A mill worker was issued a recorded verbal warning for failing to stay after his regular shift to assist with an emergency breakdown
J.M. was a millwright and boiler operator at ADM Milling Co. He had 28 years’ service working at the flour mill. There was no discipline on his record.
Around noon on April 5, 2011, a bearing in one of the mill’s sifters failed. The mill was shut down. J.M. along with four other millwrights and an electrician were assigned to make the repairs.
Beginning at just after noon, the repair took 10 hours. However, J.M. left the job at 4:00 pm when his regular shift ended. The next day, J.M. was issued a verbal warning, which was recorded and placed on his file.
The warning asserted that J.M. had walked away from an assigned emergency repair without authorization. The warning said that J.M.’s actions were a direct violation of the collective agreement, which specified that workers who were assigned to emergency repairs were required to stay until they were released. The warning also said: “Please note that further misconduct of any nature may result in discipline up to and including termination.”
The union grieved.
No sunset clause
The union said that J.M. had not been asked to work overtime and that no one in the company had declared an “emergency.” J.M.’s supervisor did not see it fit to call J.M. on his cell phone after witnessing J.M. leave the mill.
Repairs were frequently required — some more urgently than others. It was not up to employees to determine which ones were “emergencies” according to the collective agreement, the union said.
Moreover, the union said, the warning was overly severe. This was not a trivial matter, as alleged by the employer. The collective agreement contained no sunset clause on discipline. The warning’s reference to the potential for termination in the event of further misconduct pushed the employer’s recorded, cautionary verbal warning into the realm of a disciplinary action for alleged insubordination.
The union asked for the warning to be rescinded.
J.M. was a millwright and a 30-year employee. He did not need a flashing light to recognize an emergency breakdown, the employer said. Certainly, the other millwrights assigned to the task understood that it was an emergency situation. If J.M. was in doubt, he could have consulted with them or he could have asked his supervisor. He did not.
“Grievable discipline”
The issue of overtime was irrelevant, because this was an emergency breakdown. The employer said that the verbal warning was a trivial matter. There was no loss of income and it was a stretch to imagine that the company would rely on such a warning to form the basis of any future termination.
The Arbitrator said that J.M. should have known better.
“As a 30-year employee, 15 years as a millwright, extensive Union involvement including negotiating the Collective Agreement, and given the obvious critical circumstances of this case, it is incomprehensible that the grievor should be professing ignorance about it being an emergency.”
The grievance was dismissed.
However, the Arbitrator agreed with the union that the warning was excessive.
The Arbitrator said that the warning’s caution about the potential consequences of any further misconduct went too far.
“In my view that statement in a verbal warning is excessive and unwarranted and the Union’s and the grievor’s concern about its inclusion is well founded. My view is that including such a statement in a verbal warning brings the warning into the realm of grievable discipline…”
The Arbitrator ordered the employer to amend the warning.
Reference: ADM Milling Co. Calgary Alberta and United Food and Commercial Workers Union, Local No. 401. Alan V. M. Beattie — Sole Arbitrator. Andrew R. Robertson for the Employer. Kevin Tamblyn for the Union. Dec. 20, 2012. 11 pp.
Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.
