Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends Union official can't be insubordinate Shop steward ignored orders to stop posting notices accusing general manager of bullying rather than following complaint procedure under bullying policy and collective agreement BY JEFFREY R. SMITH AN ARBITRATOR has upheld the one-day suspension of a British Columbia worker for putting up posters at work accusing man- agement of bullying after being told not to. Linda Larson worked at the Nanaimo, B.C., location of Coast Hotels, a hotel chain based in Vancouver. She was with the com- pany for 20 years, the last 10 as a chief shop steward for her union. In 2014, the general manager of Larson's hotel conducted disciplinary meetings with the human resources advisor and four em- ployees. e meetings were held in the hotel lounge, where staff at the front desk and cus- tomers could hear. Larson, as the chief shop steward, attended the meetings and asked each time why they were being held in the lounge. e HR advisor responded once that her office was too messy; the other times she didn't provide a reason. Some employees were upset following these meetings and, according to Larson, they told her they were afraid of being dis- ciplined. Larson claimed on employee went on a medical leave and one had a "nervous breakdown" after the meetings. She didn't file a complaint under Coast Hotels' work- place harassment and bullying policy be- cause she felt it wouldn't be taken seriously without the attention of the regional office. In April 2015, Larson returned from a va- cation to the news that more discipline had been imposed. Fed up and feeling the need to do something, Larson created two hand- written posters on and put them on the union bulletin board in the staff room. One of the posters read "Shame on Coast Hotel for allowing a GM to Bully." e sec- ond read: "ere is only one thing I hate in this world and that's a Bully. ere can be no more discipline in our lounge by our GM. No more fear and intimidation. Your shop chair is back and I say SHAME." e HR advisor learned of the notices and went to see them. She felt the posters contained serious allegations and it wasn't appropriate to put them up, as it didn't fol- low the proper process for complaints under the harassment and bullying policy — which protected the confidentiality of everyone in- volved. Larson's posters directly referred to the hotel's general manager. Employee told not to put up notices e HR advisor reminded Larson of the complaint procedure and not to use the union bulletin board for such allegations. e union's regional representative emailed the HR advisor to protest the re- moval of the posters, arguing they were true and the company didn't have the right to remove material from the union bulletin board. e collective agreement stated that the company must provide a bulletin board "for the exclusive use of the union." Coast Hotels gave Larson a letter directing her to comply with the harassment and bul- lying policy if she alleged workplace bully- ing. Shortly after, she put up two more anon- ymous notices on the union bulletin board. One notice stated that the HR advisor had taken down her sign about bullies and that it was "negotiation time, contract ends May 1, 2015." e second notice referred to strategy for the upcoming contract negotiations. e next day, April 10, Larson put up a third notice stating "Unfair discipline by our GM No Justice! No Peace!" At an investigative meeting on April 13, Larson acknowledged she had posted the notices, had been informed she wasn't sup- posed to do so, and was aware of other ways to address bullying in the workplace. A week later, Coast Hotels suspended Larson for one day without pay for insubordination. Notices protected under labour relations laws: Union e union grieved the suspension, arguing the notices were union communications protected under the B.C. Labour Relations Code, Larson was acting as a shop steward, the union had an obligation to eliminate ha- rassment in the workplace, and the bulletin board was for the exclusive use of the union. e arbitrator noted that insubordination could be defined as "the flouting of a clear order of a person in authority." With that in mind, she found the HR advisor's order was clear and understood by Larson in the letter of expectation Larson was given following the first two notices she posted. Larson claimed her purpose in posting the notices was to bring the issue of bullying to the attention of the head office. She also claimed her last notice posted after her letter of expectation was unrelated to the first ones and didn't use the word "bully." e arbitra- tor agreed that Larson believed her state- ment that the general manager was a bully. However, while the last notice didn't include the word "bully," it still accused the general manager of bullying behaviour while disci- plining employees, the arbitrator said. e arbitrator also found that Larson was entitled to dispute the order not to post bul- letins, just as she was entitled to file a com- plaint under the bullying policy. However, she did not have the right to take it upon her- self to interpret the collective agreement on her own." As established in earlier decisions, there was no general exception to the "work now, grieve later" rule, the arbitrator said. e arbitrator also found that, while the union's bulletin board was for its own use, the employer had the right to place limita- tions upon the information posted on its premises within view of its employees, par- ticularly regarding objectionable, coercive, or intimidating content. "e employer is under an obligation to provide a workplace which is free of harass- ment and bullying," said the arbitrator. "Ac- cusing the general manager of bullying could reasonably be considered hurtful, embar- rassing and humiliating." e arbitrator determined Coast Hotels didn't violate the collective agreement when it ordered Larson to stop posting allegations of bullying against the general manager. In addition, the arbitrator found there was no reason for Larson to believe that follow- ing the complaint process wouldn't work. She had been aware of the disciplinary meet- ings for months and didn't file any grievances at the time, despite her claims of employees being upset. ere was no evidence the issue of bullying had become so urgent in April 2015 that Larson had to ignore the order to post further notices and bypass collective agreement procedures, said the arbitrator. Finally, the arbitrator found Larson was not immune from discipline because she was acting in her capacity as a union official when she posted the notices. Her actions were harmful to the legitimate interests of Coast Hotels in protecting its managers from "in- flammatory and abusive accusations" and didn't serve to protect union members who were already protected by the collective agreement. Such notices were not part of lawful union activity and not protected un- der the code, said the arbitrator in upholding the one-day suspension. "I find that the notices posted by Ms. Larson do not attract the protection of the Labour Relations Code, the collective agree- ment or the Workers Compensation Act (for health and safety complaints)," said the arbitrator. "She was not acting within the realm of protected union communication, nor engaged in a legitimate union activity, when she sought to humiliate, embarrass and shame the general manager and the ho- tel management." See Coast Hotels Ltd. and UNITE-HERE, Local 40 (Larson), Re, 2016 CarswellBC 2885 (B.C. Arb.).

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