FINDINGS AND DECISION OF AN ARBITRATOR
IN A DISPUTE BETWEEN
HOTEL AND RESTAURANT EMPLOYEES AND
BARTENDERS INTERNATIONAL UNION, LOCAL 779
Submitted by :
Howard J. Dyer
June 18, 1981
Parties : Hotel Newfoundland (The Company)
Hotel and Restaurant Employees and Bartenders
International Union, Local 779 (The Union)
Arbitrator : Howard J. Dyer
Hearing : May 5, 1981, at Hotel Newfoundland, St. John’s, Nfld.
For the Company :
Mr. P.J. O’Callaghan - General Manager, Hotel Newfoundland and, Witness
Mr. G. Wheatley - Assistant General Manager, C.N. Hotels
Mr. K. Embleon - Assistant Manager, Personnel and Labour Relations
Mrs. W. Smith - Hotel Assistant Housekeeper, and Witness
Mrs. L. O’Neill - Hotel Head Housekeeper, and Witness
Mr. Ken Richards - Hotel Head Waiter, and Witness
Mr. Fred Steele - Hotel Assistant Manager, and Witness
Mr. H. Preston - Hotel Bartender, and Witness
For the Union :
Mr. Fred Lowe - Union Representative and Spokesman
Mr. Patrick Walsh - Hotel Houseman, and Grievor
Mr. Robert Tucker - Hotel Houseman, and Witness
Mr. Paul O’Neill - Hotel Houseman, and Witness
Mr. Richard Simpson - Hotel Waiter, and Witness
It was agreed by both parties that :
(a) The Arbitrator was properly appointed.
(b) The Arbitrator has jurisdiction to hear the dispute.
(c) The grievance procedure in the Collective Agreement had been properly followed.
(d) There were no preliminary objections, and no questions on arbitrability.
(e) The time limits were waived.
(f) The Arbitrator would remain seized of the matter in the event that parties do not agree on the particulars of the award.
(1) On the morning of January 1, 1981, Patrick Walsh reported for duty at 10:00 a.m., this being late for duty by one and a half hours, his normal shift would have commenced at 8:30 a.m.
(2) The Assistant Housekeeper, Mrs. Smith, instructed Mr. Walsh that he, Mr. Walsh, and his fellow Houseman, Robert Tucker, should clean the Fort William Room and the dining room and set them for dinner immediately.
(3) Approximately one hour later, Mrs. Smith entered the dining room to find Messrs. Walsh and Tucker sitting at a table, having done very little but move a few chairs. They were again told to complete the task assigned.
(4) At approximately 1:15 p.m., the Head Waiter, Mr. Ken Richards, entered the dining room to find that only three tables had in fact been set up. When Mr. Richards asked employees Walsh and Tucker to take up the dance floor, they refused to do so.
(5) Realizing that further discussion with the employees would not achieve results, Mr. Richards called the Assistant Manager, Mr. Fred Steele.
(6) Mr. Steele requested the employees to remove the dance floor and when it became apparent that the request would not achieve results, Mr. Steele then
proceeded to instruct the employees to perform the task in question, at the same time requesting that Mr. Richards advise him when the job would be completed.
(7) A short time later, Mr. Richards advised Mr. Steele that Mr. Walsh had "absolutely refused" to remove the dance floor. Mr. Steele then instructed the Assistant Housekeeper, Mrs. Smith, to suspend Mr. Walsh pending a meeting with the General Manager, Mr. O’Callaghan, on Monday, January 5, 1981.
(8) Unfortunately, because of the unforeseen absence of the General Manager, a meeting was not held as planned on January 5. When the meeting was subsequently held, on January 6, 1981, Mr. O’Callaghan advised Mr. Walsh that he had been made fully aware of the consequences of refusing to carry out a supervisor’s instruction at the time of his previous suspension in September 1980. Mr. O’Callaghan advised Mr. Walsh that it was completely unacceptable to the Hotel to have employees refusing to carry out instructions and, consequently, he, Mr. O’Callaghan, had no alternative but to dismiss Mr. Walsh from the service of the Hotel.
(9) On January 8, 1981, Mr. Walsh submitted a grievance in accordance with the terms of the Collective Agreement to the General Manager of the Hotel, Mr. O’Callaghan.
(10) On January 13, 1981, Mr. O’Callaghan replied to the grievance, denying the employee’s request to be reinstated, pointing out that this had not been the first offence of this nature and that Mr. Walsh, following a suspension in September 1980, had been advised to carry out the instructions of his supervisor following which he could grieve if he thought the work carried out was not his function.
(11) On January 13, 1981, Mr. Hedley Preston processed the grievance on behalf of the employee to Mr. G. Wheatley, Assistant General Manager of CN Hotels, claiming that Mr. Walsh had been too severely punished.
(12) On February 2, 1981, Mr. Wheatley responded to the grievance and advised Mr. Preston that he was supporting management’s decision on the matter.
(13) On February 10, 1981, the Union advised the Company that they intended to proceed to arbitration with the matter.
(14) On March 27, 1981, the Minister of Labour for Newfoundland appointed Professor H. Dyer as arbitrator.
(15) The issue before the arbitrator is whether there was just cause for the action taken by the Company in dismissing Mr. Walsh.
(16) For the information of the arbitrator, the duties of the position of Houseman, while not specifically outlined in a job description, there being no contractual requirement to do so, are well accepted in the industry.
(17) The normal duties of a houseman involve items such as : heavy-duty cleaning, moving of furniture between rooms, heavy lifting, installation of cots in rooms, high cleaning.
(18) Although there is often a routine to the houseman’s normal duties, there are often ad hoc duties which arise from time to time. One of these ad hoc items includes the taking up and laying down of the Hotel’s portable dance floor. This task is normally performed by the maintenance department but it has been the practice over several years for the housekeeping staff to take this responsibility on statutory holidays when the maintenance is normally off duty.
(19) On January 1, 1981, it being New Year’s Day, a hotel general holiday, as many of the staff as possible had been given the day off with pay. As is normally the case, the majority of maintenance staff was absent from the Hotel leaving the housemen as the only staff who could conceivable handle the removal of the dance floor in the normal course of their duties.
(20) On New Year’s Day, a busy time in the hotel and restaurant business, the Hotel was expecting as many as three hundred to four hundred people to attend a New Year’s Day buffet, commencing at 5:00 p.m. It was, therefore, essential that the room be properly made ready in time for the dining room staff to prepare the tables for dinner.
(21) Mr. Walsh reported for duty one and a half hours late on the day in question and, in spite of the fact that no complaint was made by the Head Housekeeper, he had not completed any appreciable amount of work following three and a half hours of duty.
(22) As has already been recorded, two of the Hotel’s supervisors asked Mr. Walsh and his colleague to remove the dance floor and finally when it was clear that no move was being made by the housemen to perform their duties, the Acting Manager, Mr. Steele, was obliged to issue an instruction to the employees in question.
(23) It can be appreciated that by refusing to carry out their duties, the housemen had unnecessarily occupied the time of the Assistant Housekeeper, Head Waiter and Acting Manager, taking them away from other responsibilities on a busy day when they could least spare the time. Such conduct is, on the quietest of days, totally unacceptable to the Company and should not be tolerated, if order and discipline are to be maintained in the Hotel.
(24) Mr. Walsh had on a previous occasion been suspended for five days for a similar offence. In reducing the suspension to two days, the General Manager of the Hotel, Mr. O’Callaghan, recognized that it was a first offence of that nature and reminded Mr. Walsh that he had an obligation to carry out a supervisor’s instruction and that future conduct of that nature would result in more severe disciplines.
(25) It is obvious that the first discipline assessed against Mr. Walsh, and the reduction of the suspension, had no affect on Mr. Walsh’s future conduct, inasmuch as he again blatantly refused to carry out a reasonable request. The evidence indicates that he not only refused to carry out a request, he also refused in an antagonistic manner which must have had a negative effect on his fellow employee. "He further indicated that three other supervisors had tried to have him fired but had failed".
(26) The Company cannot continue to tolerate such behaviour on the part of Mr. Walsh or any other employee. The supervisors of the Hotel Newfoundland whose task is quite difficult under often stressful circumstances must be supported in matters of this nature, in order that order can be maintained in the Hotel which will ensure that the Hotel guests are served in a satisfactory manner.
(27) The Company believes that it has acted in the only reasonable manner it could following the initial suspension assessed against Mr. Walsh. It fully believes that continued suspensions of this employee can lead to no useful conclusion and can only serve to demoralize those supervisors whose responsibility it is to ensure that the work is carried out.
(28) The Company is entitled to receive a reasonable amount of work in return for the wages paid to its employees. In refusing to perform his duties, Mr. Walsh destroyed this unwritten agreement between himself and his employer and, for this reason, the Company urges the arbitrator to deny this grievance and support it in its action.
The material facts of this case, as the union sees them, are as follows :
The Grievor, a houseman, was working on January 1st, last, with Robert Tucker, houseman, setting up the dining room when they were told to remove the dance floor from the dining room by the Maître d’, Mr. Richards. The Grievor advised Mr. Richards that removing the dance floor is not a houseman’s work. Mr. Richards then summoned the Assistant Manager of the Hotel, Mr. Steele, who in effect told both the Grievor and Mr. Tucker to remove the dance floor. Both the Grievor and Mr. Tucker advised the Assistant Manager that removing the dance floor is not houseman’s work. It is the work of higher paid employees.
The Grievor or Mr. Tucker did not actually refuse to remove the dance floor. It might be argued that technically their conduct did not constitute a refusal to carry out orders. The two employees only argued that removing the dance floor was not their work, it was not a Houseman’s work, it was the work of a higher paid classification, it was the work of the maintenance department, but did not actually state they would not do the work.
After Mr. Steele left the dining room, the grievor was told by Mr. Richards he had "better watch his p’s and q’s or I’m going to get rid of you". Two Housemen and a Bellman were told to come in and remove the dance floor, which they did. The Grievor was then summoned to the Assistant Housekeeper’s office where he was told he was suspended until Monday, January 5th, last, at 2:30 p.m., at which time he was to see the Hotel Manager, Mr. O’Callaghan. The Grievor was subsequently called on Monday and was told the meeting was postponed until the next day.
The meeting was held on Tuesday, January 6th, with the following present: The Hotel Manager, the Assistant Hotel Manager, the Maître d’, the Housekeeper, the Assistant Housekeeper, the Grievor and Messrs. Tobin and Preston representing the Union. It is the Grievor’s evidence that the meeting closed without his being given an opportunity to make a final statement. The Grievor therefore was not given an opportunity to apologize.
Although Mr. Tucker was a party to what was termed by the Company as a refusal to carry out instructions, management saw fit to impose only a relatively short suspension on Mr. Tucker for his part in the incident. The Union fails to see the jurisdiction for the severity of the discipline imposed on the Grievor as compared to that imposed on Mr. Tucker. An unrelated offence some four months earlier could hardly be used to justify discharge for the Grievor’s conduct on January 1st, last. It is the Union’s submission that management has not acted fairly nor equitably in this matter and consequently has therefore discriminated against the Grievor.
There would appear to be a history of refusals to carry out instructions by employees at the Hotel Newfoundland when they felt work was being improperly assigned. There were incidents before where Housemen had refused to remove the dance floor, the incident involving the coat hangers. These incidents as well as others were not followed by any discipline or warnings. As a consequence in the instant matter, this should if not completely exonerage the Grievor, at the very least considerably lessen the seriousness of any misconduct involving an alleged refusal to carry out instructions.
The Grievor appears to have been lulled into a belief that refusal to do certain duties because he felt it was the work of other departments, was acceptable conduct. Then to discharge him for his actions on January 1st without first informing him that at that time there would be a change in the attitude of the employer, that things were to be different than in the past, is most unfair. In view of past practice at the Hotel, the Grievor’s supervisor certainly had an obligation to the Grievor to warn him of the consequences of his action before such conduct was interpreted as cause for dismissal.
Arbitrators have always held that an apology would usually soften a penalty yet towards the end of the January 6th meeting, when the Grievor requested the opportunity of making a statement, the meeting was adjourned rather abruptly by the Hotel Manager with a rather harsh remark. This cut off any opportunity there might have been to apologize for any wrongdoing.
One of the factors listed in the renowned Steel Equipment Co. Ltd. case, (1964) 14 L.A.C. 356 (Reville), which would tend to mitigate discipline imposed on an employee was the "failure" of the Grievor to apologize and settle the matter after being given an opportunity to do so". After the matter was fully discussed on January 6th, last, the abruptness of the adjournment of the meeting hardly afforded the Grievor an opportunity to apologize if he were so minded. Four other mitigating factors listed in the Steel Equipment Co. Ltd., case (supra) were :
"The previous good record of the grievor" ; "the long service of the grievor" ; "whether or not the offence was an isolated incident in the employment history of the grievor" ; "whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong personal impulses, or whether the offence was premeditated".
While dealing with the factors summarized in the Steel Equipment Co. Ltd. case, "the seriousness of the offence in terms of company policy and company obligations" was included as one of those factors which would mitigate a penalty imposed on a grievor. Evidence of similar conduct on the part of others without any discipline being imposed and the fact that the work in question eventually was done would indicate the conduct of the grievor could not be interpreted as serious in terms of company policy. Company obligations were apparently met fairly shortly after the incident which was purported to be the cause for dismissal.
Other than a two-day suspension approximately four months prior to the incident on January 1st, the grievor had a spotless record during his nearly two years of employment with the Hotel. The grievor had a reputation for being a good worker. Surely, Management could have taken this into consideration.
Lastly, the arbitrator in the Steel Equipment Co. Ltd. case also noted, "Evidence that the company rules of conduct, either unwritten or posted have not been uniformly enforced, this constituting a form of discrimination", would mitigate the penalty imposed on a grievor. We will develop this aspect of the instant matter later in this submission. There is sufficient evidence to establish that in the instant matter company rules of conduct have not been uniformly enforced.
Discharge, or industrial capital punishment, will usually follow a conclusion that an employee’s conduct is so unacceptable it is not compatible with a good employment relationship. Certainly, in the instant matter, the Grievor’s conduct was not blameworthy nor was it a direct challenge to the employer’s authority. The Grievor was motivated by an honest belief that the terms of the collective agreement were being violated by an improper assignment of work. This has happened several times before without recrimination, warnings or discipline. The Grievor’s work record would certainly not indicate that his conduct is incompatible with a good employer-employee relationship.
The principle of corrective discipline appears to be the acceptable norm by arbitrators today. However, management at Hotel Newfoundland appears to have opted for punitive discipline. In discharging the Grievor, the employer’s action
appears to be a totally unreasonable and extreme response to a relatively minor incident. If there was a real desire to improve the situation at the Hotel, if in fact a bad situation exists, or to correct an employee’s conduct, then corrective rather than punitive discipline could have been utilized.
In conclusion, Mr. Arbitrator, the union submits it does not believe, considering the circumstances surrounding the alleged refusal to carry out the instructions of the Grievor’s supervisor, the disciplinary action of management was justified.
" . . . . in assessing the reasonableness of a sanction imposed on an employee, arbitrators have regarded the penalties imposed by the employer in similar circumstances in the past as tending to reveal the actual concern that managment has for such behaviour. Accordingly, when an employee is able to prove that other employees who engaged in the same conduct for which he was disciplined were either not disciplined at all, or suffered much less severe disciplinary sanctions, arbitrators generally will find the employer to have discriminated against that employee even though it may be established that the employer did not act in bad faith or did not intend to discriminate against him personally. To the contrary, in the former circumstances arbitrators would likely completely exonerate the employee of any wrongdoing, while in the latter, the penalty imposed would be reduced to conform to that which was or had been traditionally imposed in the past". Re Canadian Labour Arbitration, Brown and Beatty, pp. 379, 380. The reported awards in which arbitrators have reduced the penalty imposed on the grievor to conform to that received by other employees who had been found to have engaged in the same misconduct in similar circumstances are legion. (see footnote 574, p. 380, Brown and Beatty".
The employer has relied upon a previous alleged misconduct and referred to an October 14th meeting, held last year, convened to review disciplinary action taken against the Grievor. According to the employer in his letter of January 13th, 1981, concerning the instant matter, to Mr. Preston, the Grievor was instructed regarding the correct procedure to follow "whenever he might have a problem" but was not advised of what precisely the consequences might be should he not follow the instructions. Nor is there any evidence that he was informed orally what the consequences would be.
"Where it can be established that the failure of the employer to advise an employee that it would not longer tolerate certain less obvious forms of misbehaviour which had been engaged in by that employee, actually lulled him into a false sense of security, that may, in certain circumstances, be relied on by an arbitrator to ameliorate the discipline imposed by the employer. Indeed, on that same premise, some arbitrators in more recent awards, have expressed the view that not only must the employer apprise its employees of the unacceptable nature of their conduct, but, as well, must precisely inform them of the likely consequences which will result if such behaviour persists. In part, it is this arbitral recognition of a duty to fully apprise an employee of both his failure to conform to an acceptable standard of behaviour and the likely disciplinary sanctions that will be imposed should that behaviour persists, which supports and underlies the principle of progressive discipline enunciated in some of the more recent awards". Canadian Labour Arbitration (supra) pp. 380 and 381.
Therefore, Mr. Arbitrator, the Union believes sufficient grounds for discharge did not exist. Consequently, the Union requests the Grievor, Mr. Walsh, be reinstated on his position as Houseman immediately and that he suffer no loss of seniority or benefits, and that he be reimbursed for all earnings and benefits lost as the result of his discharge.
Consideration of the Board
In this case the grievor was issued instructions to do certain work. Near the beginning of the shift these instructions were given by the Assistant Housekeeper, Mrs. Smith. Approximately one hour later, on finding the work not done, she issued the instructions again. About the same time the Head Waiter, Mr. Ken Richards, asked the grievor and another employee, Mr. Robert Tucker, to take up the dance floor. They refused. Mr. Fred Steele, the Assistant Manager, next issued instructions to the grievor and Tucker to carry out the assigned work. Once again they refused. So we have within the space of several hours the grievor failing to carry out instructions issued to him four times by management to do the required work. To sustain an allegation of insubordination in a case such as this it must be shown that (a) the order was given, (b) it was clearly communicated to the employee, (c) it was given by someone in authority, (d) and that the employee refused to carry out the order. From the evidence given in this case it is clear that the four foregoing conditions were met.
The grievor refused to carry out the assigned work because he felt that it was not a part of his duties. The Company on the other hand considered that it was his work and discharged him because of his refusal to carry out the instructions issued to him.
It has been held as a general principle by arbitrators that an employee, who disagrees with the orders of his employer, should carry out those orders, and then if he so wishes challenge them through the grievance procedure. The rationale upon which this principle is founded is that the company has the right to direct its operations in an uninterrupted and efficient manner. This is the procedure that the grievor in this case should have followed ; carry out the work and then grieve. He did not follow this principle and consequently some form of discipline is in order.
Is the penalty of discharge too severe in this case ? Are there mitigating factors that when considered might indicate that a lesser penalty is more suitable ? There are a number of factors which arbitrators take into account when considering such a question. They are :
(1) The previous good record of the grievor.
(2) The long service of the grievor.
(3) Whether or not the offence was an isolated incident in the employment of the grievor.
(5) Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong personal impulses, or whether the offence was premeditated.
(6) Whether the penalty imposed has created a special economic hardship for the grievor in the light of his particular circumstances.
(7) Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination.
(8) Circumstances negativing intent, e.g. the likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it.
(9) The seriousness of the offence in terms of company policy and company obligations.
(10) Any other circumstances which the arbitrator should properly take into account, e.g. the failure of the grievor to apologize.
Now applying the foregoing to this case :
(1) As to the grievor’s previous good record, he had been suspended for two days for a similar offence just four months before the incident in question.
(2) The grievor had been working with the Hotel for only two years.
(3) As pointed out in (1) above, the offence was not an isolated incident.
(4) The grievor did not produce any evidence indicating that he was provoked into taking the action that he took, i.e. refusing to remove the dance floor.
(5) The offence did not take place on the spur of the moment. A period of several hours passed during which the grievor was directed four times to carry out the instructions of management.
(6) The penalty does impose an economic hardship on the grievor. At the time of the arbitration hearing he was unemployed and drawing unemployment assistance.
(7) In its brief the Union challenges the justification of the Company imposing the maximum sentence of dismissal on the grievor while his co-worker, Mr. Tucker, who also refused to take up the dance floor, was given only a relatively short suspension. However this was Mr. Tucker’s first offence, while the grievor had had a previous suspension.
(8) There is no likelihood that the grievor misunderstood the nature of the orders given him. The orders were given by three different people on four different occasions. The grievor in giving his evidence did not indicate that he had any difficulty in understanding what was required of him.
(9) The offence was very serious. It was New Year’s Day and the hotel was expecting between three hundred and four hundred people to attend a buffet. It was therefore of the utmost importance that the dining room be prepared. The hotel would have been placed in a very difficult and embarrassing position had it not been for the fact that the work was ultimately done by two other workers.
(10) Other circumstances :
a) The removal of the dance floor was not a long and difficult job. It could be done by two people in 10 minutes.
b) As already stated in this report the grievor should have carried out the assigned work and then submitted his objections through the grievance procedure. The grievor had been suspended in September,1980. At that time, following his suspension, he had been advised by management that in cases such as this the aggrieved person should carry out his instructions and then grieve if he so desired.
c) In its submission the Union stated that the meeting of January 6, 1981, between management, union representatives and the grievor, ended abruptly and as a result the grievor was not given the opportunity to apologize. Had the grievor wished to apologize there were a number of avenues open to him to do so. Firstly he could have sought a meeting with the manager or any of the manager’s representatives, at which meeting he could have apologized. He could have sent an apology to management through one of the Union’s representatives. Finally he could have written a letter of apology. The grievor did not see fit to use any of these channels of communication.
There are several points in the Union’s brief to which the Arbitrator responds as follows :
a) The grievor was given instructions, which he refused to carry out, by the Assistant Housekeeper, the Head Waiter, and the Assistant Manager. Nevertheless the Union’s brief states that the grievor’s conduct was not a direct challenge to the employer’s authority. At what level then would the grievor have to refuse to carry out work in order for it to be considered a challenge to the employer’s authority ?
b) The Union’s brief attempts to excuse the behaviour of the grievor on the grounds that apparently he had refused to carry out orders on other occasions and in these instances there had been no recriminations, warnings, or discipline. This is not true in all cases since he had been given a suspension period in September, 1980. At that time he had been made aware of the consequences of not carrying out a supervisor’s instructions.
c) The Union refers to the incident as being relatively minor. As already pointed out had the other employees refused to carry out the required work the hotel would have been in a serious situation with several hundred guests expected.
Brown and Beatty, at page 378, of their Canadian Labour Arbitration, in discussing mitigating factors as they are related to the lessening of a penalty state:
"It is of cardinal importance to note that in any grievance in which the employee ultimately challenges the propriety of the penalty imposed, it is incumbent on him to affirmatively prove the existence of such mitigating factors".
It is the opinion of the arbitrator that the Union has not proven the existence of such mitigating factors in this instance. That in weighing and examining all the foregoing factors there is not any justification for interfering with the penalty imposed by management.
Decision of the Arbitrator
The grievance is denied.
Submitted by :
Howard J. Dyer, Arbitrator