[1980] OLRB Rep. May 777
0870-79-M A council of Trade Unions acting as agent for Teamsters Local 230 and L.I.U.N.A. Local 183, Applicant, v. Metropolitan Toronto Road Builders Association and Repac Construction & Materials Ltd., Respondents.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. A. Ronson and D. B. Archer.
APPEARANCES: Douglas Wray, Isaac Raymond and Joe Luciano for the applicant; S. C. Bernardo for the respondents and Dennis Forsyth for Repac Construction & Materials Ltd.
DECISION OF VICE-CHAIRMAN N. B. SATTERFIELD AND BOARD MEMBER J. A. RONSON; May 15, 1980
The applicant has referred to the Board a grievance in the construction industry for arbitration under section 112a of The Labour Relations Act. The applicant, acting on behalf of the Teamsters Local 230 ("Local 230") and its member Joe Luciano, alleges that the respondent employer Repac Construction & Materials Ltd. ("Repac"), without reasonable cause suspended Luciano without pay for 10 shifts (i.e. two weeks). The applicant seeks to have the suspension rescinded without loss to Luciano of any wages, benefits and seniority.
The suspension was effective from August 8, 1979, the referral was made August 9, 1979 and was heard first on August 27, 1979. It was continued for hearing on March 11th and March 18, 1980. The evidence of all 11 witnesses was received during the first two days of hearings. The evidence of the respondent's witnesses and that of the applicant's witnesses contained some significant differences and contradictions. The findings of fact herein reflect the Board's assessment of all of the evidence, the manner in which it emerged, the reliability of the witnesses' recall of events, their demeanor and relative credibility.
Repac is a road building contractor which also operates gravel pits and quarries. It has a truck fleet of some 30 vehicles, four of which are referred to as mule trains and have a load capacity of approximately 50 tons each. The two most common routes on which these latter trucks are used involved round trips of 90 and 50 miles. Luciano was driving one of these rigs at the time of his suspension and at all material times prior to that event. Repac's annual operating season runs approximately from April through November and most of its drivers are hired at the start of the season and laid off at the end. The drivers who testified, for the most part, had worked during several seasons for Repac. In June 1979, Repac was engaged in a major road contract on which it was closely monitoring the costs. In mid-June when the job was approximately half completed, the dumping of sand and gravel on the project had decreased by at least 200 tons per day. At the same time Repac got a report that Luciano's conduct might be connected with the productivity problem. This was the beginning of a series of events which occurred at intervals between mid-June and the first of August, most of which came to Repac's attention after the fact and which led to Luciano receiving on August 7th a letter advising him of his suspension beginning August 8th. It reads as follows:
"This is to notify you that, effective August 8, 1979, you will be suspended for a period of two (2) weeks. The suspension is for deliberately attempting to curtail production.
You have attempted, on various occasions over the past six weeks, to persuade other employees to limit production and to refuse to work over-time when requested by the Company, to the point of threatening some of these employees. Indeed, several employees have complained to the Company about your behaviour.
The Company views this very seriously and feels that your conduct warrants at least a two week suspension. Such conduct, especially during our peak season, cannot and will not be tolerated. Any recurrence will be deemed cause of dismissal.
You are, therefore, expected to report back for work on August 22,
1979."
Luciano was one of three Repac employees who were elected stewards of Local 230 on June 7, 1979 and he was appointed chief steward. Shortly afterward, on June 13th, he was overheard telling two other Repac drivers to keep their trucks in line which, to the company, translated into trucks travelling in a manner which would cause them to arrive at the pit or dump site in groups thus causing delays loading and unloading. Upon investigation, Luciano was observed returning to Repac's pit with three other trucks following in convoy. Without Luciano being singled out, it was indicated to the drivers that travelling in convoy was unacceptable because of the delays it created. About the same time, two of the mule train drivers complained that Luciano was interfering with their regular hauling schedule from Repac's Milton quarry by pressing them not to leave Repac's yard for the first trip of the day, or to leave restaurant stops after meals and coffee breaks, until all four drivers were ready to leave. One of the drivers complained also that Luciano was driving his truck on the road project at a speed which was causing trucks to congregate behind him. Repac determined to deal with this situation indirectly and held a meeting of its drivers, including the three stewards, and discussed the productivity problem which had developed. The output of the four mule trains continued to be unsatisfactory and this caused Repac to have a meeting on July 4th with them (Luciano included) and the business representative of Local 230. The continued unsatisfactory productivity was discussed as well as the specific problem of trucks leaving together from the yard and from stops for meals and coffee breaks, including unauthorized breakfast stops. After this meeting two of the drivers, who found the need for such a meeting to their dislike, gave the company a written statement of their complaints about Luciano's conduct. This meeting was followed on July 24th with Repac's next regular meeting with its drivers to which the Local 230 business representative was invited again. The problem of trucks travelling in convoys was addressed once more. Relative quiet reigned until July 30th when the mule train drivers asked Repac for a meeting. It is unclear from the evidence as to whether they asked that it be held without Luciano, in any event he was not present but another steward, now a mule train driver, was. At that meeting, one of the drivers asked to either have Luciano taken off driving mule trains or to be transferred himself. In the presence of the steward, this driver and another one complained of Luciano's harassing conduct; specifically he was telling them to restrict the number of trips made during their regular daily hours and was discouraging them from passing other Repac trucks on the highway. Later, on August 1st, both drivers gave Repac a written statement of their complaints. One of them quit his employment a week later. While this was the day after the start of Luciano's suspension, there can be no doubt on the evidence that it was the direct consequence of the harassment the employee believed he was being subjected to by Luciano.
During the morning of August 7th, Dennis Forsyth, Repac's Transportation Manager, interviewed Luciano and confronted him with the complaints contained in all four statements. Liuciano denied all of them. Later that day Forsyth decided to suspend Luciano for the reasons set out in the letter of suspension, called the business representative and advised him of the intended action and at the end of the shift advised Luciano of the decision and gave him the letter.
The Board finds as follows on the evidence of the events from mid-June until the end of July, 1979. Luciano drove his truck on the road project in a manner that caused other drivers to congregate (i.e., convoy) behind his vehicle resulting in delays in truck loading at Repac's pit and truck unloading at the dump site. Luciano caused other drivers of the mule trains to leave together from Repac's yard, to make stops at common locations for meals and coffee breaks, including unauthorized breakfast stops and to leave together from these stops, resulting in the vehicle travelling in convoy on the highway and creating delays in unloading them at dump sites. The convoying was reinforced by discouraging the drivers from passing him or other Repac drivers on the highway. This conduct was engaged in during the period in question in spite of and in the face of Repac's several instructions to the drivers that this was unacceptable performance of their jobs and was curtailing productivity. Finally, Luciano attempted to persuade other mule train drivers to either reduce the number of daily loads executed or to take more time to execute the same number of daily loads.
The relevant clauses of the collective agreement provide as follows:
"ARTICLE IV - MANAGEMENT RIGHTS
4.01 The Council agrees that it is the exclusive function of each member company:
(a) To conduct its business in all respects in accordance with its commitments and responsibilities, including the right to manage the jobs, locate, extend, curtail or cease operations, to determine the number of men required at any or all operations, to determine the kinds and locations of machines, tools and equipment to be used and the schedules of production, to judge the qualifications of the employees and to maintain order, discipline and efficiency;
(b) To hire, discharge, classify, transfer, promote, demote, lay off, suspend or otherwise discipline employees, provided that a claim by an employee that he has been discharged, suspended, disciplined or disciplinary demoted without reasonable cause shall be subject to the provisions of the Grievance Procedure;
(c) To make, alter from time to time, and enforce reasonable rules of conduct and procedure to be observed by the employees;
(d) It is agreed that these functions shall not be exercised in a manner inconsistent with the express provisions of this Agreement.
ARTICLE X - PRODUCTIVITY
10.02 During the lifetime of this agreement, the Council and its affiliated unions agree that there will be no strike, slowdown or picketing or any other act which will interfere with the regular schedule of work, and the Association and its member companies agree that there will be no lockout. The company shall have the right to discharge or otherwise discipline employees who take part in or instigate any strike, picketing or slowdown or any other act which interferes with the regular schedule of work."
Having regard to the facts herein, the Board finds that Luciano has engaged in conduct which has interfered with the regular schedule of work of Repac's truck drivers who drive the mule train and truck drivers who were engaged on the major road contract referred to in paragraph 3 herein thus causing a curtailment of their work. The Board finds further that Luciano attempted to persuade other mule train drivers to restrict their daily work output contrary to the provisions of the collective agreement. As another consequence of his conduct the other mule train drivers became seriously demoralized resulting in further disruption of their work and causing one to be transferred from this work and another one to quit. It is necessary, therefore, for the Board to determine if, in all the circumstances of this case, Luciano's conduct was reasonable cause for discipline and, if so, was a two-week suspension justified.
Part of applicant counsel's argument that not only was two-weeks suspension unwarranted but that no discipline was warranted in the circumstances of the case was based on Repac's failure to confront Luciano directly with the complaints as they came to its attention or to discipline him at the time (and Repac makes no claim that it did either). Counsel asked the Board to conclude from Repac's action that it either:
(a) did not consider the incidents complained of in mid-June to be serious enough to require discipline or direct confrontation of Luciano; or
(b) it purposely deferred taking action in order to allow events to accumulate so that it would have a case for more severe discipline;
(c) by so doing, it would not be unreasonable for Luciano to believe that Repac was condoning his conduct; and that
(d) Repac should not be able to discipline Luciano, or, at least, that the discipline applied was too severe.
The Board does not accept that argument as support for either no discipline at all or for lesser discipline. When Repac became aware of the possibility that Luciano's conduct may be connected to a lowering of the truck drivers' productivity, it called a meeting of all drivers to discuss the productivity problem. When productivity of the mule trains did not improve, Repac called a meeting of those drivers (including Luciano) and obtained the attendance of Local 230's business representative. It followed up that action by inviting the business representative to attend the regular meeting of all drivers held on July 24th when Repac addressed again the problem of productivity. It is correct to say that on none of these occasions did Repac single out Luciano's conduct as being a cause of or contributing factor to the productivity problem. It is equally correct to say that Repac realized that it was dealing with an employee who, very recently, had been elected by its employees to represent their interests under the collective agreement and that its perception, right or wrong, was that the authority of Luciano and the other stewards might have a beneficial impact on the recognition of employees for their individual responsibility for maintaining acceptable productivity. It is evident also from Repac's subsequent actions that it was sensitive to what it reviewed as the potential for the problem to be escalated into some more overt form of action. The seriousness with which it saw the consequences of Luciano's conduct is evident in the fact that Repac sought and obtained the business representative's attendance at the meeting on July 4th and July 24th. Furthermore, Luciano was present at the meetings of all drivers in mid-June and on July 24th as well as the July 4th meeting with the mule train drivers. Having regard to the subject matter of those meetings and the Board's findings of fact in respect of Luciano s conduct, Luciano had to be aware of the results of his conduct. Finally, four of Repac's truck drivers considered Luciano's conduct serious enough to make written statements to Repac about a fellow driver who is also their chief steward.
Having regard to the foregoing circumstances the Board finds it not credible that Luciano both as an individual truck driver and as chief steward, would not realize that his conduct was patently unacceptable and subject to severe discipline. Having regard further to the interference with the regular schedule of work of the truck drivers, the curtailment of their production, the attempt to persuade the mule train drivers to restrict their daily work output and the disruption of the mule train drivers caused by his conduct, the Board finds, in all of the circumstances, that Repac had reasonable cause to discipline Luciano. Having regard to these same facts and circumstances, including the fact that he was at all material times chief steward of the truck drivers at Repac, the Board finds that the discipline applied is justified. Luciano's conduct constitutes serious interference with Repac's exclusive function preserved by clause 4.01(a) of the collective agreement ..... to maintain order, discipline and efficiency", especially when account is had for the nature of Repac's work and the fact that the drivers' work is not capable of close supervision ranging, as it does, over a relatively widespread area as compared with being contained within the more confined space of a production activity.
In referring to Luciano's position of chief steward, the Board is cognizant of the fact, in recent years, a schism has developed in arbitration decisions as to the disciplinary liability of union stewards who engage in disciplinable conduct which impacts on the rights and obligations of other employees, particularly be becoming involved in unlawful strikes. Decisions on both sides of the schism have been reviewed in the courts and the leading judgements as well as leading arbitral decisions supporting both sides of the issue were analyzed in Re Canadian Industries Limited and United Steel Workers of America (1977) (Burkett), an unreported decision issued January 27, 1977. In that case, the arbitrator was dealing with a situation where two union stewards who had been involved in an unlawful strike had received more severe discipline than other employees for similar involvement and, having analyzed the arbitral decisions and court judgements, the arbitrator first concluded that the courts support the proposition that stewards are in a different position from other employees in cases of breach of a collective agreement because of their recognized position of leadership (as indicated from the proposition that a union steward by virtue of his office owes a higher duty to this employer than do other employees). The arbitrator further concluded that the courts have established certain general principles and the arbitrator states these in the following terms:
"Whereas the reported arbitration decisions have been at variance with one another the recent pronouncements of the Courts have established general principles which should be followed by Board of Arbitration in dealing with the reasonableness of discipline imposed upon employees who hold union office. These general principles can be stated as follows:
(a) Absent an express provision in the collective agreement an employee who holds union office does not have a special duty to the employer and cannot therefore be disciplined for his failure to enforce the terms of the collective agreement. His failure to act leaves the trade union, on whose behalf he acts, liable to damages but it does not leave the individual liable to discipline.
(b) .... a union officer, because of his greater knowledge and higher degree of responsibility may invite a greater penalty for the same conduct than would rank and file employee.' In an unlawful strike this greater liability results from the fact that a union official by actively engaging in the unlawful strike is encouraging the strike to a greater degree because of his recognized leadership. [See Canadian General Tower Ltd. and United Canadian General Tower Ltd. and United Rubber Workers Local 862C2 (1975) 1975 CanLII 2178 (ON LA), 8 LAC (2d) 381 (Weatherill) and Domtar Packaging Company Limited and Local 595 I.C.W.U. dated March 3, 1976, as yet unreported, (Rayner)]".
If a rank and file truck driver had conducted himself in the same manner as Luciano, it would warrant, in the Board's view, severe discipline. Having regard to the principle enunciated in the first sentence of item (b) above, the Board finds Luciano's discipline not to be unduly severe in all of the circumstances herein.
The Board finds no sound or judicious reason to exercise its authority to substitute a lesser penalty in all the circumstances of this case.
The grievance is dismissed.
DECISION OF BOARD MEMBER D. B. ARCHER:
I agree with the facts as set out in the majority decision. However the facts as stated and the contradiction of those facts do not drive me to the conclusion arrived at by the majority in paragraph 6 of its finding.
As stated in the majority decision, to determine when an employee who is also a union steward is over-zealous or is usurping functions that belong exclusively or otherwise to the company as outlined in the collective agreement, is a difficult task. In arriving at a conclusion I would have given more weight to Luciano's position as shop steward and his seemingly over-zealous attitude and subjected him to a written warning which I believe was all the disciplinary action that was needed at that time. I realize there is an abundance of literature on the duties and responsibilities re discipline of a union steward. The union steward is in a very vulnerable position; he must process grievances, advise his membership and generally police the agreement on behalf of its constituents. This sometimes makes him or her unpopular with management.
Luciano was, in my opinion carrying out what he believed was his responsibility to his fellow union members. As I have personally stated I would have substituted a warning which would have brought the matter to the attention of senior union officials where a solution could have been found or a final decision arrived at.