Companies are often faced with the task of disciplining employees who are also union officials. At first glance there would seem to be little need to treat cases involving union officials any differently than those involving regular employees; a closer look at arbitration disputes reveals this is not always the case.
In some situations, union officials are held to a higher standard than ordinary employees; in others, the rules appear to be applied less rigourously for union officials.
In two recent cases, employees who were also union officials had been discharged from employment. At arbitration, one of the grievances over termination was dismissed and the employee’s discharge was upheld, while in the other case the grievor’s penalty was reduced in severity to a suspension. The question for employers is: when is discharge an appropriate punishment for a union official and when is it an unsuitable penalty?
Before they were discharged, both individuals held positions of responsibility in their unions. In the first situation, an employee with 18 years of satisfactory service was employed as a supervisor and was also president of the union local. It was discovered he was downloading a growing number of increasingly raunchy pornographic sites from the Internet onto the company’s computer.
The other grievor was the union co-chairperson of the health and safety committee. His employment was terminated after he was involved in a series of serious incidents related to health and safety issues.
Both faced serious allegations of misbehaviour, and both had been terminated but their conduct can be viewed in the context of very different workplaces. The union president worked in an office in which Internet-ready computers had been installed in 1998. A set of rules for their use had been published at that time, and although not entirely clear, they frowned on using computers for anything other than business matters.
Not only had the union president systematically downloaded, over many months, increasingly offensive pornography, but as the arbitrator stated, he used false pretenses (union business and making up lost work time) to stay after hours to do so — sometimes as late as 3 or 4 a.m.
In contrast, the workplace of the health and safety representative, a factory producing railway freight cars, had been the scene of three plant fires, a fatality and another very serious accident. Albeit upsetting, these incidents were not the result of irresponsibility on the part of the employer whom, the arbitrator found, “diligently approached” health and safety issues. However, the health and safety representative was, not surprisingly, very concerned about safety issues, a state of mind that ultimately led him to break company rules.
In his apparent zeal to protect workers’ safety, the employee behaved inappropriately on a number of occasions. According to his letter of discharge, he had broken a number of plant rules with regard to company operations and protocols. These included calling the fire department from home without first taking steps to ensure that there was a fire and later making false allegations about health and safety issues in an interview published in the local newspaper. During a subsequent interview with members of management, the grievor uttered obscenities and called them “killers” and “murderers.”
The first grievor was discharged for two reasons: for improper use of the Internet — specifically for viewing pornography — and for breach of trust. The arbitrator upheld his termination. The second was terminated for his breaches of plant rules, but the arbitrator replaced this outcome with a suspension for time served. Why the difference?
In the one situation, the grievor was not fulfilling his role as a union representative and in the other, the grievor was fulfilling it too well, or so he thought. The union president should have been an example to other employees. He was certainly a resource person for members who might be encountering harassment and as the arbitrator pointed out, “as a union official he needed to know the employer’s rules so as to represent his members accused of violating same.”
The health and safety representative’s role was to uphold union’s interests in plant safety. His over-reactions were “misguided efforts” to support his fellow union members in maintaining a safe workplace.
In each case, the arbitrator noted several mitigating actions which the grievors had the opportunity to take. On the one hand, the arbitrator observed that the union president had not apologized for his actions, nor had he taken any steps to get help for his self-diagnosed addiction. According to the grievor’s own admission, his late night viewing could have caused his work performance to suffer. In addition, his offence was not an isolated incident or “quick peek at a few saucy snaps,” but an ongoing pre-meditated habit. Nor had the grievor apparently suffered any “special economic hardship as a result of the penalty imposed.” As the arbitrator observed, “Nothing was said at arbitration about that.”
The arbitrator was not given much reason to be merciful. Before him was an unrepentant union leader who had engaged in a series of actions for his own delectation, which had poisoned the workplace of the very members to whom he had a duty of care and support.
On the other hand, the arbitrator of the case involving the health and safety representative noted that the grievor had written a letter of apology, thereby indicating that “there might be some opportunity for rehabilitation.” His actions arose out of his “misguided view as to the proper role of a union official” and not because of his day-to-day work in the plant. His flare-up at the private meeting with company officials was momentary and “out of character for him.” As the arbitrator pointed out, “meetings between union and officials are not carried on in a tea party atmosphere.” In addition he had lost his house in the 10 months he had been suspended.
In the end, the only area in which the arbitrator found him culpable was in his “reckless and malicious” comments to the press about the situation at his place of employment. The arbitrator found “his conduct so far beyond what is appropriate for a union official that he must be considered to be on a ‘frolic of his own’ and outside the protection afforded union officials.” In the result, the arbitrator softened his punishment to the 10 months he had already spent under suspension from work.
For more information: Greater Toronto Airports Authority and the Public Service Alliance of Canada, Canada Labour Code Arbitration, David Murray — Sole Arbitrator, Nov. 12, 2001. National Steel Car Limited, and the United Steelworkers of America, Local 7135, Ontario Arbitration Board, O. B. Shime Q. C. — Sole Arbitrator, Oct. 30, 2001.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].
In some situations, union officials are held to a higher standard than ordinary employees; in others, the rules appear to be applied less rigourously for union officials.
In two recent cases, employees who were also union officials had been discharged from employment. At arbitration, one of the grievances over termination was dismissed and the employee’s discharge was upheld, while in the other case the grievor’s penalty was reduced in severity to a suspension. The question for employers is: when is discharge an appropriate punishment for a union official and when is it an unsuitable penalty?
Before they were discharged, both individuals held positions of responsibility in their unions. In the first situation, an employee with 18 years of satisfactory service was employed as a supervisor and was also president of the union local. It was discovered he was downloading a growing number of increasingly raunchy pornographic sites from the Internet onto the company’s computer.
The other grievor was the union co-chairperson of the health and safety committee. His employment was terminated after he was involved in a series of serious incidents related to health and safety issues.
Both faced serious allegations of misbehaviour, and both had been terminated but their conduct can be viewed in the context of very different workplaces. The union president worked in an office in which Internet-ready computers had been installed in 1998. A set of rules for their use had been published at that time, and although not entirely clear, they frowned on using computers for anything other than business matters.
Not only had the union president systematically downloaded, over many months, increasingly offensive pornography, but as the arbitrator stated, he used false pretenses (union business and making up lost work time) to stay after hours to do so — sometimes as late as 3 or 4 a.m.
In contrast, the workplace of the health and safety representative, a factory producing railway freight cars, had been the scene of three plant fires, a fatality and another very serious accident. Albeit upsetting, these incidents were not the result of irresponsibility on the part of the employer whom, the arbitrator found, “diligently approached” health and safety issues. However, the health and safety representative was, not surprisingly, very concerned about safety issues, a state of mind that ultimately led him to break company rules.
In his apparent zeal to protect workers’ safety, the employee behaved inappropriately on a number of occasions. According to his letter of discharge, he had broken a number of plant rules with regard to company operations and protocols. These included calling the fire department from home without first taking steps to ensure that there was a fire and later making false allegations about health and safety issues in an interview published in the local newspaper. During a subsequent interview with members of management, the grievor uttered obscenities and called them “killers” and “murderers.”
The first grievor was discharged for two reasons: for improper use of the Internet — specifically for viewing pornography — and for breach of trust. The arbitrator upheld his termination. The second was terminated for his breaches of plant rules, but the arbitrator replaced this outcome with a suspension for time served. Why the difference?
In the one situation, the grievor was not fulfilling his role as a union representative and in the other, the grievor was fulfilling it too well, or so he thought. The union president should have been an example to other employees. He was certainly a resource person for members who might be encountering harassment and as the arbitrator pointed out, “as a union official he needed to know the employer’s rules so as to represent his members accused of violating same.”
The health and safety representative’s role was to uphold union’s interests in plant safety. His over-reactions were “misguided efforts” to support his fellow union members in maintaining a safe workplace.
In each case, the arbitrator noted several mitigating actions which the grievors had the opportunity to take. On the one hand, the arbitrator observed that the union president had not apologized for his actions, nor had he taken any steps to get help for his self-diagnosed addiction. According to the grievor’s own admission, his late night viewing could have caused his work performance to suffer. In addition, his offence was not an isolated incident or “quick peek at a few saucy snaps,” but an ongoing pre-meditated habit. Nor had the grievor apparently suffered any “special economic hardship as a result of the penalty imposed.” As the arbitrator observed, “Nothing was said at arbitration about that.”
The arbitrator was not given much reason to be merciful. Before him was an unrepentant union leader who had engaged in a series of actions for his own delectation, which had poisoned the workplace of the very members to whom he had a duty of care and support.
On the other hand, the arbitrator of the case involving the health and safety representative noted that the grievor had written a letter of apology, thereby indicating that “there might be some opportunity for rehabilitation.” His actions arose out of his “misguided view as to the proper role of a union official” and not because of his day-to-day work in the plant. His flare-up at the private meeting with company officials was momentary and “out of character for him.” As the arbitrator pointed out, “meetings between union and officials are not carried on in a tea party atmosphere.” In addition he had lost his house in the 10 months he had been suspended.
In the end, the only area in which the arbitrator found him culpable was in his “reckless and malicious” comments to the press about the situation at his place of employment. The arbitrator found “his conduct so far beyond what is appropriate for a union official that he must be considered to be on a ‘frolic of his own’ and outside the protection afforded union officials.” In the result, the arbitrator softened his punishment to the 10 months he had already spent under suspension from work.
For more information: Greater Toronto Airports Authority and the Public Service Alliance of Canada, Canada Labour Code Arbitration, David Murray — Sole Arbitrator, Nov. 12, 2001. National Steel Car Limited, and the United Steelworkers of America, Local 7135, Ontario Arbitration Board, O. B. Shime Q. C. — Sole Arbitrator, Oct. 30, 2001.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].
