ad hoc – 221
IN THE MATTER OF AN ARBITRATION
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL NO. 1574
IN THE MATTER OF DEBORAH ANN SUTHERLAND
SOLE ARBITRATOR: Dwayne W. Rowe
There appeared on behalf of the Company:
Mr. Timothy S. Preston, Q.C.
And on behalf of the Union:
Mr. Murray L. Smith
The hearing for this arbitration was held at Whitehorse, Yukon on January 18, 1988.
NorthwesTel Inc., (the Company), and the International Brotherhood of Electrical Workers, Local Union 1574, (the Union) are parties to a collective agreement pursuant to which I am the arbitrator chosen by the parties to resolve the grievance by making a final and binding decision.
The grievance, which both parties agree is properly before me, arose from the imposition of a 3 day suspension from work upon Deborah (Debbie) Sutherland, the grievor. The suspension was for August 11, 12 and 13, 1986, and arose as a consequence of an incident occurring in the business office of the Company in Whitehorse, Yukon on July 15, 1986. The Company imposed the suspension pursuant to Article 2.01 of the collective agreement then in effect.
On July 15, 1986, the grievor was at work for the Company in the business office at Whitehorse, Yukon. Kelly White, an employee of the Company, worked in the same office as did Heather Easton and Jean Guze. Mr. Gordon Overbo was the business office manager and had a private office within the general area. At 9:00 a.m. on July 15, 1986, the business office opened to service the public and, shortly thereafter, an incident took place which is the subject of the hearing. Most of the testimony, by all of the witness, involved references to the grievor as Debbie and to Kelly White as Kelly. I have often used the first names, Debbie, Kelly and Heather, in this award and have done so to conform with the flavour of the evidence, to make it easier to read, and intend no disrespect to the grievor, to Kelly White or to Heather Easton in doing so.
Kelly White testified she was performing her duties as relief counter clerk and work order clerk. She was busy indexing confirmation of money orders to the Edmonton office and the grievor and Heather Easton were seated at their own desks in the same workplace area. At approximately 9:30 a.m. a customer came into the office and up to the counter. Debbie informed Kelly that a call was holding for her on Line #1. Kelly continued to deal with the customer at the counter. Shortly thereafter, Debbie informed Kelly there was another incoming call for her on Line #2. Kelly finished dealing with the customer at the counter and then answered the call on Line #1. After completing the call she then answered Line #2 and dealt with the caller who wanted to apply for a calling card. Kelly estimated this particular caller had been placed on "hold" for about five (5) minutes before she was able to deal with the request. After completing the call, Kelly said to Debbie and Heather : "You guys - if you get a call for a credit card, could you please take a name and number and put it on my desk so the customer doesn’t have to wait". Kelly testified that in the majority of cases, the name and phone number of a customer is all that is required for a credit card to be issued. In the normal course of events, she would verify the account of the customer and mail out the card.
Kelly testified that in response to the request directed to both Debbie and Heather, Debbie responded by saying : "Kelly, I don’t have time to do your work". Kelly replied to the effect she was merely requesting the name and phone number of the customer be taken down. Debbie then said to Kelly : "If you did your own fucking work I wouldn’t have to help you". Unfortunately, a customer had come into the office and heard this remark. Kelly went to the counter and assisted the customer who then left the office. Kelly testified Heather was emotionally upset and began to cry and that Debbie said : "Heather, quit being a fucking baby". Heather left the area and went downstairs, pausing at Gordon Overbo’s office to complain she wasn’t putting up with this anymore. Kelly testified Gordon Overbo came out of the private office into the general work area and, understandably asked : "What in hell is going on here ?". Kelly responded to this query by saying : "She (meaning Debbie) is being a bitch", and proceeded to tell Mr. Overbo about the swearing incident. Kelly’s evidence was that Debbie’s version of the situation was she had to answer Kelly’s calls while Kelly was up at the counter with her "finger up her ass". Kelly responded to this comment by inviting Debbie to come up to the counter and observe the work Kelly had done that morning in sending out the telexes. Debbie declined the invitation and Kelly stated she argued about that refusal and pointed her fingers at Debbie and at the counter. The pointing was especially effective in that Kelly had two fingers taped together as a result of an injury. Kelly testified that Debbie, who was standing erect, slapped at her hand, Kelly’s response being to push Debbie. Kelly stated Debbie then grabbed her and tore the V-neck of her garment saying : "If you do that again, I’ll kick you in the fucking head". According to Kelly, the confrontation then ended.
Heather Easton testified she was not disturbed by Kelly’s request that she and Debbie answer calls from customers wanting credit cards. She stated the entire staff was supposed to handle that function in any event and she intended to ignore Kelly’s remarks. According to Heather, Debbie’s request was delivered in a normal, polite tone of voice. Heather recalls Debbie’s remark to Kelly to the effect : "If you did your own fucking work ...". Heather stated she became very upset due to the presence of a customer while the remark was made and agrees she began to cry. Heather recalls Debbie making some remark to her but remembers specifically only the reference to "baby". Heather left the area and complained to Gordon Overbo. In Heather’s opinion, neither Debbie nor Kelly realized a customer had come into the office. She also stated, in her view, the use of the "f" word was not common in the office among staff.
Jean Guze, on July 15, 1986, was working in the office as a cashier. She heard Kelly make the request concerning other employees handling the credit card requests and heard Debbie state she had her own work, followed by the phrase directed to Kelly, "If you’d do you own fucking work, we wouldn’t have to do it for you". Jean Guze testified she then left to go into another adjoining area to work on counting cash and to make up a deposit. She also realized a male customer had come into the office. She pointed out there was a screen in front of Debbie’s desk and I took that to mean Debbie may have had some difficulty in seeing the customer enter the office. Jean Guze also testified that Heather went off in a tearful state. From the adjoining office in which Jean Guze was performing her duties she heard Kelly say, "come up to the counter and I’ll show you the work I did today". She also heard Debbie say, "I’ll kick your fucking head in". Other conversation overheard by Jean Guze was Debbie saying words like : "You couldn’t hold a candle to what I do" and then someone making a reference to "a finger up the ass". She is unable to attribute that remark to either Debbie or Kelly and also didn’t know the context in which it was used. In cross-examination, Jean Guze stated she heard Debbie say : "Keep your hands off me or I’ll punch your fucking face in".
Gordon Overbo testified that on July 15, 1986, he was the manager of the business office and had at that date held that position for eight months. He was alerted to a potential problem by Heather Easton and did indeed leave his office to confront Debbie and Kelly asking : "What the hell’s going on". He stated in evidence Debbie and Kelly were standing by Jean Guze’s desk facing each other. There were arguing about what work Kelly was doing and that Kelly wanted Debbie to come up to the front counter and observe the amount of work Kelly had done. He stated Debbie was holding a cup of coffee and that Kelly "lunged" at Debbie. He said Debbie either held Kelly off or pushed her away. He states Kelly renewed her efforts and did manage to grab Debbie. He felt at the time, and so testified that Debbie was defending herself from Kelly’s aggression. The incident ended. Although he did not take note of any damage to Kelly’s sweater and/or shirt, he agrees Kelly showed it to him, and he did allow her to go home and change into another garment. He didn’t notice any damage to Debbie’s dress.
Debbie Sutherland testified that on July 15, 1986, one of her duties was to relieve Jean Guze. Also, she had to process work orders for the new Law Centre and had to assist in posting payments, work ordinarily done by Kelly White. She stated it was a busy time for the office generally and for her specifically. She agrees that Kelly asked the others present to handle those credit card applicants phoning the office and that the request was politely made. She also agrees she made the comment : "I’m not going to do your fucking job". She did not realize a customer was present until Kelly moved up to the counter to deal with him. She states she told Heather to "stop acting like a baby", but did not work the word "fucking" as an adjective preceding the noun "baby". Debbie further testified she filled up a large styrofoam cup with coffee and was holding it in one hand when Kelly invited her to attend at the counter to observe all the work done by Kelly that morning. She declined and stated Kelly said : "Get up to the front - do you think I’ve got my finger up my ass ?" She testified Kelly then came over to her and grabbed her blouse at the neck area also grabbing at a necklace she was wearing. The hot coffee she was holding started to spill and continued to do so as Kelly rocked her back and forth by pulling at the neck area of the garment. She stated the necklace was hurting her neck as Kelly was pulling at her. She stated she put out her hand in a flattened position to push Kelly away. Gordon Overbo came into the area and asked : "What the hell’s going on ?". At this time, she stated Kelly still had hold of her neck and Kelly said to Gordon Overbo : "She’s being a bitch". Debbie agrees she did tell Kelly, "Let go off me or I’ll kick you in the fucking head". Debbie testified that on occasion employees, while at work, did use the words "fuck" or "fucking". She also stated, in her opinion, Kelly had a tendency to shove her workload onto others. As well, in Debbie’s opinion, the call on Line #1, at the beginning of the incident, was in fact a personal call to Kelly.
In cross-examination, Debbie denied slapping or hitting Kelly on the hand. She agreed she was angry at Kelly for not doing her own work. She also admitted she wasn’t surprised Kelly got mad at her and agreed with Mr. Preston’s suggestion the entire incident probably would not have occurred had she not said to Kelly : "I’m not doing your fucking job". She categorized the incident as a momentary flare-up and stated she and Kelly later discussed the incident and hold no grudges. Also, she stated that prior to this incident she had not had any problems with Kelly. She has worked for the Company for 10 years and sincerely regrets the incident.
Gordon Overbo testified that he undertook a review procedure following the incident. He felt discipline was required and assessed both Debbie and Kelly a 3 day suspension, the maximum permitted within his scope of authority. He very fairly agreed with Mr. Smith’s suggestion that had vulgar language been used unwittingly by Debbie in the presence of a customer a warning would have been sufficient and in any event probably would not lead to any suspension. However, he felt the physical confrontation or "scrapping" in the office merited discipline by way of suspension and felt both Debbie and Kelly were equally to blame. He stated he had no reason to give Debbie any prior warnings about foul language in the office and that he has used the word "fuck" in the confines of his private office.
Counsel for the Company submitted the suspension was in fact for "just cause" pursuant to Paragraph 2.01 of the collective agreement:
"The Management of the operations of the Company and the direction of the working forces, including the right to direct, plan and control operations and to schedule working hours and the right to hire, promote, demote, transfer, suspend or discharge employees for just cause, or to release employees because of lack of work or the right to introduce new and improved methods or facilities, is vested exclusively in the Company, subject to the provisions of the Agreement".
(underlining is mine)
He further argued the grievor provoked the incident. While Kelly responded in an inappropriate fashion by initiating physical contact (if Debbie’s version of the altercation was correct), notwithstanding, Debbie should have known her remarks would reasonably be expected to cause Kelly to react in the manner she did. Mr. Preston argued the physical altercation must be viewed in context and regarded as a natural consequence of the initial insult to Debbie concerning her work performance. He further submitted the arbitrator should not "second guess" Gordon Overbo or "fine-tune" his decision to assess a 3 day suspension.
Mr. Smith, counsel for the Union, argued the burden was on the Company to establish the facts warranting discipline and to then discharge the onus of establishing the discipline was fair and just. He pointed out the evidence of Gordon Overbo as corroboration of Debbie’s testimony that Kelly was the aggressor and she was merely acting to defend herself from attack. Mr. Smith also submitted the reference to "doing your own fucking job", while not polite, cannot reasonably be expected to provoke an ordinary person into acts of physical violence.
I have had the benefit of the decisions in Re United Electrical Workers, Local 504, and Canadian Westinghouse Co. Ltd. (1966), Vol. 17, L.A.C. p. 427 and Re Hitachi Sales Corporation of Canada Ltd. and Teamsters Union, Local 903 (1981), 30 L.A.C. (2d) p. 1. While both decisions are helpful, there are obvious distinctions to be drawn between the facts there and in this case.
In the Hitachi case the grievor was involved in a physical altercation with a fellow employee. However, in that case the grievor and the fellow employee were described at page 2 of the decision as being " ... constantly at odds, insulting each other, intimidating each other and, in general, seeking out every opportunity for confrontation". In fact, the difference between the two parties in the Hitachi decision were characterized as "notorious", such that other employees chose up sides supporting one or the other. And, the foreman had repeatedly intervened but neither combatant heeded the warnings about their conduct. As a consequence, the differences there took on the aspect of an ongoing feud and there was a continual display of hostile conduct towards each other.
In the Westinghouse decision, the grievor told his foreman to "perform a physically impossible act" which both counsel obligingly translated to me as probably being the phrase "Go fuck yourself". That comment was followed by a threat by the grievor to the foreman to punch him in the nose. The majority of the Board concluded the actions of the grievor did not constitute a "momentary flare-up".
In the case before me, there was no history of animosity between the grievor and Kelly White. The situation was the product of a "momentary flare-up". The grievor was feeling stress from the amount of work to be done and, at the moment of the incident, resentful of Kelly White whom she felt, rightly or not, was not pulling her share of the load.
I find the physical violence to have been instigated by Kelly White and I am satisfied the grievor did nothing more than defend herself from being grabbed and pulled by Kelly White. While the grievor’s insult to Kelly White is not commendable, it is not reasonable to expect in the absence of any history of ill will between the two of them, that Kelly would resort to a physical altercation. Gordon Overbo saw Kelly as the aggressor and yet decided both parties were "scrapping". A "scrap" would often be categorized as consensual between the parties. Such was not the case here. Section 157 of the Labour Code of Canada sets out the authority of the arbitrator:
s. 157 An arbitrator or arbitration board
(a) shall determine his or its own procedure, but shall give full opportunity to the parties to the proceeding to present evidence and make submissions to him or it;
(b) has, in relation to any proceeding before him or it, the powers conferred on the Board, in relation to any proceeding before the Board, by paragraphs 118(a), (b) and (c);
(c) has power to determine any question as to whether a matter referred to him or it is arbitrable; and
(i) he or it determines that an employee has been discharged or disciplined by an employer for cause, and
(ii) the collective agreement does not contain a specific penalty for the infraction that is the subject of the arbitration
has power to substitute for the discharge or discipline such other penalty as to the arbitrator or arbitration board seems just and reasonable in the circumstances.
In this case, the suspension by Gordon Overbo was clearly for the physical altercation. Having held the opinion Kelly was the aggressor, it was not then reasonable to assess the grievor the same penalty as Kelly. It is not unlike the NHL referees who often hand out roughing or fighting penalties to both players when in fact one is punching and the other is receiving. Similarly, while a fight in a public place will obviously cause a disturbance, it is still open for a defendant to plead : "Certainly I was fighting - I agree a disturbance was caused, but I had no choice but to defend myself".
The grievance is allowed. I order the suspension vacated with restoration of pay for the 3 days and that the record of the incident and discipline be removed from the grievor’s file.
DATED this 21st day of January, 1988, at Whitehorse, Yukon.
(signed) Dwayne W. Rowe