64 C.L.A.S. 11
In the Matter of an Arbitration between Overwaitea Food Group, (”the Employer”) and United Food & Commercial Workers, Local 1518, (”the Union”)
J.P. Sanderson Member
Judgment: February 7, 2001
Docket: A-070/01
Counsel: Earl G. Phillips, for the Employer
Ib S. Petersen, for the Union
J.P. Sanderson Member:
1 This grievance concerns the termination from employment of the grievor on March 6, 2000, allegedly for not following directions from management and causing disruption of workers during their work times.
2 The grievor is a general clerk who has been employed at Store 918 since November of 1994. Shortly after becoming an employee, the grievor was elected as a steward and then appointed chief steward. Some months before his termination, it appears the union held elections. The grievor was unsuccessful and lost office. He is presently embroiled in extensive legal proceedings with regard to a number of allegations and charges against the union, its executive and its leadership, which are the subject of ongoing court action. In a word, the grievor has had turbulent relationships with the union and, as the evidence discloses, with the employer and a number of fellow employees.
3 The general position of the employer is that the grievor has been a disruptive employee, who defied, on a number of occasions, the authority of management and its managers and who engaged in unacceptable conduct with fellow employees, both in and out of the bargaining unit, over an extended period of time. The employer further contends that a review of the grievor’s employment history discloses a number of serious employment offences, that progressive discipline was applied and did not work, that the employer took steps to attempt to change the grievor’s employment attitudes and rehabilitate him as an employee but that the grievor was unable or unwilling to act in a manner responsible to his employer and his fellow employees.
4 In contrast, the union, in a general sense, submits that no culminating incident took place and, therefore. the grievor’s employment record is not brought into issue, In any event, the union also contends that while there may have been difficulties with the grievor, they were of a minor nature, arising from his role as a union steward and a discharge was not warranted.
5 As I have noted, the termination of the grievor’s employment took place May 6, 2000. It is appropriate to begin this narrative with those events, since it is an important part of the union’s case that nothing took place at that time that warranted any discipline and thus no culminating incident that would trigger a review of the grievor’s employment history took place. Accordingly, I will review the evidence concerning that issue first.
6 Ron Ballard is the store manager and he gave extensive evidence before me. On April 29, Mr. Ballard spoke with the grievor and gave him certain instructions about soliciting employees at work for funds to support the grievor’s legal actions against the union. I will deal with the matter more fully later in this award but the grievor is an active member of a group called Members for Democracy, who have undertaken the court proceedings and other actions against the union and its leadership, previously referred to. Mr. Ballard testified that he had already received complaints from employees complaining about the grievor’s soliciting them for funds to support the MFD court actions while they were working. Additionally, Mr. Ballard stated he was well aware of a number of previous occasions when the grievor had been conducting union business on company time without management authorization. Specifically, the grievor was told by Mr. Ballard twice that he was not to solicit funds while people were working in the store or while he, the grievor, was on shift. Mr. Ballard further testified that on both occasions he asked the grievor if he understood the instructions and that the grievor responded that he did. Dave Higo, operations manager, was present for these discussions and he corroborated Mr. Ballard’s evidence in his own testimony.
7 In his evidence, the grievor gave a different account of what he said he had been told. It was his understanding that he could solicit funds from employees while they were working provided he was himself on a break or was off shift. The union called a witness, Patrick Dumont, to provide corroboration of the grievor’s testimony but Mr. Dumont said that he did not hear the conversation between the grievor and Mr. Ballard regarding the solicitation of funds.
8 On May 5, both Mr. Ballard and Mr. Higo made their own notes of the conversation that had taken place on April 29. These notes were produced in evidence before me and were the subject of extensive examination. Both notes support their version of what was said. In the circumstances, I am prepared to accept that the instructions given to the grievor by Mr. Ballard were clear and unequivocal, namely that he was not to solicit funds from any employees during their working hours or during his working hours. The evidence is equally clear that notwithstanding the instructions given to the grievor, he actively went about soliciting funds in support of MFD during the next several days.
9 Marlys Ingvaldsen, a union steward, testified that she was solicited on April 30 and May 6. On the first occasion, it occurred during both employees’ working hours and on the second occasion, the grievor had already started work. She was also solicited on April 29 but the evidence is unclear as to whether that was before or after Mr. Ballard spoke with the grievor.
10 Again, I wish to pause in the narrative to comment upon the evidence of Ms. Ingvaldsen. In her testimony, she described in graphic detail how forceful and intimidating she found the grievor on these occasions. In her evidence, she described the grievor as being in her face, harassing her and that she simply couldn’t get him to stop and leave her alone while she was working. What is particularly disturbing about the May 6 solicitation is that the grievor had just returned from a two day suspension, the details of which will be dealt with in more detail shortly. The grievor had been formally advised in writing on May 4 that he must accept his obligation to take direction from management and that any further corrective actions would result in his termination.
11 Another employee, Carla Magnus, was solicited on May 1 and May 6. On the latter date, Carla was working. An employee in the bakery named Jose was solicited on May 4 and interviewed by Mr. Ballard on May 5. In a written statement produced in evidence, Steve Nicholson stated that he was solicited on May 4 and that he had observed the grievor “hounding Jose”. Mr. Higo testified that the soliciting had not stopped after April 29 and another employee, Eric Hollander, provided a statement referring to “numerous occasions” when the grievor had been seen soliciting. While certain of these accounts came before me as written statements not tested in cross examination, all of the information provided is consistent with the direct evidence of Messrs. Ballard and Higo., as well as Mr. Ingvaldsen. In any event, none of the evidence was denied by the grievor in his evidence, with the one exception that he testified he had not solicited Jose but she had initiated the conversation with him.
12 On the morning of May 6, Mr. Ballard held a meeting with the grievor, Doug Horrey, operations manager, the grievor and a steward. The purpose of the meeting, Mr. Ballard testified, was to ask the grievor to explain his continued solicitation, contrary to the directions he had been given on April 29. The grievor’s response was not to deny that he had been soliciting but he claimed that it was permissible for him to do so, since it was “always on my time”. As the discussion continued, the grievor became more aggressive and bellicose. He accused the management of harassing him, stated it was none of the employer’s concern or business and that if they didn’t leave him alone, he would bring more MFD members into the store to solicit along with himself. In his own evidence, the grievor described this outburst as a diatribe. He also testified that he told Mr. Ballard, “If it’s that serious, I’ll stop soliciting.” He also said that Mr. Ballard responded by saying, “It’s too late.”
13 Mr. Ballard asked the grievor and his representative to step outside and, while they were absent, he wrote out the termination document and handed it to the grievor when he came back into the office. After some more unpleasantries, the grievor left and this grievance followed.
14 I have carefully reviewed all of the evidence surrounding this series of events and I am satisfied that an employment offense, indeed a series of them, took place between April 29 and the completion of the meeting with the grievor on May 6. Specifically, I find that the grievor had been instructed not to solicit employees while they were working or the. grievor was working, that he did so on the occasions previously described, that his explanation concerning the instructions he had been given is neither believable nor credible and that his conduct in the meeting itself was improper and disrespectful of management. Accordingly, I find that a culminating incident did take place and that the employer was entitled to rely, as it in fact did, on the grievor’s prior disciplinary record.
15 Unfortunately, establishing precisely what is the grievor’s disciplinary record is not an easy task for a number of reasons, as will become clear shortly. The first three entries, a verbal warning September 17, 1995, for lateness, a verbal warning October 14, 1995, for a work refusal and a verbal warning January 4, 1997, for not working a posted shift, are not disputed. The next entry, a written warning on January 8, 1999, for a workplace altercation, is claimed by the union to have involved disciplinary conduct by another employee but it was not grieved.
16 On May 29, 1999, the grievor was issued a suspension for the balance of a shift for disruption of work and poor performance. The suspension was grieved. On August 23, 1999, the union representative. Brian Nasu, and Liz Stoner, the employer’s labour relations specialist, confirmed in writing a settlement of “the outstanding issues and grievances related” to the grievor. It was a term of that document that the suspension would be removed from the record “if there were no incidents of a similar nature on or before January 1, 2000”. On August 31, 1999, the grievor was issued a one day suspension for what is described as “telephone calls, insubordination, job performance and lateness”. On September 18, 1999, the grievor was given a written warning for lateness. On March 15, 2000, Mr. Nasu, the union representative, wrote to Ms. Stoner another letter setting out the terms of settlement of certain other grievances filed by the grievor concerning disciplinary action taken against him. A term of that letter is that the latter two disciplinary actions would be withdrawn and a written warning would be, substituted “in regard to Mr. McPherson’s lateness”.
17 The position of the union is that as a result of the March 15 settlement, the only disciplinary action against the grievor between May 29, 1999, and January 1, 2000, is the two written warnings and these deal with lateness. Since that is not a “similar matter” to the subject of the suspension in May which arose for disruption of work and poor performance, the union argues, the suspension must be expunged from the discipline record and could not be used by the employer in considering the termination of the grievor. Simply put, the union submits that the May 29, 1999, discipline has been sunsetted and is not properly before me.
18 While Mr. Nasu was not called as a witness, Ms. Stoner was. Her evidence is that Mr Nasu did not discuss with her the reference to lateness in the March 15 letter and that she had never agreed to a resolution involving the grievor’s insubordination and work performance issues. Specifically, she testified that at no time had the employer intended to give up the insubordination issue, which was clearly part of the basis for the August 31, 1999, suspension. In the absence of any evidence from the union, other than the letter itself from Mr. Nasu, I see no reason not to accept Ms. Stoner’s evidence of what the employer actually agreed to in the settlement discussions. At best for the union, the evidence before me is equivocal and uncertain as to the intentions of the parties. In these circumstances, I am prepared to find that the grievor’s disciplinary record does, in fact, include the May 29, 1999, suspension.
19 The next matter to be dealt with concerns a three day suspension dated November 27, 1999, for failure to follow directions. This matter was grieved. The direction referred to was that the grievor was ordered to provide a statement concerning an incident involving himself and another employee that had occurred several days earlier. In the March 15, 2000, settlement arrangement. it was agreed that, “The suspension will be changed to a written warning and Mr. MacPherson will provide a statement.” I heard extensive evidence on the subject of what occurred thereafter. Essentially, the parties are in agreement that the grievor to date has not provided a statement as the terms of settlement require. The employer takes the position that the grievor has not fulfilled a term of the settlement that was agreed on and, therefore, the original three day suspension still stands. For its part, the union states that the matter was settled and a written warning is all that remains on the disciplinary record. For reasons set out in the arbitral award, Re Vancouver Hospital and Health Sciences Centre and British Columbia Nurses’ Union (1999), 80 L.A.C. (4th) 75 (Taylor), I find that the terms of the settlement have not been fulfilled by the grievor and until that happens, the original disciplinary action remains part of the disciplinary record.
20 On December 18, 1999, the grievor was given a one day suspension for lateness. Apparently, the matter was not grieved and is properly on the grievor’s disciplinary record.
21 This brings me to two further and separate disciplinary matters with which I must now deal, namely a one day suspension dated April 17, 2000, allegedly for refusal to provide a doctor’s note and a two day suspension dated May 4, 2000, for performance difficulties and failure to follow directions. Both of these suspensions were grieved but the patties have not held meetings under the terms of the collective agreement in an attempt to resolve the grievances. However, both parties agreed that I had jurisdiction to determine the merits of these grievances as part of these proceedings. Accordingly, I will discuss each of them in turn.
22 Laurie Reynolds is an operations manager at the store and a member of the bargaining unit, although she has power to administer discipline. It was her evidence that the grievor was scheduled to work a Sunday shift in the dairy department, beginning at 2:30 p.m. At 1:42 p.m. she received a telephone call from the grievor, who advised her that he was ill and would not be coming to work. According to her, there was a “pattern” of previous occasions where the grievor phoned in sick just before the start of Sunday shifts. Additionally, she stated that she already knew the grievor had tried to switch shifts and so she had anticipated that he might call in. As a result, she directed him to bring in a doctor’s note. She also asked him what he was ill with and why he had waited so long to call in. The grievor’s response was that he had waited because he thought he might be well enough to come to work but he provided no medical justification to her. She described his tone as “cocky” and stated that the grievor told her he had no intention of getting a doctor’s note, even though she told him it would be at the employer’s expense.
23 Ms. Reynolds gave evidence of other occasions where the grievor had been confrontational and uncooperative with her. She also testified that the Sunday shift in the dairy department was very important to the employer, that if someone waited until just before the shift began to advise that they were ill, it was almost impossible to find a replacement. Because she said the grievor had done this before and because she had turned down his request to switch shifts, she concluded that she should require a doctor’s note.
24 There is considerable documentary evidence concerning the grievor’s absenteeism record. While there are instances recorded of other events, it is difficult to discern any particular pattern. It is clear, however, that the grievor was less than cooperative when questioned. As I have said, the evidence before me establishes other occurrences, but no marked pattern of the grievor not working scheduled Sunday shifts because of illness or of waiting until just before the start of a shift to call in ill. Ms. Reynolds stated that her request to the grievor to provide a doctor’s report was based on the difficulty she had had with the grievor on past occasions. She also advised him it would be at the employer’s expense. When she asked the grievor to supply a note, he stated that he would not do so – a response very different than if be had said he could not do so. At the investigation meeting before the disciplinary decision was made, it was Mr. Ballard’s evidence and that of Ms. Reynolds that the grievor’s attitude was combative. He insisted that management had no right to ask for a doctor’s note and that he was being harassed. Apparently, he threatened to reopen the shop steward election issue and made other remarks about joint labour management meetings he would then conduct.
25 The next matter to consider concerns a two day suspension on May 4, 2000, for a performance related issue that took place April 30, 2000, plus a refusal by the grievor to follow management direction and check off product against invoices.
26 Ron Coleman is the produce manager at the store. He testified that he had had prior difficulties with the grievor’s work performance working in the produce department. On two occasions this resulted in the grievor being spoken to by Mr. Coleman concerning his poor work performance. Specifically, the problem was that the grievor was not completing the work tasks assigned to him by Mr. Coleman. Apparently, on both occasions, the grievor did not deny the work was not completed but stated he was too busy to do it or that he had forgotten what had to be done. In Mr. Coleman’s words, the grievor “was always sarcastic with him on such matters.”
27 On April 30, 2000, Mr. Coleman assigned work to the grievor by giving to him a “to do list”. As the shift proceeded. Mr. Coleman noticed that the work was not being completed as assigned. He told the grievor that he would have to work harder. He testified that the grievor said, “I control my dial” and that “the more we pissed him off, the more he turns down the dial.” When Mr. Coleman stated that he might have to take action against the grievor, the grievor said that Liz Stoner had been told the same thing, referring to the dial, a euphemism for controlling his pace of work. The conversation became somewhat heated. Mr. Coleman left and when he returned, he discovered the grievor had not proceeded to do the tasks he had been assigned. Mr. Coleman went to his boss, Kevin Sawyer, and reported the matter to him. He explained not only that the grievor had not done the work assigned to him but what the grievor had said about controlling how slow or fast he might want to work. Mr. Sawyer directed Mr. Coleman to write up an account of what had transpired. Those statements were also produced in evidence.
28 Mr. Coleman was extensively cross examined but his evidence was largely unshaken. The grievor, for his part, did not deny that the work had not been completed, nor that a confrontation between himself and Mr. Coleman had occurred. However, he attributes the blame to Mr. Coleman, a result I find impossible to accept.
29 The second ground on which the two day suspension was based involved the refusal by the grievor to check product against invoices. Apparently, the grievor had long objected to any form of recording items that might be construed as a piece count or productivity work analysis. On May 2, 2000, when the grievor was directed by Paul White to check off the product received against the requisite invoice, the grievor first refused, then deliberately made a mockery of his count. What occurred is set out in the following written report from Mr. White.
Re: Scott Mc following direction from Management
Scott was working 11:30-5:30 am in the grocery department. Scott was working in aisle #6, when I went down the aisle to let him know that it was his turn to check off invoices. I said “Scott please go and check off invoices, thanks”. Scott made his way up to the bookstore on the way I was explaining the new procedure that we have to check off invoices. Scott has not been on the shift for a few weeks and I wanted to make sure that he was up to speed. I showed the area on the invoices where I needed him to write the total pieces that he had worked, and then where to write in the pieces per hour (I fill in the time). Scott said he is not doing anything that relates to a pieces count. I said “O.K. Scott if you are not going to do the task that I asked of you, you can go home and come back at 8 am and talk to Ron.” Then he said “I have a pen to do his BUT I’m doing this under protest.” I left Scott to check off invoices. I returned 15 minutes later to see that Scott had done over 1600 pieces and more than 360 per hour. I went and asked if he need to make any changes to his totals and he said he was happy with what he wrote down. I talked to Ron and Kevin at 7:10 am about the concern that I had.
30 At the investigation meeting. the grievor was asked for an explanation. The grievor did not deny what he had done but he said that the employer was harassing him and that there was no such thing as the right to conduct a piece count in the collective agreement. Rather than admit his own responsibility, he attempted to shift blame to the union. When pressed, he stated that he supports the union position that conducting piece counts is contrary to the collective agreement and that he purposefully did the piece count wrong. At the hearing before me, he admitted that he had been a “smart ass” about the matter and that he knew the difference between what he was being asked to do and a true piece count.
31 In addition to the specific evidence on the particular events and matters referred to above, the various employer witnesses provided me with extensive evidence as to the difficulties that arose between them and other employees interacting with the grievor, difficulties that appear to have arisen largely because of the grievor’s combative and disrespectful attitude towards anyone in authority. In addition, the grievor has had serious difficulties with some employees who did not support, in a tangible way, the various political and legal actions he had undertaken. I recognize there is a subjective element in a person’s opinion of someone else’s attitude but what is more important to me in this case are the actual manifestations in what the grievor said and did as evidenced by the testimony of the various witnesses, including the grievor himself.
32 In addition to the corrective action reports and other direct disciplinary actions, the employer produced in evidence a number of reports and statements from the employee’s personnel file that related events or concerns regarding the grievor but on which no direct discipline was taken. In some of these cases, the statements were written by individuals who were not called as witnesses and, therefore, were not subject to questioning and cross examination. In other cases, the statements were made by persons who were called as witnesses. The grievor took the position that he had not seen these statements in his personnel file and therefore they should not be considered by me.
33 With regard to the statements written by persons who were called as witnesses, for example Laurie Reynolds. the evidence is of value. even though no direct discipline was taken. It is background information that is important to explain later discipline, for instance other occasions where the grievor was late, because it demonstrates what the employer was concerned about and that the grievor had been spoken to, if not disciplined. Obviously, statements made by persons not called as witnesses will be given less significance in these proceedings.
34 I do not propose to set out all of the evidence that deals with the grievor’s confrontational approach to management and other employees, recognizing that with the exception of Mr. Ballard and Mr. Sawyer, the other employer witnesses are all in the bargaining unit. However, there are several particular elements of the evidence that require comment.
35 On September 25, 1999, Ron Ballard, who had recently been appointed as store manager, decided to hold a meeting with the grievor. As he put it, he wanted to “have a bit of a fresh start”. Mr. Ballard also said he “wanted to clear the air and deal with the grievor’s poor performance, sickness and lates and to correct his attitude towards management.” As the meeting proceeded, he testified that the grievor told him that he, the grievor, was not in the right job and that he had “bigger fish to fry.” The grievor told him that he was being hassled and harassed and that the concerns Mr. Ballard related to him were “nit picky stuff.” The grievor told Nor. Ballard that he did not care what was on his discipline or personnel file. Mr. Ballard had arranged for the grievor’s union representative, Mr. Nasu, to be present at this meeting and it appears even he told the grievor in the meeting that he was pushing the envelope. When Mr. Ballard suggested at the end of the meeting that they attempt to move on from there to a more constructive relationship, the grievor exploded that he was “tired of having people watch me.”
36 As I have already noted, Randy Coleman described how the grievor told him that he would control his own pace of work and that “he controlled the dial”. Laurie Reynolds said that there were always arguments with the grievor about everything. She said that every time that she or Ron or anyone in management raised a concern with the grievor, it turned into an argument and that he was difficult with everyone. Dave Higo testified as to how the grievor kept saying he was fed up with management and that the new manager (Ron Ballard) was toast. He also said the grievor told him that he was going to start a work slowdown and “then we’ll see how much work gets done.” Doug Horrie testified as to how belligerent the grievor became when he was questioned about being late and that he told Mr. Horrie that he didn’t have to give any reason to anyone for being late.
37 Liz Stoner’s evidence is significant in this case. She testified that the grievor had total disregard and lack of respect for management and anyone in authority. She said that the grievor had made it clear to everyone, including herself, that he was free to work at his own pace, at his own time. She said he was arrogant, confrontational and in everyone’s face. Nevertheless, Ms. Stoner, as did Ron Ballard, tried to correct the situation and particularly to get the relationship with the grievor onto some kind of a more positive frame by writing to the union representative the following letter:
May 4, 1999
Brian Nasu
Union Representative
U.F.C.W. Local 1518
4021 Kingsway
Burnaby, B.C. V5H 1Y9
Dear Brian:
Re: Fleetwood Save-On-Foods #918 – Shop Steward Representation
Keeping in mind the important of maintaining a professional relationship between our Management team and our shop stewards I reluctantly bring to your attention the unprofessional conduct of your Chief Shop Steward, Scott McPherson.
I have enclosed with this letter two examples of notes that Scott has left with his Store Manager, Bryan Muir. This type of threatening behaviour is absolutely unacceptable and detrimental to the positive relationship you and I both encourage on a daily basis.
I urge you to discuss with Scott that he cannot continue to display such a lack of respect, dignity and total disregard to the role he plays as a Chief Shop Steward.
At this time I would like to direct you to the Collective Agreement Section 21.03 (page 232) where “The Employer and the Union agree that Shop Stewards play a useful role in the EmployerEmployee relations.” Scott’s conduct falls short in maintaining a “useful” role.
Please reply as to how you see resolving this issue. If there is anything I can do to help get to this resolve please do not hesitate to contact me.
Yours truly
Lizbeth Stoner
Labour Relations Specialist
38 As a consequence, Ms. Stoner and the union representative, Brian Nasu, were able to settle a number of outstanding grievances involving the grievor. Unfortunately, the confrontations with the grievor continued, regardless of Ms. Stoner’s efforts. just as the, did when Mr. Ballard attempted the same thing in November.
39 Marlys Ingvaldsen is in the bargaining unit and she is also a steward. She testified that the grievor kept saying that the company and the union were in bed together and that the union didn’t care about the employees. As has been noted, she was solicited for funds by the grievor on April 30, May 6 and perhaps on April 29. On these occasions she was working. She said the grievor was aggressive and unrelenting and that he was very forceful. She stated that she felt harassed by him and that he made her feel belittled, in that she was being told she was not doing her job as shop steward. She said she was left feeling shocked, upset and helpless because she didn’t know what to do.
40 Most of this was not really denied by the grievor in his testimony. He described his attitude towards the employer as aggressive and he asserted a belief that management continually broke the union agreement. He said he had big time problems with the previous manager and that he “does not trust for a second” the current manager, Ron Ballard. He said he has an equally low opinion of the union representative, Brian Nasu. While he stated that he now regrets some of the things he said and did, when questioned about what happened, much of his language in giving evidence calls into question the extent of his repentance, for example, his description of Laurie Reynold’s request for a doctor’s note as being arbitrary and capricious. To the grievor’s credit, since the termination occurred, he has enrolled in a program leading to a certificate in anger management.
41 As I have noted, there are three grievances before me for disposition in these proceedings. The first concerns the one day suspension of April 17, 2001, and the second is a two day suspension imposed May 4, 2001. I will recite the respective submissions of both parties with respect to each of these grievances in turn, together with the conclusions I have reached, before dealing with the termination grievance itself.
42 Dealing then with the one dad suspension grievance, the employer submits that the documentary evidence, the direct testimony of Laurie Reynolds. and the grievor himself, establishes a pattern of the grievor calling in late, particularly with reference to Sunday shifts. As to the shift in question, the employer submits that on this instance, the evidence is that the grievor had been refused the opportunity to trade shifts. In the circumstances, when the grievor called in 45 minutes before the start of his shift to say he was ill but provided no information as to the nature of his illness, the employer argues it was entirely reasonable, as an exercise of management rights, for Ms. Reynolds to ask for a doctor’s note, particularly when it would be at the employer’s cost. Not only did the grievor refuse to provide a note but the employer submits that his reaction was excessively combative, both at the time and particularly at the investigation meeting. The employer further submits that under this collective agreement there is no restriction against the employer requesting a doctor’s note, particularly where there are reasonable grounds for concern. Thus, the employer submits that the one day suspension was a reasonable disciplinary response.
43 The union submits there was no proper cause to request the grievor to produce a doctor’s note in the circumstances. While the union concedes there is nothing in the collective agreement, the union argues that the arbitral authorities are clear that a doctor’s note can only be sought if there are reasonable and probable grounds for concern. In the circumstances here, the union considers the grievor’s absenteeism record to be relatively minor and it notes the employer does not have a formal policy regarding doctors’ notes. Further, the union submits that this was the first time the grievor had been asked to produce a doctor’s note and the fact that it was shortly before the start of the shift when the grievor called in, is not relevant to the issue of whether the grievor was sick. Counsel also submits that the evidence concerning the alleged shift switch is confusing and, in any event, this appears to be the first and only time that an employee at this store who called in sick was asked to produce a doctor’s note. In the view of the union. the grievor did nothing wrong in refusing to get a note and he should not be expected to incur the inconvenience of going to a doctor on his own time. In the circumstances, the union contends the grievance should succeed.
44 In principle, there is no restriction that I can find under this collective agreement to prohibit the employer from asking an employee to produce a doctor’s note with respect to a reported illness, provided the request is reasonable in the circumstances. In this case, Ms. Reynolds had had her own difficult experiences with the grievor in other situations, as was evident from her testimony and the documentation she supplied, and this undoubtedly affected her view of whether she could believe the grievor. It was the first time the grievor had been asked to supply a doctor’s note and his reaction was predictable. If his conduct and behaviour, not only to Ms. Reynold but during the investigation meeting when he was asked for an explanation, had been more responsible, I would give serious consideration to reducing the penalty to a warning. However, the suspension on its face is based on the employer’s concern that it was important to “have Scott understand his obligation, as well as taking direction from management.” Unfortunately for the grievor, this was one more instance of his defiant attitude to anyone in authority, even those in the same bargaining unit as himself. In all of the circumstances, I am not persuaded to mitigate the penalty in view of the grievor’s belligerent and confrontational behaviour. Accordingly, this grievance is dismissed.
45 Turning now to the two day suspension for performance difficulties and failure to follow directions, the employer submits there is considerable evidence of performance difficulties relating to facing the product on shelves, stemming from late April 1999. A number of situations have been documented, particularly in August 1999, where facing problems occurred and the grievor was instructed as to what was expected of him, without any improvement. The company further argued that Mr. Coleman had testified with regard to two prior situations, one on Halloween weekend of 1998 and the other October 10, 1999, where the grievor had not performed work that had been assigned to him by Mr. Coleman. On both occasions, Mr. Coleman testified that the grievor’s manner and tone with him had been disrespectful and argumentative. When the problem in produce occurred on April 30, 2000, and Mr. Coleman told the grievor he had to perform the work assigned to him and to work at a better pace, the employer recalled the grievor’s evidence to the effect that he “controlled the dial” and his statement that the more “we pissed him off, the more he turns down the dial.” Counsel for the employer also noted that, in any event, on the night in question, the grievor did not complete the work that had been assigned to him, even after Mr. Coleman reminded him what was on the list after the first discussion.
46 On the matter of the grievor’s refusal to follow management direction concerning piece counts, which was the other ground for administering the suspension, the employer submits the grievor not only did the count incorrectly but did it deliberately, thus making a mockery of a necessary check of what goods had been received into inventory. In addition, counsel notes that not only was this one more instance of the grievor refusing to follow management direction but when questioned about it, he accused the employer of harassing him. Consequently, the employer contends that in view of the previous record of the grievor in matters of this sort, the many efforts that had been made to correct his behaviour and his persistent insubordinate conduct, a two day suspension is just and reasonable in the circumstances.
47 With respect to this suspension, the argument of the union on the performance issues is that the employer has not published production standards or policies, including the proper facing of product on the shelves, against which the grievor’s conduct can be properly measured. The union submits that, as a result, the grievor was not certain as to what was expected of him. In the union’s view, while there may have been questions raised with regard the performance of work, the evidence falls short of establishing that the grievor did not meet normal or reasonable standards, certainly to the extent that he should be disciplined.
48 As to the question of checking off the invoices, counsel pointed to the evidence that deals with the expressed concern of the grievor regarding piece counts being a “contract violation” and the general position of the union that piece counts are not allowed under this collective agreement. In addition, counsel submits that the evidence is clear that the grievor was contrite about the remarks he made that might not have been appropriate but that a two day suspension was far too severe in the circumstances. More importantly, the union submits that what the employer should have done with respect to both the performance issue and the question involving the invoices is to apply progressive discipline. Since that did not happen here, the union submits that this grievance should succeed as well.
49 As I have said, the two day suspension was imposed on the basis of the work performance problem involving Mr. Coleman, as well as the so called piece work debacle. On the performance issue, the evidence is clear and uncontradicted that the grievor was given work to do, work that was a normal and routine part of the job in question, and that he did not complete the assignment, despite being reminded to do so after a run-in with Mr. Coleman where the grievor asserted he would decide how hard he should work. On the second ground, checking the inventory, this work had nothing to do with piece counts but was a straightforward check of inventory received against the invoiced figures. In both cases, I find the grievor was at fault and that discipline was warranted. Considering the seriousness of both offenses and the grievor’s total lack of cooperation and aggressive and defiant attitude towards everyone in authority with which he came in contact on these occasions, I see no reason to conclude that the imposition of a two day suspension was not just and reasonable in all the circumstances. Accordingly, I find that the employer’s disciplinary action is sustained and the grievance concerning this suspension must be dismissed.
50 As to the termination grievance itself, the employer submits that the grievor was specifically directed by the store manager, Ron Ballard, not to solicit employees in the store while either they or the grievor were working. In the employer’s view, this direction must also be considered in light of the previous discussions Mr. Ballard and others had had with the grievor about not conducting union business on company time, without authorization of management. The employer contends that the grievor was told twice not to solicit funds while employees were working or he was working and on both occasions he was asked by Mr. Ballard if he understood and the grievor said he did. Notwithstanding that fact, the employer submits that there are at least six occurrences, either recorded in the documentation or the subject of direct evidence, in which the grievor solicited employees for funds in support of Members for Democracy, after he had been instructed not to do so by his manager. To make matters worse, in the view of the employer, two of these occasions were on May 4, immediately after the grievor had been given his correction action report and a two day suspension that specified “further corrective action will result in termination” and two of them occurred on May 6, as the grievor was returning to work from his two day suspension. In the employer’s view, the grievor had demonstrated that it was not possible for him to act in a responsible way towards his employer, despite the many efforts and attempts to use corrective discipline and other means to affect a change in his conduct or his attitude. In the employer’s submission, both it and the union representative for the grievor had made every possible effort to improve the situation and nothing was or could be changed. The disciplinary record of the grievor is unacceptable, in the employer’s view, not only as to the number and extent of the occurrences but also as to the seriousness of the offenses and their disruptive impact on the entire workforce. Thus, in the submission of the employer, there was just and reasonable cause for the grievor’s termination and, in these circumstances, the employment relationship had been irretrievably damaged by the grievor himself. The arbitral authorities relied on by the employer are as follows:
51 Re British Columbia Railway and Canadian Union of Transportation Employees, Local 6 (1982), 8 L.A.C. (3d) 233 (Hope); Caradon Indalex and United Steelworkers of America, Local 2952 (1996), 55 L.A.C. (4th) 375 (Albertini); Pacific Press, a Division of Southam Inc. v. Graphic Communications International, Local 25-C, July 12, 2000, [2000] B.C.J. No. 1456, BCSC, Loo. J.; Vancouver Hospital and Health Sciences Centre and British Columbia Nurses’ Union (1999), 80 L.A.C. (4th) 75 (Taylor).
52 The grievor was ably represented by counsel who provided a thoughtful analysis of the evidence. In the view of the union, there was no culminating incident, in that the instructions given to the grievor were ambivalent and confusing. In the submission of the union, the grievor had been told by Mr. Ballard that he could not solicit funds from persons in the store during the grievor s own work time. As the union sees it, the grievor had not been told that he should not solicit during the work time of the other employees. On the evidence, while there is no real dispute that solicitation did take place, none of it occurred during the grievor’s working time. The grievor complied with what he thought he had been told and no discipline should be warranted.
53 Alternatively, the union argues that discharge, in these circumstances, is too severe a disciplinary response. On the question of why solicitation continued, in the union’s submission, at worst there is some misunderstanding concerning the application of Mr. Ballard’s instructions. The union argues that the disciplinary record is of minimal significance. In the union’s view, much of the documentary evidence concerning absences and performance difficulties is suspect because much of it is untested through examination of direct witnesses. While the grievor has been candid in admitting that some of the things he said and did should not have occurred and that some discipline may have been warranted, this does not mean the employment relationship has been ended in any effective way. While the grievor may have been intemperate on occasion, he is the chief shop steward and he performs an important function in protecting the integrity of the collective agreement and the rights of employees under that agreement. Thus, his actions must be seen in that context. The union submits that the grievor can and should be returned to employment and that the grievor can properly resume his place in this workforce, in light of the lessons he has learned arising from his termination and the skills he has acquired. in terms of anger management. The arbitral authorities relied on by the union are as follows:
54 Wm Scott & Company Ltd and Canadian Food and Allied Workers Union, Local P-162 [1977] 1 CanLRBR (Weiler): Re Nanaimo Collating Inc. and G.C.I.U., Local 525-M (1998), 74 L.A.C. (4th) 251 (Blasina): Re Air Canada and Canadian Air Line Employees’ Association (1981), 4 L.A.C. (3d) 68 (Shime); Board of School Trustees of School District No. 68 (Nanaimo) and C.U.P.E., Local 606, LRB Decision No. 68/76 (Baigent); Re Sunar Division of Hauserman Ltd. and United Steelworkers, Local 3192 (1979), 23 L.A.C. (2d) 1 (O’Shea); Re Labatt’s Ontario Breweries and Brewery Workers Union, Local 304 (1990), 11 L.A.C. (4th) 89 (Brandt); Tober Enterprises Ltd. and U.F.C.W., Local 1518 (1990), 7 CLRBR (2d) 148 (Bruce); Re North York General Hospital and Canadian Union of General Employees (1973), 5 L.A.C. (2d) 45 (Shime); Re City of Vancouver and Vancouver Municipal and Regional Employees Union (1983), 11 L.A.C. (3d) 121 (Hope).
55 This is an unfortunate case in that the grievor so often has felt compelled to be at odds with his employer and many of his fellow employees. As a result, he has been a disruptive force in their work lives but equally, if not more, in his own work life.
56 As an arbitrator in this province, I am obliged to apply the bedrock principles of the William Scott award and direct my attention to the three core questions to be answered in a discharge arbitration matter. The first is whether the evidence discloses just and reasonable cause for some form of discipline by the employer. That question must here be answered in the affirmative.
57 The immediate events surrounding the termination of the grievor’s employment on May 6 are not really in dispute. Having carefully examined all of the evidence from the various witnesses, including the grievor, on what occurred. I accept the employer’s version of the facts regarding the direction to the grievor from his manager not to solicit for funds from employees during their work time or his own. I also accept the evidence that the grievor when asked whether he understood what he had been told, said that he did. He deliberately then went out and did what he had been told not to do. He solicited funds on several days from several employees, including minutes after he had been suspended and given a final warning for two days for refusing to follow instructions and on the morning he returned to work from serving a suspension.
58 It is difficult to think of circumstances that better fit the description of the offence of insubordination in an earlier edition of Brown and Beatty relied on by arbitrator Hope in the B.C. Railway, supra, case at p. 243, particularly the first and last sentences:
There appears to be general agreement that conduct and language which are insolent towards and contemptuous of members of management will amount to insubordination where such behaviour involves a resistance to or defiance of the employer’s authority. From this it has been suggested that if the obscene and abusive outbursts are the result of a momentary flare-up of temper and, therefore, do not challenge the employer’s authority, the imposition of disciplinary sanctions would not be justified. Furthermore, in determining whether the quality of the grievor’s remarks fall within the ambit of and can be characterized as insolent and defiant behaviour, regard may be had to the nature of the business and the common language and mode of expression utilized and tolerated in the plant. Assuming that the language used can be viewed as insolent and contemptuous towards management, it appears from the awards that standing alone insolent remarks usually merit some minor disciplinary sanction, whereas if such language were accompanied by a refusal to work or threats or an assault on a supervisor, more severe disciplinary sanctions, including discharge, may be justified. Indeed, it has been held that discharge was appropriate where the insulting language directed at a fellow employee was so intimidating as to cause the latter to leave the employ of the company. In determining the appropriate penalty that may be invoked in any of these circumstances, in addition to considering the common idiom of the business and the intention of the person using the language, arbitrators have also had regard to the presence or absence of provocation, the behaviour pattern of the grievor, his length of service, the context in which the remarks were made, and the effect of the grievor’s behaviour on plant morale. Furthermore, if for whatever reason the employer perceived the employee’s behaviour to be of such marginal significance as to induce him to advise the employee to simply forget the entire incident, an arbitrator would probably conclude that the misconduct had been condoned and that the imposition of any subsequent disciplinary penalty was unwarranted. Finally, and although not properly characterized as contemptuous or insolent behaviour, where an employee is simply unable to co-operate with or is continually antagonistic towards his employer, a number of arbitrators have found such behaviour to be justifiable grounds for discipline.
59 Apart from his behaviour with regard to the employer, the grievor’s conduct with respect to Ms. Ingvaldsen, his fellow employee and steward, was totally unacceptable in this or any workplace, in that he was as contemptuous of her rights as that of management.
60 Accordingly, I find the grievor’s conduct warranted some form of discipline.
61 The second question, whether the employer’s decision to discharge the grievor was an excessive response in all of the circumstances of the case, was the subject of extensive and helpful analysis by counsel from both parties. I have carefully considered their respective submissions and examined in detail the evidence and the relevant arbitral authorities. Having done so, I am compelled to the conclusion that discharge was not an excessive response in these circumstances.
62 I have come to this conclusion for a number of reasons. In the first place, there has been a persistent, indeed unrelenting, pattern of defiance by the grievor of any sort of authority. On the evidence, the grievor was counseled about his insubordinate and contemptuous behaviour, he was warned, he was suspended, and his union was consulted and brought into the discussions. He ignored it all. The description of the grievor given by Mr. Hope in the B.C. Railway, supra, case is especially apt here:
On that evidence I am satisfied that the grievor had been cautioned in terms that would alert any reasonable employee that disrespect and defiance of supervision would not be overlooked or condoned. In his evidence he denied having that understanding but that can be so only if he blinded himself to the clear warnings he had received.
63 I can only conclude that the grievor, consciously or otherwise, blinded himself to the consequences of what he was doing and what he was being told by his employer.
64 In the second place, the employer did follow the progressive discipline route. The grievor was warned, verbally and in writing, and was also suspended. On the last occasion, two days before his termination, he was warned in writing that the next occasion would result in his termination. His disciplinary record is vivid testimony that progressive discipline did not work for him. The grievor’s contention that he did not appreciate the consequences or the seriousness of his actions is neither credible nor reasonable in the light of the actual facts.
65 In the third place, it is clear from the evidence there were serious efforts made to correct the grievor’s behaviour by the employer. Ron Ballard convened a meeting with the grievor and his union representative to “clear the air” and to get a fresh start. Liz Stoner wrote the union asking for support to restore the relationship with the grievor to one that was more professional and constructive. It is clear this was not an empty gesture; on two separate occasions a settlement was reached regarding a number of outstanding grievances. The important point is that the employer’s treatment of the grievor was clearly focused on correction and rehabilitation and yet the grievor, even now, seems to believe he was being harassed. In a sense, almost tragically, that best illustrates the “blindness” arbitrator Hope spoke about in the passage quoted above.
66 The fourth reason for my conclusion is perhaps the most disturbing. A workplace is a community of individuals and for that community to be healthy, there must be a basic level of civility and respect amongst its members. It is bad enough that the grievor was so openly defiant of members of management at the store, in this case Ron Ballard and Kevin Sawyer. In some ways, it is worse for him to be insolent, combative and disrespectful to members of his own union, employees who were acting in their proper role when they assigned tasks, scheduled employees or provided service to customers. In addition, the executive of the union and the union representative, Brian Nasu, have been treated with the same angry aggression as has the employer. Having torn so hard for so long at the fabric of this particular workplace community, I find the grievor must accept responsibility for his actions. I take no pleasure in reaching this conclusion. The grievor has, I suspect, the potential to be more than he has shown to date and the courses he is taking, particularly in anger management, may be of help to him in the future.
67 In the result, I find that discharge was not an excessive disciplinary response to these circumstances. Accordingly. I find the grievance concerning the grievor’s discharge must be dismissed.