1-day suspension for not providing explanation
Two Tenneco Canada Inc. employees were suspended after they gave a painting assignment the brush off.
David High and Jose Sousa — long-service employees at the company’s Cambridge, Ont., facility — received a one-day suspension after refusing to do a painting job inside the plant.
On May 20, 2014, High and Sousa were asked by supervisor Manuel Santos to paint inside the plant. While the pair initially agreed, they later refused after learning more detail about the extent of painting that was required. Both High and Sousa had done painting on previous occasions, including the preceding weekend.
Neither High nor Sousa provided an explanation for refusing to do the work, though High later testified he was concerned about doing the work with forklift traffic in the area.
After their refusal, the supervisor said he would direct two junior employees to do the painting if High and Sousa would agree to fill in for them. High refused this offer, arguing it was a temporary assignment and he should be afforded bumping rights under the collective agreement.
Formerly the president of the union representing workers at the plant — United Steelworkers Local 2894 — High cited Article 9.07 of the collective agreement. The provision provides employees the right to refuse assignments in specific circumstances, and High claimed it applied to the painting.
An hour-long discussion ensued. At some point during the conversation, High asked for union representation.
Finally, Santos told High and Sousa they were being suspended. The employer paid them for the balance of the shift and issued a one-day suspension that was served on the following day.
The union grieved the suspensions, arguing High and Sousa were entitled to refuse the work because it was a temporary assignment under Article 9.07. According to the union, this work refusal was not typical as High was one of the negotiators of the collective agreement language in questions in his former role as union president. He was simply exercising his rights as afforded to him by the collective agreement.
In these circumstances, the union said, there was no basis for discipline for either of the grievors.
The employer argued Article 9.07 of the collective agreement was not engaged since the act of painting was not a temporary assignment. Rather, it was an assignment of duties as permitted under the management rights clause. The employer further argued that even if Article 9.07 did apply to the painting duties, it was not open to the grievors to initially accept the assignment and then subsequently refuse to do the work.
The employer put forward that High and Sousa were not entitled to refuse to paint and that their insubordination warranted discipline, requesting the grievance be dismissed.
"What occurred in this case could have been avoided if the grievors had followed the ‘work now, grieve later’ principle," arbitrator Matthew R. Wilson said in his ruling.
"There was no dispute that they were capable of painting and that any classification could perform those duties. In fact, both grievors had recently painted on the previous weekend. There was no assertion that the duties were demeaning or would result in loss of pay."
Wilson found High and Sousa were insubordinate and their actions warranted a disciplinary response.
"Although I am sympathetic to Mr. High’s passion and knowledge of the history of the collective agreement, these attributes are best displayed in grievance meetings and arbitration hearings, not the workplace," Wilson said.
The grievors’ long service and clean discipline records were taken into consideration in handing down the one-day suspension, he said. The discipline was found to be reasonable in the circumstances and the grievance was dismissed.
Reference: Tenneco Canada Inc. Cambridge, Ontario Facility and the United Steelworkers (USW) Local 2894. Matthew R. Wilson — Arbitrator. Jamie Knight for the employer, Gary Kennedy for the union. Aug. 11, 2014.
