[1991] OLRB Rep. November 1287
1432-91-G Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Ideal Railings Ltd., Respondent
BEFORE: Brain Herlich, Vice-Chair, and Board Members D. A. MacDonald and E. G. Theobald.
APPEARANCES: N. L. Jesin and R. Balkissoon for the applicant; J. D. Church for the respondent.
DECISION OF THE BOARD; November 5, 1991
This is a referral of a grievance concerning the interpretation, application, administration or alleged violation of a construction industry collective agreement pursuant to section 124 of the Labour Relations Act.
The applicant (also referred to as the "union") alleges that the respondent (also referred to as the "company" or the "employer") disciplined Oscar Poblete (also referred to as the "grievor") without just or sufficient cause contrary to the collective agreement in force between the parties.
In coming to its findings of fact the Board has carefully considered all of the evidence before it and taken into account such factors as: the demeanour of the witnesses when giving their evidence, the clarity and consistency of that evidence when tested in cross-examination, the witnesses' ability to recall events and resist the tug of self-interest in shaping their answers, and what seems most probable in all the circumstances.
At approximately 8:15 a.m. on June 18, 1991 Mr. James Church, president of the company who also functions as plant and operations manager, initiated a meeting with the grievor and Edward Patterson, a union steward. Mr. Church wished to discuss some concerns he had about the grievor's productivity and attendance. Although there were some variations in the evidence of the three participants regarding precisely what transpired at the meeting, we are satisfied that the following description is accurate and adequate for our purposes. Mr. Church's intervention was verbally aggressive. The grievor, whose command of English is somewhat limited (the Board heard his evidence through a translator), responded fairly defensively and emotionally. He requested that someone who could translate be made available to facilitate the conversation. Mr. Church indicated that he felt the union steward's presence was sufficient (there was no suggestion that Mr. Patterson could translate). During the course of this exchange the grievor touched Mr. Church's arm three times and may well have exerted some minimal degree of force in the context of that touching. Mr. Church warned the grievor to stop or he would call the police. That, effectively, was the end of the incident. Although there are some aspects of this incident which we shall review in further detail and there are further events to which we turn shortly, it was on the basis of this incident that the employer, by letter dated July 3, 1991, imposed on the grievor the 5 day suspension which is the subject of the current proceedings.
A number of events intervened between the meeting described on June 18th and the discipline subsequently imposed on July 3rd. After the meeting on the 18th Mr. Church assigned the grievor to work in a different area. The grievor was not pleased with the assignment and some of the evidence suggested his dissatisfaction may have been tied to safety concerns (the bona fides or merits of which are not pertinent to the present case). Subsequent to the reassignment the grievor left the plant advising the steward (but not Mr. Church) that he was going to seek medical assistance. By June 20th Mr. Church had still not heard from the grievor and accordingly set him the following letter:
Under Article 9.08(d) of the Collective Agreement, your employment with Ideal Railings Ltd. is terminated, effective immediately.
Article 9.08(d) of the agreement provides:
Termination of employment and loss of seniority shall be deemed to have occurred if an employee...
is absent for two (2) consecutive work days
without the permission of the company unless
the employee was absent for reasons beyond his control.
- A grievance dated June 25, 1991 was filed in respect of the termination. In addition, medical notes were provided to substantiate the grievor's absence from June 18, 1991 to July 3, 1991. In response to these, Mr. Church delivered the following communication by fax to Mr. Ron Balkissoon, the union's business representative, late on the afternoon of July 2, 1991:
This is to advise that Mr. Poblete is permitted to return to work, effective immediately; however, letter of termination remains part of his permanent Personnel File and the Union will withdraw the Grievance.
- The following day Mr. Balkissoon responded to Mr. Church, also by fax, as follows:
Please be advised that after your telephone conversation on the above date [July 2], that I am prepared to settle Mr. Poblete's grievance as follows:
(a) Mr. Poblete shall be reinstated unconditionally.
(b) The letter of termination be removed from the grievor's personal file; the grievor to be made whole
(c) Any wages lost or benefits as of July 3, 1991 shall be compensated by the company
(d) With the above conditions, the Union agrees to withdraw the grievance without prejudice or precedent
If you have any questions please do not hesitate to contact me, awaiting your response
Later on the same day Mr. Church advised Mr. Balkissoon by fax as follows:
Please be advised that your settlement proposal set out in the above is acceptable to Ideal Railings Ltd.
Subsequent to these events the grievor returned to work and received the following letter from the employer, dated July 3, 1991:
On June 18th, at approximately 8:15 a.m., you physically assaulted a Member of Management.
This is not the first incident of this nature and will not be tolerated.
Therefore, you will be suspended for 5 days - July 3rd, 4th, 5th, 8th and 9th. You will return to work on Wednesday, July 10th at 8 a.m.
Any behaviour of this nature in the future will result in termination of your employment with
Ideal Railings Ltd.
There was no objection to the documents filed by the employer regarding the grievor' s disciplinary record. In October of 1990 he received a 5 day suspension related to attendance. In the course of receiving that suspension the grievor behaved in an insolent and insubordinate manner which included crumpling the suspension letter he had received and throwing it at Mr. Church. That behaviour resulted in a 2-day suspension imposed early in November of 1990.
The union's position is essentially twofold. In the circumstances the employer ought to be precluded from imposing any discipline for an event which preceded the subsequent discharge which was ultimately resolved by the parties. The employer ought not to be permitted to "lie in the bushes", resolve the discharge and only then impose further discipline for an incident which predated the discharge. Had the employer been frank and negotiated the discharge grievance in good faith, the union would have been put on notice of the intention to impose further discipline. Alternatively, even assuming that the employer is not thereby precluded from imposing further discipline, the grievor's conduct did not warrant any discipline and certainly not a 5 day suspension.
The employer's position is equally straightforward. The events which gave rise to the discharge and those which gave rise to the suspension are separate and distinct. Nothing in the resolution of the discharge precludes the subsequent imposition of discipline in respect of different events albeit they occurred prior to the discharge. Furthermore, the union was placed on notice of the employer's intention to impose further discipline during the course of negotiations on the discharge grievance. In any event, even if the grievor's conduct is comparable to minor horseplay, the employer is entitled to view such conduct as meriting a severe response.
Mr. Church was adamant that he had conveyed his intention to impose further discipline to the union (either through Mr. Patterson or Mr. Balkissoon) prior to the resolution of the discharge. Neither of the latter two individuals confirmed that view; on the contrary their evidence suggests no such notification was given prior to the resolution of the discharge. Based on the factors considered in assessing credibility outlined above, we accept the evidence of the Union on this point. This finding is also premised on Mr. Church's inability or uncertainty with respect to recalling the meeting at which such notice was given. He initially insisted that the notice was given at a meeting with Mr. Balkissoon. In the face of the latter's denial that such a meeting took place, Mr. Church relented in his claim and asserted that the discussion may have been over the phone. Mr. Balkissoon did not deny that he had discussed the suspension with Mr. Church; he was certain, however, that any such discussion took place subsequent to the resolution of the discharge grievance. When we consider some of the comments attributed to Mr. Balkissoon by Mr. Church (e.g. that Mr. Church was only attempting to "get even" with the grievor), we are further satisfied that these are comments more likely to have been made subsequent to the resolution of the discharge grievance.
In other words we are satisfied that Mr. Church deliberately and expressly failed to provide any indication to the union or the grievor of his intention to impose further discipline until after the discharge grievance was resolved. We are not persuaded, however, that the employer is thereby precluded from imposing any discipline, if such is otherwise warranted. Nothing in the collective agreement precludes this, nor were we pointed to any other provision of the agreement which would render the company's imposition of discipline as "untimely". Neither was there any suggestion that the employer's conduct was otherwise a violation of the Labour Relations Act. Furthermore we accept the employer's submission that the events giving rise to the suspension and the discharge are distinct and separate. Resolution of one is not necessarily resolution of the other. Having said all this, however, the Board is satisfied that the employer's manner of handling this matter was extremely destructive to any semblance of labour relations goodwill which may exist between the parties. Thus, the employer's lack of good faith is a factor we shall consider in assessing the appropriate penalty.
This brings us to a review of the incident of June 18, 1991 to determine whether any discipline was warranted. Mr. Church acknowledged that he was not knocked over or hurt by the grievor's push. He further acknowledged that the grievor was not intending to hurt him but rather was simply trying to emphasize his point. We are satisfied, however, that the grievor's conduct, somewhere between a vigorous touch and a gentle push, was unwelcome and inappropriate and thus deserving of some discipline. In and of itself we can hardly see how such conduct would have merited more than an oral or a written warning. In the present case, however, there are other factors to consider including the grievor's three years of service, his prior disciplinary record, and the employer's conduct in the matter. In all the circumstances of the case the Board is satisfied that a written warning is just and reasonable.
The grievance is therefore allowed to the extent indicated. The employer is hereby directed to substitute a written warning for the suspension initially imposed and to compensate the grievor to reflect the altered penalty. The Board shall remain seized with respect to quantum of compensation and any issues arising directly out of the implementation of this award.