2901-00-G International Union of Elevator Constructors Local 90 and Robert Altenburg, Applicant v. Otis Canada Inc., Responding Party.

BEFORE: Caroline Rowan, Vice-Chair, and Board Members G. Pickell and A. Haward.

APPEARANCES: Stanley Simpson and Robert Crosby for the applicant; M. P. Moran, Barry Barnes and Andy Reistetter for the responding party.

DECISION OF THE BOARD; December 14, 2001

1This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995 (the “Act”).

2The grievance in issue relates to the termination of Mr. Robert Altenburg’s employment on or about December 6, 2000 from Otis Canada Inc. (the “Company”). Mr. Altenburg was discharged for failing to wear fall protection equipment on a construction site, contrary to the Company’s safety policy. That policy, generally speaking, requires employees entering a Company construction site to wear fall protection equipment at all times.

3The International Union of Elevator Constructors Local 90 (“the union”) does not dispute that Mr. Altenburg was in breach of the Company’s safety policy on December 6, 2000 when he failed to wear his fall arrest harness while working that day. However, it explains that Mr. Altenburg had simply forgotten to put the harness back on after using the washroom that day and that he had not put himself or anyone else at risk as a consequence. The union takes the position that the penalty of discharge is excessive in the circumstances.

Facts

4In assessing the evidence in this case and arriving at its findings of fact, the Board has considered all of the evidence and has taken into account such factors as the demeanour of the witnesses, the clarity of their evidence, the witnesses’ apparent ability to recall events and to resist the tug of self-interest in their responses to the questions, and what seems most reasonable and probable in all of the circumstances having regard to the evidence as a whole.

Background

5Mr. Altenburg’s seniority dates to February 16, 1963. Thus, he had approximately 37 years seniority at the time of discharge. The Company points out that under Article 10.14.01 of the collective agreement between the National Elevator and Escalator Association and The International Union of Elevator Constructors (the “Collective Agreement”), an employee’s seniority is his total length of service in the industry in Ontario, subject to being employed with the employer for a period of six months. Seniority is not based on his total length of service with a particular employer. In this case, Mr. Altenburg worked approximately 30 years with the Company and the balance of the time with other employers in the industry.

6Although the Company generally employed Mr. Altenburg as an elevator mechanic, Mr. Altenburg was working in the classification of “helper” on December 6, 2000. At that time, Mr. Altenburg was working on the construction of a new elevator in an existing building, being the Thompson Arena at the University of Western Ontario (the “Job Site”). Mr. Altenburg was discharged that day for failing to wear a fall arrest harness with attached lanyard while working in the elevator lobby in the basement of the building.

The Company’s Fall Protection Policy

7Mr. Altenburg was aware of the Company’s policy with respect to fall protection. He had been provided a copy of the Otis Employee Safety Handbook and had also received training and testing in both May 1999 and in March 2000 with respect to the Company’s policy on fall protection.

8The significant portions of the Otis Employee Safety Handbook read as follows:

OTIS SAFETY AND ENVIRONMENTAL POLICY

Otis will not be satisfied until its workplace is safe from hazards, its employees are injury free, its products and services are safe, and its commitment and record in protecting the natural environment are unmatched.

Objectives:

1. Eliminate all employee injuries by making the workplace free from hazards and unsafe actions.

2. Reduce the likelihood and severity of accidents to users of Otis equipment serviced by Otis.

3. Establish safety and environmental protections standards that both comply with local laws and go beyond, when necessary, to achieve the goals of this policy.

4. Hold operating managers accountable for safety and environmental performance and for providing leadership and required resources.

5. Require all employees to comply with these standards.

Support:

2. Develop technologies and methods to assure safe workplaces, products and services worldwide and to protect the environment, and promulgate these outside Otis.

SAFETY PHILOSOPHY

Safety at Otis is a condition of employment. Employees are expected to accept their responsibility for safety when they join the company. This includes their personal safety and that of the people and facilities with which they work.

It is the responsibility of this company to enforce their safety procedures. Failure to comply with Otis Safety rules may result in disciplinary actions.

15.0 Fall Protection

Fall protection shall be provided for and used by employees who work at an elevated level of six or more feet (two or more metres) (two or more metres) or where other hazardous conditions exist, for example; working over machinery or moving equipment, which may present an additional hazard if a fall were to occur.

Construction:

On construction, a safety harness or fall protection uniform and shock absorbing lanyard shall be worn at all times. The lanyard must be connected at all times when there is an exposure to a fall of six feet (two metres) where guardrails are not present for protection.

Exceptions:

B. The project will no longer be considered a construction site when the contractor has obtained an occupancy permit.

Managing The Harness and Lanyard:

Part of wearing a fall arrest harness is the management of the harness and lanyard. Throughout the day the harness may become loose or the lanyard may become free of its storage position creating a potential snagging hazard the same as loose clothing. It is each associate’s responsibility to manage their harness and lanyard. As a minimum the following activities shall be followed;

A. Every time your harness is put on, confirm the harness is totally and properly connected and adjusted so that the straps fit close to your body and the ends of the adjusting straps are secured by the retaining clips or tied off in such a manner as not to be a snagging potential. (The wearing of disconnected leg straps is not permitted.)

B. The lanyard must be stowed in such a way as not to have loose loops which may swing around while walking or moving. Also, the lanyard must be stowed in such a way so that it does not hang away from the body when bending down or stooping.

9The Company’s policy therefore requires that fall protection equipment including a harness and a shock absorbing lanyard be worn at all times on a construction site. It also requires that the lanyard be connected at all times when there is an exposure to a fall of six feet.

10Mr. Barnes, the Company’s Regional human resource manager for the northern region and labour relations manager for Canada, explained that the policy came into effect in or around 1993 as a consequence of a number of falls occurring around that time in circumstances where the individuals in question were not wearing fall protection equipment. As a consequence, the wearing of such equipment became mandatory in various situations, including at all times on a construction site. Mr. Barnes explained that the reason for this is that an individual can move from a non-hazardous area to a hazardous area very quickly on a construction site. Although simply wearing a harness that is not connected will not protect an individual from a fall hazard, he noted that an individual who is not wearing a harness cannot possibly connect it when moving to a hazardous area.

The Company’s Safety Discipline Procedure

11The Company also has a safety discipline procedure for all employees, which prescribes the minimum discipline to be imposed for various violations of the Company’s safety policy. Under that discipline procedure, the minimum discipline for a violation of the Company’s policy with respect to fall protection is an automatic two day suspension with a citation. Under the discipline procedure, a violation of policy with respect to fall protection is a more serious violation than certain other safety infractions referred to under the procedure. For example, the procedure contemplates a discipline of a documented verbal warning for a violation of the safety policy relating to personal protective equipment and a minimum discipline of a written warning with citation for a violation of the safety policy relating to GFCI/Assured Grounding.

12That disciplinary procedure also refers to the possibility of imposing discipline beyond the minimum stipulated, depending on individual circumstances. It states as follows:

Field Hourly IUEC Represented Associates

Use the above chart to determine minimum discipline for violations. Supervision must consider the seriousness of the violation(s) to help determine what disciplinary action to take beyond the minimum required. It is recommended that the applicable Field Employee Relations Manager or NAO Labor Relations be contacted for consultation in advance of either a suspension or discharge.

The Incident on December 6, 2000

13Mr. Kearns, the Company’s construction superintendent for south-western Ontario, and Mr. Altenburg’s supervisor on construction sites, visited the Job Site on December 6, 2000. When Mr. Kearns arrived, he initially proceeded down the stairs to the basement of the building on his way to the machine room and briefly passed by Mr. Altenburg. At that time, Mr. Altenburg was working in the elevator lobby in the basement of the building. He was standing on the first or second rung of a step-ladder four to four and a half feet from the elevator opening and was installing hydraulic pipe. At that time, Mr. Kearns did not notice that Mr. Altenburg was not wearing his harness.

14When Mr. Kearns came out of the machine room, he stopped to speak to Mr. Altenburg in the elevator lobby. Mr. Kearns approached Mr. Altenburg about certain concerns he had with Mr. Altenburg’s “time tickets”. Mr. Kearns explained that he believed that Mr. Altenburg had claimed more travel expenses than he was entitled to claim for travel to a different job site. By all accounts, the discussion between Mr. Kearns and Mr. Altenburg about travel expenses turned into a heated argument, which lasted for a few minutes. At the end of that discussion, Mr. Kearns noticed that Mr. Altenburg was not wearing his harness and asked him why he was not wearing it.

15Mr. Kearns’ version of the discussion that took place between them thereafter differs from that of Mr. Altenburg.

16According to Mr. Kearns, Mr. Altenburg replied that he did not have to wear a harness because the Job Site was not a construction site. Mr. Kearns then testified that he pointed out that it was a new construction site and that Mr. Altenburg had to wear a harness at all times. Mr. Altenburg stated that there was nowhere for him to tie off in the lobby and then launched into a diatribe about “how f-g stupid the whole Otis policy was.” Mr. Kearns testified that he told Mr. Altenburg to go and put the harness on immediately. At that point, Mr. Altenburg indicated that he would never wear the harness in an elevator machine room and then he went to get his harness from the machine room where he had left it. When Mr. Altenburg came out of the machine room wearing his harness, he allegedly said words to the effect of “okay, so I forgot to put it back on after lunch.”

17Mr. Altenburg, on the other hand, testified that when Mr. Kearns asked him where his harness was, he responded simply that his harness was in the machine room and that, at Mr. Kearns’ suggestion, he then went to put it on without arguing. Although Mr. Altenburg testified that he did tell Mr. Kearns that he had forgotten to put it on after lunch, he denied going into a diatribe about the Company’s safety policy as alleged. Mr. Altenburg also testified that as far as he was concerned, he did not need to wear his harness on the Job Site at all times. He disagreed that the Job Site is a construction site for the purposes of Company policy. Mr. Altenburg indicated that he might have expressed this to Mr. Kearns at the time, but that he could not specifically recall doing so.

18Having considered these conflicting accounts, the Board generally prefers Mr. Kearns’ recollection of their discussion to the extent that it differs from that of Mr. Altenburg. The Board accepts, however, that Mr. Altenburg did not launch into a diatribe about the health and safety policy other than to make the specific statements about the policy attributed to him by Mr. Kearns and outlined above. Mr. Kearns’ account (with the exception only of the alleged “diatribe”) was detailed and specific about what was said by whom and when and is consistent with what seems most probable in all of the circumstances. For example, the statements attributed to Mr. Altenburg that the Job Site was not a construction site and to the effect that Mr. Altenburg would not wear a harness in a machine room are consistent with the statements Mr. Altenburg made during his own testimony.

19When Mr. Kearns left the Job Site, he told Mr. Altenburg that there would be repercussions as a result of this breach. Mr. Kearns then called Mr. Barnes and Mr. O’Connor, the Superintendent of Maintenance who was Mr. Altenburg’s supervisor when he worked on service sites, to discuss the appropriate disciplinary response. They all agreed that discharge was appropriate. According to Mr. Altenburg, Mr. Kearns called him at the Job Site approximately ten minutes after leaving the Job Site to inform him that his employment was being terminated.

20Mr. Altenburg was discharged for failing to wear his harness that day. It is common ground that Mr. Altenburg was not required under the terms of the fall protection policy to connect the lanyard at the relevant time since the alleged fall hazard was of less than six feet. In the circumstances, the Board considers it unnecessary to resolve the various conflicts in the evidence concerning whether or not a fall hazard of less than six feet existed at the location where Mr. Altenburg was working in the elevator lobby near the hoistway. There is, in any event, no question that no fall hazard relevant to compliance with the fall protection policy existed and it was the breach of that policy which was the reason for Mr. Altenburg’s discharge.

The Employer’s Reasons for Imposing the Penalty of Discharge

21As noted above, Mr. Kearns determined in consultation with Mr. Barnes, the Field Employee Relations Manager, and Mr. O’Connor, the Superintendent of Maintenance, that discharge was the appropriate penalty in the circumstances. In reaching this decision, they considered Mr. Altenburg’s earlier documented verbal warning given to him by Mr. O’Connor in March 2000 and Mr. O’Connor’s verbal warning given to him on or about October 2, 2000. Mr. Kearns stated that he had not taken Mr. Altenburg’s lengthy seniority into account in assessing the appropriate disciplinary response. He also maintained that the decision was not influenced in any way by his dispute with Mr. Altenburg that day over expenses. Instead, Mr. Kearns indicated that he felt that discharge was appropriate since he was not confident that Mr. Altenburg would comply with the Company’s safety policy given these previous incidents and given his conversation with Mr. Altenburg on December 6, 2000.

22The first of these incidents occurred on or about March 23, 2000 when Mr. O’Connor attended at the service site where Mr. Altenburg was working in order to do a safety audit. At that time, Mr. O’Connor gave Mr. Altenburg a documented verbal warning for failing to wear his safety glasses and for using a group lock rather than a personal lock contrary to the Company’s safety policy. Mr. O’Connor testified that Mr. Altenburg’s use of a group lock rather than a personal lock was a technical breach of policy but was not unsafe. Mr. O’Connor, however, explained that he had decided to give Mr. Altenburg a safety citation that day, because he felt that Mr. Altenburg had intentionally not worn his safety glasses contrary to Company policy. He noted that Mr. Altenburg was working without wearing his safety glasses that day until Mr. O’Connor asked him to put them on, at which point, Mr. Altenburg expressed the view that the Company’s safety policy was “a bunch of B.S.” There was no suggestion that this documented verbal warning was ever grieved.

23Shortly thereafter in April 2000, Mr. O’Connor came across Mr. Altenburg not wearing his safety glasses on a second occasion while working at the Galleria Mall. Mr. O’Connor did not, however, feel it was necessary to take disciplinary action at that time and instead simply noted the incident in his daybook.

24On or about October 2, 2000, Mr. O’Connor verbally warned Mr. Altenburg about the need to comply with the Company’s safety policy relating to fall protection. That warning followed a discussion between Mr. Naunton, the Company’s manager of safety and environmental control, and Mr. Altenburg on or about September 28, 2000 during the course of a safety audit performed that day at the Galleria Mall service site.

25At that time, Mr. Altenburg expressed the view to Mr. Naunton that it was unsafe to wear a harness in a machine room and that he would not do so in a machine room at any time as a consequence. Mr. Altenburg indicated that he felt it was dangerous and that somebody was going to get killed. He raised concern about the possibility of electrocution and the possibility of the lanyard getting caught in moving objects in a machine room. Mr. Altenburg also expressed the view that wearing a harness on a new construction site at all times was silly. Mr. Naunton responded by advising Mr. Altenburg that it was Company policy to wear fall protection on a new equipment site (i.e. a construction site) at all times and that he has to follow Company policy.

26Mr. Naunton documented their discussion on the audit report under the heading “Fall Protection”:

Observations:

The mechanic expressed a negative view regarding harnesses on NE [new equipment] job sites. He said that he does not wear a harness in a machine room because of the danger of electrocution. He is not currently on NE [i.e. new equipment or construction] nor is there any plan to put him on a construction job. He was informed that it is Otis policy to wear fall protection on a NE site at all times and that he must follow Otis safety procedures. No further action is required at this time, however, we must continue to audit this individual.

27Mr. Naunton explained that he had indicated the need “to continue to audit this individual”, because he was concerned that Mr. Altenburg would not wear the required equipment on a construction site. Mr. Naunton, however, felt that no further action was required at that time, since the Company’s policy does not require that a harness be worn in a machine room at a service site unless there is a fall hazard present and Mr. Altenburg was assigned at that time to a service site.

28Mr. O’Connor learned of this discussion between Mr. Naunton and Mr. Altenburg soon thereafter. Mr. Naunton was quite upset about it and wanted something done. Mr. O’Connor agreed that something should be done and decided to go back to the job site at the Galleria Mall the following Monday to question Mr. Altenburg about the discussion.

29When Mr. O’Connor arrived at the site that Monday, he met with Mr. Altenburg and two other employees who happened to be there at the time. Mr. O’Connor asked Mr. Altenburg if what Mr. Naunton had recounted was true and Mr. Altenburg replied that it was. Mr. O’Connor then informed all three of them that if any of them did not follow Company policy he would fire them. He then asked each of them, in turn, if they would comply and Mr. Altenburg nodded yes. Mr. O’Connor then noted this warning, which he had given to Mr. Altenburg, in his daytimer but did not otherwise document it.

30Mr. Altenburg testified that, although he continued to have safety concerns about wearing a harness in a machine room, he had simply nodded yes because Mr. O’Connor was upset and he did not feel he could disagree with him. Mr. Altenburg continued to work under Mr. O’Connor’s supervision for a few more weeks thereafter without incident or discussion about the Company’s fall protection policy. Mr. Altenburg was then assigned to work under Mr. Kearns’ supervision.

Decision

31Given the union’s concession that Mr. Altenburg was in breach of the Company’s safety policy, the issue before the Board in this case is whether or not discharge is too severe a disciplinary response in all of the circumstances. The parties agreed that the Board should deal only with the question of liability; that is, whether there was just cause for Mr. Altenburg’s termination and whether the Board should exercise its discretion to substitute a lesser penalty. Accordingly, the parties agreed that the Board should remain seized of the issue of remedy.

32The Company’s authority to discipline and discharge employees is set out in Article 2.03 of the Collective Agreement. The relevant portions read as follows:

2.03 Without limiting the generality of the foregoing, and subject to the other provisions of the Agreement, the Employers shall have the right to:

(b) Discipline or discharge for just cause;

(c) establish and enforce reasonable rules of conduct to be observed by employees.

The Collective Agreement does not contain a specific penalty for the infraction in issue, which relates to the grievor’s failure to wear his safety harness contrary to the Company’s safety policy.

33In these circumstances, the Board has the power under section 133(9) of the Act to modify a disciplinary penalty imposed by an employer. That provision provides that subsection 48(12) to (20) of the Act apply to the Board when it is determining a referral filed under section 133 of the Act. Section 48(17) of the Act, in turn, provides as follows:

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 of the circumstances.

Under that provision, the arbitration board has the discretionary power to substitute another penalty for discharge. The penalty to be substituted is one that to the arbitration board seems just and reasonable in all the circumstances.

34In the present case, the union concedes that Mr. Altenburg was technically in breach of the Company’s safety policy relating to fall protection and did not dispute that some discipline was warranted. It argues instead that discharge is excessive in the circumstances. It notes that Mr. Altenburg had simply forgotten to put his harness back on after lunch and had not put himself or anyone else at risk as a consequence. The union contends that, at most, a penalty of a two-day suspension, being the minimum penalty prescribed for a violation of the fall protection policy under the terms of the Company’s disciplinary procedure for safety violations, is appropriate in the circumstances.

35The Company, on the other hand, notes that it has a legal obligation to ensure that its workplaces are as safe as possible and that the Company takes that responsibility seriously. It submits that dicharge is appropriate in the circumstances of this case, since the purpose of corrective discipline, which is to correct the individual’s behaviour, could not be achieved in the present case. In this respect, the Company states that it is clear from the evidence and, in particular, from Mr. Altenburg’s conversation with Mr. Kearns on December 6, 2000 that Mr. Altenburg would not comply with the Company’s safety policy in future.

36For the reasons that follow, the Board is satisfied that Mr. Altenburg’s breach of the Company’s safety policy warrants a severe disciplinary response in all of the circumstances. The Board, however, considers discharge to be excessive and is satisfied that it should substitute a lesser penalty.

37The union acknowledged that Mr. Altenburg’s failure to comply with the Company’s safety policy relating to fall protection on December 6, 2000 was a breach of the Company’s safety policy. Under the terms of the Company’s discipline procedure for safety violations, violations of the policy relating to fall protection are treated as more serious violations than are those relating to other aspects of the Company’s safety policy. Under the terms of that procedure, a minimum penalty of a two day suspension is contemplated, which penalty the union argues is the maximum penalty warranted in the circumstances.

38In our view, a two-day suspension is too lenient in the circumstances. Mr. Altenburg had an earlier safety citation involving a documented verbal warning for failing to comply with the Company’s safety policy. Mr. O’Connor had also recently verbally warned Mr. Altenburg that he would be fired if he did not comply with the Company’s fall protection policy. Although the Board agrees with the union’s submission that that warning was an ill-considered response to an employee’s expressed health and safety concern, it nonetheless represents notice to Mr. Altenburg that serious disciplinary consequences would result from a violation of that policy. Approximately two months later, Mr. Altenburg did not comply with that policy when he failed to wear his harness while working on the Job Site. There is no suggestion that he failed to do so at that time because of any health and safety concerns.

39Mr. Altenburg maintains that he simply forgot to put his harness back on after using the washroom during the lunch break. The Company suggests that the Board should infer from the evidence that Mr. Altenburg was, in fact, deliberately flaunting the policy. The Board does not, however, agree. We note that there was no evidence to suggest that Mr. Altenburg was not, in fact, wearing his harness that morning as he claimed. Although the Board accepts Mr. Altenburg’s explanation that he forgot to put the harness back on after lunch, the Board also infers from the evidence that Mr. Altenburg was more careless about remembering to comply with the policy, given that he did not agree with all of its terms and felt that he knew better than the Company about the proper application its terms.

40In this respect, the Board notes that Mr. Altenburg had indicated to Mr. Naunton a few months earlier that he considered wearing a harness at all times on a construction site to be silly. In addition, Mr. Altenburg indicated to Mr. Kearns on December 6, 2000 and in his testimony before the Board that he was not required to wear the harness on the Job Site in question, since he did not consider it to be a construction site. In the Board’s view, however, Mr. Altenburg knew from the fact that he was assigned to a different supervisor when working on a construction site (Mr. Kearns) than he was when working on a service site (Mr. O’Connor) that the Company considered the Job Site to be a construction site. The fact that he nonetheless maintained that he was not required to wear the harness suggests that he disagrees with, rather than misunderstands, the Company’s application of that policy.

41In all of the circumstances, the Board concludes that Mr. Altenburg’s attitude toward the policy made him more careless about complying with its terms when he should have been more diligent about doing so given the notice given to him by Mr. O’Connor two months earlier. The Board is satisfied that a substantial disciplinary penalty is warranted in the circumstances in the interests of deterrence and to bring home to Mr. Altenburg the importance of compliance with the Company’s safety policy in the absence of a bona fide health and safety concern.

42The Board does not, however, accept the Company’s suggestion that corrective discipline would not be effective given that Mr. Altenburg has indicated that he will not comply with the fall protection policy in future in that he refuses to wear a harness in a machine room. Mr. Altenburg has a right in specified circumstances to refuse work that he believes to be unsafe. Mr. O’Connor, in effect, acknowledged in evidence that Mr. Altenburg had a right to refuse to wear a harness in a machine room if he believed it to be unsafe when he testified that the Company would have to follow the procedure mandated under the applicable health and safety legislation if Mr. Altenburg refused to comply with the requirement to wear a harness in a machine room in future.

43In the Board’s view, the fact that Mr. Altenburg has indicated an intention to exercise that right in future cannot be used by the Company to justify a penalty of discharge. In rejecting the Company’s suggestion that corrective discipline would not be effective in the circumstances, the Board notes that there is no suggestion on the evidence that Mr. Altenburg refuses to comply with any other aspect of the fall protection policy. Although Mr. Altenburg may not agree with all aspects of the fall protection policy, the only portion he has indicated that he will refuse to comply with relates to the requirement to wear a harness in a machine room and his refusal is based on a bona fide health and safety concern. In all of the circumstances, the Board is not persuaded that corrective discipline would be ineffective.

44The Board also rejects the suggestion that Mr. Altenburg’s lengthy seniority and length of service with the Company should not be considered in assessing what penalty is just and reasonable. In the Board’s view, Mr. Altenburg’s 37 years’ seniority as well as approximately 30 years of service with the Company is a factor that the board of arbitration should consider in determining whether a penalty other than discharge is just and reasonable. (Thyssen Dover Elevator Ltd. (c.o.b. Thyssen Krupp Elevator), unreported decision dated April 6, 2001 in Board File No. 3646-00-G) While the Board accepts that, as a general matter, the notion of “progressive discipline” is attenuated in the construction industry because employment relationships in that industry are frequently transitory in nature, the Board notes that the facts in Ontario Hydro, [1990] OLRB Rep. December 1308 relied upon by the Company in support of its position that the Board should not introduce that notion in the present case are readily distinguishable. In that case, the grievor in question only had about two months seniority and had only been employed on the job site in question for a period of two weeks. In the present case, however, Mr. Altenburg’s seniority under the Collective Agreement and length of service with the Company is substantial even by industrial standards.

45In reaching the conclusion that discharge is excessive in the circumstances, the Board has considered the arbitration decisions cited by the Company in William Nielson Ltd. v United Food and Commercial Workers’ Union, Local P529A, unreported decision dated February 8, 1988 (Picher) and in Dupont Canada Inc., Kingston Site v Kingston Independent Nylon Workers Union, unreported decision dated November 22, 1989, in which discharge of the grievors concerned was upheld by the arbitrator for violations of the Company’s safety rules and finds them to be distinguishable as well.

46In Dupont Canada Inc. cited above, the grievor, who had approximately five years experience as an operator was discharged for deliberately violating the Company’s safety policy when he used bolt cutters to cut off a safety lock and tag on a battery charger. In William Nielson Ltd. cited above, the grievor, who was not a long-service employee, was found to have deliberately disobeyed a direction from his employer not to drive a forklift and in doing so caused an accident with resulting damage to property. In both cases, the grievors had considerably less seniority than does the grievor in the present case. Further, the misconduct in question was found to have been the result of a deliberate act, rather than an error of omission.

47In all of the circumstances, the Board is satisfied that it should substitute another penalty for the discharge of Mr. Altenburg. In the Board’s view, his disciplinary record should show a five-day suspension being substituted for his discharge. Having regard to the parties’ agreement that the Board should deal only with liability at this stage, the Board will remain seized of the remedy issue in the event that the parties are unable to agree.

“Caroline Rowan”

for the Board