensible and inexcusable, the grievor's subsequent embellishment of his initial testimony concerning this very significant aspect of the case casts further doubt upon the credibility of his testimony. Moreover, several material aspects of the testimony of Mr. Dallaire are corroborated by the testimony of Mr. Watson whom the Board found to be a very candid and credible witness. In particular, Mr. Watson confirmed that the grievor threw the hard hat at Mr. Dallaire and struck him on the head with it. Although Mr. Watson's recollection of the precise words used differs somewhat from that of Mr. Dallaire, the evidence of Mr. Watson confirms that the grievor called Mr. Dallaire a "liar" during the course of "the commotion" in the second elevator incident. This is quite significant since it is most unlikely that a person would respond in such a manner to the racial slur which Mr. Dallaire is alleged to have uttered. Mr. Watson also confirmed that he attempted to physically restrain the grievor during the second elevator incident. It is also of some significance that Mr. Watson's description of the attitude of the grievor toward Mr. Dallaire during that second incident is similar to Mr. Dallaire's evidence concerning the grievor's attitude toward him during the prior incident. Thus, Mr. Watson's evidence also supports the credibility of Mr. Dallaire's version of the first elevator incident.
Accordingly, having regard to all of the evidence before it and to the foregoing considerations concerning credibility, the Board accepts the evidence of Mr. Dallaire and rejects the evidence of the grievor insofar as his evidence conflicts with that of Mr. Dallaire with respect to the incidents which occurred on March 20, 1980. In particular, the Board finds that the grievor called Mr. Dallaire a "fuckin' liar" and shook his finger in Mr. Dallaire's face in a menacing manner during the first "elevator incident". The Board also finds that Mr. Dallaire did not utter a racial slur as alleged by the grievor, but that the latter did forcefully strike or push Mr. Dallaire to the floor and strike Mr. Dallaire on the head by throwing his hard hat at him while he was on the floor. At no time did the grievor offer any apology to Mr. Dallaire for his actions.
The appropriate disciplinary response by an employer to an assault on a foreman or other member of management has been the subject of a great number of arbitral decisions. Although all of the cases obviously turn upon their own peculiar facts, the jurisprudence clearly indicates that such assaults are very serious matters which warrant severe discipline. See, for example, Re Spruce Falls Power and Paper Co. Ltd. (1978), 1978 CanLII 3488 (ON LA), 22 L.A.C. (2d) 343 (Brunner) and Consumers Gas Co. Ltd. (1970), 1969 CanLII 1491 (ON LA), 20 L.A.C. 78 (H.D. Brown). See also Re Canadian Carborundum (1973), 1973 CanLII 2118 (ON LA), 5 L.A.C. (2d) 29 (Arthurs), which contains the following passage:
"At the outset, it must be said that under no circumstances is an employee justified in verbally or physically abusing his foreman. In the interests of orderly relations within the plant, and the maintenance of morale and discipline, such conduct in principle cannot be condoned. However, the circumstances giving rise to employee conduct in this case, as in every case, must be examined in order to determine whether the penalty imposed is (in the language of art. 12.02 of the agreement) 'too severe', and whether a more 'just and equitable' penalty should be substituted therefor."
Thus, assaults upon managerial persons have in the majority of cases resulted in discharges being sustained (see Brown and Beatty, Canadian Labour Arbitration, (Agincourt: Canada Law Book Limited, 1977) at 325, footnote 269 and accompanying text, and Palmer, Collective Agreement Arbitration in Canada (Toronto: Butterworths, 1978) at 256, note 68 and accompanying text). However, a number of recent awards have held that assaults upon supervisors do not necessarily justify discharge if mitigating circumstances are present. For example, in Re Canron Ltd. (1975), 1975 CanLII 2130 (ON LA), 9 L.A.C. (2d) 391 (Shime), a one year suspension was substituted for discharge where the foreman, who was partially responsible for escalation of events which culminated in mutual assaults, was not completely candid in his testimony before the arbitrator; in Re Davis Lumber Co. Ltd. (1975), 1975 CanLII 2120 (ON LA), 9 L.A.C. (2d) 126 (Curtis), a six month suspension was substituted for discharge where the grievor had progressed during his four years of employment with the company from a labourer to a shipper and then to a tow motor operator, had no prior disciplinary record and assaulted his supervisor during a momentary flare-up that caused his supervisor no significant physical harm; in Re Ford Motor Co. of Canada Ltd. (1974), 1974 CanLII 2359 (ON LA), 7 L.A.C. (2d) 199 (Palmer), the arbitrator found that the grievor's assault upon the head general foreman did not constitute a culminating incident due to harassment of the grievor by his immediate foreman, belligerent actions of the head general foreman and personal factors including bereavement, family problems and lack of sleep; and in Re Canadian Carborundum, supra, a one year suspension was substituted for the discharge of the grievor because (1) the employee had an unblemished work record of three years, (2) the foreman himself engaged in verbal abuse which provoked the grievor to offer verbal abuse in return, (3) the grievor's physical violence was momentary, unpremeditated and of a minor nature (he merely "shoved the foreman, telling him to 'get out of [his] way."), and (4) the grievor immediately and spontaneously realized that he had been guilty of misconduct and tendered his apologies to his foreman. (See also Re Galco Food Products Ltd., (1974), 1974 CanLII 2320 (NL LA), 7 L.A.C. (2d) 250 (Beatty) and Re Firestone Tire and Rubber Co. of Canada Ltd. (1975), 1975 CanLII 2199 (AB GAA), 9 L.A.C. (2d) 345 (Mason).)
In Re Dominion Glass Co. (1975), 1975 CanLII 2106 (ON LA), 11 L.A.C. (2d) 84, the chairman (now Mr. Justice Linden) considered the following factors to be relevant in determining whether discharge is justified on the facts of a particular case involving an assault upon a member of management: (1) the identity of the person attacked; (2) whether the assault was a momentary flare-up or a premeditated attack; (3) the seriousness of the attack; (4) the presence or absence of provocation; (5) the disciplinary record of the employee; (6) the length of service of the employee; (7) the economic effects of the discharge; and (8) the presence or absence of an apology. Those eight factors were also adopted and applied in Re Spruce Falls Power and Paper Co. Ltd., supra.
In the present case the assault was upon the general foreman to whom the grievor's foreman was directly responsible. Although the evidence indicates that the general foreman generally deals with employees through their respective foremen, there are occasions when individual employees have direct contact with their general foreman. For example, the evidence indicates that as a result of an absence during his first week of work following his recall from lay-off in early February of 1980, the grievor was advised by Mr. Dallaire that he was "expected to work five days a week". Moreover, as previously mentioned, the grievor approached Mr. Dallaire directly to request that a different pipe fitter be assigned to work with him. The evidence also establishes that if an employee is unable to resolve a complaint or other concern satisfactorily by speaking with his foreman, he then approaches his general foreman concerning the matter. The general foreman circulates throughout the area for which he is responsible to exercise general supervision and control over the work being performed. To perform his functions effectively, he must be able to move about the project without fear of personal attack or abuse. In view of the circumstances, it is apparent that disciplinary or control problems could result if the grievor was reinstated in his former position.
Counsel for the applicant contended that each of the two "elevator incidents" constituted a momentary flare-up. Although we are not prepared to find that either of those incidents was premeditated in the sense that the grievor sought out Mr. Dallaire with a view to assaulting or abusing him, we are satisfied that in the first incident, the grievor, upon encountering Mr. Dallaire, consciously elected to conduct himself in such manner as to cause Mr. Dallaire to fear for his personal safety. With respect to the second incident, it is not without significance that the grievor chose not to confront Mr. Dallaire in the elevator but rather decided to wait until after he had left the elevator. Thereafter, he summoned Mr. Dallaire, deliberately pushed or struck him with considerable force and, while Mr. Dallaire was lying on the floor, the grievor committed a further act of wilful violence by picking up the hard hat and throwing it forcefully at Mr. Dallaire. Viewed in totality, those incidents demonstrate that the grievor was a worker of violent and potentially dangerous temperament.
Although the grievor may have had a legitimate grievance with respect to the verbal warning given to him by Mr. Bailey at the direction of Mr. Dallaire for allegedly being on the wrong level on March 19, 1980, the proper procedure for dealing with that grievance, as recognized by the grievor, was to approach his steward if he was unable to satisfactorily resolve the matter by speaking with Mr. Bailey and Mr. Dallaire. Even if(as we have assumed for the purposes of this case) the grievor was wrongly accused of being on that level as a result of mistaken identity, this does not provide any justification whatsoever for abusing a general foreman in the manner in which the grievor did in the first "elevator indicent" described above. Nor was there any provocation for the second incident. If the grievor was of the view that discharge was an excessive disciplinary response to the first incident, it was open to him to follow the normal civilized procedure of filing a grievance. As stated in Re Dominion Glass, supra, at 85, [e]mployees must not think that every time they feel they are aggrieved by a foreman (or a fellow worker for that matter) they may resort to violence with impunity. Violence is as wrong in an industrial plant as it is in society generally, and it must be deterred if at all possible." This statement is, of course, equally applicable to a construction site where factors such as height above the ground, openness of unfinished premises, presence of rough surfaces and proximity to potentially dangerous equipment, combine to create an environment in which violence has an even greater potential for injurious or fatal consequences. If Mr. Dallaire had uttered a racial slur as alleged by the grievor, the existence of such provocation would undoubtedly have been a mitigating circumstance. However, as indicated above, we are satisfied that Mr. Dallaire did not do so.
Although the first "elevator incident" merely caused Mr. Dallaire to experience a transitory apprehension of harm, that incident would nevertheless have justified disciplinary action of at least a substantial suspension from work without pay in view of the insubordinate nature of the grievor's words and actions, and in view of his employment record. However, that incident cannot be viewed in isolation in the present case as it is clear that Mr. McCormick's ultimate decision to discharge the grievor was based not only on that incident but also on the even more serious incident which followed it and on the grievor's employment record. The second "elevator incident" involved a violent attack by the grievor upon his general foreman in the presence of a number of other persons including other workers and foremen. Although the grievor's act of striking or pushing Mr. Dallaire to the floor caused only temporary pain and discomfort, it could have resulted in very serious bodily harm. Moreover, the subsequent throwing of the hard hat by a person of the grievor's relatively large size and strength could well have caused grievous bodily harm in view of the weight and shape of the hard hat (which was introduced as an exhibit at the hearing).
As indicated above, the grievor's total length of service with the respondent was less than nine months. During his final month of service, he received a one day suspension for violation of safety rules following two verbal warnings for similar misconduct. Thus, the grievor does not have a long, unblemished employment record of productive service in the context of which incidents in question may be viewed as isolated aberrations.
The grievor testified that he has experienced some domestic and financial problems which "could have something to do with not having a job". However, there is no evidence which indicates that the economic consequences of his discharge have been more severe than those which are generally experienced by a discharged worker. Moreover, it is also significant to note that the respondent has indicated that it would rehire the grievor in the future if it was satisfied through an interview by a superintendent that he had improved his timekeeping and had developed an ability to control his temper and to refrain from making abusive remarks. Accordingly, ;his is not a case of a middle-aged long term employee who, as a result of his discharge from employment, will inevitably face bleak employment prospects.
As indicated above, the grievor did not at any time apologize to Mr. Dallaire for his misconduct. The grievor had ample opportunity to offer such apology at the meeting between the applicant and the respondent during the afternoon of March 20, 1980 at which a three day suspension pending further investigation was substituted for his discharge. Far from apologizing, the grievor, as he was leaving that meeting, stated that if he had had a gun, he would have shot Mr. Dallaire. As previously indicated, even at the continuation of the hearing of this matter on November 4, 1980, more than seven months after his discharge, the grievor was not at all remorseful concerning his misconduct. In cross-examination, he stated: "I don't think it was wrong of me to push Mr. Dallaire. He was in my face, I had no choice." Moreover, the grievor further demonstrated his lack of remorse by denying that he had struck Mr. Dallaire with the hard hat and by continuing to falsely accuse Mr. Dallaire of having made an utterly reprehensible racial slur. This lack of candour before the Board is a further factor which militates against the substitution of a lesser penalty for the discharge of the grievor (see Foster Wheeler Limited, [1979] OLRB Rep. Dec. 1160, at paragraph 22).
In his evidence in chief, the grievor expressed the view that he could return to work for the respondent under Mr. Dallaire. However, under cross-examination he stated: "I know that Mr. Dallaire doesn't tell the truth. I could work with somebody else. I don’t' know if I'd find it difficult following Mr. Dallaire's orders. I would rather work for somebody else than Mr. Dallaire." In his evidence Mr. Dallaire, after indicating that he was never in his thirty-two years of suspension been involved in incidents similar to those in the present case, stated: "I'd be scared to have Mr. Smith working with me again." Accordingly, reinstatement by this Board of the grievor into his former position might well result in continuing tension and conflict between the grievor and Mr. Dallaire to the detriment of the respondent.
Having regard to all the evidence and the submissions of the parties, the Board finds that the respondent had just cause to discharge the grievor. The Board further finds that this is not an appropriate case in which to substitute a lesser penalty for discharge pursuant to section 37(8) of The Labour Relations Act. Accordingly, the grievance is hereby dismissed.