HomeMy WebLinkAboutStanley 03-04-2003 I~ 'I~E MATTER OF AN AI~ITRATION
BETWEEN:
CONESTOGA COLLEGE
The College
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
The Union
AND IN THE MATTER of the grievance of John Stanley regarding a five-day
suspension.
Board of_Arbitration:
I.G. Thorne, Arbitrator
David Guptill, College Nominee
Ed Seymour, Union Nominee
Appearances for the College:
Stephen F. Gleave, Counsel
Mike McClements, Dean, Schools of Engineering Technology and Trades & Apprenticeship
Lou Dropka, Faculty
Bart Wassing, Tech C
Appearances for the Union:
Don Martin, Grievance Officer
John Stanley, Grievor
A hearing in this matter took place on January 9th, 2003, at Kitchener, Ontario. The
parties made written submissions during January and February 2003.
2
AWARD
On February 18th, 2002, the grievor was suspended without pay for five days following an
occurrence on February 1 lth, 2002. The discipline was based on two alleged incidents: an angry
confrontation with a faculty member initiated by the grievor; and the grievor's turning off certain
equipment which he had been asked not to turn off. The grievor and the Union contend that the
confrontation reflected a situation in which the grievor was provoked into insulting the faculty
member and that the alleged turning off of the machinery did not occur.
The grievor's position is that of Industrial Mechanic (Millwright) in the School of Trades
and Apprenticeship at the College. He is classified as a Technologist B. His principal
responsibility is the maintenance and repair of complex mechanical machinery which is on hand
for the instruction of students in the program. He reports to the Chair, Trades and
Apprenticeship, but he has a collaborative role with members of faculty and is to some extent an
assistant to them. He has been employed at the College since 1995, in a full-time capacity since
1998.
The essence of the confrontation which took place on February 1 lth, 2002, at about 12:00
p.m., is not in dispute. Lou Dropka, a faculty member in the School of Trades and
3
Apprenticeship, testified at the hearing under subpoena. He walked into an area known as the
CNC shop to which his own office was adjacent. The grievor approached him and began to speak
to him, saying, "Now that we both have established that you're a fucking, back-stabbing
two-faced liar ...". At the hearing the grievor readily acknowledged that he made such a
statement, excepting only the expletive, for reasons which will be described shortly. By Mr.
Dropka's own account he responded calmly, declining to talk to the grievor and walking into his
office while the grievor continued to challenge him verbally. By the gfievor's account, he was
able to get out only a few words before Mr. Dropka reacted extremely angrily, raising his voice
and saying, "I don't have to take this shit", before going into his office. After a few minutes, when
the grievor was in the vicinity of the office door, Mr. Dropka went out and asked the grievor to
repeat what he had said so that Mr. Dropka could document it. The grievor repeated that he had
called Mr. Dropka a "lying, two-faced back-stabber". Bart Wassing, a Technologist C, was also
subpoenaed to testify. He had been in Mr. Dropka's office when Mr. Dropka had come in and
mentioned that he had had an altercation with the grievor and what had been said. Mr. Wassing
had already been aware that a conversation was going on, but had not been able to hear the words
spoken and had not noticed raised voices. He did hear the grievor's response when Mr. Dropka
asked him to repeat what he had said.
A few days before this incident, on February 7th, 2002, the grievor had been present at an
arbitration hearing convened to consider grievances he had filed. Mr. Dropka had been
subpoenaed to testify at that hearing. The hearing resulted in a memorandum of agreement
between the Union, the grievor and the College which all parties agreed was to be issued as an
order of the board of arbitration (Mr. Gordon Simmons, Mr. R. Davidson and Mr. D Camelliti).
As part of the settlement it was agreed that the grievor would receive a suspension of l-l/2 days
and that a disciplinary letter dated July 20th, 200 l, would be placed on his file, the only change to
the letter being as to the length of the suspension.
The grievor considered that he was justified in speaking to Mr. Dropka as he had. He said
it was the first chance he had had to take up with Mr. Dropka an allegation he had made to Hans
Zawada, Chair of Trades and Apprenticeship, and to Mike McClements, Dean of the School. The
grievor considered that the allegation was false and that Mr. Dropka and the grievor both knew it,
and that Mr. Dropka had volunteered the allegation before he had been subpoenaed. The grievor
stated that the allegation had nothing to do with the arbitration. Evidently, however, the
allegation had come to light at or about the time of the arbitration hearing. As the grievor put it,
the fact that Mr. Dropka had made a false allegation then became "established" in his mind.
The agreement reached on February 7th, 2002, is relevant to the view which should be
taken of the grievor's conduct on February 1 lth. A letter of July 20th, 2001, was to be placed in
the grievor's file. The only change to that letter was to be the length of the suspension which was
now to be 1-1/2 days. The letter from Mr. McClement, the Dean, was addressed to the gfievor
and was in evidence before us. The letter recorded a meeting which had been held the previous
day at which the grievor and Mr. McClements and others had been present. The letter listed a
number of allegations about the grievor. The allegations most material in this case are that the
grievor had intervened with students in the shops and had challenged teachers' instructions to
students with students present on a number of occasions; other inappropriate comments and
behaviour were alleged against the grievor.
The letter referred to previous occasions on which the College had raised similar issues of
concern with the grievor, specifically in a memorandum of May 18th, 2000. The letter continued:
In spite of your assurances that previous behaviour would not be repeated, and in spite
of an agreement which flowed from the grievance you withdrew, what we have here are
further examples of:
- Inappropriate intervention, directly with students.
- Failure to work in a co-operative manner with some faculty.
- Failure to follow previously agreed upon department procedures and practices.
- In addition, the latest incidents reflect poor judgement with respect to Human Rights,
and the personal dignity of others, and of respect for college property and resources.
This behaviour is unacceptable in and of itself.
This behaviour is particularly unacceptable given that there have been previous
occurrences which have been documented and brought to your attention formally.
The memorandum of May 18th, 2000, was also addressed to the grievor from Mr.
6
McClements. R concluded:
In the meeting I cited several of the incidents that had come to my attention. As I stated
during our meeting, without debating the merits of each incident, given the passage of
time, I would prefer to look forward, and agree that in regards future conduct, the
understanding is that we will experience a cO-operative and mutually respectful working
relationship with students, with full and part-time faculty members, fellow support staff
members both full and part-time, and administrative personnel.
As an outcome of our meeting John, I believe that you indicated an understanding of the
expectations, and have agreed these expectations will be met in the future, which include:
1. To take direction from faculty, both full and part-time, in a co-operative manner.
2. To not intervene directly with students regarding safety issues unless it is an
emergency situation.
3. To ensure there are no confrontations with students in non-emergency situations.
4. To ensure you are demonstrating safe conduct.
5. To follow College and departmental procedures and practices.
6. To follow the required protocol for human resource issues.
The memorandum of agreement of February 7th, 2002, stipulated that an attached letter
was to be sent to another faculty member, not involved in the current proceedings, stating that the
grievor had" ... steadfastly maintained that he was in no way responsible for the remarks
attributed to him. There was no finding to the contrary." The memorandum itself stated that the
parties agreed that it" ... reflects no admission of fault or liability or wrongdoing by any party".
Indeed, at this hearing, the grievor took the position that no allegations had been proved against
him. Be that as it may, the disciplinary letter of July 20th, 2001, and the suspension itself, are a
clear record of discipline.
The other incident for which the grievor was disciplined on February 18th, 2002, involved
an allegation that he turned off surface grinders in the shop on February 11, 2002, during a break
in a class in which students were using the grinders under Mr. Dropka's instruction. The grievor
denied having turned off the surface grinders on that occasion, while asserting he had every right
to do so and had done so in the past. There was evidence that the turning off of surface grinders
was a matter of disagreement between the grievor and faculty members. We also heard evidence
of a technical nature from both the grievor and Mr. Dropka in which each explained his view that
the machines should or should not be turned off when they were not immediately in use. It was
clear that Mr. Dropka's preference as to the way in which the machines were to be operated in his
classroom was clear, and that the grievor knew his views.
In our opinion, however, it is unnecessary to go into that evidence since we are satisfied
that it has not been made out that the grievor shut down the surface grinders on February 1 lth.
In a cross-examination Mr. Dropka indicated that he had noted that the grievor had turned off.the
surface grinders on January 14th, that being the date recorded on his palm pilot. The date he had
documented, Mr. Dropka said, was January 14th, and the most he could say was that it could also
have happened on February 1 lth. It appears that any incident involving surface grinders which
may have occurred on January 14th was not taken up with the grievor in a timely way or at all,
and that the only allegation of this nature dealt with in the disciplinary letter of February 18th was
the alleged incident on February 1 lth.
8
We therefore have to take the view that one of the incidents giving rise to discipline on
February 18th has not been made out. We cannot leave that question without remarking that it is
unfortunate that the issue of shutting down the surface grinders had been something of a bone of
contention between faculty members and the grievor for quite some time and apparently had been
allowed to continue without resolution.
The grievor's confrontation with Mr. Dropka on February 1 lth, if it had been an isolated
incident, might have been viewed as an ill-tempered, private exchange between two individuals
wkh a deep disagreement- though even then the grievor's insulting comment would have been
improper in a workplace such as the College. However the grievor's behaviour on this occasion
amounted to a continuation of the sort of behaviour for which he had been disciplined only a few
days before. The settlement reached in the memorandum of agreement gave all parties the
opportunity to treat the earlier dispute as over and done with. It is of the essence of a settlement
that no one involved may be entirely satisfied but that the disagreement will be left behind and not
referred to again. Yet the grievor almost immediately raised a matter which had arisen at the time
of the settlement. The Union questioned the College's characterization of the grievor's behaviour
in the disciplinary letter of February 18th, as "threatening". There is really no question, however,
about the conduct for which the grievor was disciplined. Whether that conduct is described as
9
threatening, insulting or otherwise, it was properly viewed by the College as another instance of
the grievor's failure to work co-operatively with a faculty member. It was appropriate for the
College to discipline the grievor in the way it did.
We feel obliged to reduce the suspension of five days, only because one of the two
incidents which gave rise to the discipline has not been made out. In all the circumstances we
consider that a suspension of three days is warranted for the conduct which has been established.
Our award is therefore that a suspension of three days without pay is to be substituted for
the suspension recorded in the letter of February 18th, 2002. The grievor is entitled to be
compensated for the two additional days for which he was off work.
Dated at Kingston, this~.35~tl day o 003.
I.G. ThOr
I concur "D. Guptill"
D. Cmptill, College Nominee
I concur "E. Seymour"
E. Seymour, Union Nominee