Punishment did not fit the crime for worker who called 'bullshit'

After a heated exchange between a worker and management ended in a suspension, a British Columbia court judge has determined that the punishment did not fit the crime.

Harbinder Hara, a union representative at a Tolko Industries sawmill in Kamloops, was assessed a one-day suspension for criticizing management’s tactics during an information session on the implementation of a drug-testing policy.

The local 1-417 chapter of the United Steelworkers grieved the suspension.

Hara had been a welder with nearly 30 years’ service at the sawmill. He was an active union member and the co-chair of the mill’s health and safety committee, and even received numerous awards for his contributions to mill safety.

Previously, there were two recorded incidences of discipline on Hara’s record over his 29 years with the company. In 1989 he was given a verbal warning when he failed to properly follow lockout procedures. He was also assessed a written warning in 2010 for using inappropriate language with another worker.

The issue peaked on April 2, 2013. Hara attended a crew talk meeting scheduled by management. As the senior union health and safety representative in attendance, Hara was reportedly blindsided when management used the meeting to give notice and information about its intent to implement a workplace drug-testing program.

The union had signaled its opposition to the employer’s proposed program at bargaining meetings held the previous month, and proposed that the employer refrain from introducing any such policy without the consent of the union.

So it comes as no surprise Hara expressed frustration at management’s conduct with respect to the introduction of the policy. Billed as a health and safety initiative, Hara said management had not seen fit to either consult or inform the health and safety committee about rolling out the policy.

Hara voiced these criticisms loudly at the meeting. When one of the managers attempted to silence him, Hara slammed a sheaf of papers onto the table and reportedly said: "This is bullshit."

He was then told to leave the meeting and to go to the supervisor’s office. Hara left the meeting as directed but instead of going to the supervisor’s office, he returned to work in the welding shop and was sent home shortly after.

The very next day he was issued a one-day suspension for insubordination of management.

In his decision, arbitrator John Kinzie ruled that because the instruction to report to his supervisor was not sufficiently clear, any failure to comply did not constitute insubordination.

However, Kinzie did agree Hara was insubordinate when he continued to raise questions about management’s tactics after the supervisor had attempted to silence him.

But the arbitrator rejected the union’s assertion Hara was acting as a union official in pursuing a matter of concern to the union and that his conduct was shielded by union immunity.

"This was not an employer-union meeting. The meeting was not held to discuss bargaining or contract administration matters. Instead, it was an information sharing meeting so that the employer could inform its maintenance employees of its new drug and alcohol policy and answer their questions concerning it," the decision stated. "This was not the forum for the grievor to raise the union’s concerns about the policy not having the union’s agreement before it was implemented. If the union and the grievor wanted to pursue those concerns, their recourses were to pursue them at the bargaining table which they are in fact doing or to file a grievance and pursue them in a grievance procedure meeting."

In light of Hara’s long service, Kinzie suggested his suspension be reduced to a warning.

"In my view, the grievor’s long history with the employer and virtually clean disciplinary record over that period do not support the contention that this was a premeditated offence. Instead, in my view, it was a spur of the moment, isolated occurrence," he offered.

Reference: The Tolko Industries Ltd. and United Steelworkers, Local 1-417. John Kinzie — Sole Arbitrator. Drew Demerse for the Employer. Colin Gusikoski for the Union. June 26, 2013. 9pp.