Ontario union claimed steward targeted with warnings
An Ontario arbitrator has dismissed a union’s contention that two warnings given to a union steward for policy violations were based on anti-union sentiment.
La Rocca Creative Cakes is a bakery in Richmond Hill, Ont. that produces cakes for food stores and cafes. The company hired Kumar Subramanian in 2013 as a delivery driver. Three years later, Subramanian became a union steward.
La Rocca has rules for maintaining a clean and hygienic facility. The rules include a requirement for hair and beard nets for facial hair below the corners of the mouth, lab coats over street clothes, and a ban on chewing gum in the production area.
On Feb. 15, 2017, Subramanian stopped in the production area to talk to a co-worker who asked him about union matters. Subramanian was wearing a hair net and beard net for his moustache but no lab coat. He was also chewing gum.
The company’s vice-president came by and asked Subramanian what they were talking about and Subramanian replied he was a union steward talking about a union matter. Subramanian apologized for the gum and left the area to throw it out, but the vice-president followed him, threatening to throw Subramanian out of the workplace.
The company issued a verbal warning to Subramanian for being on the production floor without a lab coat while chewing gum and not properly covering his facial hair.
Seventeen months later, on July 16, 2018, a supervisor saw Subramanian in the production area wearing a chain around his neck — employees could not wear jewelry — and no beard net. Subramanian argued that it was his wedding chain and he had been given permission to wear it inside his shirt, but HR didn’t have it on file. He was given a written warning for violating the policies on jewelry and beard nets.
Both warnings were eventually removed from Subramanian’s record under a sunset clause, but the union grieved them, claiming they were the product of harassment and anti-union animus. It argued that in the first incident, the vice-president escalated the situation after Subramanian revealed he was a union steward. That plus the decision to discipline instead of counselling showed an anti-union bias, said the union.
In the second incident, the union argued Subramanian didn’t violate policy as his moustache didn’t require a beard net and he had permission to wear the chain. Instead, the supervisor targeted him, said the union.
Arbitrator weighs in
The arbitrator found that the evidence showed the vice-president didn’t know who Subramanian was initially in the first incident and was justified in pointing out that Subramanian wasn’t wearing a lab coat and was chewing gum. The arbitrator acknowledged that the vice-president could have acted better by not following Subramanian or threatening to kick him out, but he didn’t impair Subramanian’s steward duties and the warning was legitimate.
In the second incident, the supervisor knew Subramanian was a steward but only approached him when he saw the chain. Subramanian escalated the matter by pushing back — had he apologized or covered the chain, it’s likely the matter would have been resolved. However, Subramanian should not have been disciplined for no beard net as his moustache didn’t require one, found the arbitrator. And the company also should have asked him about it before disciplining him.
Although Subramanian should not have been disciplined for the second incident, the arbitrator found no anti-union motivation behind either warning.
“The discipline imposed was mild, the incidents were more than a year apart and involved two different managers, the second of whom was unaware of the first incident, and there was no effort to impair Subramanian’s ability to act as a steward, providing that he complied with the policies that apply to anyone in the production area,” said the arbitrator in dismissing the grievances.
Reference: La Rocca Creative Cakes and UFCW, Local 175. Lorne Slotnick – arbitrator. Oct. 8, 2019. Ashley Brown, Laura Freitag for employer. Jane Mulkewich for employee. 2019 CarswellOnt 16207
