Heard in Montreal, Wednesday, 12 June 1996

concerning

and

Dismissal of Mr. M. Parker (2-549).

On December 6, 1995, the grievor was dismissed from Company service for "conduct incompatible" with his employment as evidenced by his alleged "repeated sexual harassment of fellow employees".

The Union contends that: 1.) No sexual harassment, in fact or in law, ever occurred; 2.) The discipline assessed was unwarranted and excessive in the circumstances.

The Union requests that the grievor be reinstated forthwith without loss of seniority and with full compensation for all losses incurred as a result of this matter.

The Company denies the Union’s contentions and declines the Union’s request.

There appeared on behalf of the Company:

R. M. Andrews – Labour Relations Officer, Vancouver

G. D. Wilson – Counsel, Montreal

D. T. Cooke – Manager, Labour Relations, Montreal

D. W. Gauld – Assistant Track Maintenance Supervisor, Kenora

M. R. Bye – Rail Lubricator Maintainers’ Helper, Kenora

J. E. MacPherson – Track Maintenance Specialist, Engineer Services, Vancouver

B. M. O’Rourke – District Manager, Engineer Services, Vancouver

R. W. Jones – Track Maintenance Supervisor, Kenora

K. E. Archibald – Grade I Maintainer, Kenora

F. W. White – Trackman, Kenora

And on behalf of the Brotherhood:

P. Davidson – Counsel, Ottawa

D. W. Brown – Sr. Counsel, Ottawa

J. J. Kruk – System Federation General Chairman, Ottawa

D. B. McCracken – Federation General Chairman, Ottawa

R. Heinrichs – General Chairman, Prairie Region

G. Beauregard – General Chairman, Atlantic Region

R. Tirelli – Assistant Legislative Director, Quebec

M. Parker – Grievor

This arbitration concerns the discharge of Track Maintenance Foreman Mark Parker for the sexual harassment of his fellow employees at Kenora by falsely accusing them of being in a homosexual relationship. Mr. Parker, age thirty-nine at the time of his dismissal, commenced working for the Company on March 29, 1983. At the time of his discharge he held the rank of Local Chairman in the Brotherhood and was a track maintenance foreman.

The investigation leading to the discharge of Mr. Parker was triggered by a report first made to Deputy Roadmaster Bruce Gauld by Lubricator Maintainers’ Helper Mike Bye. The first complaint made by Mr. Bye is reflected in a memorandum prepared by Mr. Gauld following Mr. Bye’s report to him. That memorandum reads, in part, as follows:

The complaint of Mr. Bye, and the report of Deputy Roadmaster Gauld, led to an extensive investigation by the Company of the conduct of Mr. Parker in respect of a number of fellow employees, with statements being taken from six individuals, including the grievor, between September 26 and November 8, 1995.

The record indicates that Mr. Parker thinks of himself as a strong and dedicated local union leader. As the Brotherhood’s Local Chairman he demonstrated an aggressive antagonism to any employee he perceived as being unduly friendly or accommodating towards members of management. Unfortunately his style of response was to label employees whom he perceived as too friendly to supervisors as being in a homosexual relationship with the supervisor in question. As the record discloses, in some cases his attacks on targeted employees went beyond the normal teasing of a favoured employee as a "brown noser", or other such joking references that are common in many workplaces.

Mr. Bye relates in his testimony that he felt he was the victim of antagonism on the part of Mr. Parker for a period of some two years. The problem started, according to Mr. Bye, when his position as lubricator maintainer helper and that of Lubricator Maintainer Bob Todd were not abolished pursuant to the Company’s reorganization of track maintenance forces undertaken in 1993. Mr. Parker did not conceal his own opinion that he felt that senior employees affected by the article 8 notice of job abolishments should have the right to displace Mr. Bye and Mr. Todd. Because of the seniority structure under the collective agreement, however, that could not be done. The following passage taken from the statement given by Mr. Bye during the course of the Company’s investigation gives some indication of the tension between himself and Mr. Parker over the issue of job abolishments:

Not long after this confrontation, Mr. Parker began a pattern of referring to Mr. Bye as the homosexual lover of Deputy Roadmaster Bruce Gauld. Mr. Dye’s statement, which the Arbitrator accepts as truthful, contains, in part, the following account:

There can be little doubt that the verbal attacks of Mr. Parker had a substantial impact on Mr. Bye. He felt stressed, embarrassed and demeaned in the eyes of his fellow employees, as Mr. Parker’s insults and accusations were repeated openly in front of others. The following is related from Mr. Bye’s statement during the course of the Company’s investigation.

In defence of Mr. Parker, the Brotherhood advances the argument that it was normal for Mr. Parker to refer to a number of employees in disparaging terms that suggested homosexuality, and that other employees knew, or reasonably should have known, that his comments were being made in a joking or teasing way. There is some evidence to support that theory. The evidence establishes that he made allusions to Lubricator Maintainer Todd being a "brown noser" to the roadmaster. When Trackman Faron White had a social drink during off hours with a supervisor, upon learning of it Mr. Parker addressed the supervisor with the question "Where’s your little blow boy? ... I mean Faron, your little blow boy." On another occasion, when Leading Track Maintainer Reinhard Sommerfeld was temporarily promoted to a supervisory position, in Mr. Sommerfeld’s words:

Based on the pattern of what it characterizes as Mr. Parker’s "teasing" other employees, the Brotherhood’s Counsel submits that the charge of sexual harassment is not made out. He also submits, stressing that Mr. Bye and Mr. Gauld are generally known as heterosexuals with families of their own, that what transpired cannot fairly be characterized as sexual harassment. The same argument is reflected, in part, in the following answer given by Mr. Parker during the course of the Company’s disciplinary investigation:

The Brotherhood submits that, to its knowledge, there has never been a decision by a Canadian court or tribunal making a finding of sexual harassment involving heterosexual males only. It argues, in fact, that as a matter of law sexual harassment between such persons is not possible. In support of its position it refers the Arbitrator to a definition of sexual harassment appearing in a decision of the Supreme Court of Canada, issued in 1989 in Janzen v. Platy Enterprises Inc. 89 C.L.L.C. 17,011. That case involved physical touching, sexual advances and verbal abuse against two female waitresses by another employee, coupled with indifference on the part of the manager of the restaurant where these events occurred. The Brotherhood draws to the Arbitrator’s attention the following comments by Dickson, C.J.:

In the Arbitrator’s view, while the above passage represents an accepted definition of certain conduct which constitutes sexual harassment, it must be understood as part of a judgment rendered in the common law tradition, responding to the facts of the particular case then before the Court. It must be interpreted in its context. Passages from the judgment which suggest that sexual harassment, commonly understood, may involve sexual demands or other practices which affects conditions of employment or employment opportunities based on "a characteristic related to gender" should not be taken as intended to be exhaustive or definitive of sexual harassment for all purposes. While physical touching and the making of sexual demands may be the crudest form of sexual harassment, giving rise to the earliest complaints and court or tribunal decisions, experience has shown that the concept of sexual harassment can be much broader. Innuendo by words or gestures, unwelcome staring, sexually abusive jokes or other language, the unwelcome displaying of pornography and the writing of graffiti on workplace walls which singles out or demeans individual employees are all now generally recognized as forms of sexual harassment, even though they may not involve an abuse of power or the making of sexual demands by the member of one sex upon a member of the other sex. It is important, I think, to recognize that the categories of sexual harassment, like the categories of negligence, are never closed.

The Brotherhood alludes to the definition of sexual harassment found in section 247.1 of the Canada Labour Code. It provides as follows:

This grievance does not, of course, involve a criminal prosecution, or an application of the Code by this Tribunal. However, in the Arbitrator’s view, even if the above definition is taken as a touchstone to the meaning of sexual harassment, it is more than sufficiently broad to capture the conduct which is the subject of this dispute. Upon a thorough review of the evidence, as noted below, there is evidence which, if accepted, could establish, on the balance of probabilities, that Mr. Parker did engage in conduct, comments, and gestures which were of a sexual nature and which were likely, and indeed were intended, to cause offence and humiliation to other employees.

The central issue in this case is whether the grievor engaged in teasing, without malicious or serious intent, as suggested by Counsel for the Brotherhood, or whether his words and actions did amount to a knowing course of conduct calculated to undermine the reputations and peace of mind of other employees, and most particularly of Mr. Bye and Mr. Gauld. In approaching that issue, a distinction must be made between the casual teasing and "brown noser" comments made by Mr. Parker on the one hand, which would not, in my opinion, amount to sexual harassment and, on the other hand, the consistent campaign of insult and defamation allegedly levelled against Mr. Bye and Mr. Gauld, in an effort to portray them as being in an actual homosexual relationship.

While it is true that allowance should be made for workplace norms and "shop talk", it is instructive to consider the impression created in the minds of other employees by the conduct of Mr. Parker. The evidence contains statements by a number of employees indicating their impression that the allegations of homosexuality being made against Mr. Bye and Mr. Gauld were intended as statements of fact to be believed. For example, Rail Lubricator Maintainer R.W. Todd made the following comment during the course of his statement to the Company:

Trackman Faron White relates the following:

The evidence of Mr. Todd tends to confirm that the efforts of Mr. Parker to characterize Mr. Bye and Mr. Gauld as homosexual lovers succeeded in creating that impression in the minds of some employees. Mr. Todd describes one occasion when persons other than the grievor were making reference to the homosexual relationship between Mr. Bye and Mr. Gauld, prompting Mr. Todd to say: "Come on fellas. How stupid can you be?" It is significant, I think, that Mr. Parker’s smear campaign against these two employees had reached the point where other employees were apparently willing to believe the allegations of homosexuality being made.

Nor can there be any doubt that the campaign of harassment engaged in by Mr. Parker had a profound effect on Mr. Bye. From his testimony at the arbitration hearing it is clear that he suffered greatly, to the point where he dreaded coming to work knowing that he would be in contact with Mr. Parker, and sought to avoid him at all costs. Mr. Gauld also testified. Although he was not fully aware of the allegations of homosexuality being made against him by Mr. Parker until he was informed by Mr. Bye, he was clearly shaken and profoundly offended by Mr. Parker’s conduct. The impact on these two individuals is serious, to the point where Mr. Bye testified that he would not be willing to work again with Mr. Parker, even if it meant quitting his job.

As the prior decisions of this Office have recognized, sexual harassment of employees is among the most serious forms of workplace misconduct, meriting commensurately serious discipline. In CROA 1791 (Re CNR and CBRT&GW (1988) 1 L.A.C. (4th) 183), a case involving the physical assault of two female employees by a male employee, the following comments were made:

There appears to be little doubt that Mr. Parker did not view himself as a harasser, much less a sexual harasser. During the course of his statement to the Company he stressed that he was not aware that anyone was offended by his words or conduct and that he was merely engaging in normal "shop talk". However, the evidence of other employees calls that assertion into question. A number of them, including Mr. Bye, Mr. Todd, Mr. Sommerfeld and Mr. Gauld all had occasion to make it clear to Mr. Parker that his allusions to homosexuality between employees and supervisors, whether casual or serious, were unfair and unwanted. Unfortunately, those objections made no impression on Mr. Parker. In this regard the comments of Arbitrator Blasina in Re Royal Towers Hotel Inc. and Hotel, Restaurant and Culinary Employees and Bartenders Union, Local 40 (1992) 32 L.A.C. (4th) 264, at p. 278 are apposite as regards the understanding Mr. Parker reasonably should have had of his actions:

The motives underlying Mr. Parker’s conduct are fairly evident. He held a degree of authority both as a track maintenance foreman and as the Brotherhood’s local chairman. In the latter capacity he took an aggressive stance against what he perceived as undue fraternization or friendliness between bargaining unit employees and supervisors. Although it is his right to hold that view, unfortunately, as the evidence discloses, on the balance of probabilities, he crossed the line of acceptable human decency in his efforts to enforce it, particularly as regards his unrelenting campaign against Mr. Bye and Mr. Gauld.

It is of little consequence whether he was prompted in his actions by Mr. Bye’s survival of the track forces reorganization, when more senior employees were laid off, or what he perceived as the excessive friendship between the two men. The critical fact is that he carried on a systematic campaign of verbal harassment against Mr. Bye and Mr. Gauld, sometimes in the presence of Mr. Bye, sometimes not, the effect of which was to raise a suspicion of homosexuality between the two men which, as appears from the evidence, took hold in the minds of a number of other employees and which, ultimately, became profoundly disturbing to both Mr. Bye and Mr. Gauld. Quite apart from the unfortunate homophobia inherent in Mr. Parker’s attitude, the record discloses, beyond dispute, that his actions had a devastating effect on the persons he targeted. Moreover, to the extent that the morality of the shop is relevant, it should be noted that rarely, in this Arbitrator’s experience, have so many bargaining unit employees so willingly given evidence against a fellow employee and union officer in a discharge case.

Regrettably, after much consideration, the Arbitrator cannot find mitigating factors which would suggest a workable substitution of a lesser penalty in this case. Because of the seniority structure of the bargaining unit, the Arbitrator cannot direct that the grievor be reinstated to work in some other location. The grievor cannot, in other words, be separated from those he has so profoundly offended, including at least one employee who has indicated that he would quit his job rather than work again with Mr. Parker. Unfortunately, Mr. Parker, who is not a long term employee, has so poisoned the atmosphere of his own workplace as to make his reinstatement impossible.

In the result, the Arbitrator is satisfied that the grievor did engage in sexual harassment, particularly as against Mr. Bye and Mr. Gauld, by comments and gestures of a sexual nature calculated to cause humiliation to them. He did so knowingly, deliberately and to such a degree as to justify the termination of his services.

For all of the foregoing reasons the grievance must be dismissed.

Dated at Montreal, June 28, 1996 (original signed by) MICHEL G. PICHER