Union steward's negative effect on productivity
Question: When the union steward in our workplace is absent, production is noticeably higher. Is this grounds for discipline or dismissal? Does her position as a union steward affect our ability to discipline or fire her?
Answer: Employees covered by a collective agreement can only be disciplined or discharged for just cause. To satisfy this standard, the employer must establish the employee has acted in a way that is incompatible with or prejudices a legitimate interest of the employer. Where the behaviour in question involves sabotaging, interfering with or counselling other employees to slow down production, discipline and in some cases discharge may be an appropriate response.
In proving just cause, the employer must prove the employee engaged in the impugned behaviour. This will require clear and convincing evidence, as mere suspicion an employee has interfered with production will not suffice.
In this situation, it appears the only evidence are records showing production slows down when the shop steward is on shift. The difficulty with this type of evidence is its circumstantial nature. Where an employer disciplines or fires an employee based solely on circumstantial evidence, the discipline or discharge will be upheld by an arbitrator only if such evidence points conclusively to the employee’s guilt and is not consistent with any other reasonable explanation.
Without more, it is unlikely discipline imposed at this stage would be upheld if grieved. An investigation should be conducted to determine whether direct evidence can be found to support the company’s suspicions. For example, observations of supervisors, the testimony of co-workers and statements made by the shop steward may assist in establishing culpability.
As far as the employee’s position as a shop steward is concerned, arbitrators recognize employees who are also union officials play a dual role in the workplace. On the one hand, they are employees who owe a duty of loyalty to their employer. On the other, they are union representatives who have the power and obligation to represent the interests of the union and its members, and to ensure the employer complies with the collective agreement. In cases dealing with the discipline of union officials, arbitrators will seek to strike a balance between their right to carry out union duties and the right of the employer to manage the workplace.
In Fording Coal Ltd. v. U.S.W.A., Local 7884, the B.C. Labour Relations Board ruled arbitrators should use a two-pronged test when reviewing discipline imposed on a union official. First, the arbitrator should inquire into whether the disputed activity involved the legitimate discharge of union duties. Attempts to use union office as a cloak for wrongdoing which has no bearing on union business will not be accepted. Second, the arbitrator should consider whether the conduct was detrimental to the legitimate interests of the employer such that it undermined the viability of the employment relationship.
A union official may be subject to greater or lesser discipline depending on the circumstances. Where the alleged misconduct arises in the course of carrying out his legitimate union responsibilities — such as strong language in grievance meetings or collective bargaining — arbitrators will generally allow the employee considerable leeway in recognition of the adversarial nature of the process and will not uphold discipline for behaviour that would otherwise be viewed as insubordinate.
Sometimes, however, the employee’s status as a union officer will justify the imposition of a more severe penalty than would otherwise be warranted. Because union officials assume a leadership role within the bargaining unit, participation in insubordinate activity may interfere more severely with the efficient operation of their employer’s business. This is especially true in cases of strikes, walkouts or other work slowdowns.
A shop steward who counsels employees to reduce their work output is actively participating in a work slowdown and may be inciting an illegal strike. If this type of behaviour can be proven, a more severe disciplinary penalty may be justified.
For more information see:
•International Nickel Co. of Canada v. U.S.W.A., Local 6500, 1979 CarswellOnt 1006 (Ont. Arb. Bd.).
•A.U.P.E. v. Lethbridge Community College, 2004 CarswellAlta 533 (S.C.C.).\
•I.L.W.U., Local 514 v. Fraser Surrey Docks Ltd., 2007 CarswellBC 2483 (B.C. S.C.)
•Surrey Memorial Hospital v. H.E.U., 2005 CarswellBC 3099 (B.C. Arb. Bd.).
•Fording Coal Ltd. v. U.S.W.A., Local 7884, 1998 CarswellBC 3073 (B.C. L.R.B.).
