Armour Meats is a well-known meat packing company who have been in business for over 20 years. The following grievance was filed by the Union on behalf of Greg Wajntraub. In his Grievance, Mr. Greg Wajntraub (the "Grievor") alleges that he was unjustly terminated on September 29, 2013 and, as a remedy, he seeks reinstatement to his former position without loss of wages and benefits.

The Grievor was terminated on September 29, 2013, (Ex. 3) for his participation in an incident with a fellow employee, Mr. Joseph Hause ("Hause"). This incident occurred at approximately 10:30 p.m. on September 24, 2013, while both employees were working the night shift. The Company says that the Grievor and Hause engaged in horseplay and fighting contrary to a known and published policy (the "Policy") (Ex. 4) prohibiting such conduct (quoted, infra, at p. 11). The Policy mandates discharge as the Company's first response. The Company terminated the employment of both the Grievor and Hause. Hause did not grieve his termination.

The Union does not dispute that there was an incident between the Grievor and Hause but says that the Grievor's role in the incident either did not merit any discipline at all or, in the alternative, is if some discipline was warranted, then a relatively short term suspension ought to be substituted.

The Company called the following witnesses:

(a)Mr. Manual De Braga ("De Braga") who, for some years, has been the operations Supervisor on the night shift. De Braga was the Grievor's and Hause's supervisor and he personally witnessed part of the incident on the night in question;

(b)Mr. Richard Allen ("Allen") who, for approximately one year, has been employed by the Company as a Whizzard Knife Operator on the night shift. Allen was working on September 24, 2013, in close proximity to both the Grievor and Hause and he witnessed the entire course of dealings between the two employees. Allen testified under subpoena; and

(c)Mr. James Hamilton ("Hamilton") who, for approximately one year, has been a General Supervisor. He was also present on September 24, 2013, but, like De Braga, only observed part of the incident between the Grievor and Hause.

The Union called the following witnesses:

(a)Mr. William Kroker ("Kroker") who, for some seven years, has been the Chief Steward and prior to that was a Shop Steward for ten to twelve years; and

(b)Mr. Timothy Wright ("Wright") who is the Shop Steward on the night shift in the ham boning area. He was present when Hause and the Grievor were interviewed.

The Grievor did not testify.

In the harm boning area there are two identical production lines where the hams are subject to various processes commencing with de-skinning and fat removal. There are approximately seventeen employees engaged on each production line. Each line is approximately fifty-three feet long, inclusive of the trimming table. The two lines are a few feet apart and run parallel to each other. The raw ham product(s) access the production lines by means of a conveyor. The first step is that the hams are skinned by a Skinning Machine Operator. The Grievor was a Skinning Machine Operator on the first production line (Ex. 5). After the hams are skinned, the operator (i.e., the Grievor) places the hams on a conveyor belt for further processing by a Whizzard Knife Operator. The Whizzard Knife is an automated knife which spins around the ham in order to remove the fat. Hause and Allen were Whizzard Knife Operators and their work stations were on the opposite side of the production line, almost directly across from the Griever. The line itself is two to three feet in width. Hause was the first Whizzard Knife Operator and was closest to the Grievor. Allen worked right next to Hause. Hause received the skinned hams from the Grievor first and Allen would receive the next one.

On the night in question, De Braga and Hamilton were observing a new product being processed at the trimming table on the second production line. They were some 53 feet away from where Hause, Allen and the Grievor were working on the first line (Ex. 5).

It is not in dispute that the production area is very noisy. All employees, including supervisory staff, are required to wear protective ear devices. Hamilton and De Braga did not see or hear what initially transpired between the Grievor and Hause, given the distance and the noise level.

Allen said that Hause was getting mad at the Grievor because he felt that the Grievor was not trimming enough skin off the hams. Hause started yelling at the Grievor. The Grievor responded with words to the effect that Hause should "...go home." This made Hause "...madder and madder" and he started throwing ham skins at the Grievor. Allen said that the Grievor "...threw a couple of skins back" at Hause. This only made Hause madder. Allen said that Hause then "...violently chucked a ham at Greg" and, on a couple of occasions "...made a grab for Greg over the line." Allen then said that "...Joe lost it," left his knife and went around the entire production line to where the Grievor was located and "...Joe gave Greg a good shove into the conveyor belt." The Grievor "...shoved Joe back."

In terms of Hause feeling that the Grievor was not taking enough skin off the hams, Allen said that "...I had no problem" and "...my side of the ham was not a problem." Based on the exchanges between the two employees, Allen said that matters "sort of escalated" with "...Joe getting madder and madder." Allen could not say whether the amount of skin being left on the hams was increasing during this period of time. Allen said that Hause started the incident and, as to throwing pieces of ham skin, Hause was "...doing the most." However, the Grievor did throw skins back in "...a couple of instances."

Allen was interviewed by Hamilton on September 28, 2013. He gave a statement to Hamilton. It is in Hamilton's hand writing but is signed by both Hamilton and Allen. Allen said that the testimony was accurate and reflected the statements he gave to Hamilton on September 28, 2013. The body of Allen's statement reads as follows:

...he was mad at Greg right away because he felt Greg was leaving too much skin on the hams. Joe started right away telling Greg to do his job.

Greg responded by telling Joe, if he doesn't like it, to go home, both guys started "yapping" back and forth, exchanging words, using profanity. It started to get into a heated argument. Then Greg started throwing the skin back at Joe, this was the pieces of skin that Joe was throwing at Greg because he was leaving it on the ham. Then Joe took a ham and shoved it back on the line towards Greg and Greg grabbed the ham and threw it back on the line toward Joe. At this point Joe lost it, and tried to grab Greg across the line, but Joe couldn't reach Greg.

Greg would lean towards Joe, as to provoke Joe to try and grab him, then when Joe reached for him, Greg would back away. All this time both guys were arguing. Greg was telling Joe to stop crying about the skin, and Joe would say something like "Take the skin off or I'll kick your ass." It seemed that the more angry Joe got the more Greg provoked him.

According to Rick Allen, Joe Hause often talks in this manner. Also Greg is aware that Joe is under some stress, and is taking pills for the stress.

After Greg throws the ham back at Joe, that's when Joe tried to grab Greg from across the line. When Joe couldn't reach Greg, Joe dropped his knife and walked around the line to get at Greg.

When Joe got to Greg he shoved Greg back knocking him into the ham conveyor behind him. Greg then came back and shoved Joe.

They shoved each other a couple more times, then Manny De Braga intervened. Joe stopped right away and came back to his work station saying "I can't take it anymore."

That's when Rick Allen noticed I "(James Hamilton) had seen what was going on, and motioned for both individuals to leave the Dept."

Allen made an "addition" to his statement, as follows:

Addition: When Joe Hause says he will kick your ass, he not really serious, and it's not threatening, that's just the way he talks.

Allen confirmed that he observed the Grievor leaning back when Hause tried to grab him across the line and then lean towards Hause and Allen confirmed he thought that Hause was "...under some stress," Allen said that he had overheard Hause and the Grievor talking about this. Hause had also mentioned this to Allen. With respect to the statement that the Grievor grabbed the ham that had been initially thrown by Hause and "...threw it back on the line towards Joe," Allen said that the ham bounced into the smaller conveyor belt on the line and it bounced up and hit Hause in the midsection. During the entire incident, Allen did not see any punches actually being thrown.

On cross-examination, Allen agreed that the Grievor was doing his job. When Hause tried to reach across the line for the Grievor, the Grievor stepped back. Allen agreed that one "...has to be there" (i.e., at the machine) in order to do the skinning. Allen said that the Grievor "...didn't try to grab Joe or anything." Allen had learned that Hause was taking pills for stress a couple of days prior to the incident. Allen was asked whether Hause was "a hot head" to which Allen answered "...oh, yea." He said that Hause had argued with other employees prior to the incident but this was "...the first time I've seen him attack anyone." Allen said he has heard Hause swear before. Allen said there is banter and swearing back and forth between employees "...constantly," especially between the skinner and whizzard knife operators. When Hause left his work station to go around the production line Allen said that Hause tried to put the Whizzard Knife back in its container but was unsuccessful in doing so. It fell to the floor. Allen knew where Hause was going and heard him say "...I'm going to kick your ass." Allen said that the bantering did not start right at the commencement of the shift but "...those two are always playing a game." When Hause left his work station, Allen said that he thought the Grievor anticipated what was going to happen and "...everything sort of stopped there," although the Grievor did not leave his work station. Allen clarified that Hause was not complaining about the speed on the production line but was only complaining about the amount of skin being left on the hams. Hause had complained of the speed on the line on prior occasions.

Allen agreed that Hause pushed the Grievor first. "Greg came back" and shoved Hause. Then, the two employees "...sort of grabbed each other and that's when Manny came in between them." Allen reiterated that Hause was throwing ham skins at the Grievor and did this "...a few times" prior to the Grievor throwing skins back.

In his evidence, De Braga first became aware of anything untoward transpiring when he heard Hause pass by him at the end of the production line saying words to the effect "I'll kill him." This caused De Braga to turn around. He saw Hause moving around the corner of the other production line yelling "I'll kill him" (Ex. 6). At that point De Braga followed Hause, called out to him, but Hause never responded. By the time De Braga got to the end of the line, the Grievor and Hause had a hold of each other and were pushing or shoving. De Braga did not see any punches thrown. He stepped in between the two employees, told them to back off, and they separated. Hamilton arrived at this point and took the two employees off the line. De Braga participated in the meetings when statements were taken from Hause and the Grievor.

De Braga identified the Policy in question and said that it has been posted on the bulletin board since 2007.

On cross-examination, De Braga said that when he saw Hause moving down the line toward the Grievor, the Grievor "...was still in front of the line" at his skinning machine. De Braga estimated that he was some ten to fifteen feet behind Hause and that Hause was half way down the line when he first called out to Hause. De Braga agreed that Hause shoved the Grievor first. It was "a fairly good shove," causing the Grievor to fall back. He agreed that Hause pushed the Grievor toward the main conveyor line and said it was "fairly possible" that the Grievor was pushed down onto the conveyor line. The Grievor then came back at Hause and pushed him.

De Braga said that Hause was an employee of approximately one year's service. He said there had been "rumours" that Hause was "...a bit of a hot head." De Braga was asked whether the Grievor told the truth during the investigatory meeting. De Braga said "...from what I saw from when I got involved, yes." De Braga said that he heard Hause make the remark "I'll kill him" or words to that effect a couple of times.

Hamilton said that he first became aware of what was transpiring when he heard De Braga's voice. Hamilton then looked up and followed De Braga. Hamilton saw Hause give the Grievor a shove and saw the Grievor fall backwards. The Grievor pushed back at Hause. The two grabbed each other. De Braga stepped in between them.

Hamilton interviewed the two employees separately on the same evening in the presence of Wright and De Braga. Hamilton recorded the version of each employee in writing, asked them to read the statements before signing them, giving each an opportunity to add or delete anything they wished. The Grievor's statement was filed. It is signed by all of those who were present at the meeting, including Wright. Hamilton said the Grievor reviewed the statement before he signed it and, to his knowledge, the Grievor was satisfied with it. The body of the interview states as follows:

Greg stated that he was putting the hams on every line as his job requires as skinner operator. Joe Hause was operating a whiz knife and was complaining that the ham was not 100% skin free, and there was some ham skin left on the shank portion, near the knuckle.

Greg feels that he had a problem keeping up and he continued to skin the hams and put them on every line.

Joe was throwing the pieces of skin back at Greg and eventually Joe started throwing hams back on the main conveyor belt.

Greg claims that after 5-10 minutes of the skin throwing and ham throwing incident that Joe got mad and words were exchanged. After some words were exchanged Joe took a couple of swings at Greg but couldn't reach him from across the line. At this time Joe dropped his Whiz knife came around the line, approached Greg and started swinging his fist.

Greg started to swing back but Manny was there to break it up.

At this time both Manny and James directed both employees to stay separated wash their equipment and go to the Front office for a statement.

In respect of the reference to the Grievor "...started to swing back," Hamilton understood this to mean that "...Greg was reaching out to grab Joe."

Hamilton completed his investigation when he interviewed Allen on the following Sunday evening and took Allen's statement. Both employees had been advised on the evening of September 24th that they were suspended pending completion of the investigation. The decision was made to terminate the two employees. Hamilton was involved in making these decisions. Critical to his determination was the fact that "...both participated in provoking each other and both participated in the physical altercation." Hamilton said he was familiar with the Policy and he took the Policy into consideration when he made his recommendations for dismissal. Hamilton said no other employees came forward to give statements (aside from Allen). He said that "...we never canvassed the room" for other statements.

It is useful to reproduce the Policy at this time. It is dated July 4, 2007 and was addressed to all employees by the then Operations Manager. It is entitled HORSEPLAY, FIGHTING, SHOVING, ETC. The Policy states:

We have become very disturbed by the number of incidents of fighting that have arisen lately.

Fortunately, no damage beyond minor bruising has been sustained by the employees involved.

However, the possibility of serious injury cannot be ignored. The presence of hard surfaces, slippery conditions, moving machinery and knives are hazardous enough without horseplay or fighting entering into the situation.

What may start off as a minor disagreement could lead to very serious injury. If you are having problems in dealing with another employee you should remove yourself from the situation and discuss the matter with your Operations Supervisor or another member of Management immediately.

At no time should you physically retaliate if you are shoved or assaulted.

We have always dealt with situations of fighting or serious horseplay very harshly. However, it would appear that our practice of a one-month suspension has not put across how serious we are regarding this matter.

Therefore, effective immediately, any employee caught fighting or engaged in serious horseplay will face discharge as the Company's first response, however consideration will be given to lessor penalties in exceptional situations.

Please take this matter seriously as the cost of not doing so may be your job.

Hamilton said that he did not check the hams on the second production line on September 24th. He did not ask anyone else what happened. He was not aware of the Company failing to follow the Policy on other occasions. While he was generally aware that two other employees received a five-day suspension in 2013 for pushing and shoving, Hamilton said that he was not involved with that incident. Hamilton could not recall if Hause did all of this due to the stress he was under. Hamilton did not look at other similar cases in reaching his decision and did not check to see how the Policy had been implemented on prior occasions. In making his decision, Hamilton said that he did not take into account the fact that the Grievor stayed at his job location and did not leave the line. He had not received any reports that Hause was a hot head. The first time he became aware of any such contention was through Allen's statement. He did not check this matter out before deciding to terminate.

This completed the Company's evidence.

Kroker said that he was familiar with the Policy. Kroker said that he reviewed the Union's files, looking for cases where discipline had been imposed for fighting or horseplay. These examples he found were as follows:

(a)On May 29, 2013, Cory Adam ("Adam") and Paul Sun ("Sun") received five day suspensions arising out of an incident on May 28, 2013, when they were observed "...swearing and pushing chest to chest". It appears that Adam maintained that the incident occurred as a result of his feeling that Sun was not properly performing his duties, whereas Sun said the incident occurred because Adam was picking on Sun by swearing at him and "...throwing toe nails." In the disciplinary letters, it is noted that had the supervisor not stepped in a more serious situation may have developed. Both letters note the Policy states that the Company's first reaction to such incidents will be discharge;

(b)On July 12, 2005, an employee named John Higgins ("Higgins") received a one month suspension for striking another employee with his hand, causing that employee's nose to bleed. Apparently this had followed Higgins complaining to his supervisor that the other employee was making unnecessary noise. Higgins took direct action when the activity continued;

(c)On March 3, 2002, an employee named John Weaver ("Weaver") received a one month suspension for grabbing a fellow employee and flinging that employee to the ground, rendering him unconscious. The employee suffered a concussion and a strain to some neck muscles. The Company expressed surprise at Weaver's actions and took into account Weaver's clear record over twelve years in reaching its decision;

(d)On May 15, 2007 (Ex. 14), a Mr. Klaus Kau ("Kau") received a one day suspension for slapping another employee resulting from the other employee allegedly throwing meat on the floor;

(e)On June 3, 2007, Kau was terminated for engaging in an altercation with another employee when Kau kicked the other employee. It appears Kau explained this incident by claiming the other employee had threatened him with a whizzard knife and that his kicking was a momentary reaction to being threatened. This letter specifically refers to the Policy. It states that, based on the seriousness of the incident and Kau's prior record, that the appropriate response was termination. Kroker said he was involved with this case and that it did represent Kau's second offence. Kroker went on to say that Kau worked for the Company after this letter was issued. Based on later exchanges between counsel during argument, it appears that the other employee involved in this particular incident was terminated. I also accept that while Kau was initially terminated he may have received a lesser penalty but this was done on a "without prejudice basis" between the Company and the Union;

(f)On August 6, 2007, an employee named Ursula Boehm ("Boehm") received a written warning for being abusive with and yelling at fellow employees and for inappropriately tossing or flinging a knife on a production table which resulted in a minor injury to another employee.

(g)On July 16, 2007, Larry Pacheco ("Pacheco") received a one month's suspension for striking another employee with enough force to knock his helmet off his head and leave a red mark on his face. The disciplinary letter reveals that the explanation offered by Pacheco was that the other employee was verbally harassing him, which prevented Pacheco from doing his job and that, after exchanging insults, the other employee swung at him and missed; and

(h)On June 16, 1995, Eugene Manulak ("Manulak") received a written warning for being involved with an altercation with another employee, the details of which are not recited in Ex.18.

I pause to observe that, in Exs. 10, 11, 12, 13, 14, 15, 16 and 17, a common thread is that the Company directed the employees to bring concerns or complaints regarding harassment or inappropriate conduct by other employees to the attention of management rather than engage in what can be characterized as self-help remedies. Each of these letters refers to the potential danger of fighting or horseplay in this plant environment and all indicate that further similar incidents or violations of Company policies or directives would result in further disciplinary action up to and including discharge.

On cross-examination, Kroker said that these examples were the only examples he found on his review of the Union's files. He agreed that he had been present at arbitrations where dismissals for similar or like conduct had been upheld. In other arbitration cases, discharge was not upheld but he agreed that, in those cases, the Company's initial response had been termination. Kroker agreed with the concerns expressed in Ex. 4 regarding safety and the inherent danger of fighting and horseplay. He agreed that the rationale behind the Policy was the Company's view that its previous policy of generally imposing a one month's suspension had not been working.

In his evidence, Wright said that he had known Hause for approximately half a year. He had seen Hause involved in verbal altercations with other employees. Generally, he said Hause appear to be a "...happy go lucky guy" but also seemed to be "...very moody." Wright had seen Hause grab another employee and engage in a fight at the punch-in clock. Other employees were present.

On cross-examination, Wright said that he did not see any of altercation between Hause and the Grievor on September 24th. He only saw Hause walk around the production line. As to the other altercation between Hause and another employee at the time clock, Wright said he did not report it to management and, to his knowledge, no one said anything to management.

Question:

Can you give me some arguments from unions side ?

Issues to win from union side?

Laws from union side ?