[1987] OLRB Rep. May 747
3330-86-M International Union of Operating Engineers, Local 793, Applicant v. Nadrofsky Corporation, Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members G. O. Shamanski and B. L. Armstrong.
APPEARANCES: Jack J. Slaughter, E. A. Ford and M. Millar for the applicant; Norman A. Keith and Don Nelson for the respondent.
DECISION OF THE BOARD; May 28, 1987
This is a referral of a grievance in the construction industry to the Board pursuant to the provisions of section 124 of the Labour Relations Act. The grievance alleges that the respondent suspended the grievor, Mark Millar, for Friday, February 13, 1987 and the three week period beginning February 16, 1987 without just case. Although the grievance requests that the suspension be rescinded without loss of seniority to the grievor and with compensation for all wages and benefits lost by him as a result of the suspension, the applicant agreed at the hearing that some discipline was justified but that the Board should exercise its discretion under section 44(9) of the Labour Relations Act to substitute a lesser penalty for the suspension imposed.
The respondent Nadrofsky Corporation is a crane rental company that operates conventional and hydraulic cranes throughout Canada, but mainly in Ontario and the eastern provinces.
The grievor has been employed by the respondent for approximately six years. Although he holds an operator's licence, his position with the respondent is that of a "front-end man" or "oiler" (the terms refer to the same job classification). As such, he assists the crane operator with whom he has been teamed in moving the crane to which they are assigned from job site to job site. On the larger hydraulic cranes this involves removing counterweights, rigging and short boom sections, and transporting these on a truck, driven by the oiler, behind the crane vehicle. The truck follows the crane vehicle for highway safety reasons and to provide assistance in the event of any breakdown of the crane vehicle. Once at a new job site, the oiler assists in setting up the crane. He is also responsible for its general maintenance and cleaning. The oiler works under the direct supervision and instruction of the crane operator. Since July 1986, the grievor has usually been, and was at all material times, teamed with a crane operator named Roger Monchalin.
The applicant and the respondent are bound by the provincial collective agreement between the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency effective from July 24, 1986 to April 30, 1988. Article 26 of that agreement specifies certain equipment manning requirements. Article 26.1(c) provides:
(c) The following shall be manned by one (1) operator and one (1) apprentice, oiler or oiler driver.
(i) All conventional truck mounted cranes with a manufacturers rating of 25 tons capacity and over.
(ii) All crawler cranes with a manufacturers rating of 70 tons capacity and over.
(iii) All truck mounted hydraulic cranes with a manufacturers rating of 50 tons capacity and over.
(iv) All rough terrain type cranes with a manufacturers rating of 65 tons capacity and over.
(v) All rubber mounted cranes used for pile driving.
(vi) All G.C.I. Type cranes.
(vii) All backhoes, shovels, clams & draglines with a capacity over 1 3/4 cubic yard.
(viii) All caisson boring type equipment over 25 Horsepower.
Article 4 of Schedule A to the agreement specifies the circumstances under and the manner in which bargaining unit employees are to be paid commuting and living expenses. The respondent relies upon the provisions of Article 26.1 (c)(iii). The applicant relies on Article 4 in Schedule A in responding to that argument and to explain the grievor's conduct.
The evidence establishes that, at all material times, the grievor was assigned to a 250 ton truck mounted hydraulic crane. The respondent asserted that the provisions of Article 26.1(c)(iii) require that whenever such a crane is being operated or moved it must be manned by one operator and one apprentice, oiler or oiler driver, and that when the crane is out of town (that is, out of Brantford) the two employees assigned to it are to stay out of town together with it. In denying that interpretation of Article 26. 1(c)(iii), the trade union points to Article 4 of Schedule A to the agreement and the respondent's failure to pay such allowances in advance to an employee who is required to stay out of town. Whether or not this is a proper interpretation of that provision, the evidence establishes that Article 26.1(c) is not invariably applied when a crane that is covered by it is moved from one job site to another. On the respondent's own evidence, the company itself sometimes issues instructions that the crane vehicle and support truck travel separately for reasons of economy. At best, it is a general practice, not a strict requirement, that an operator and oiler travel and stay out of town together, and it is evident that if an operator and oiler make other arrangements between themselves that is acceptable to the respondent. In addition, it appears that the respondent does not generally pay living allowances in advance as required by the collective agreement, but just as Article 26.1(c)(iii) is not strictly applied or enforced, neither is Article 4 of Schedule A. It is the practice, not the meaning of the articles, that is significant in the context of these proceedings.
As a result of an incident between Mr. Nelson and the grievor on February 12, 1987, the grievor was told not to report for work on February 13, 1987. When he attended at the respondent's premises on February 13, 1987 to hand in his time sheets for the previous week he was advised by Mr. Nelson, verbally and by letter dated February 12, 1987, that because of what had happened between them on February 12, 1987 and because of:
Continual use of foul and abusive language.
Complete disregard for your superiors.
Continued disregard of instructions from your superiors, and company dispatchers.
Disobeying your operators instructions.
Failing to report to the job site as instructed.
Disregard for the truth.
Disrespect for your superiors
[sic]
he was being suspended for three weeks beginning February 16, 1987. In addition to the alleged culminating incident on February 12, 1987, the respondent relies on six other events to justify the discipline imposed.
The applicant admits that a letter dated October 16, 1986 constitutes a written warning issued to the grievor for failing to properly put away and secure company equipment. Because that written warning was not grieved, it is not now open to the grievor to attempt to explain away the misconduct that gave rise to it in these proceedings. Even if it was open to him to do so, we find the explanation that he gave to be unsatisfactory. This written warning constitutes a part of the grievor's disciplinary record.
The next three events upon which the respondent relies occurred on October 16, October 20 and November 6,1986. In each case, the applicant admits that the grievor received instructions to travel to London with Mr. Monchalin that evening. In each case he failed to do so. Instead, he left Mr. Monchalin alone in London and drove home to Brantford for the night. In each case, he rejoined Mr. Monchalin the next morning in time to begin work. We accept Mr. Nelson's evidence that he had some discussions with the grievor with respect to these events. However, we are not satisfied that these discussions were intended to be disciplinary in nature or that it was clearly brought to the grievor's attention that his conduct on any of these three days was unacceptable to the respondent. Further, as we have already found, the respondent does not strictly and consistently require oilers and operators to travel or stay together, even if that is a requirement of Article 26.1(c)(iii). Consequently, we are not satisfied that any of these three events properly forms part of the grievor's disciplinary record and the respondent is not entitled to rely on any of them to justify the suspension imposed on February 12 and 13, 1987.
The fifth event upon which the respondent relies arises out of the grievor's return, two clays late, from a vacation in December 1986. It is evident that the grievor had no intention of returning to work on time and made no effort to either obtain an extension of his leave or to advise the respondent that he would return late. Notwithstanding that the grievor was on his honeymoon during this vacation, his actions were irresponsible and deserving of discipline. However, the respondent did not, in our view, impose any discipline. Mr. Nelson testified that he had only a brief conversation with the grievor in which he only asked Mr. Millar why he hadn't telephoned the company to indicate that he would not be returning on time and then, in his words, "I let it go, I was sympathetic, it was his honeymoon". Not having disciplined the grievor in a timely manner or ~t all, this event cannot form a part of his disciplinary record and the respondent is not entitled to rely on it to justify the suspension which is the subject of these proceedings.
Sixth, a letter dated January 20, 1987 constitutes a written warning to the grievor for failing to call the office from the job site to report on the progress of the job as he had been instructed to do and for subsequently using foul language to a dispatcher. As will become evident, it is significant that this warning letter specifically warns that:
The foul language and your attitude in response to questions will not be tolerated in the future. If there were to be [sicl a second occurrence of the above, you will be disciplined accordingly.
The warning letter was not grieved and accordingly it is not open to the grievor to try to explain
away the misconduct that gave rise to it in the context of this proceeding. Consequently, we do not take into account the grievor's explanation in that regard.
Finally, on February 12, 1987, Mr. Monchalin and the grievor were instructed to move the crane from a job site in Bowmanville to one in Rothsay. The grievor, through Mr. Monchalin, was also instructed to take the support truck to the respondent's yard in Brantford where he was to unload the swing-a-way sections and load the rigging required for the Rothsay job. The grievor did that but, rather than driving to Rothsay that night, he stayed at home in Brantford, intending to join Mr. Monchalin in Rothsay the next morning. Mr. Nelson learned of the grievor's intentions and asked him about it. Mr. Nelson accepted the grievor's explanation that Mr. Monchalin had agreed to such an arrangement and was prepared to leave it at that. Subsequently, however, Mr. Monchalin telephoned Mr. Nelson and complained that the grievor had refused to accompany him to Rothsay or to stay there overnight with him. Mr. Nelson then telephoned the grievor at home and confronted him with Mr. Monchalin's complaint. In the course of their conversation, the grievor became agitated. He said that Mr. Monchalin was lying, directed abusive and obscene language to Mr. Nelson, and then hung up the telephone. Mr. Nelson telephoned back and advised the grievor that because of his abusive and obscene language to him, he should not report for work the next day. The grievor directed another obscenity at Mr. Nelson and again hung up. A short time (5-20 minutes) later, the grievor telephoned Mr. Nelson and again abused him with obscenities. Recognizing that it would be futile to try to talk to the grievor at that time, Mr. Nelson hung up the telephone. The next morning the grievor went to the respondent's premises in Brantford to hand in his time sheets. While there, he met with Mr. Nelson and was advised, verbally and by the letter dated February 12, 1987, of the suspension that is the subject of these proceedings.
Both parties agree that the grievor should be disciplined and that he needs to be sent a message. Counsel for the respondent argues that the grievor's disciplinary record and culminating incident fully justify the suspension given to the grievor and is necessary to send that message. Counsel for the applicant argues, and we agree, that the grievor's disciplinary record really consists of only two warning letters. He agrees, as does the grievor (though grudgingly), that the grievor's behaviour in the course of the telephone conversations with Mr. Nelson was misconduct that justified discipline, but, he submits, the grievor felt "picked on" and that when he was called at home with respect to a situation in which he thought he had acted in a manner acceptable to the company he acted uncharacteristically and out of anger. Counsel argues that this mitigates the grievor's conduct and, considering the two warning letters, justifies only a two to five day suspension.
Article 4.1 of the collective agreement provides that: ARTICLE 4- MANAGEMENT RIGHTS
4.1 The Union agrees and acknowledges that the Employer has the exclusive right to manage the business and to exercise such right without restriction, save and except such prerogatives of management as may be specifically modified by the terms and conditions of this Agreement.
Without restricting the generality of the foregoing paragraph, it is the exclusive function of the
Employer:
(a) To determine qualifications, classify, transfer, hire, direct, promote, demote, lay-off, discipline and discharge employees for just cause and to increase and decrease working forces in accordance with the terms of this Agreement.
(b) To determine the materials to be used, design of the products to be handled, facilities and equipment required, scheduling of work and locations of equipment.
(c) To determine the rules and regulations to be observed by employees, violations of
which may be the cause for discipline and may include discharge.
[emphasis added]
Section 124(3) of the Labour Relations Act makes section 44(9) of the Act applicable to these proceedings. Section 44(9) provides that:
Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances.
There was no suggestion that the collective agreement precludes the Board from exercising its discretion under section 44(9) of the Act to substitute another penalty for the suspension given to the grievor if it sees fit to do so.
The difficulty that arbitrators face when reviewing the discipline imposed by an employer, and the uncertainty that results, is illustrated by the penalties imposed in the "abusive or insubordinate language" cases cited to the Board in this case. In Canadian Westinghouse Co. Ltd., (1966) 1966 CanLII 826 (ON LA), 17 L.A.C. 427 (Palmer), an employee grieved the imposition of a three day suspension for requesting in obscene terms, that a foreman "perform a physically impossible sexual act". This grievance was dismissed. In Gardner-Denver Co. (Canada) Ltd., (1974) 1974 CanLII 2300 (ON LA), 6 L.A.C. (2d) 280 (Betcherman), the arbitrator substituted a five day suspension for the discharge of an employee who has used obscene language to a foreman. In Toga Manufacturing Ltd., (1974) 6 L.A.C. (2d) 318 (Curtis), the arbitrator found that a long term employee who had verbally abused the foreman should not have been discharged and substituted what was effectively a suspension of approximately two and a half months. In Canadian Lukens Ltd., (1976) 1976 CanLII 2159 (ON LA), 12 L.A.C. (2d) 439 (Schiff), the arbitrator ruled that a grievor with a disciplinary record consisting of a written warning and a five day suspension who had used obscene language in a confrontation with a foreman had been properly discharged. In St. Lawrence Foods Limited, (1983) 1983 CanLII 4891 (ON LA), 9 L.A.C. (3rd) 187 (Springate), the majority of the Board of arbitration found that the imposition of a written warning for the use of obscene language to a fellow employee was justified notwithstanding that there were mitigating circumstances (including an apology). Finally in Fruehauf Canada Inc. (Dixie Plant) (unreported decision dated November 28, 1986, (Brunner)) an employee of thirty-four years seniority and having a disciplinary record consisting of two written warnings and a one day suspension, who used abusive and obscene language and made verbal threats to a supervisor, albeit as a result of a flare up of temper, had a five day suspension substituted for the 18 day suspension imposed by the employer. Of cpurse, all of these decisions arise out of the particular facts relating to the grievance being arbitrated. However, they do serve to illustrate that there is wide range of disciplinary responses to misconduct such as that which occurred in this case that can be considered to be just and reasonable.
Because the applicant admits that the conduct of the grievor merited some discipline, the issue before the Board is whether or not, in the circumstances of this case, it is appropriate for the Board to exercise its discretion under section 44(9) of the Act to substitute some other penalty for the suspension imposed by the respondent. The scope of arbitral review of disciplinary penalties pursuant to section 44(9) requires an assessment of what penalty is just and reasonable in the circumstances. In our view, the broad review advocated in arbitral decisions such as Phillips Cables Limited (1974), 1973 CanLII 2161 (MB QB), 6 LAC (2d) 35 (Adams), which may be justifiable in cases involving severe discipline, such as discharge, is not generally warranted in cases involving lesser forms of discipline so long as the discipline imposed is, in all the relevant circumstances, within the range of penalties that is just and reasonable. Because the determination of what discipline is appropriate for any particular misconduct is not an exact science, it is not productive to engage in arbitral second-guessing in such cases. Such second-guessing tends to create uncertainty in disciplinary matters and invites challenges to disciplinary penalties which, though reasonable, may not be identical to that which a second-guessing arbitrator might select.
In our view, so long as an employer considers only relevant factors to impose discipline that is just and reasonable in the circumstances, particularly where the discipline imposed is not especially severe, it should not be interfered with by an arbitrator. In that regard we agree with the views expressed in Labatt's Ontario Breweries Ltd. (unreported decision dated April 22, 1986, (Freedman)) and in Rolland Inc., (1983) 1983 CanLII 4940 (ON LA), 12 L.A.C. (3d) 391 (MacDowell) where, at pp. 401-402, the majority decision explains that:
In all of the circumstances, we are not inclined to interfere with the penalty which the employer has chosen. As a general rule, we do not believe that it is desirable for a board of arbitration to attempt to "fine tune" a managerial decision respecting discipline which is not in itself unreasonable or excessive. To do otherwise would merely encourage costly litigation as grievors, hoping for perhaps minor gains (whatever the over-all cost) press their bargaining agents to carry every discipline matter forward to arbitration. Likewise, employers might be encouraged to impose more extreme sanctions at the outset, on the expectation that an arbitrator inclined to tinker might be disposed to "split the difference" and substitute something within the general realm that management might otherwise have chosen in the first place. It is one thing for a union and employer, in the grievance procedure, to haggle about the penalty, "saw it off', "split the difference", or bargain a concession in anticipation of future considerations. It is quite another for an arbitrator to hold, on the basis of objective evidence and reasoned consideration, that an employer's disciplinary response is unwarranted and should be modified. This is not to say that arbitrators should shrink from modifying a penalty which is clearly inappropriate in the circumstances or excessive when measured against the norms of the industrial community. But this requires more than some "gut feeling" or vague impression that the arbitrator, standing in the shoes of management, might have done something somewhat different - not least because the litigation process provides, at best, only an imperfect appreciation of the enterprise as a whole and the human and business relationships which must somehow be fitted into a legal mold.
Accordingly, while a three-week suspension may not be the penalty which this board of arbitration would have chosen, we are satisfied that it is clearly within the range of reasonable employer responses to the facts at hand. There is some arbitral authority to suggest that a more serious sanction might be sustained while, on the other hand, one could plausibly argue that a one-week or two-week suspension might be sufficient to impress upon the grievor that he must acknowledge his supervisors' authority or find work elsewhere. We decline to engage in such largely subjective speculation. In our view, in all the circumstances, the penalty imposed is not one with which we are inclined to interfere.
The grievor in this case has six years seniority as an employee of the respondent. His disciplinary record prior to the suspension grieved herein is of recent origin and consists of two written warnings. The respondent was not entitled to base any part of its assessment of what discipline was appropriate on anything other than these written warnings and the culminating incident. The second written warning, with respect to events that occurred only one month prior to the events that gave rise to the grievance before us, dealt with both a failure to carry out instructions and the use of foul language, and specifically warns that another occurrence thereof will result in further discipline. The grievor's abusive and insubordinate language when speaking to the respondent's general manager on February 12, 1987 cannot be characterized as "shop talk" and his conduct was not, in our view, the result of a momentary flare up. Nor does the grudging admission of misconduct assist him, particularly when he admits that he would repeat the offence if he felt that a supervisor was "wrong". The applicant admits that the grievor's conduct in the course of his telephone conversation with Mr. Nelson on February 12, 1987, cannot be condoned and is deserving of up to a five day suspension. That, in our view, is an understatement. The manner in which the grievor dealt with Mr. Nelson was, under all the circumstances, nothing less than insolent and insubordinate.
Had the respondent been entitled to rely upon all of the events upon which it sought to rely, its disciplinary response would, in our view, fall within the range of just and reasonable penalties and we would not interfere with it. We have found, however, that the respondent was not entitled to rely upon all of those events and, accordingly, its assessment of what discipline was appropriate was based in part on irrelevant factors. Having regard to all of the circumstances, including the respondent's own disciplinary response (which suggests that a lesser penalty would have been imposed if only relevant factors had been considered), the admissions of the applicant, the grievor's disciplinary record of 2 written warnings, and his misconduct on February 12, 1987, we find that a ten day suspension is an appropriate penalty. We therefore direct the respondent to substitute a ten day suspension for the suspension it imposed. The respondent is further directed to amend its records accordingly and to compensate the grievor for all lost wages and benefits for those days for which we have found he was not properly suspended. Any earnings from employment received during those days are to be deducted from the compensation to be paid to the grievor. We shall remain seized on the issue of compensation in the event that the parties are unable to agree on the amount to be paid to the grievor.