Arbitration process a ‘sham’ according to ex-worker

AN EXPERIENCED LONGSHOREMAN was wrongly discharged, an arbitrator ruled, and should be reinstated — if, that is, he wants his job back.

Wayne Silver was employed by the Maritime Employers’ Association (MEA) in Hamilton. The International Longshoreman’s Association Local 1654 filed grievances on Silver’s behalf for lost wages caused by discriminatory conduct and for reinstatement following termination.

The grievor did not appear at the Sept. 16 hearing. After several hours the union elected to continue in Silver’s absence. At the continuation of the hearing the following day, Silver was absent again.

The employer’s counsel was advised the grievor had been found in front of the company’s office with picket signs. Local union president Rick Smith drove to the office to find out why Silver was not in attendance at the hearing.

When Smith returned he relayed Silver’s response, saying the grievor no longer trusted the arbitration process and felt it was a sham.

When it became clear Silver would not be participating in the arbitration, proceedings continued in his absence. The union’s first grievance was one of discrimination.

In July 2012 a foreman entered a trailer looking for the grievor, whom he had previously asked to help a crew of other workers. When he opened the door he saw a checker — an employee who assigns work — and asked "Where’s your (racial slur)?" The employee did not know Silver, who is black, was in the trailer at the time and could hear him.

The foreman testified he "felt bad" about what he had said. He apologized and offered Silver the afternoon off, which the grievor declined.

Silver did not work during the week following the incident. When he returned he asked to be paid for a week and presented a medical note stating he had been unable to work as a result of the incident.

The second grievance is related to Silver’s discharge. At noon on Nov. 7, 2012, the grievor was in a verbal altercation with two coworkers.

At 5 p.m. that day a second, physical, altercation took place at the union’s nearby hiring hall. One of the employees involved in the noon incident testified the grievor approached him and asked him to step outside to talk about what had happened that afternoon.

He testified that once outside Silver threatened him in relation to their earlier fight, saying, "If you ever do it again, I’ll kick you in the balls."

At that point, the employee said, Silver elbowed, shoved and punched another longshoreman who was nearby.

In an investigation following the incident Silver told the employer he had done nothing wrong, saying, "Everyone is against me and they made up the story."

The employer dismissed Silver, saying several witnesses reported the grievor had assaulted another employee and was intoxicated at work.

The employer further testified Silver had not acknowledged any wrongdoing, showed no remorse and had lied in an investigation.

In his ruling, arbitrator James Hayes allowed the grievance against Silver’s foreman. He ruled Silver lost wages as a result of his foreman’s comment and should be compensated $1,500 in general damages.

Hayes also ruled the employer train its employees about harassment and violence prevention within 120 days of the arbitration decision.

Hayes allowed the employer had cause to discipline Silver in relation to the altercation. The grievor provoked a physical confrontation and denied everything during the investigation.

However, Hayes ruled: "I am not prepared to accept that discharge of the grievor was a proportional employer response to his misconduct and direct that he be offered reinstatement with no loss of seniority."

The arbitrator ruled Silver could return to work after providing a written apology to the coworker involved in the Nov. 7 fight and after submitting a letter from a physician confirming his fitness to return to work.

"What is not at all clear is whether or not the grievor actually wants to return to work," Hayes said. "His boycott of the arbitration hearing and his picketing of the MEA suggests otherwise. The employer is certainly correct that there has been no showing from the grievor that he has learned anything at all from what has occurred."

Reference: Maritime Employers’ Association and International Longshoremen’s Association, Local 1654. Sole arbitrator — James Hayes. Tim Lawson for the Employer. Ronald A. Pink for the Union. Oct. 17, 2013.