Striking worker fired for two separate picket line scuffles with members of the public
A striking worker was fired for two separate picket line scuffles with members of the public.
J.W. was a municipal worker employed as a truck driver for the recycling centre in Peel region’s Public Works Department. J.W. had a little more than two years’ service when he was fired on July 16, 2012. There was no discipline on his record.
J.W.’s bargaining unit was one of three that went out on strike against the municipality on June 4, 2012.
The union and the employer signed on to a Picket Line Protocol Agreement at the beginning of the six-week strike.
The agreement specified which exits at the community recycling centres could be picketed and the length of time that vehicles could be delayed at the picket line. The employer hired security guards to monitor the picket lines and to record any activities that they considered to be improper.
Caused to scatter
On June 19, a woman in a car was attempting to exit one of the picketed recycling centres. She was angered by the 10-minute delay. She got out of her car and argued briefly with the picketers. She then got back in her car and advanced the vehicle slowly towards the picketers. When she advanced to the point that her vehicle touched J.W., he slammed his fist down on the hood of the car. J.W. and the driver swore at each other. The vehicle was delayed for a few more seconds until another picketer let the vehicle pass.
Two weeks later, J.W. reacted again after being nudged by another vehicle. On this occasion, a pickup truck moving at speed approached a pylon that picketers had taken to placing on the road at the exit in order to block traffic. The truck’s rate of speed and the driver’s aggressiveness were such that the employer’s own security guards were caused to scatter.
Nevertheless, the vehicle stopped short of the pylon. J.W. advanced to clear the exit and let the vehicle pass. As J.W. was removing the pylon, the truck accelerated and knocked the pylon into J.W. J.W. reacted by slapping the driver’s arm, which was resting outside the open window of the truck. The driver advanced a few metres and then stopped. The driver exited the truck and confronted the picketers. Words were exchanged.
On July 13, while the strike was still going on, the employer called J.W. and his union representatives into a meeting to discuss the incidents.
J.W. downplayed the first incident. He said that he lost his balance when the car nudged him. This caused his hand to fall on the hood of the car, he said. J.W. offered no real explanation for the second incident except to say that the lack of clarity of the video image failed to clearly establish his involvement.
Three days later, J.W. was fired. The union grieved.
Provocation
The employer said that J.W. had given a false account at the July 13 meeting. In the first incident, the video showed that he slammed his fist with enough force to dent the hood of the car and he swore at the woman who was driving. He slapped the arm of the man who was driving the pickup truck and clearly engaged in some verbal exchange with the man even if the audio did not record it. This was serious — and serial — misconduct against members of the public, the employer said. Termination was warranted.
The union conceded that there was misconduct. However, the incidents occurred on a picket line and there was provocation. This context did not exonerate J.W. but it did mitigate the seriousness of the misconduct, the union said. The incidents were not premeditated and they did not constitute a course of conduct. They were flare-ups — only seconds in duration — that were caused by significant acts of provocation. J.W.’s actions were not against his co-workers or his employer. There was nothing to suggest that the employment relationship had been damaged. The union said that firing J.W. was excessive in the circumstances.
The Arbitrator agreed.
“On the facts of this case, and in the context of a strike and picketing, I find that the Grievor’s misconduct was very serious, but discharge is excessive. The Grievor’s acts of slamming his fist on the woman’s car hood, and swearing at her, and slapping the man’s arm, are improper and certainly give rise to some discipline. However, there was provocation.”
Both incidents were short-lived and properly characterized as “momentary flare-ups” or “gut reactions,” the Arbitrator said.
J.W.’s lack of candour during his July 13 interview with the employer did not count against him. The Arbitrator said that the union reacted to the unusual circumstances of such an interview taking place during a strike by counselling J.W. to be as tight-lipped as possible during the meeting.
In view of J.W.’s two years of seniority and his discipline-free record, the Arbitrator said that reinstatement without compensation — amounting to a four-month disciplinary suspension — was the appropriate discipline.
J.W. was ordered reinstated.
Reference: The Corporation of the Regional Municipality of Peel and Local 966, Canadian Union of Public Employees. Peter F. Chauvin — Sole Arbitrator. David L.W. Francis for the Employer. M.I. Rotman for the Union. Nov. 14, 2012. 13 pp.
Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.
