Immunity shields shop steward from charge

A shop steward was suspended for three days without pay following a confrontation with her manager at a staff meeting

A shop steward was suspended for three days without pay following a confrontation with her manager at a staff meeting.

L.O. was a millwright and industrial mechanic employed at the city of Saskatoon’s Waste Water Treatment Plant. She had 16 years’ service and no discipline on her record when she was suspended following an incident that occurred on March 10, 2010.

L.O. was acting as union shop steward at the time of the incident, a position that she had held for six years.

A Maintenance Department “toolbox meeting” to discuss the day’s assignments at the plant was convened following a larger staff meeting on the morning of March 10, 2010.

The plant’s maintenance manager made an unsheduled appearance at the toolbox meeting. The manager said that

he was there to investigate rumours that the newly appointed maintenance foreman did not have the support of the staff and that he was in for a rough ride.

L.O. was offended and took issue with the manager. In her view, the maintenance staff was being unfairly accused and singled out.

Managerial authority

L.O. expressed this view forcefully. She also pushed back at the manager’s attempt to assert managerial authority over her in order to compel L.O. to moderate her tone.

There was conflicting testimony about how, and how much, profanity figured in the altercation. There was also conflicting testimony about whether or not L.O. was directly ordered to leave the meeting.

However, L.O. did not deny that she asserted her right as a union steward to represent her “people” and, in that capacity, to speak to the manager as she saw fit. She accepted that her behaviour could have been perceived as being disrespectful but, she said, that was not her intent.

L.O. was suspended. The union grieved.

The employer said that L.O.’s conduct had violated the plant’s Respectful Workplace Policy. She challenged, confronted and interrupted her manager who was attempting to speak to staff. That was insubordination, the employer said. L.O. compounded that insubordination, the employer said, when she refused an order to leave the meeting.

There was no insubordination, the union said. L.O. was not given a clear and unequivocal order to leave the meeting. There was no dispute that she vigourously took issue with her manager but, as shop steward, she was entitled to. The union said that the employer did not have just cause to suspend L.O.

The Arbitrator agreed.

Union and employer meet as equals

“Union officials are granted a certain degree of immunity from discipline for their conduct with management when performing the proper and legitimate functions and responsibilities of a union official in the circumstances. Conduct of an employee that would justify discipline may be immune from discipline if it was conduct by a union official engaged in union activity,” the Arbitrator said.

As the Arbitrator underlined, in Re Workers’ Compensation Board (British Columbia) and Workers’ Compensation Board Employees Union (1990), the union and the employer meet as equals. There is no issue of authority or obedience and the concept of insubordination has no place in the relationship.

However, there are limits, the arbitrator added. Union officials owe a duty of fidelity to the employer. Union officials may be immune from discipline for abusive speech directed towards the employer behind closed doors but they may attract discipline for critical, malicious or reckless statements made to third parties or to the press.

Union officials are also bound by the collective agreement and are required to act reasonably and in good faith in carrying out their duties in accordance with the agreement.

Union officials may also cross the line into insubordination if they violate the “work now, grieve later” dictum and use their authority to interfere with or prevent work from being done as in Prairie Malt Ltd. and C.E.P., Local 270 (2010).

“Considerable leeway”

The question in each such case is whether or not a union official’s conduct exceeded the limits of his or her legitmate union function — and some latitude was warranted in making that calculation, the Arbitrator said.

“Considerable leeway should be granted to employees performing their union responsibilities. If this immunity does not exist, the role of the union official would be rendered meaningless.”

Indeed, the Arbitrator rejected the approach of FortisBC Inc. and I.B.E.W. Loc. 213 (2008), which considered union immunity in a limited way as a mitigating factor to determine the amount of discipline.

“Unlike the FortisBC decision, we do not agree that union immunity comes into play as a mitigating factor in the second prong test in Wm. Scott. We see union immunity as a factor in determining whether the conduct is deserving of discipline,” the Arbitrator said.

In this case, the Respectful Workplace Policy cut both ways, the Arbitrator said. It was reasonable for L.O. to perceive that her members were being accused. She was entitled to challenge the supervisor in the way that she did. “In our view, her conduct, while challenging and argumentative, was not malicious.”

Moreover, the Arbitrator rejected the assertion that L.O. disobeyed a direct order.

“In the present case we did not find [that the supervisor] gave a clear order to the Grievor directing her to leave the room. The Grievor did not defy any order by staying in the meeting. She did not interfere with, let alone prevent, work from being performed.”

The suspension was set aside.

Reference: The City of Saskatoon and Canadian Union of Public Employees, Local No. 47. William F. J. Hood — Chair; Pamela Jean Haidenger-Bains (dissenting) and Gary Burkart — Members. Wale Adeyinka for the Employer. Rhonda Heisler for the Union. Sept. 25, 2012. 38 pp.

Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.

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