AH – 421

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CP EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE B. FURLONG

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

Brian F. Weinert – Representative

And on behalf of the Union:

John Bechtel – Representative

A hearing in this matter was held at Toronto on December 12, 1988.

AWARD

The parties filed the following joint statement of issue:

JOINT STATEMENT OF ISSUE:

On March 16, 1988, this employee was performing his relegated duties of switchboard operator. Employee B.J. Furlong is a duly elected Union Official of Lodge 2311. During the course of his duties, he noticed the Regional Police removing two members of the bargaining unit. He immediately proceeded to the supervisor, requesting an explanation. During the short investigation, employee representative B.J. Furlong got into a confrontation with Mr. Hannam, which resulted in a suspension for one day and 15 demerits.

The facts are not in dispute. On March 16, 1988 it came to the attention of the grievor, who was then President of Local 2311 of the Union, that local police were in the process of removing two bargaining unit members from the workplace in handcuffs. Having secured an appropriate replacement, Mr. Furlong left his position as the switchboard operator, to proceed to the dock to investigate what was happening. It appears that he first spoke with Operations Manager J. Hannam, who advised him that the two employees were being arrested for alleged theft. Thereafter he proceeded to the loading dock where he engaged in a conversation with union steward Wally Seto. It does not appear disputed that the grievor intended to advise Mr. Seto with respect to the discharge of his union responsibilities in the situation at hand.

The two employees were then confronted by Mr. Hannam as they were speaking. It appears that Mr. Hannam asked whether they were dealing with union business or company business and being advised it was the former instructed them that they should return to work, as they had no permission to be dealing with union business. While Mr. Seto did return to his work, the grievor did not, and a heated exchange between the local union president and the Operations Manager ensued. As tempers rose Mr. Hannam gave the grievor a directive that he should leave the area immediately, whereupon the grievor responded in like terms, telling the manager that he should leave: This unfortunate stand-off was resolved only when Mr. Hannam advised Mr. Furlong that he was suspended, and that he should attend at his office to receive written notice. As a result the grievor was assessed 15 demerits and a one day suspension.

It is not disputed on the facts of the instant case that the grievor held a responsible union office and was acting in what he believed to be a good faith manner in the execution of his duties when he proceeded to the dock and, ultimately, refused to obey his manager’s order to stop dealing with union business and to leave that area. It is well established that special standards apply to the discipline of union officers for statements or actions during the course of the discharge of their responsibilities. A number of the reported arbitration awards concern outbursts during the course of grievance meetings, when tempers wear thin and words are used which a management representative views as insubordinate. The approach of most arbitrators is well reflected in the following passage from Re Firestone Steel Products of Canada and United Automobile Workers, Local 27 (1975) & L.A.C. (2d) 164 (Brandt), at pp. l67-168:

For the purposes of assessing whether or not conduct is insubordinate the standard of conduct that the company is entitled to expect should be different when applied to the acts of union committeemen engaged in the legitimate discharge of their duties. For, as Mr. Nickerson for the union put it, a committeeman is, while attempting to resolve grievances between employees and company personnel, always functioning on the border line of insubordination. His role is to challenge company decision, to argue out company decisions and, if in the discharge of that role he is to be exposed to the threat of discipline for insubordination, his ability to carry out his role will be substantially compromised. This is not to say that a committeeman has a carte blanche to ignore at will management instructions and to instruct others not to carry them out. His immunity, if it may be called that, is limited to acts or omissions committed in the discharge of his functions and to acts or omissions which may reasonably be regarded as a legitimate exercise of that function. To put it succinctly, a committeeman is not entitled to punch a foreman in the nose as one of his means of attempting to bring about a settlement of a grievance.

The reasoning of the above case has been extended to finding that discipline was not appropriate where a union official left her work station to have investigatory discussions with other employees (Re Windsor Western Hospital Centre (IODE Unit) and Ontario Nurses Association (1985), 18 L.A.C. (3d) 176 (Weatherill)), and has also been applied in the case where a union official defied his supervisor’s direct order not to leave his work station to go and participate in discussions relating to a threatened wildcat strike (Re Gulf Canada Limited, Clarkson Refinery and Energy and Chemical Workers Union, Local 593 (1982), 3 L.A.C. (3d) 348 (Palmer)).

In the instant case the material discloses that Mr. Furlong, an employee of some twenty years service, was president of the union local, and was acting in what he believed to be the best interests of the Union and the employees concerned in a matter which would have serious disciplinary ramifications. The investigation of an incident such as the one then occurring, and the conduct of the employees and their union steward could have serious ramifications for those whose rights could be affected. In the Arbitrator’s view, therefore, the situation was one of those exceptional cases in which it can be said that an employee is entitled to disregard the general principle that he or she must “work now – grieve later” when ordered to do so. It appears, on the whole, that Mr. Furlong acted reasonably in proceeding to the dock area, and instructing the shop steward as he did. He did not leave his work station unprotected during that time, and no loss of production or consequential damage is disclosed.

To be sure the defiant tone which the grievor took with his manager is unfortunate, and it would appear that neither Mr. Furlong nor Mr. Hannam acted as a model of reasonableness or good judgement. In the circumstances of this case, however, the right of a union officer to tend to a legitimate part of his duties and responsibilities, even during working hours cannot be ignored, even though it might have been more politic of Mr. Furlong to first advise Mr. Hannam with respect to what he was doing. Nor should the conclusion drawn in this grievance be taken as a licence for a person holding union office to abuse that privileged position by pursing investigations in an arbitrary or capricious manner. That, however, is not the case here.

For the foregoing reasons the grievance must be allowed. The grievor shall be compensated for all wages and benefits lost as a result of his suspension and his disciplinary record shall be amended to remove the 15 demerits imposed. I retain jurisdiction in the event of any dispute between the parties respecting the interpretation or interpretation of this Award.

DATED at Toronto this 16th day of December, 1988.

(signed) MICHEL G. PICHER

ARBITRATOR