Termination 'excessive response' to mistake: Arbitrator
Two foremen at a northern Manitoba hydroelectric installation were dismissed after the wrong bolts were installed on gate guides, causing a delayed concrete pour of at least a few weeks..
Stephen Neumann and Lloyd Friesen were ironworkers at BBE Hydro Constructors at the Keeyask Generating Station project. On Nov. 12, 2016, a pre-shift meeting was held to update the night shift on the requirements for a gate installation.
Vince Harper, general foreman, testified he briefed Neumann and Friesen that night and specifically told them stainless steel bolts were to be used on the gates.
He said he pointed out where the rods were located and he received assurances the work would be done properly and the stainless steel bolt anchors would be used.
Harper said he received a call after he left the site from Neumann asking about the location of the anchors. He said the information was relayed and he told Neumann, “not to forget about the stainless anchors.”
Dan Pelletier, general foreman at Keeyask, testified he spoke with Neumann and Friesen about 10:30 p.m. on the night in question and reminded both of them: “Don’t forget about the anchors.”
When Harper returned to the site the next day, around 8 a.m., he reviewed the installation and discovered that mild steel bolts were used, instead of stainless steel ones.
When Harper contacted Neumann to inquire about the faulty installation, he received a text message that said: “Sorry Vince I fucked up and take the responsibility for the stainless not going in there. Sorry.”
A concrete pour was scheduled but it could not be completed on time due to the error, according to Harper.
Tim Nichols, an ironworker/welder, also testified that he understood which type of anchor bolts had to be installed. But later when he talked with Neumann, he said he understood that mild steel would be substituted, instead of the stainless.
Nichols said he repeatedly mentioned throughout the shift that stainless is the usual material, but when he said it to Neumann, he was told, “I talked to Vince (Harper). All’s good.”
Neumann testified he reminded Nichols earlier in the shift that stainless steel was to be used. “As foreman, it is my responsibility to ensure the guys are installing the right materials. I thought proper materials were installed,” he said.
Friesen testified he assumed the workers would have used the correct material, but he didn’t specifically confirm it.
After an investigation, the pair were terminated via letter on Nov. 14: “Due to your failure to follow the work plans as per the blueprints and your failure to follow the work instructions provided to you by your general foreman, resulting in major re-work being required, your employment with the company is terminated.”
The union, International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union 728, grieved the termination the following day. The union argued other errors were made at the site and the long hours and remote location meant a standard of perfection was unfair.
Neither worker had any previous discipline on record.
Arbitrator Karine Pelletier upheld the grievance and ordered the company to reinstate the pair and make restitution for the lost time.
“I find that the termination of the grievors’ employment was an excessive response to the misconduct of the grievors. To be clear, their conduct was a dereliction of duty, but taken together with their previous good work record and acknowledgment of responsibility, along with the discriminatory treatment in the issuance of disciplinary action by BBE, it was not so sufficiently severe as to cause an irreparable breach of the employment relationship,” said Pelletier.
A written warning should be given, instead of termination, said the arbitrator.
“The grievors were clear in their evidence that they understood that stainless steel was to be installed, and neither ensured that the proper materials had been utilized. The grievors understood the importance of the use of stainless steel rather than mild steel. The grievors committed an important error that ultimately necessitated a fix that had consequences for the employer,” said Pelletier.
Reference: BBE Hydro Constructors and International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union 728. Karine Pelletier — arbitrator. Kristin Gibson, Bret Lercher for the employer. Shannon Carson, Katie Haig-Anderson for the employee. March 28, 2017.
