Union president’s suspension upheld (Legal view)

Worker says he should have been allowed to be aggressive in his role as employee advocate

Union officials have a role to advocate on behalf of employees, but that doesn’t give them the right to be aggressive and abusive, an Ontario arbitrator has ruled.

H. Singh was the local union president at Winners, a retail chain that sells clothing and housewares. He had been on the job for five years when he was suspended for four or five days. He had allegedly been disruptive, disrespectful and insubordinate — twice in the same week in the summer of 2006. Singh argued his punishment was unjust. He launched his own grievance and also a group grievance alleging members of management had behaved aggressively towards him and other union members

By way of background, in 2003, there was a grievance settlement at Winners that expressly agreed “union and management interactions will be conducted in a manner that is positive, respectful and free from personal attacks and profanity.” In another settlement in January 2006, the parties agreed all employees “are to follow the directions given by any person in authority at Winners even if that person is not the (employee’s) direct supervisor.” Both settlements were signed by Singh.

At the arbitration hearing, there were a number of different accounts of the two events that led to his suspension.

In the first event, an HR employee said Singh took a pen out of her hand and yelled at her when she was trying to review a document with him. The commotion attracted the attention of another employee, who came into the office and also called Singh’s supervisor. When the supervisor called Singh on his cellphone, he allegedly threw it hard enough to cause the battery to fall out and accused the two employees of spying on him.

Singh denied yelling and also denied throwing his phone, saying he had simply removed the battery as that was his customary way of turning off his phone.

The second incident involved an employee who had hurt himself at work. The main question was whether or not his subsequent headache should have been treated as work-related. According to the manager of HR, Singh, along with two of his union colleagues, interrupted a meeting in her office and again spoke in a very loud voice. When Singh refused to answer her questions, she asked the three of them to leave. Accompanied by the processing manager, she went to assess the situation with the injured worker herself. Singh was already in the room and continued to yell, saying he did not have to listen to the HR manager as she was not his manager. At first, he refused to leave, but after being asked by another member of management, he did so and, on the way out, yelled at the HR manager not to touch him.

Singh had a different version of events. He said it was the HR manager who had become upset, he denied saying he did not have to listen to her and claimed she had tried to push him out of the room.

Faced with conflicting versions of events, the arbitrator chose those of management. He could see no motive for anyone in management wanting to fabricate a version of events so different from Singh’s. Certain aspects of his evidence were “hard to accept” — such as his method of turning off his cellphone and denial he was upset. In addition, his colleagues’ efforts at corroboration produced inconsistent versions of the events. In contrast, management witnesses were “forthright and plausible” and their evidence was consistent.

Singh, the arbitrator concluded, had acted in a way that was intimidating, disruptive and insubordinate. But then the union argued since he was acting as an advocate for a union member, he should have been given wider latitude for his behaviour and not have been disciplined at all.

The arbitrator disagreed. He noted a union official must balance his duty to his union members with his responsibility not to abuse his position by undermining management’s right to manage. In this case, he found Singh had failed to live up to his prior promise to behave respectfully and this was not a case in which an employee “acknowledges that he was overzealously but passionately advocating a position.” The suspension stood, and the group grievance was also denied.

For more information:

UNITE HERE Ontario Council, Local 52 and Winners Merchants International LP, an Ontario Arbitration Board decision; Norm Jesin – Sole Arbitrator, dated Jan. 15, 2007.

Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, a weekly 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]

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