AD HOC – 224
IN THE MATTER OF AN ARBITRATION
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 1574
IN THE MATTER OF RON BIANOWSKY, MARK LOWES & IRV STRATICHUK
SOLE ARBITRATOR: Dwayne W. Rowe
There appeared on behalf of the Company:
Timothy S. Preston, Q.C.
And on behalf of the Union:
Mr. Murray Smith
A hearing in this matter was held at Whitehorse, Yukon on March 3, 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 hearing for this arbitration was held at Whitehorse, Yukon on March 3, 1988.
As a consequence of certain conduct by the three grievors at Inuvik, N.W.T. between May 2nd and 5th, 1987, each of the grievors received a 3 day suspension together with a further deduction of 4 hours pay representing the afternoon of May 5th, 1987.
The issue is whether or not the discipline was justified within Paragraph 2.01 of the collective agreement, that is, to determine if the discipline was meted out for "just cause".
Ms Connie Venance testified that she was the front desk manager of the Eskimo Inn in Inuvik, N.W.T. and was present when the three grievors checked in to the hotel on April 28th, 1987. She knew Ron Bianowsky had stayed in the hotel before and knew that he worked for NorthwesTel. She assigned all three grievors to rooms on the second floor. She stated that NorthwesTel in the course of a year had one or more employees staying in the hotel approximately 120 to 150 nights. On the May 5th, 1987 Ms Venance was working from 8 a.m. to 6:40 p.m. and while on duty at about 2 p.m. she saw the three grievors enter the lobby in a loud and boisterous manner. She stated that two of the three were carrying beer and liquor and were talking in a rude and vulgar manner. The three grievors went upstairs and about 2:30 p.m. she said she had to go up to room 215 and request the three men to quieten down. She said "they laughed and sort of ignored it". At 3 p.m. the hotel manager, Steinar Asbjornsen, went up to room 215 and again requested the grievors hold down the noise. At 4:30 p.m. Ms Venance cut off the phone service to room 215 as a result of a complaint received by her from a waitress living in room 106, the substance of the complaint being that this particular waitress had been receiving unwanted phone calls from a person or persons in room 215. Ms Venance stated this interruption in phone service caused Mr. Stratichuk to attend at the front desk to complain of the interruption and he appeared to be provoked. At 6:30 p.m., the three grievors came down to the lobby and Ms Venance testified they physically picked up a waitress, took her outside, and threw her into a snowbank causing obvious distress to the waitress. Ms Venance went on to state that two or three guests then present in the lobby complained of the noise and behaviour of the grievors and that she had earlier in the day received other complaints from guests about the noise emanating from room 215. At approximately 2:30 a.m. on the morning of May 6th, 1987 Ms Venance said she got a call from the Night Auditor to advise her that two guests were checking out of the hotel apparently due to the continuing noise. Prior to the grievors themselves checking out of the hotel later in the week, it was noted a night table had been damaged and that there were beer stains on the walls and carpets of all the rooms occupied by the grievors. She stated there had not been any prior problems with NorthwesTel employees and in fact Mr. Stratichuk later stayed at the hotel without incident. However, Ms Venance felt it was appropriate to write a letter of complaint to NorthwesTel concerning the conduct of the three grievors and drafted a letter for the signature of her Manager, Mr. Asbjornsen. The letter of complaint, dated May 8th, 1987, was filed as Exhibit 1 in these proceedings.
In cross-examination. Ms Venance stated that she did not make any separate notes of the incidents and was relying on her memory. She did agree that she had read over the letter of complaint, Exhibit 1, the day prior to giving evidence. She stated she fixed the time the grievors entered the lobby on May 5th, 1987 at 2 p.m. because she was doing "check-ins" at that time. Further, she recalled looking at the switchboard clock when the first noise complaint was received and it read 2:30 p.m. She stated she was certain the incidents occurred on May 5th and stated that a snow storm (later referred to by other witnesses in evidence) happened on Saturday, May 2nd and lasted through until the next day, Sunday. She agreed she could have asked the three grievors to vacate the hotel as alternate accommodation was available in Inuvik but added the Eskimo Inn was glad to have the NorthwesTel business. She stated that only if company employees were to be rowdy on a regular basis would it effect the company’s ability to have their employees stay at the Eskimo Inn. At all times relevant to the hearing Ms Venance lived in the Eskimo Inn and worked seven days a week, usually from 8. a.m. to 8 p.m.
Alex Ilchuk testified he works as an Outside Plant Supervisor for the company and has been so employed for eight years. On April 28th, 1987 he dispatched to Inuvik a crew consisting of the three grievors and Jan Mandaus as foreman. Mr. Ilchuk described the various duties of the grievors as follows : Ron Bianowsky as Equipment Operator involved in running derrick trucks, backhoes and other equipment. Mr. Ilchuk explained a derrick truck with a power take off is used to dig holes for poles or anchors and is operated from the rear of the truck to which an auger is attached. Mr. Lowes’ basic duties were varied and he was also involved in gaining experience on the derrick truck. Mr. Stratichuk had a variety of basic duties ordinarily performed by a construction lineman but at the time said duties were not related to the use of the equipment.
Mr. Ilchuk stated that he arrived in Inuvik on Monday, May 4th in the afternoon and checked into the Estimo Inn between 2 and 3 p.m. The next morning, May 5th, he saw Ron Bianowsky and Mark Lowes in the cafe at the Eskimo Inn and instructed them to finish up a small task and to then proceed to a loading ramp site and to there construct a loading ramp, whereupon Ilchuk left the hotel to proceed to Arctic Red River. Mr. Ilchuk returned to the hotel at 7 p.m., had dinner, and went to his room and was later awakened at approximately 1:30 a.m. by the sound of his crew, consisting of the grievors, returning to the hotel. He stated that the crew were loud, boisterous and Mr. Stratichuk could be overheard complaining about an injury to his leg. The entire commotion lasted for approximately fifteen minutes to one half hour. The next morning, May 6th, the Manager of the hotel, Steinar Asbjornsen, complained to Mr. Stratichuk about the disruption of the afternoon before to which complaint Mr. Ilchuk suggested Mr. Asbjornsen write an official complaint to the company.
Mr. Ilchuk explained company policy is not to permit any consumption of alcoholic beverages during working hours and stated the working hours of the grievors were from 8 a.m. to 5 p.m. with a lunch break between 12 noon and 1 p.m. Mr. Ilchuk stated he conducted a review of the matter and concluded the appropriate discipline was to suspend each of them for three days, the maximum of his authority, and to deduct four hours pay from each of them representing time taken off by them in the afternoon of May 5th, 1987.
In cross-examination, Mr. Ilchuk stated that the outside temperature was quite cold on May 5th and that the frost resulting in the ground could seriously affect the amount of work to be done with the use of the derrick truck. He stated that on his return to Inuvik from Arctic Red River an inspection done by him at the loading ramp site on the night of May 5th led him to believe that a full days work had been done. He stated that it was not considered unusual or bad conduct by his own personal standards for employees of the company to have a beer with their regular lunch but he would be concerned if employees had a beer on a break as opposed to a lunch hour. A "break" is a fifteen minute period of time in the morning and again in the afternoon during which employees are entitled to take a break from their duties. Mr. Ilchuk said he had not, in the past, had any occasion to warn any of the three grievors not to consume alcoholic beverages during a break. Mr. Ilchuk also stated that Mr. Asbjornsen had relayed information to him that the three grievors had been requested at some point to leave another establishment in Inuvik on account of rowdy behaviour. He also stated that Mr. Asbjornsen had specifically referred to May 5th as the day the grievors had created a problem in the hotel but that Mr. Asbjornsen had also relayed other complaints. Mr. Ilchuk recalled a heavy snow storm on Saturday and indicated that by telephone he had given approval for the crew to shut down on May 2nd for the balance of the day. He agreed with counsel for the grievors that he relied on the complaint letter, Exhibit 1, to assist him in recollecting Asbjornsen’s complaints about the conduct of the grievors. Mr. Ilchuk stated that he had occasion to conduct, on June 6th and June 22nd 1987, a review and in each case each of the grievors admitted consuming beer during the afternoon break on May 5th, 1987, in the case of Bianowsky and Lowes, one beer and in the Mr. Stratichuk’s case, two bottles of beer.
Mr. William Dunbar, Vice-President and General Manager of NorthwesTel, stated he was aware of the complaint by the Eskimo Inn. He stated that even if the incidents complained of occurred off-duty that such conduct reflected poorly on the company and could, as a consequence of scarcity of accommodation in remote northern areas, hamper work being done in a given community if accommodation were to be denied to company employees in the future. Mr. Dunbar stated company policy is that no one is allowed to drink on-duty, the primary consideration being safety especially when vehicles and equipment are operated. He went on to explain that lunch hour was different, provided that the consumption of alcoholic beverages at lunch hour was moderate and did not impinge on an employee’s ability to work. He felt that consumption of a beer during lunch was socially acceptable but that there is a real and obvious distinction between that situation and consuming alcohol during a morning or afternoon break for which the employee’s are paid as opposed to an unpaid lunch hour. He does not recall any specific directive having been issued to employees regarding consumption of alcohol either at lunch hours or during breaks. Mr. Dunbar agreed that NorthwesTel had not lost any business as a consequence of the May 5th incident at the Eskimo Inn and also agreed that the Eskimo Inn was quite prepared to continue to have NorthwesTel employees as guests in that establishment.
Ron Bianowsky testified that he had checked into the Eskimo Inn on April 28th, 1987. He stated that the only time he and the other grievors took off an afternoon was on Saturday, May 2nd, as a result of an extremely heavy snow storm. He testified it was this afternoon that Connie Venance and the hotel manager came up to the room and complained of noise. Mr. Bianowsky stated that he and the other grievors did not "cut" one half day on the afternoon of May 5th and that the entire afternoon was spent working on the loading ramp. He agreed that at approximately 3 p.m. he and the other two grievors went to the Finto Hotel intending to have a coffee break. They discovered the cafe closed and went into the bar at the Finto and drank a beer. He stated there was no incident of any kind at the Finto bar except he accidentally knocked a bottle of beer on the floor and had to order another as a consequence. Mr. Bianowsky stated that on May 5th commencing at approximately 5 p.m. there was a Stanley Cup hockey game on television and that he and Mark Lowes and Irv Stratichuk went up to the hotel room and watched the hockey game. He agrees that they were drinking beer and probably were boisterous and exuberant in the course of watching the game. He said that during noon hour on May 5th he and the other grievors may well have carried beer and liquor up to their room. However the three of them had lunch and then returned to work in the afternoon, the remainder of which was uneventful except for the consumption of beer at the Finto Hotel at approximately 3 p.m. He testified he has been going to the Eskimo Inn for the past ten years and has not had any problems in that establishment. As for the damage to the night table, that was paid for by Irv Stratichuk and he and Mark Lowes chipped in for their share of the damage. He agreed, in cross-examination, that he made a mistake by having a beer during the break, at the Finto Hotel at 3 p.m. in the afternoon and that originally he and the others had intended that break to be the more traditional coffee break. He also stated it was the day of the snow storm, Saturday May 2nd, that he and the others had been cautioned to keep the noise down in the room in the afternoon and that the incident with the waitress occurred as he and a group of other people were leaving the lobby to catch a taxi to attend at a party.
Mark Lowes testified it was on a Saturday his crew had to take off part of a day due to a snow storm. He stated he was not party to throwing a waitress in a snow bank or to calling the waitress in 106 resulting in interruption of phone service to room 215. He also admitted to consuming beer on May 5th in the afternoon at the Finto and agreed that it was not the usual place to go for coffee. He agreed that it is "common sense" not to drink alcohol during a break. In an effort to differentiate between events occurring on May 2nd and events occurring on May 5th, Mr. Lowes stated that the night of May 5th he and the others went across the street to a place known as the Mad Trapper and this occurred after the hockey game was over. The night of the snow storm was the night he and the others went to a party at a place occupied by a person described in the evidence as Rhonda.
Connie Venance was called to testify by way of rebuttal. She stated the snow storm was on Saturday May 2nd and that on the Saturday she had driven out to the airport and returned to the hotel. She stated she did not have any problems with the three grievors that day.
Alex Ilchuk was also called to testify in rebuttal and indicated that when he arrived in Inuvik on Monday, May 4th his Foreman, Jan Mandaos had told him the crew hadn’t worked on Sunday, the day following the snow storm. Mr. Stratichuk was not available to give evidence but it was agreed on his behalf that he would stand or fall along with Mr. Bianowsky and Mr. Lowes.
To some extent, the issues are affected by the view that is to be taken of the facts having regard to all of the evidence. The "snow storm" was used as an event to designate a particular point in time before and after which certain events occurred. In northern Alberta it is not uncommon to use events as a benchmark from which to gauge time, as in "the year of the flood" or "the year after Jacobsen’s barn burned". However, passage of time and the frailty of human memory makes reference to these historical benchmarks notoriously unreliable. In fairness to the witnesses’ abilities to recall specific events on specific dates, the following point should be considered. Ms Venance worked seven days a week, twelve hours a day, and lived in the hotel. The grievors were scheduled to work seven days a week. Therefore there was not the ordinary delineation created by a weekend to assist memory recall. It is natural for people to then fix a date or event by reference to a "hockey game", a "snow storm" or the activity of "checking-in guests". I have, to some extent, relied upon the language and flavour of the complaint letter, Exhibit 1, dated May 8th 1987. The second paragraph of the letter reads as follows :
They have been noisy, inconsiderate and very irresponsible in their personal behaviour. Their rude and vulgar language in the dining lounge was mentioned by several guests from there. Complaints from the other guests in the hotel to the front desk only caused them to be more troublesome when asked by the front desk staff to keep the noise down and curb the partying to a degree that would not disturb the other guests in the hotel. I feel that this is quite unnecessary and not the type of guests we usually have from NorthwesTel.
On the particular day in question Tuesday May 5th, 1987, their behaviour was particularly bad and it started when they returned to the hotel at approximately 2 p.m. intoxicated and it was one disturbance after another until approximately 2 a.m. Wednesday, causing several of our guests to complain saying they would leave the hotel and stay elsewhere on their next business trip to Inuvik. (Emphasis added)
The language used in that letter as quoted above is clearly cumulative and narrative in nature. Alex Ilchuk testified that while the hotel manager complained of events supposedly on May 5th he also related other prior complaints. Connie Venance indicated she had not had any problems with the grievors prior to the afternoon of May 5th and specifically stated she did not have any complaints about their conduct on the day of the snow storm. Both Ron Bianowsky and Mark Lowes testified they worked on the afternoon of May 5th and admitted in evidence and previously at the review held by their supervisor, Mr. Ilchuk, that they had in fact consumed alcohol during an afternoon.
Having regard to all of the evidence it is more likely that the rowdy behaviour, including throwing a waitress in a snow bank, occurred during the mid and late afternoon and early evening of May 2nd 1987. In any event, it certainly has not been established on a preponderance of evidence that the three grievors left work on the afternoon of May 5th 1987 to spend the afternoon drinking and carousing in their room. However, even if the conduct described occurred on Saturday May 2nd 1987 while in a sense off-duty, can it be said that the conduct is still properly subject to discipline. It is clear that the grievors were identifiable at least to the hotel staff as being employees of NorthwesTel. However, the employer must have a legitimate business interest to protect. In this particular case the employer’s reputation and ability to continue to find accommodation for its employees was not affected and in fact the complaint letter, Exhibit 1, made it clear the behaviour complained of was considered to be exceptional and that the Eskimo Inn looked forward to being able to serve NorthwesTel employees in the future. It is not necessary that actual harm or damage occur to an employer’s reputation or that there be identifiable loss of business provided there exists a reasonable apprehension that same could occur. Such is not the case here.
I accept the evidence of Ron Bianowsky and Mark Lowes that each of them, together with Irv Stratichuk consumed beer during a break at approximately 3 p.m. on the afternoon of May 5th 1987. It is also clear that the three grievors had originally intended to consume coffee during that break which is obviously a more socially acceptable use of that time period. The three grievors were in the course of working at the loading ramp site during the afternoon of May 5th and it is incomprehensible that any of them would think a break in mid-afternoon could be utilized to attend at a public lounge or bar for the consumption of alcohol. Such conduct is clearly improper and as such must reasonably attract discipline. Mr. Ilchuk testified that in essence the punishment he handed out took into account all of the sins complained of and as a consequence it may be properly characterized as a "global" punishment. In my view it is necessary to delete from that global consideration the conduct which I have found to occur on the afternoon of May 2nd 1987 (the snow storm afternoon) and to delete therefrom any discipline for missing the afternoon shift on May 5th 1987 which I am not satisfied occurred.
The grievance is allowed in part. I order the restoration of four hours pay to each grievor for the afternoon of May 5th 1987. I further order the suspension of each grievor be reduced from three days to two days. I further direct that the record of the incident and discipline with respect to each grievor be amended so as to reflect only the conduct of consuming alcoholic beverages the afternoon of May 5th 1987 during the break and not to have reference to any conduct while guests of the Eskimo Inn.
DATED this 11th day of March, 1988, at Sidney, British Columbia.
(signed) DWAYNE R. ROSS