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HomeMy WebLinkAboutFisher 89-01-31 . ~. '. , IN THE MATTER OF AN ARBITRATION BETWEEN KINGSTON REGIONAL AMBULANCE SERVICE AND .. " ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 462 AND IN THE MATTER OF A GRIEVANCE OF MS. fISHER Arbitration Board; Mr. Douglas Gilbert - Employer Nominee Mr. Larry Robbins - Union Nominee Mr. C. Gordon Simmons - Chairman . Representing the parties; Mr. Les Foreman - employer consultant Mr. Mitch Bevan - grievance officer A hearing into this matter was held in Kingston on October 26, 1988 . ,I " .. J . 2 This arbitration concerns ~ Gne day suspension. The grievance states: I feel that the one day suspension without pay imposed on me Dec. 6/87 as a disciplinary response was in fact a form of personal harrassment (sic) as well as an attempt to surpress (sic) my freedom of speech. It went on to set out the settlement desired as follows: An immediate reversal of your decision along with compensation for loss of pay. Furthermore, I require that all correspondence concerning this incident be removed from my file and placed in my possession. A letter of apology will follow. Mr. Foreman, the employer representative, raised several preliminary objections to having the grievance resolved on its merits. One objection relates to the absence of a "just cause" clause in the collective agreement thereby rendering the grievance inarbitrable. The second relates to a requirement in the definition of grievance requiring that the grievance identify what the violation in the collective agreement consists of. In the instant situation, the employer states that no violation of the collective agreement is alleged. And thirdly, there is no ground to be found in the collective agreement that an employee can refuse an overtime assignment on the grounds that the employee has a right to picket the employer. However, Mr. Foreman acknowledged that it would be necessary to hear the case on its merits to reach a decision on the preliminary objections. Having had an opportunity to consider the matter we find that the third objection can be dealt with quickly. We find that . . . . . . 3 the overtime issue is witho~t merit because it is our finding that the griev~r was never instructed to report for overtime work and therefo~e was never placed in the position of having to refuse the asslgnment. This issue will be explored in more detail later in the decision. The second objection is somewhat more complicated. Upon reading the definition of grievance in clause 6.01 (reproduced below) we see a requirement to set out the alleged difference or dispute concerning the interpretation, application or alleged violation of the agreement. It requires the grievance to set out what it is that the grievor is claiming. The grievance ought to be sufficiently explicit so as to allow the employer an opportunity to meet the allegations being brought forward. It will become readily apparent that the employer was fully aware of the claim being advanced by the grievor. It is true that the grievor did not specifically state what article she was claiming to have been violated. However¡ the employer has taken the position throughout that no article has been violated . and, as the reader will later discover, this board has concluded that the disciplinary provisions in the collective agreement have not been properly followed. However, to expect a layman, filing a grievance, to pinpoint with precision a specific article that allegedly has been violated may sometimes be difficult to achieve. This is one of those situations. The grievor believed that she had been improperly suspended and sought to have the decision overturned, together with, inter alia, compensation for . . 4 her lost earnings. The employer was under no illusion over what she was seeking. Instead, the employer has maintained that the collective agreement does not permit grievances relating to discipline short of dismissals going to arbitration. That is the gravamen of this dispute and so we reject this objection. However,. we agree with Mr. Foreman that to resolve the preliminary issue concerning the "just cause" issue the merits must be explored. The facts are not in dispute. The grievor is an ambulance driver/attendant who has been an employee for five years. She was at work from 7.30 P.M. on Thursday, November 12, 1987 until 7.30 A.M. on November 13th. She left work following her shift and went home. At approximately 8.00 A.M. she received a phone call from Pete Marsh, the assistant manager, informing her that he required her services to work a "499" call. "499" is a specially equipped, oversized ambulance which is used to transport critically ill patients. This ambulance carries a special care team with it. The chairman's notes of the telephone conversation between Ms. Fisher and Mr. Marsh, as related by Ms. Fisher, is as follows: I believe Pete (Marsh) said he had a 499 call. I said sorry Pete - I have to walk up and down the street carrying a sign today. Q. What was his response? A. Oh I didn't realize you were doing that again today. I said yes - just a few more hours. . 0, ... 5 We were informed that negotiations for a new collective agreement between the employer and union had been progressing very slowly and some of the employees had been carrying picket (or perhaps more correctly placard) signs on the sidewalk to show their displeasure. The employer does not contend that the action was a concerted one. In any event, Mr. Marsh did not say anything more to Ms. Fi~her over the phone such as ordering her to report to work, etc. Instead, he contacted Mr. Bob Johnson, the president of the union, to warn him what had happened and he next informed senior management. The one day suspension without pay followed. We now turn to the collective agreement to determine whether the grievor and the union are entitled to contest the employer's disciplinary response. It will be necessary to refer to several portions of the agreement but first we shall look at the relationship and management rights articles which read (ex. 2): RELATIONSHIP 2:01 Each of the parties hereto agree that there will be no discrimination, interference, restraint, or coercion exercised or practiced upon any employees becaus. of membership in the union, or because of activ1~y or lack of activity in the union. MANAGEtÅ“NT 3:01 Subject to the right of any employee to lodge a grievance in accordance with article 6, the union agrees to co-operate with the employer at all times to maintain discipline and to maintain the highest possible standard of service and efficiency and the union acknowledges the rights of the employer as follows: . . ... . . 6 (a) To direct the cpe:"~ttion of the ambulance service in the best interest cf tLe clients, the community and the employees, both wi~hin and without the bargaining unit. (b) To formulate policies, rules and regulations which are not inconsistent with the provisions of the agreement. (c) To manage the ambulance service in all respects in accordance with its obligations, to determine the kinds and locations of machines and equipment to be used, the allocation and number of employees required from time to time, the standards of performance for all employees and all other matters concerning the employer's operations, not otherwise specifically dealt with elsewhere in this agreement. Mr. Foreman, the employer's representative, asserted that the union, and the grievor, do not have a right to pursue the matter of a suspension because the right of management to suspend has in no way been curtailed by the collective agreement generally, and in particular the management rights article. Therefore, the matter before us is not arbitrable. The union has maintained throughout that it does possess the right to pursue such a grievance to arbitration. It is evident that the parties have referred only to "maintain discipline" in the management rights article. The employer has not committed itself to disciplining employees only for just cause which is the normal terminology to be found in collective agreements. Indeed, the usual wording to be found in management rights clauses may read somewhat as follows: The union agrees (or acknowledges) that the company has the exclusive right to manage (the operations), to direct the work force and to hire, promote, transfer, demote, layoff employees, and to suspend, discharge or . . 7 otherwise discipline emplcYL~s for just cause... (or words to that effect). Then the wording may contin~e somewhat as follows: Provided, however, that the company agrees that should the exercise of these rights conflict with any of the provisions of this agreement it shall be subject to the provisions of the grievance procedure. But it is obvious that the parties have not seen fit to include such terminology in the instant situation. How have arbitrators dealt with such situations? It is fairly clear that where the parties have remained silent on the issue of discipline in the management rights article the majority of arbitrators have decided that they lack jurisdiction to entertain the matter. This view emerged when arbitration of collective agreements was in its infancy in this country. Professor Laskin, as he then was, stated in International Chemical Workers Union.Local 424. in re A. C. Horn Co. Ltd. (1954) 4L.A.C. 1524, at PP. 1526-7, It well may be urged that it is unthinkable that a Collective Agreement should fail to contain a clause respecting grievance rights to challenge a discharge. Such rights stand in the very forefront of Collective Bargaining understandings, and are among the basic guarantees that Unions seek in Agreement negotiations. The board in the Horn case went on to fihd that it did not have the jurisdiction to resolve the dispute on its merits. This same approach has been expressed as recently as 1986. See Re Corp. of Massey Hall and Roy Thompson Hall and Int'l Alliance Theatrical Staqe Employees, Local 58 1 C.L.A.S. 01:0587 (Brandt) where that board decided it had no jurisdiction to arbitrate the 8 dispute. Both Horn and Xa~'sev Hall were concerned with dismissals which is not the case that is before us. However, it is argued that the same principles apply. The above approach has not been universally accepted by arbitrators. Some arbitrators have suggested that in agreeing to the inclusion of seniority, grievance or related provisions in the collective agreement, management can be taken to have implicitly relinquished its right to terminate without cause or on notice, See: Brown and Beatty, Canadian Labour Arbitration, 3rd., edition, para 7:1200. still others have stated that silence in the collective agreement over the right to discipline, including discharge, means that an employee's common law right to notice or pay in lieu of notice is retained and that the employer must establish the common law requirement of "cause" before having a right to discipline its employees. See st. Anne-Nackawic Pulp & Paper Co. Ltd. (1974) 5 L.A.C. (2d) 397 (Stanley). See also Brown and Beatty, supra. Nevertheless, it is to be remembered that arbitrators have concluded on many occasions that they lack jurisdiction to embark upon a review of the merits in situations where the collective agreement has been deficient in spelling out what is to happen in certain circumstances. The management rights clause in the instant situation can be said to be deficient in certain respects. Before proceeding further it is appropriate at this point to 9 ascertain whether other previsions contained in the collective agreement can overcome this de:i~iency. In the A.C. Horn case supra, Mr. Laskin also wrote as follows, at PP.1526 & 7: Occasions do arise when in the course of interpretation it becomes necessary to spell out effective meanings from words or phrases which would otherwise be innocuous. But this is a different thing from what would be necessary in this case if I am to find jurisdiction to deal with unjust discharges. The fact that express provision for discharge cases is so common makes it all the more difficult to read such a provision into terms which cannot reasonably be said to include it. Perhaps the parties meant to provide for review of discharqes throuqh the qrievance procedure but they have not done so either expresslY or throuqh any reasonable implication which can be found in any of the express terms of the Aqreement...(emphasis added). The dilemma facing Prof. Laskin has been expressly addressed in the instant situation in so far as discharges are concerned. ... Clauses 6.07 & 6:08 in the grievance procedure read as follows: Grievance Procedure... 6:07 A claim by an employee covered by this collective agreement, who has completed the probationary period, that he or she has been unjustly discharged shall be treated as a grievance if a written statement of such grievance is lodged by the employee with his supervisor or his designate within five (5) working days after the employee ceases to work for the employer. Such grievance will be taken up in accordance with the provisions of step 1 of the grievance procedure. 6:08 Such special grievance may be settled by confirming the employer's action in dismissing the employee, or by reinstating the employee with full compensation for the time lost, or by other arrangement which is just and equitable in the opinion of the conferring parties. -~ The employer acknowledges that clauses 6.07 & 6.08 grant an employee the right to grieve discharges and proceed with them to 10 arbitration. B~t the issue that is before us is whether or not the collective agreement ha~ ~imilarly granted such a right to grieve lesser fo~ms of discipline in the same manner. In order to resolve that issue we must look further. Again, the logical place to begin is the grievance procedure. GRIEVANCE PROCEDURE 6:01 A grievance under this agreement shall be defined as a difference or dispute concerning the interpretation, application, administration, or alleged violation of this agreement, provided it is received by the employer as a grievance in writing within fourteen (14) days of the alleged circumstances which gave rise thereto, unless for reasons beyond the control of the grievor he or she did not become aware of the alleged circumstances. 6:02 It is the mutual desire of the parties that comolaints and grievances will be adjusted as quickly as possible. An employee who considers he has a complaint or grievance shall follow the grievance procedure as follows: (emphasis added) He shall first discuss the matter with his immediate supervisor. Failing settlement at this stage, the employee may proceed to "step 1". 6.03 SteD 1 The employee may, within the time limit established in 6.01, present his grievance in writing to his supervisor who shall reply within seven (7) days. 6.04 SteD 2 Failing settlement being reached at step 1, the employee may, within seven (7) days following receipt of the decision at step 1, transmit the grievance to the Director of Patient Care services or designate. A meeting will be arranged within five (5) days after receipt by the Director of Patient Care Services or designate, to discuss the grievance. The decision at this step shall be rendered in writing nine (9) days following receipt at step 2. At any stage of the grievance procedure the time limits may be extended by 11 mutual agreement of the parties. When a group of employees have a grievance it shall first be taken up under step 2 aTId presented in writing. 6.05 It is understood that the employer may bring forward at any meeting held with the union committee any complaint with respect to the conduct of any employee of the bargaining unit and that if such complaint is not settled to the satisfaction of the conferring parties, it may be treated as a qrievance and referred directlY to arbitration in the same way as a qrievance of an employee. (emphasis added). 6.06 Any employee of the bargaining unit may be accompanied by a member of the union committee during any step of the grievance procedure. (6.07 and 6.08 have been reproduced above). We have purposely emphasized the word comDlaintCs) because while the word "grievance" is defined in clause 6.01 the word "complaint" is not. However, clause 6.02 discusses "complaints" and "grievances" and states that both are to be adjusted as quickly as possible. Moreover, the clause also states that an employee who has a complaint or qrievance is to follow the grievance procedure. But we are not informed what a complaint means. However, we get some indication what the parties intended . a "complaint" to mean when we turn to clause 6.05. This clause discusses complaints from the employer's perspective. That is, instead of an employee having a "compiaint" it is the employer who has one. Here we are informed that a complaint of the employer is "with reSDect to the conduct of any em-ployee of the barqaininq unit".... This sheds some light on the intent of the parties over the use of the word "complaint". It (the complaint) 12 is associated ~lth conduct of employees and a complaint over the conduct of so~eone is normally taken to mean that the complainant is dissatisfied with the person's conduct. At least it is fair to say that a complaint over one's conduct is not intended to be praiseworthy. We are supported in our reasoning by looking elsewhere in the collective agreement. Article 5 entitled "Union Representation" contains the following in clause 5.04: Where an employee who may be subject to some written reprimand, assessment, or penalty is required to appear before the employer concerning his conduct or performance, he shall be entitled, if he so desires, to be accompanied by a representative of the union. So we interpret the word complaint(s) in the collective agreement to mean complaints relating to the conduct-of employees. Further, clauses 6.02 and 6.05 reveal that both employees and the employer may pursue complaints through the grievance procedure. This conclusion is compatible with the wording in clause 3.01 which reads "Subject to the right of any employee to lodge a grievance in accordance with Article 6...". But where does this leave us? Can complaints be taken to arbitration by both the employer and employees? To find an answer ,we must again return to clause 6.05. After stating that if the complaint is not settled it continues to state that "it mav be treated as a arievance and referred directlY to arbitration in the same way as a arievance of an emDloyee". It would appear that the non settlement of an employer complaint need not go through 13 the various steps of the grievance procedure but may be referred directly to arbitration. In any event it is reasonable to conclude that an employer's complaint over the conduct of an employee of the bargaining unit may proceed to arbitration. By referring back to clause 6.02 can the same conclusion be reached with respect to an employee's complaint? We think so for two reasons. One, clause 6.02 states that "an employee who has a complaint or grievance shall follow the grievance procedure". Once having followed the grievance procedure and having failed to reach a settlement we again refer to clause 6.07, which states "and...if such complaint is not settled to the mutual satisfaction of the conferring parties, it (the complaint) may be referred directly to arbitration in the same way as a grievance of an ~mployee". But clause 6.07 refers to the employer referring the complaint to arbitration. Is it reasonable to conclude that only the employer possesses such a right or is it reasonable to also conclude that the parties also intended the employees to , have such a right. We believe the collective agreement can be so interpreted to mean that both the employees and the employer enjoy such a right. Indeed, it would require clear and unequivocal language stating that the employer only, and not the employees had such a right. We venture to suggest that the union would not agree to granting the employer such a right without the same right being extended to them. Another reason for our conclusion is that clause 6.02 14 expressly states ~hat complaint~~ ünd grievances will be adjusted as quickly as possible and that complaints are to follow the grievance procedure. But what happens in the event the parties are unable to resolve the complaint after exhausting the grievance procedure? In order to answer that question we turn to article 8 which is entitled Arbitrations and reads as follows: Failing settlement under the grievance procedure of any difference between the parties arising from the interpretation, application, administration or alleged violation of this agreement, including any question as to whether a matter is arbitrable, either party may, within seven (7) days following the reply in the final step of the grievance procedure submit such grievance to arbitration as set out in the relevant sections of the Labour Relations Act, Ontario, as amended. The union asserts that the employer violated the collective agreement by improperly disciplining the grievor. The employer asserts that it has not violated the collective agreement and ~hat the discipline was properly imposed. Given these circumstances there can be no doubt that a difference between them exists over the interpretation and application of the . agreement which, the union asserts, led to the violation of the collective aqreement. Having been unable to resolve this difference the parties have referred the matter to arbitration for resolution. In our view, once having the right to submit the matter to the grievance procedure, which we have found to be the case, then it follows that when the parties are unable to resolve the matter during the grievance procedure they have a right to proceed to arbitration. Therefore, basing our reasoning on the 15 foregoing, it is our respectful opinion that the parties did intend that cQmplaints over the conduct of employees in the bargaining u~it be referable to the grievance procedure and to arbitration jy both the employer and employees. We are further supported in our conclusion that the collective agreement intended employees to have access to the grievance procedure in disciplinary matters by reference to Article 9 which is entitled "probationary Period". It reads: 9:01 A full - time employee shall be a probationer until having worked a total of four hundred and eighty (480) hours or having completed three (3) months of employment, whichever comes first. A part - time e~ployee shall be a probationer until having worked a total of four hundred and eighty (480) hours or having completed six (6) months of employment, whichever comes first. A probationer shall enjoy all of the rights and privileges prescribed in this agreement except that he shall not have access to the grievance or arbitration .provisions of the agreement in the event that he is discharged or disciplined. The clause states that while a probationer shall enjoy all of the rights and privileges in the agreement he does not have access to the grievance or arbitration provisions if discharged or disciplined. It could be argued that the clause does nothing more than state a negative and that nothing positive was intended by the last sentence in the clause. This argument might have a great deal of force if that was all that the collective agreement contained. However, after looking at Articles 5 and 6 above we are of the opinion that Article 9 assists and reinforces our conclusion. 16 Having concl~ded ~hat the parties intended that unresolved complaints are grievable and arbitrable we reject the preliminary objection advanced by the employer. Before turning to the merits of the matter there remains the issue of what standard must be met or applied to the discipline that was meted out in the instant situation. Is it the common law "cause" standard or that of "just cause"? After having considered the evidence and arguments of the parties we have concluded that it will not be necessary to resolve that issue for reasons that will follow shortly. The employer's letter of suspension reads as follows (ex. 3) : On Friday, November 13, 1987, you were called for a 499 call of an emergent nature. You refused to work on the grounds that you were going to picket the Hospital. We consider this an improper work stoppage subject to disciplinary action. After conducting an investigation into the circumstances, we have decided that this action merits discipline and the appropriate disciplinary response will be a one day suspension without pay. Suspension will be served on December 6, 1987. Further incidents of a similar nature will result in further discipline up to and including dismissal. The facts, briefly repeated here, reveal that the grievor had finished her shift at 7.30 A.M. and went home. About 8.00 A.M. she was contacted at home by phone and asked if she would work a 499. When she indicated an intention not to return to work that was the end of the matter. Mr. Marsh did not order or otherwise instruct her to return to duty. However, he immediately 17 called the union and senior management to tell them what had transpired. The parties agree that the collective agreement makes overtime compulsory. This is stated in Article 12 which reads: OVERTIME 12:02 Overtime shall not collectively be refused by employees covered by this agreement. An employee may refuse to work overtime if there is another qualified employee willing to substitute with prior knowledge and approval of the director of the department or his designate. It is noted in the discipline letter that the reason the grievor is being disciplined was due to her refusal to work because of picketing the hospital. With respect, this is not what happened. She was neither ordered nor otherwise instructed to report for work. From the exchange over the phone between the grievor and Mr. Marsh, re~roduced above, it cannot be concluded that she refused to work. Placing the evidence at its highest the most that can be said about the grievor's response was that she did not volunteer to return. It cannot be said that she refused to return. Indeed, during the course of her testimony she stated that she was aware that overtime is compulsory and if she had been ordered to report for work she would have complied. Indeed, Mr. Marsh admitted that if he had informed the grievor of the nature of the ambulance call he was sure that she would have returned to work. Furthermore, we were informed that the practice of the employer concerning call ins of employees to work overtime in the 18 past has been to contact employees by phone, ask them if they would come in and if the employee said no that was the end of it. The employer caller would continue to call others until he 'received an affirmative response. Evidence led by the employer indicated that its practice was predicated on the called employee having a reasonable excuse for not coming in to work. Acceptable excuses included having to baby sit; visiting a sick child at hospital or even having the excuse that the employee was too tired. However, the employer considered the grievor's excuse to be neither reasonable nor acceptable. It is obvious that had the grievor said she was too tired to come back to work she would not have been disciplined. Indeed, '-': ',' Mr. Marsh admitted this on the witness stand. She would therefore have been better off had she simply stated that she was too tired ~o work. But she was honest in her explanation to Mr. Marsh. In light of the practice that had been followed by the employer and in light of the fact that the employer did not instruct her to come into work we are of the view that the employer erred when it categorized her failure to return to work as a refusal to return given the existing facts. Had Mr. Marsh confronted the grievor over the telephone by saying that her excuse was unacceptable and that she was to return to work other considerations would apply. For all of the reasoning set out throughout this decision it is our finding that the grievance is arbitrable and that it succeeds. The employer had no grounds to discipline the grievor, , ---... i,:;,:.::.~:;..<:," " ,_0, ,.';""," .- ... , .. , ".."- . ----'------, " -. ", '-.,;'<",",. ~.. 19 either on t\'\.a cO'M\"\ott ..~-a.w stardard or onth.3 standard of just c~use. She was tlot QC'c:\e.i"e.d (or in any other Wê.Y instructed) to return to worK a.!\.d. then~E'ore (Cð,.nnot be said to have refused to re.turn. t15.. Pi~he.r is to be. fully compensated for her lost earnings. A.n::¡ reference to this incident is to be removed from her person~el file. We do not consider that the employer acted in any :mélrmer other than for bona fide reasons and Ms. Fisher's request for ~ written apology is dismissed. In all other respects the grievance is allowed. Dated this ~/~'daYOf ri ".~~ fI Mr. 'Douglas G. Gilbert Employer Nominee 1989 . I "ill __/dissent ,-'. -. '...., -,-, -,- :oncur/ Jr¡pu FIt £ & Mr. ~Y--RObbins Uriion Nominee , 0,', Chair. " . . . " , , , , 0 , , 0, ,I DISSENT Most collective agreements afford employees the discretion to work or refuse to work overtime. The collective agreement between the Kingston Regional Ambulance Service and O.P.S.E.U. Local 462 is in a different category. By operation of Article 12.02, overtime is compulsory. This fact was acknowledged by the griever in her testimony and confirmed by the Board ~n its analysis of Article 12.02. An employee who refuses to work overtime without a compelling reason exposes herself to ,the possibility of d~6cipline. Why is overtime compul sery in th.! s .c.QIllLc;t.i ye. agreement? The explanation lies with the nature of the service provided by this employer and employees represented by the trade union. The testimony of witnesses for both parties described the critical nature of service rendered in response to a "499 call". The "499 call" is an emergency call involving th!! , . , transfer of patients who require urgent 'treatment in another hospital, but who are not in a condition to travel by normal ambulance. . . . ' '\ , - 2.. TL::- 499 ¡.:-,!:oçedule WGS described by Vðt"ioU8 witnesses duling th~ ~eari~~. Transfers are conducted in a special, oversizt?d ve-hicle eq11ipped to deal with the delicate conditions of the patient. A team of physicians and paramedical staff must be assembled quickly and dispatched to the transferring hospital. The patient must be carefully removed from the institution and his condition stabilized inside the vehicle before the transfer can be accomplished. The stabilization can take a number of hours. The same care must be observed at the receiving hospital. Tl!1!: "499 ~All" !li91'J.Al.s ~n'~l'9'ðl~'::Y. Th.!: i#!.o!ðVel" åas been employed as an ambulance driver/attendant for over five years. She has served on "499 calls". She is aware of the critical (often life threatening) circumstances associated with a "499 call". She is also aware that it is essential to marshal a 499 team as quickly as possible to respond to the call. It is within this context that her response to the Assistant Manager's call at 7;30 a.m. on November 13 must be evaluated. In these circumstances, I do not agree that the Manager was simply canvasing for volunteers when he called the grievor. The qrievo~ knew or ought to have known Management's dilemma. In my view. the Assistant Manager"s communication was sufficient to trigger the griever"s obligation under Article 12.02. . '. . .. 3 - , .. , ( The griever offered no compelling reason for not respondi:ì9. ¡he fact that she intended to picket in protest of :.he pace of ÇODtl"a.ct negotiations is consistent ~ith a cleçision not to cooperate with management in providing this emergency service. In the circumstances. it is my view that the grievor failed to discharge her obligations under the collective agreement and that the one day suspension imposed by the employer was reasonable and supportable.