In a union shop, talking to employees without a labour steward present complicates disciplinary process
It was the evening before the long weekend in August, and several employees on the afternoon shift at a Sobey’s distribution warehouse decided to leave early for their meal break.
As they left the building, they were spotted by David Blair, their shift manager. He noted down the time and, after their return, spoke to each of the workers individually about what he had seen them do. The union steward was not in the plant that weekend, so Blair told each person the situation would be dealt with the next week, when the steward was present.
The workers’ collective agreement clearly spelled out the necessity of having a steward as a witness at any disciplinary interview. When the workers were later disciplined, the union objected and claimed the discipline should be nullified because Blair had spoken to each individual without a steward present. Not only that, but he had taken notes during the conversations, which the union contended were intended for use in the disciplinary process.
The company argued Blair’s communication with the employees had merely been to inform them of the upcoming disciplinary meeting and was not investigative. In its view, the collective agreement had not been violated, and therefore the discipline should stand.
The question was whether the conversations the manager had with each of the men just after their return from their break were part of the investigation into their wrongdoing or just an informal chat. Had he conducted an “interview” with the grievors in the absence of their steward?
The arbitrator observed that “a firm line of authority has emerged regarding the right of employees who are protected by a steward-representation provision” in their collective agreement.
If employees cast suspicion on themselves or actually incriminate themselves in conversation with their employer and if, when doing so, they are unaware their employer suspects misconduct, they are protected from the harm they may have done themselves in not having a union representative present.
The arbitrator said employees “cannot waive a substantive right if they do not know that there is an allegation against them, do not know that there is a chance of discipline being imposed, and do not know that they are, under those circumstances, protected from having to respond to the inquiry.” The right to have a steward can be waived but only if the worker knows he is giving up that right and makes a conscious decision to do so.
But when does this right arise? The union argued that representation rights arise at the very moment when a supervisor suspects an employee of wrongdoing. In this situation, that would have meant the moment when the shift manager saw the workers leave the building early.
The arbitrator disagreed. She stated that standard was far too rigid and noted adhering to that level of rights protection could preclude any discussion at all between a supervisor and an employee.
“It would prevent the supervisor from asking any questions about why an employee is arriving late for work, returning late from a break, leaving early at the end of a shift or performing a work activity in a particular way,” she stated.
She added it ought not to be applied in a manner which would undermine the ability of a supervisor to discuss “the minutiae of how, why and when production activities occur.”
For her, the right to representation arose later in the process, at the stage when the discussion involved actual investigation into the facts. The question then became: was Blair beginning an investigation during his brief talks, especially because he took notes about the discussions? The union argued that his notes were ultimately going to form part of the grievors’ disciplinary records.
The arbitrator agreed that Blair was walking a very fine line. However, she concluded the evidence did not establish Blair was asking a question which required an answer. She observed, “When Blair said, ‘Left early for break today, eh?’ he was making a statement, completed with the rhetorical suffix ‘eh?’”
In this case, the employees didn’t say much. A couple of them said it was “only a couple of minutes” and asked Blair why he had to “sneak around.” The others acknowledged his remarks with only a “yeah” or “whatever.” When some of the grievors declined to respond, he did not press for an answer.
His manner, she concluded, was less investigator than informative. “The decision to bring the event to the attention of each grievor enabled each to recall the event, to have the benefit of being alerted to the likelihood of interview when the work resumed after the long weekend, and to enable each grievor to isolate and recall the details of the lunch break for future discussion.” Bookmarking the event for later discussion was not the same as performing an inquiry or investigation. She confirmed the discipline and dismissed the grievances.
For more information, see Sobey’s Milton Distribution Centre and the United Food and Commercial Workers International Union, Ontario Labour Code Arbitration, Elaine Newman – Sole Arbitrator, April 30, 2003.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].
As they left the building, they were spotted by David Blair, their shift manager. He noted down the time and, after their return, spoke to each of the workers individually about what he had seen them do. The union steward was not in the plant that weekend, so Blair told each person the situation would be dealt with the next week, when the steward was present.
The workers’ collective agreement clearly spelled out the necessity of having a steward as a witness at any disciplinary interview. When the workers were later disciplined, the union objected and claimed the discipline should be nullified because Blair had spoken to each individual without a steward present. Not only that, but he had taken notes during the conversations, which the union contended were intended for use in the disciplinary process.
The company argued Blair’s communication with the employees had merely been to inform them of the upcoming disciplinary meeting and was not investigative. In its view, the collective agreement had not been violated, and therefore the discipline should stand.
The question was whether the conversations the manager had with each of the men just after their return from their break were part of the investigation into their wrongdoing or just an informal chat. Had he conducted an “interview” with the grievors in the absence of their steward?
The arbitrator observed that “a firm line of authority has emerged regarding the right of employees who are protected by a steward-representation provision” in their collective agreement.
If employees cast suspicion on themselves or actually incriminate themselves in conversation with their employer and if, when doing so, they are unaware their employer suspects misconduct, they are protected from the harm they may have done themselves in not having a union representative present.
The arbitrator said employees “cannot waive a substantive right if they do not know that there is an allegation against them, do not know that there is a chance of discipline being imposed, and do not know that they are, under those circumstances, protected from having to respond to the inquiry.” The right to have a steward can be waived but only if the worker knows he is giving up that right and makes a conscious decision to do so.
But when does this right arise? The union argued that representation rights arise at the very moment when a supervisor suspects an employee of wrongdoing. In this situation, that would have meant the moment when the shift manager saw the workers leave the building early.
The arbitrator disagreed. She stated that standard was far too rigid and noted adhering to that level of rights protection could preclude any discussion at all between a supervisor and an employee.
“It would prevent the supervisor from asking any questions about why an employee is arriving late for work, returning late from a break, leaving early at the end of a shift or performing a work activity in a particular way,” she stated.
She added it ought not to be applied in a manner which would undermine the ability of a supervisor to discuss “the minutiae of how, why and when production activities occur.”
For her, the right to representation arose later in the process, at the stage when the discussion involved actual investigation into the facts. The question then became: was Blair beginning an investigation during his brief talks, especially because he took notes about the discussions? The union argued that his notes were ultimately going to form part of the grievors’ disciplinary records.
The arbitrator agreed that Blair was walking a very fine line. However, she concluded the evidence did not establish Blair was asking a question which required an answer. She observed, “When Blair said, ‘Left early for break today, eh?’ he was making a statement, completed with the rhetorical suffix ‘eh?’”
In this case, the employees didn’t say much. A couple of them said it was “only a couple of minutes” and asked Blair why he had to “sneak around.” The others acknowledged his remarks with only a “yeah” or “whatever.” When some of the grievors declined to respond, he did not press for an answer.
His manner, she concluded, was less investigator than informative. “The decision to bring the event to the attention of each grievor enabled each to recall the event, to have the benefit of being alerted to the likelihood of interview when the work resumed after the long weekend, and to enable each grievor to isolate and recall the details of the lunch break for future discussion.” Bookmarking the event for later discussion was not the same as performing an inquiry or investigation. She confirmed the discipline and dismissed the grievances.
For more information, see Sobey’s Milton Distribution Centre and the United Food and Commercial Workers International Union, Ontario Labour Code Arbitration, Elaine Newman – Sole Arbitrator, April 30, 2003.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].
