Canadian Labour Reporter

July 27, 2020

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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July 27, 2020 Brown responded — with pro- fanity — that the only reason the line should be shut down was for emergencies and jams. Merraro said Brown couldn't talk to him like that and ex- claimed: "Do I have to knock somebody out today or somebody else out today?" Brown went to his supervisor and told him Mer- raro was "freaking out and yelling at me." Brown later testified that he felt threatened, but didn't say that to his supervisor. However, Merraro reported that Brown was screaming at him and called him "a Black bas- tard," which was why he became angry. He also said that Brown was swearing and mouthed a ra- cial epithet at him. He followed Brown and continued the shout- ing match near the supervisors' offices. He eventually returned to his workstation and struck down a pile of blue-jeans. A supervisor and security guard soon arrived to escort him out of the facility. When Brown returned to the line, he asked another worker what the stoppage was all about and she told him it was about a bag of potato chips that they had hidden as a joke. Brown swore again and another coworker heard him say that he "got rid of that f-----g n-----." Levi Strauss investigated the incident by doing interviews of employees and looking at video surveillance footage. The video footage showed the two men ar- guing and shouting. Several co- workers heard the shouting and one heard a racially-based com- ment. The manager also saw how angry both men were and had to separate them. Brown denied uttering any ra- cial slurs and said the altercation wouldn't have been so serious if Merraro hadn't threatened to as- sault him. The company determined that Brown had uttered the slurs and found that his conduct violated the Worldwide Code of Business Conduct and its violence and ha- rassment policy. It terminated his employment on June 12. The union grieved the dis- missal, arguing that there was no real proof that Brown uttered racial slurs and the collective agreement required progressive discipline for all misconduct ex- cept for "serious violations such as theft, drinking of or under the influence of alcoholic beverages or drugs, fighting, falsifying com- pany records and violations of health and safety rules and regu- lations." The arbitrator found that there was no doubt Brown was aggres- sive and used profanity, which was "consistent with the words and actions of a schoolyard bully." Although most employees didn't hear the racial comments, the one employee who did had no reason to lie and Merraro's "explosive" reaction was enough to reason- ably determine that the com- ments were made, said the arbi- trator. The arbitrator also found that the collective agreement's pro- gressive discipline exception for "violations of health and safety rules" included acts of harass- ment. The arbitrator upheld the termination and dismissed the grievance. Reference: Levi Strauss & Co. and Workers United Canada Council. Gordon Luborsky — arbitrator. Allan Wells for employer. Steven Bosnick for union. July 7, 2020. 2020 CarswellOnt 9279 Shouting match more than just heated argument Workplace rumours cost Ontario municipality $1,000 her and accused her of having an affair with E. In early August 2014, the worker saw E's wife sit- ting outside her home. She called the police, but she didn't report the incident to management be- cause she considered it a personal matter. On Aug. 11, the acting manager mentioned rumours about the worker and E to a coworker and said there was "something going on between them." The coworker later told the worker and E about the rumours but didn't speak to anyone else about it. The worker didn't raise any concerns to man- agement or the union. Throughout August, rumours swirled around the workplace. Another coworker asked the worker about them and the work- er replied that they weren't true and she was only friends with E. In October, another coworker told her that people at work were talking about her having an affair. The worker still didn't raise the matter with management or the union. On Dec. 23, the worker found a condom in her work area and her business card on her desk, upon which someone had drawn a line through her name and wrote E's last name. She reported it to the fleet trainer, who said he would investigate. Later that day, an email went out to staff reminding them of the harass- ment policy — which stated that harassment would not be toler- ated — and warning them not to harass coworkers. The worker left early that day and went on medi- cal leave. In April, the worker requested that when she returned to work, she not report to the individuals who had participated in the ru- mours, including the acting man- ager. The city denied her request but assured her that the acting manager had been counselled, would not share personal con- fidential information with staff, and would take measures to cor- rect behaviour contributing to a poisoned work environment. The worker filed a grievance al- leging harassment, sexual harass- ment, and reprisals in the work- place. The arbitrator found that the acting manager helped to dis- seminate the rumours by dis- cussing them with the worker's coworker, helping to foster a work environment that contributed to the incident on Dec. 23 when the worker found the condom and the altered business card, violating discrimination provisions in both the collective agreement and the Ontario Human Rights Code. "I find there is a sufficient con- nection between the events of Aug. 11 and Dec. 23, and the pe- riod between these dates," said the arbitrator. "The fact that the events of Dec. 23 even occurred supports a finding that no appar- ent steps were taken to counter- act the rumours on a continuing basis, which obviously had not stopped by Dec. 23." However, the arbitrator noted that the worker didn't make any complaints until after the Dec. 23 incident. She claimed that she didn't trust management and she was worried about repercussions for her job, but she could have re- ported to the union or other man- agement members, the arbitrator said. In addition, the city started an investigation and sent a memo to all employees on Dec. 23. The arbitrator determined that the city ought to have been aware of the rumours in the workplace and failed to take steps to stop their spread, but the worker didn't do her part. The city was ordered to pay $1,000 in general damages to the worker. Reference: Sarnia (City) and CUPE, Local 3690. Randy Levinson — arbitrator. Paula Rusak for employer. Matthew Alloway, Darcie McEathron for union. July 10, 2020. 2020 CarswellOnt 9832

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