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HomeMy WebLinkAboutGreene 01-04-16 IN THE MATTER OF AN ARBITRATION BETWEEN FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY (the ,'College") and ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 109 (the "Union") RE: GRIEVANCE OF TERESA GREENE Board of Arbitration: Michel G. Picher Chair Ron A. Hubert College Nominee John McManus Union Nominee Appearing for the College: Robert J. Atkinson Counsel Sheila Wilson Personnel Consultant Appearing for the Union: Irit Kelman Counsel Jean Fordyce Local President Barb Ford Chief Steward Berniece Laugh!in Steward Teresa Greene Grievor A hearing in this matter was heard in London on February 20. 2001. AWARD This grievance concerns an allegation of harassment and interference with the grievor's membership or activity in the Union. The nature of the allegation is briefly stated on the grievance form itself, filed on December 10, 1999 by employee Teresa Greene: I was called into my manager's office (Doreen Whitehead) and harassed because she said that I allowed our Local Union President - Jean Fordyce - to talk to contract workers during a Christmas supper on off-work hours on the evening of Wednesday, Dec. 8/99. The extraordinary remedy requested in the grievance form is the firing of supervisor Doreen Whitehead. During the course of the hearing counsel for the Union stated that the Union no longer sought Ms. Whitehead's dismissal, but rather a declaration that article 2.1 of the collective agreement was violated by the College, and that Ms. Whitehead be directed to make an apology. The evidence reveals the following facts. The grievor, Ms. Teresa Greene, is employed as a Support Services Officer in the College's Financial Aid Department. Ms. Doreen Whitehead was appointed Manager of Financial Aid, in charge of the department, in August of 1999. The President of Union Local 109, Ms. Jean Fordyce, also holds a permanent position as a Support Services Officer within the department, although she was on full-time leave for Union business at the time of the events giving rise to this dispute. The evidence of Ms. Fordyce establishes that a degree of tension arose between herself and Ms. Whitehead through the late fall of 1999. She relates that she had received complaints from employees within the department, the complement of which numbers approximately 12 employees, to the effect that the College had retained some three or four "temp" employees employed by Drake Personnel to work on a longer than usual basis. According to Ms. Fordyce's evidence contractual temporary employees were sometimes brought in to relieve when regular employees might be absent due to illness, but the long term retaining of temps was unprecedented. The evidence of Ms. Whitehead, which is not substantially challenged on this point, is that when she took over the department she encountered a substantial backlog of work coming into September of 1999, the period when student loan forms would need to be processed in a timely fashion so that students would receive their loan monies in time. She states that she had no alternative but to hire temporary employees to deal with what she estimated to be a six to eight week backlog of work. Ms. Fordyce states that she went to speak with Ms. Whitehead to express her concern about the extended presence of temporary employees in the department, asserting her position that if the work needed to be done there should be additional permanent jobs posted to the 3 bargaining unit payroll. Upon hearing Ms. Whitehead's explanation that part of the problem was also the need for relief for employees who were absent due to illness, she decided not to grieve the issue. She expressed puzzlement, however, as to why the newly appointed supervisor did not call her back in to work, on a temporary basis, to help out as apparently had been done in the past. Ms. Fordyce was also given to understand that two new permanent bargaining unit positions within the department were in the process of being established. In fact the evidence confirms that they have now been put into place. It does not appear disputed that the presence of four temporary employees within the department over an extended period of time became the source of some tension in the workplace. The evidence discloses that the issue eventually found its way into discussions during the course of a Christmas dinner party involving the employees of the department as well as Ms. Whitehead. Every year the employees organize a dinner at a restaurant together to celebrate the Christmas season. There appears to be some difference between the parties as to whether the Christmas dinner was held on the eighth of December, as Ms. Greene recalls, or the seventh which is the date Ms. Whitehead believes to be correct. Nothing turns on that difference of recollection. The dinner was held at an on-campus restaurant during the evening. It was attended by most of the employees of the department, including Ms. Fordyce. It appears that Ms. Fordyce and Ms. Greene were seated next to each 4 other and that two of the temporary employees, referred to as Olivia and Linda, were seated directly across from them. Ms. Whitehead was apparently located some distance away, towards one end of the table. The evidence of Ms. Whitehead, as well as that of Ms. Fordyce and Ms. Greene, confirms that during the dinner Ms. Fordyce pursued a course of conversation with Olivia and Linda which involved learning from the temporary employees precisely the nature and extent of their duties. This apparently involved a series of questions, some of which were answered by Ms. Greene when either Linda or Olivia did not make a response. The evidence of Ms. Greene and Ms. Fordyce also indicates that at one point during the conversation the temporary employees inquired of them how they might go about becoming permanent employees within the bargaining unit. Ms. Whitehead states that the following morning she was approached in her office by a third temporary employee, Ms. Patty Bird. She testifies that Ms. Bird expressed to her that the two other temporary employees who were questioned by Ms. Fordyce told her that they had been uncomfortable during the Christmas dinner, and felt that they were "being put on the spot" by Ms. Fordyce's questions because of their employment as temporary employees. Based on that conversation Ms. Whitehead spoke with both of the temporary employees involved. She states that Olivia confirmed to her that she felt uncomfortable in the face of Ms. Fordyce's questions and had tried not to answer them. According to Ms. Whitehead, she further elaborated that when she 5 declined to answer the grievor would answer for her. Ms. Whitehead relates that she apologized to Olivia for any discomfort she may have felt in the circumstances, and confirmed in her testimony her own feeling that she viewed it as unfortunate that the temporary employee was put in a situation which was not pleasant for her. She further related that she spoke to the second temporary employee, Linda. According to Ms. Whitehead she expressed the same level of discomfort because of the questions that Ms. Fordyce directed towards her. As Ms. Greene was not at work on that day, Ms. Whitehead called her to her office the following day, either the ninth or tenth of December 1999. While there are some differences between the evidence of Ms. Greene and Ms. Whitehead with respect to what transpired, they are largely matters of nuance rather than substance. It is common ground that during their conversation Ms. Whitehead suggested to Ms. Greene that she might have attempted to steer the dinner table conversation between Ms. Fordyce and the two temporary employees away from a discussiOn of the Union's concern about their jobs. The evidence is clear that Ms. Greene was offended by that suggestion. By her account she did not understand what the conversation between the Union local president and the temporary employees had to do with her. According to Ms. Greene's recollection she immediately accused Ms. Whitehead of harassing her and left her office. She states that she reported the conversation to Ms. Barbara Ford, her Union steward who referred her to Ms. Fordyce. 6 Following consultation between Ms. Greene and Ms. Fordyce, that same day Ms. Fordyce went to Ms. Whitehead's office and presented her with the instant grievance. According to Ms. Whitehead Ms. Fordyce was extremely agitated, screamed at her and said, among other things, that she should learn the collective agreement and "should get professional help". Ms. Fordyce denies that she said that Ms. Whitehead should get professional help. When asked by the Board why the grievance sought the relatively unprecedented remedy of Ms. Whitehead being fired from her employment, she explained that that was Ms. Greene's wish, adding that she did not believe that that would happen. The evidence of Ms. Fordyce makes little secret her own negative feelings towards Ms. Whitehead. She relates that in her view Ms. Whitehead deliberately avoided her when she came to visit the Financial Aid Office, had refused to process her attendance sheet and sick leave claim until directed to do so by the College administration and had created tension in her relations within the department by her prolonged and apparently unprecedented use of temporary employees. In the Board's view the deterioration of the relationship between Ms. Whitehead and Ms. Fordyce,-which is highly unfortunate, is an integral part of the background of the grievance. As regrettable as the issue of personal compatibility may be, this board of arbitration is required to determine the more 7 narrow question of whether there has been a violation of article 2.1 of the collective agreement. It provides as follows: 2.1 Interference The Colleges and the Union agree that there will be no intimidation, discrimination, interference, restraint or coercion exercised or practised by either of them or their representatives or members because of an employee's membership or non-membership in the Union or because of his/her activity or lack of activity in the Union. Counsel for the Union submits that the facts do disclose an unwarranted interference with Union activity. She stresses that it is essential for the Union's president to talk to people in the workplace about what is happening, in furtherance of her ability to discharge her office. She emphasizes that article 2.1 must be seen as violated where the facts disclose an attempt on the part of management to put pressure on employees for nothing more than discussing Union business during off-hours. That, she submits, tends to have a chilling effect on the ability of .employees to feel comfortable in the exercise of their Union rights and the Union's own ability to communicate with employees. Counsel stresses that in the circumstances Ms. Whitehead could in any event taken up her concerns with Ms. Fordyce, rather than visiting them upon a bargaining unit employee who was only indirectly involved. She submits that the relationship between supervisor and employee would inherently suggest the possibility of negative consequences for Ms. Greene for having failed to take 8 action in a way that her supervisor believed she should. She submits that the evidence confirms a communication from Ms. Whitehead to Ms. Greene, the content of which must be viewed as having the effect, if not the purpose, of undermining the ability of employees to discuss Union matters among themselves. Counsel for the College advances a substantially different view. He stresses that the obligations contained within article 2.1 are extremely important, and that a finding by a board of arbitration that the College or a member of its management has knowingly attempted to interfere with Union activities is a serious charge that should require compelling evidence to support rit. He stresses that that is doubly so where, as in the instant case, on its face the grievance initially demanded the firing of the supervisor against whom the grievance was filed'. Counsel for the College stresses the testimony of Ms. Whitehead, noting her own evidence to the effect that the only reason she spoke with Ms. Greene was out of a "humanistic concern" when she was given to understand by three separate employees that the two employees questioned by Ms. Fordyce felt extremely uncomfortable during the Christmas dinner because of it. Counsel submits that the concerns of Ms. Whitehead for the general comfort of employees at a Christmas social occasion does not suggest the kind of motive which article 2.1 was intended to capture, much less justify what he characterizes 9 as the "outrageously framed grievance" drafted and filed by Union local president Jean Fordyce. Counsel for the College also points to Ms. Whitehead's notes, made shortly after her encounter with Ms. Greene. He stresses that among the things which Ms. Whitehead recalls of the conversation was that when told by the grievor that she was not involved in the conversation of Union affairs and that it was Jean Fordyce who was speaking to the two temporary employees, Ms. Whitehead responded to the grievor "...if she had not been involved I would talk to Jean". Counsel submits that what transpired is clearly more a concern for social propriety than an attempt to interfere with the Union rights or privileges of Ms. Greene. He also submits that the language of article 2.1 must be strictly applied to the facts at hand. He maintains that when that is done the article, which he characterizes as a reprisal provision, has plainly not been violated. Reviewing the specific wording of article 2.1, he maintains that there is nothing in the evidence to suggest any concern expressed by Ms. Whitehead relating to Ms. Greene's membership in the Union, nor her involvement in any activity of the Union. Those are the two matters which he submits are expressly protected by the language of article 2.1, neither of which is offended on the facts disclosed. Borrowing the language of the article, Counsel emphasizes that Ms. Whitehead did not speak to Ms. Greene "because of" her membership or activity in the Union, but rather out of a compassionate concern for the discomfort which she was told two temporary employees were made to feel on what should have been a pleasant social occasion. We turn to consider the submissions of the parties, and the language of article 2.1 of the collective agreement. At the outset, we feel compelled to express our view that whatever Ms. Whitehead's intention, given the extremely sensitive nature of Ms. Fordyce's concerns, and the already strained relations between them, it was a matter of questionable judgment to raise with any employee the quality of Ms. Fordyce's conduct on a social occasion, particularly where it could arguably be said to have some relation to Union interests. Ms. Whitehead knew, or reasonably should have known, that Ms. Fordyce would not take kindly to a negative comment, even if it related to what may have been perceived as an aggressive "in your face" conversation with temporary employees who might have been made by Ms. Fordyce to feel uncomfortable at a social occasion. The supervisor's authority obviously does not extend to being the arbiter of social niceties at a Christmas party sponsored and organized by the employees themselves, independently of the College. Even with the best of motives, it should not have come as a surprise to Ms. Whitehead that an employee might view her comments as patronizing, and more specifically that Ms. Greene might well find them offensive. 11 The real issue at hand, however, is whether, as Counsel for the College submits, there was a violation of article 2.1 of the collective agreement. More specifically, was Ms. Greene made the subject of intimidation, discrimination, interference, restraint or coercion based on her membership in the Union or her activity in the affairs of the Union? While the Board appreciates that Ms. Fordyce views anything that she does as Union activity by reason of her office, on careful scrutiny the facts do not of themselves disclose a clear incident that can be said to involve Union activity on the part of Ms. Greene who, by her own account, was more in the nature of an observer of the conversation between Ms. Fordyce and the two temporary employees. In essence what transpired was an attempt on the part of Ms. Whitehead to deliver a message to Ms. Fordyce, through Ms. Greene, to the effect that she was insensitive in the way she pursued the temporary employees with her persistent questions during a gathering which was meant to be a pleasant social occasion. It is not the content of the conversation that was Ms. Whitehead's concern, so much as the time and place Ms. Fordyce chose to pursue it. There is, moreover, nothing in the evidence which would support the suggestion of anti-Union animus on the part of Ms. Whitehead. Her use of temporary employees was -fully explained in her evidence, which was not materially contradicted by the Union. By Ms. Fordyce's own admission, she did not grieve the use of four temporary employees through the period of early December as she appeared to accept that there was a staff shortage occasioned in part by the absence of employees due to illness. The evidence further discloses that, in fact, Ms. Whitehead ultimately succeeded in adding two additional permanent bargaining unit positions to the department, an improvement which apparently was in the works at the time of the facts giving rise to this grievance. Further to the issue of anti-Union sentiment on the part of the College, it is notable that during the course of the grievance procedure Ms. Cathie Auger, Director of Student and Staff Services, Ms. Whitehead's supervisor, wrote a letter to the grievor, which stated in part: If you feel this meeting was disrespectful of you or of your rights under Article 2.1 of the Collective Agreement, both Doreen and I apologize. We regret any concern you may have felt as a result of this meeting. Regrettably, that apology did not satisfy the grievor or her Union. On a fair analysis of the facts disclosed, we are compelled to conclude that there was no intention on the part of Ms. Whitehead to interfere with Ms. Greene by reason of her membership in the Union or her involvement in any Union activity. While the wisdom of her commenting to Ms. Greene as to the advisability of discussing sensitive employment matters at a Christmas dinner is questionable, we are satisfied that it was offered in the same spirit as the saying that it is not wise to discuss politics or religion in such a setting. Her words were plainly motivated by her concern for the discomfort which the two employees involved told her they felt as a result of Ms. Fordyce's questioning of them. If the supervisor had any concern with the conversation at the dinner table, it was not with respect to its content, but rather with what she perceived as the lack of human understanding and insensitivity of Ms. Fordyce in respect of the two employees. It must be acknowledged, in our view, that Ms. Fordyce's office as local Union president does not extend the protection of article 2.1 of the collective agreement to all aspects of everything she does. If, for example, she had attempted to use the Christmas dinner to circulate a union questionnaire or newsletter at the dinner table, an objection raised by an employee, or by Ms. Whitehead, protesting the introduction of business into a social occasion would not, in our view, violate article 2.1 of the collective agreement. The facts of the instant case are not dissimilar. An allegation before a statutory tribunal that individuals, an employer or a union have engaged in conduct as serious as intimidation or coercion to restrain or chill the exercise of rights which are statutorily protected is a very serious charge. This Board is not unmindful of the importance of a provision such as article 2.1 of the collective agreement, or indeed of the chilling effect upon Union activity which an overt or subtle abuse of supervisory authority can have. For the reasons touched upon above, however, we are satisfied that Ms. Greene was not subjected to any violation of her protections under article 2.1 of the collective agreement by reason of the comments made to her by Ms. Whitehead concerning the dinner table conversation at the Christmas party in December of 1999. There is therefore no basis upon which to declare a violation of the collective agreement nor to direct an apology, assuming this Board should have such a remedial jurisdiction. For these reasons the grievance must be dismissed. Dated at Toronto this 16th day of April 2001. Michel G. Picher Chair I concur "Ron Hubert" College Nominee I dissent "John McManus" Union Nominee