What arguments can be presented from the union side are to be presented in front of the arbitrator.

Upper Grand District School Board v. Canadian Union of Public Employees, Local 256 (Kelly Grievance), [2004] C.L.A.D. No. 282

Canada Labour Arbitration Decisions

Canada Labour Arbitration T. Jolliffe, Arbitrator Heard: Guelph, Ontario, May 27, 2004. Decision: June 15, 2004. [2004] C.L.A.D. No. 282|LAX/2004-299 IN THE MATTER OF an Arbitration Between Upper Grand District School Board, board, and Canadian Union of Public Employees CLC and its affiliate Local 256, union (29 paras.) Appearances

For the board: Seann McAleese.

For the union: Jill Smyth.

AWARD

1In this matter the Union has grieved a ten days suspension imposed against caretaker Frank Kelly for his alleged "continuing inappropriate behaviour" connected to an incident occurring in his workplace, secondary school John F. Ross C.V.I., in Guelph, on September 17, 2003, involving himself and his shift supervisor, Brigitte Von Neiderhausern. The evidence and argument centered on the circumstances of their brief verbal interaction which eventually resulted in an investigation leading to imposition of discipline.

2At outset, counsel advised that there were no jurisdictional issues with which to deal, no preliminary arguments of any kind, with the matter to be dealt with on its merits.

3The Board relies on the grievor's ungrieved past discipline as described in the two earlier suspension letters on file for incidents occurring in the previous year. The grievor's first suspension, two days without pay, was imposed against him on December 16, 2002 following his having been observed in the technical studies wing of the secondary school in a very heated exchange with his head caretaker and his shift supervisor, and concerning which he was considered to have acted in "extremely abusive" fashion. This involved uttering a stream of foul language, which the Board characterized as amounting to a verbal assault overheard by teachers in the area and possibly students. The second suspension, five days without pay, was imposed against him on January 9, 2003. The impugned conduct involved the grievor and apparently some other caretakers having claimed overtime which was not worked. The grievor was also required to reimburse the Board $265.13 for what was described as "the very serious nature of your behaviour and the fact that you were recently suspended for two days...". In both these suspension letters, the Board's supervisor of facility services, Michael Lubgans, advised the grievor that any further problems with inappropriate behaviour would be dealt with more severely, including the possibility of termination. Both discipline matters went ungrieved and form the grievor's prior discipline record. No further description of these past incidents is permitted outside the information contained on the face of the letters themselves.

4In now turning to the incident in question, both principals provided their versions of what occurred and, I might say, given the vagaries of recollection and the passage of time, were not much different in their factual descriptions. Ms. Von Neiderhausern had been Mr. Kelly's shift supervisor over the previous seven months prior to the incident, also a bargaining unit position which allows for her to work alongside co-workers much in the same manner of a lead hand. While having authority to direct their workplace activities during the night shift, she has no authority to discipline although is encouraged to report observed activities to her superiors as one might expect would be the case. In her testimony, she described the caretaker activities ongoing pursuant to posted scheduling including the custodial cleaning schedule which outlines the use to be made of the auto-scrubber machine on the floors of school hallways. It requires using only a cleaning liquid known as Pearl 405 in the machine, with vinegar to be used only for the hand cleaning of glass. She testified that shortly following break time on the night shift of September 17, 2003, she approached the grievor who was about to return to his duties as one of the three night shift caretakers who regularly used one or other of the available auto-scrubber machines. Her intention was to reinforce the instructions which had previously been given to the caretakers by team leader Mike Duchaine, being her head caretaker Bob Mochrie's immediate superior, not to use vinegar in the machine as a substitute for the Pearl 405 liquid cleaner. Mr. Duchaine corroborated her version on that issue when he testified concerning his meeting with caretakers in the school some months earlier. He said that he had provided clear instructions, with reasons explained, not to use vinegar in the auto-scrubber machine. She knew that the caretakers had all previously been told that vinegar was corrosive to the machine and also to the floor's wax finish.

5By Ms. Von Neiderhausern's description, Mr. Mochrie had told her earlier in the shift that in moving one of the auto-scrubber machines to the basement, he had noticed that it had vinegar in it and that she should speak to the grievor about it in order to ensure that he was following directions. She knew that the grievor and two others used the machine, as she herself did when helping out in a short handed situation. She said that on approaching the grievor in the hallway, where he was standing nearby a co-worker Paul Moore, she addressed him casually enough and stated by her recollection that she "would appreciate it if he did not use vinegar in the machine any more". It is noted that her recollection at hearing was almost identical to her handwritten report done nine days later and which she presented to head caretaker Mochrie and team leader Duchaine. She recorded that after being instructed to let the grievor and others know not to put vinegar in the auto-scrubber machine, which is to say a plural reference, she approached him and another caretaker outside a classroom, indicating that "I mentioned that I would appreciate if they would not put vinegar in the floor machine, especially the new one...". Her recollection at hearing of the grievor's reply, was exactly the same as she stated in her later drafted handwritten notes, that being "so what do you want me to use - piss?". In her testimony, Ms. Von Neiderhausern acknowledged that she does not recall responding verbally to the grievor's remark, having been taken by surprise, although remarking that she "did not feel great about it". She said she took the grievor's remark as being rude and disrespectful of her doing her shift supervisor's job. She also found it surprising in light of the caretaker staff already having been told not to use vinegar. She said the grievor also asked her "whose decision it was" before moving off to go back to work. With the co-worker standing nearby, Paul Moore, she thought it best to walk away and not respond verbally to the grievor's remark.

6By the grievor's version, he was well aware from past meetings and written instructions that caretakers should not be placing vinegar as a cleaning substance in the auto-scrubber machine and that by the time he was approached in the hallway by Ms. Von Neiderhausern, he was not doing so and had not been for some time, at least several months. By his version, he did not know who put the vinegar in whichever machine she was referring to, and did not know it contained any of that liquid if such was even the case. Accordingly, he said, when approached by Ms. Von Neiderhausern shortly following his lunch break, he was surprised to hear her say that she would "appreciate it if you don't use vinegar" and thought that she was perhaps trying to get a rise out of him, as he could not see how she would have thought he was still using it at that point. He did not indicate that her manner was aggressive or demeaning. By his recollection, his response, said by him to be "off the cuff" and without any real thought going into it was "I'll use whatever you want Bridgitte, I'll even piss in the machine". At the time, he said, he thought he was giving her a humorous response, and did not mean to be confrontational in any way. He also said that he was trying to make "a bit of a joke" over what she had said to him. By his version, he was not aware whether there was anyone else in the immediate vicinity. He said he did not know that a co-worker may have been standing there too when he made his comment. He recalled that Ms. Von Neiderhausern walked away and he went back to work. He specifically recollected that she did not take any issue at the time with his remark and, it is apparent, he never gave it another thought until he was summoned to an investigatory meeting some three weeks later. He had no recollection of asking Ms. Von neiderhausern whose decision it had been.

7The grievor was diligently cross-examined on his position that he had not meant to insult or demean Ms.Von Neiderhausern in the way he had spoken to her. He was steadfast in his view that the remark came out "spur of the moment...a smart ass comment" and not meant as a challenge to her authority or as a way to contribute toward an existing negative atmosphere in the school.

8Ms. Von Neiderhausern testified that she made notes of the incident, principally because Mr. Mochie had asked her to speak to the grievor, and others, about using the machine properly and she felt she should at least report his response. The written record she made nine days later was not meant to be in the nature of a formal complaint, although she felt it was obvious the grievor was showing no respect over her providing him with appropriate instructions.

9By way of providing some history into their working relationship, Ms. Von Neiderhausern remarked that on one previous occasion after observing the grievor leaving for the parking lot prior to completion of the five minute wash up time at the end of the day, and taking issue with him over his leaving, he asked her why she was talking to him about it, as if to say that others were doing it too. The grievor recollected that previous situation as a matter of his being approached while he was standing in the vicinity of the outside doorway during washup time at end of his shift when Ms. Von Neiderhausern told him that he should still be sitting in the lunchroom area and concerning which he admittedly took some issue, inasmuch as he at least had not yet left the premises. He frankly admitted that he did not see what business it was of hers if after washing up and getting ready to leave at the end of shift, he stood by the exit door as opposed to sitting in the cramped lunchroom.

10Ms. Von Neiderhausern in her review of the general code of conduct section of the custodial cleaning schedule referred to a caretaker's immediate supervisor having to deal with improper use of equipment, reporting the situation to the appropriate team leader, and also recognizing that in any situation involving insubordination the shift supervisor should contact the team leader. It also states that employees should refrain from negative comments or attitudes of the type to created a strained atmosphere for co-workers, which could also lead to disciplinary action.

11The grievor, during his testimony steadfastly presented his view that he had no conflicted difficulties with co-workers, whatever grousing they might all exhibit from time to time over their assignment of duties and the accompanying heavy workload demands due to recurring staff shortages which he perceives to exist. He said that he has always complied with whatever supervisory directives he received, whether it be with respect to his own assigned work or helping out elsewhere with others. He also described his working relationship with Ms. Von Neiderhausern as a difficult one calling her "very demanding - over demanding in various areas", further remarking that she was "always creating problems", an atmosphere of intimidation both with respect to himself and other caretakers. He said that by his observation, she was given to making "off the wall comments" in an effort to upset her co-workers. In response to questions on whether Ms. Von Neiderhausern treated him with the respect and dignity he though he deserved, he said that she was unpredictable and that she treated him well only "when in the mood" to do so. On reflection, he said over the approximate year that she was his night supervisor he thought that he treated her better than she treated him. He also said that from his perspective he thought Ms. Von Neiderhausern was interested in teaching her co-workers that she was the "boss", even to the point of directing them how they should set up their cleaning carts, which he took to be demeaning and insulting given his years of experience.

12At the same time, Ms. Von Neiderhausern was clear in her stated view that other caretakers "did not act that way....not in front of me" and that if another caretaker had spoken to her in the same manner she would have reported such remarks as she did here. Indeed, she said she reported various observations on "things" to Mr. Mochie almost daily, as a matter of keeping him abreast of any developing issues including personality conflicts within the workplace.

13Mike Lubgans, the Board's supervisor of facility services whose role includes overseeing approximately fifty maintenance and 200 custodial staff throughout its primary and secondary school system, exercised the Board's disciplinary authority in this matter. He also drafted and issued the employee's handbook for facility services, which includes a code of conduct. Its language requires employees to respect persons who are in a position of authority. In an appendix, employees are advised that insubordinate conduct toward supervisors, negative comments or attitude will not be tolerated. It also contains an anti-harassment appendix cautioning employees from engaging "in a course of vexatious comments or conduct towards other individuals".

14Mr. Lubgans became aware of the September 17 incident while in the team leader room at the Board office, where he discussed with Ms. Von Neiderhausern's team leader, Mike Duchaine, what was understood to have occurred. After reviewing Ms. Von Neiderhausern's written statement, he decided to have an investigatory meeting with the grievor, accompanied by his Union steward Wally Hillen, which occurred on October 8. By his recollection, the grievor indicated surprise that it had been necessary to call a meeting over the incident, indicating that from his perspective, it had "just been a little remark", although the grievor did not dispute Ms. Von Neiderhausern's version related to him by Mr. Lubgans. He said that he did not tell the grievor at that point that he was considering disciplining him. He wanted to speak to Ms Von Neiderhausern to verify her statement. He met with her, he said, some ten minutes later. She repeated her version to him, indicating her view that the grievor had been disrespectful. Lubgans testified that he considered the language used by the grievor towards his supervisor to have been vulgar and embarrassing, simply not appropriate for employees who value team work and work together as role models. He also indicated that Ms. Von Neiderhausern indicated concern over the grievor's co-worker being near enough to hear the remark, and also indicating her feeling that her authority as a supervisor was being undermined. Interestingly, Mr. Lubgans also remarked in his testimony that he did not see how the grievor should have to be told "over again" about the vinegar issue as he was aware through the custodial cleaning schedule, and previous discussions on that issue, that only Pearl 405 was to be used in the auto-scrubber machine. Apparently Mr. Lubgans was not aware that the head caretaker at the secondary school, Mr. Mochrie, had asked his night supervisor, Ms. Von Neiderhausern, to remind the caretakers on her shift of the directive. There was no evidence that he was placing blame on any one caretaker in particular or even knew who had placed the vinegar in the machine. In any event, Mr. Lubgans indicated in testimony that he was "quite shocked" at the way the grievor had talked to Ms. Von Neiderhausern, inappropriate in a school environment, being vulgar, confrontational and disrespectful of his supervisor's authority, his latter concerns being further demonstrated by the remark having been made in the proximity of another caretaker, Paul Moore. He remarked that in his view it was "most definitely insubordination" and certainly contrary to the guidelines set out in the employees' handbook.

15Mr. Lubgans testified that on reviewing the grievor's personal file he observed the previous suspensions and reasoned that upping the progressive discipline to a 10 days' suspension was appropriate to the circumstances. He was already well aware of the past discipline as he had imposed it, and had also refused the grievor's request for a transfer away from the secondary school submitted in an apology letter received by Mr. Lubgans following his having imposed the five day suspension for claiming unworked overtime. In his increasing the disciplinary response to ten days, Mr. Lubgans said he took into account that the shift supervisor was in a difficult situation, being a bargaining unit member who worked alongside her co-workers in their various custodial/caretaker duties. She had no disciplinary authority, and he considered that it was important for him to set the tone on how she should be treated, which is to say fairly and with respect.

16In this earlier written apology to Mr. Lubgans submitted some nine months prior to this current incident, the grievor had shown remorse for his lack of judgment and integrity over the wrongly claimed overtime, indicating that he was deeply sorry for what had occurred, and mentioning that he would like to make a fresh start by transferring to another location. He described it as a "friendly transfer" request in the letter. The grievor also cited therein what he perceived to be a lack of trust and confidence between the staff members. Mr. Lubgans had responded by thanking him for expressing his sincere regrets over his behaviour, indicating that a new shift supervisor (Ms. Von Neiderhausern) was about to appointed, and stating that his transfer request was "premature". In light of his most recent discipline (taken January 2003) he suggested reviewing the request in another six months. Mr. Lubgans testified that he did not discuss the transfer issue with the grievor nor did he look for a transfer possibility, believing that it would not have been appropriate at that point to have placed him elsewhere given his disciplinary record. As matters have developed following the ten day suspension imposed in October 2003 being the subject of these proceedings, within about ten days the grievor posted into another secondary school by exercise of seniority rights and two months later in January 2004 took an available position at one of the Board's primary schools where he has been working in a head caretaker position on an interim basis as sick leave replacement.

17Mr. Duchaine, who also attended the investigatory meeting, indicated in his testimony that the head caretaker and his shift supervisor were doing exactly what they had been asked to do in reminding caretakers, as he had himself done in informal meetings, to follow the known directives contained in the custodial cleaning schedule. In the event that anyone was still using vinegar in the auto-scrubber unit after clear instructions had been handed out months earlier, and the issue discussed from time to time, he would be concerned. He also recalled being approached subsequent to the investigatory meeting of October 8 by the local president Wally Hillen and another local officer Ernie Trento, who was himself a head caretaker at another school. He said that he indicated he did not know whether there would be any issue of discipline developing. He was not aware of the grievor's previous discipline record. He added that he did not know at that point whether the grievor's actions were insubordinate or only reflective of the caretakers' usual workplace interaction. However, he also knew that Mr. Lubgans might well act within his own authority to investigate the matter further and make the final decision respecting discipline.

18Wally Hillen, a millwright in the maintenance department at the same secondary school and the Union's local president since 2002 testified that he discussed the issue of the grievor's remark with Ms. Von Neiderhausern, also a bargaining unit member. He recalled her indicating that she had not appreciated the comment made by the grievor but had not intended on making any formal complaint over it. He also said that he discussed the issue with the team leader, Mike Duchaine, being the head caretaker Bob Mochrie's immediate superior, who indicated to him that he did not see it as much of an issue being the kind of remark that they had all made from time to time. He also said that he discussed the incident with the grievor's co-worker, Paul Moore, as being a possible witness in this matter, with Mr. Moore indicating that he had not heard anything, was not part of their conversation and had just kept walking back to his work station after break. Mr. Hillen testified that following his attendance at the investigatory meeting held on October 8, he thought the matter had ended and that both management and bargaining unit members alike understood that the remark was made as a matter of two people who work together having a discussion, whatever the personality conflicts which were ongoing in the workplace.

19There was considerable testimony on the "shop talk" issue raised initially by Ms. Smyth in her cross-examination of the Board's first witness, Ms. Von Neiderhausern. She testified that she "tried not to use it herself" while conversing with her co-workers and did not aim any vulgar remarks at others. She said that she might have "occasionally" sworn to herself. By the grievor's description, regular vulgar remarks were heard in the workplace as amongst co-workers, including Ms. Von Neiderhausern, which included his walking into the caretakers' room on one occasion and hearing her exclaiming profanities over the phone. He said that they all regularly have used profanity in their description of things and events, not necessarily directed personally at each other, but in an adjectival way to assist them in communicating their thoughts. He also mentioned that he was careful subsequent to his suspension not to include her in any profane discussions. Indeed, he remarked that he was "scared" to speak to her at all after that.

20Mr. Hillen testified that "shop talk" in the nature of casual and explicit profanity is prevalent in every school where bargaining unit members work. He referred to it as being conversational in nature and used on a regular ongoing basis as between caretakers and their supervisors and head caretakers both as a way of joking around with each other and also as a way of getting their point across in a meaningful discussion. This is not to say, he said, that the Union disputes there being a proper chain of command or the need for supervisors and head caretakers to have their instructions followed. He said that he has had meetings with management over shop talk issues, recalling one instance where a bargaining unit member was suspended for one day. He thinks it is well accepted by caretakers that take care not to use profanity around students, although he does not understand there was an issue in that regard here given that the interaction between the grievor and Ms. Von Neiderhausern occurred during a night shift. He was at a loss to understand why Ms. Von Neiderhausern had not made her complaint known to the grievor and the head caretaker immediately when she thought there was a problem, as opposed to submitting a report to management some nine days later. In response to counsel's suggestion that it was possible she felt so uncomfortable she did not want to pursue the remark with the grievor at that point, Mr. Hillen was somewhat incredulous, indicating that within the Board's caretaker community, as a matter of workplace camaraderie, it was not unusual to hear individuals calling each other "stupid pricks" when discussing workplace issues which he sees as their bantering back and forth. Prior to her arrival the year previously at the secondary school, he said, he had heard Ms. Von Neiderhausern engaged in shop talk herself when they worked together elsewhere. From what he understood of the grievor's remark, he did not see it as belittling her authority.

21Likewise, Ernest Trento, currently a local vice-president who has held a head caretaker's position at another secondary school in Guelph over the last eight years, has heard much profane shop talk as between caretakers and their shift supervisors or head caretakers, all of whom are bargaining unit members who perform custodial duties. By way of providing an example, he said it is simply not unusual for them to call each other " idiots" while discussing workplace issues or responding to directions. He indicated that a shop talk issue has been raised at grievance meetings with the Union wanting to reduce penalties attaching for presumably crossing the line into insolent or insubordinate conduct given the continuing prevalence for profanity in the workplace. He also does not see how any offence should be taken over a remark which one does not take issue with at the time.

22In argument Mr. McAleese on behalf of the Employer, submitted that the grievor's remarks, whether or not considered by him to be merely another instance of profane shop talk, was clearly not simply camaraderie given their workplace relationship. It should be taken as lashing out against his shift supervisor. She reasonably interpreted their interchange as a challenge to her authority, certainly his verbal response did not fit within the employee's handbook as conduct which the Employer would expect its supervisors to encounter in response to reasonable directions being given over workplace issues within their authority. Even his follow-up remark, in effect asking by whose authority she was providing her directions, was, under the circumstances, a challenge to her night shift supervisor position and as such was a disciplinable offence in the nature of insubordination which, given the relatively recent history of disciplinable behaviour, supported the progressive discipline response of ten days' suspension without pay. The Union apparently espouses the shop talk informality of the workplace, while wanting to ignore the Board's distributed guidelines over inappropriate workplace conduct. He submitted that to remove or even reduce the discipline would tend to condone the grievor's conduct and would only give rise to employee profanity getting even less attention. In support, Mr. McAleese tabled the well known decision by arbitrator Outhouse in Re Volvo Canada Ltd. and Canadian Automobile Workers Local 720 (1990), 12 L.A.C. (4th) 129 where the aggrieved employee was found to be insolent and insubordinate towards his supervisor in a situation where he challenged the work assignment in the presence of other employees. It was a situation where in reacting as he did to the directions provided, the aggrieved employee by words and actions flouted, and was contemptuous of his supervisor's authority without there being any direct disobedience and no obscene or threatening remarks. The arbitrator stated succinctly at p. 136:

23The arbitrator went on to consider that the previous written warning for sleeping on the job seven months earlier was significant enough for considerations of progressive discipline to apply, concluding that although he may well have been inclined to think that a three day suspension would have served the employer's legitimate interests, he did not think there was any purpose in reducing the five days he received as being within the reasonable range of progressive disciplinary responses.

24Ms. Smyth, on behalf the Union, following her summarizing the circumstances of the matter, in addition to taking the position that the grievor's interaction with night supervisor Von Neiderhausern on the shift in question was in the nature of permissible shop talk and was not disciplinable to any degree, also submitted that in the event some discipline was warranted, Mr. Lubgans' response was unreasonable to the point of requiring one to substitute a lesser penalty. There was no issue here concerning the grievor's quality of work, nor his commitment to his caretaker duties. There was no evidence indicating that he was the caretaker still using vinegar in the machine. His thoughtless comment, uttered on a purely spur of the moment basis, should not be taken as having been directed at Ms. Von Neiderhausern either as contemptuous of her authority or insolent, but rather was characteristic of the off-hand, sometimes obscene, remarks made by caretakers within that workplace. The grievor had long since recognized there to be an issue of poor interpersonal relationships from which he had tried to remove himself by previously asking for a friendly transfer, which had been denied. In the context of this workplace his remarks should not be taken as challenging his supervisor's authority.

25Ms. Smyth tabled such cases as Re Newmont Mines Ltd. and Canadian Association of Industrial, Mechanical and Allied Workers, Local 22 (1982), 3 L.A.C. (3rd) 396 (R.. Brown); Re Fleet Industries Ltd. and I.A.M. Frontier Lodge No. 171 (2001), 97 L.A.C. (4th) 352 (Solomantenko); and Re Bettenson's Sand and Gravel Co. and U.F.C.W., Local 401 (2003), 117 L.A.C. (4th) 225 (Ponak), for the arbitrators' discussions therein over whether confrontational incidents of a verbal nature between bargaining unit employees and their supervisors warranted relatively harsh discipline for insubordination. In the Re Newmont Mines case the verbal exchange had included the employee shouting at his foreman that he should "f.. off to your office where you belong". In considering the significance of the employee's actions in context, the arbitrator ultimately reduced a three day suspension to balance of the shift, where there was at least some degree of provocation and no disciplinary record cited. In the context of having to consider an issue of provocation, which does not exist in these current circumstances, arbitrator Brown remarked generally on the concept of insubordination as follows at p. 401:

26In Fleet Industries where the verbal confrontation between a company manager and the aggrieved employee at his workbench involved obscene language in the nature of calling him either a "dick head" or a "f... dick head", the arbitrator viewed it as a matter of the employee having "overstepped the bounds of acceptable discourse with his manager". The employee had two previous two week suspensions on file, involving habitual absenteeism and then failure to be at his work station without a satisfactory reason, neither of which had been grieved. In reducing the thirty day suspension to balance of shift plus two further days, the arbitrator indicated that he took into account the aggrieved employee's prior disciplinary record. Solomantenko opined that had he enjoyed a clean record, the appropriate penalty would have been no more than a reprimand or a warning letter given that he also considered there to be some elements of provocation. In Bettenson's Sand and Gravel, where the employee was found to have directed a stream of foul and insulting language at his manager which included exclaiming "f.. you...." in the presence of a co-worker as he walked into his office. The arbitrator noted that while obscenities were not unknown to the workplace, ie: shop talk, he was satisfied that "its use as an insult directed at management was neither common place nor condoned". He took it to have been said without any provocation and considered that to insult his manager in front of others using foul language was clearly insolent and inappropriate in the work place. However, he also considered the discharge penalty imposed to be excessive in having noted that "...the grievor's insulting language was not accompanied by a refusal to work, a threat, workplace disruption, or a clear challenge to management authority, any of which can elevate an insult into something more serious. The exchange was over very quickly and the grievor ended it himself by leaving the office". The arbitrator went on to observe that the nature of such incidents invariably turn on their own particular circumstances, and that he considered it significant that the insolent or insulting words used were not accompanied by any other overt behaviour. He also remarked that he should be mindful of the "general arbitral view that use of derogatory language towards a supervisor is not in and of itself an especially serious offence". The employee had never had any formal past discipline recorded on his file. Ponak reduced the discipline to a three day suspension.

27In all the circumstances presented at hearing, I am satisfied that while this work place as with so many others requires one to given consideration to the extent of permissible shop talk interaction between co-workers when considering the nature of the profanity, it is still a matter of asking whether, in context, were the actions sufficient enough to generate a disciplinary response. As has been explained by other arbitrators, one can take certain remarks as an attack against the authority of a legitimate management representative. It is very much a matter of having to consider the contextual circumstances, there obviously being a difference between using profanity in an adjectival way as opposed to aiming it directly in some manner or other at the recipient as a way of lessening that person's position and confronting him or her over legitimate directions as a matter of confronting the other's legitimate exercise of authority. On the whole of the evidence to be considered here, I am satisfied that the grievor's aim was either to ridicule or doubt the purpose of his night shift supervisor, another bargaining unit employee in the difficult position of having to instruct co-workers. One is left with the unavoidable feeling that the grievor had little respect for Ms. Von Neiderhausern and chose the moment opportune for him to convey that feeling, also an affront to her authority, by his verbal reaction to having been simply reminded that only Pearl 405 should be used in the auto-scrubber machine. I accept that the remark was made in the presence of a co-worker, whether or not that individual was paying much or any attention, and may well have been said not just for Ms. Von Neiderhausern's benefit, but generally for his amusement and that of anyone else in the general vicinity. I accept that the remark considered in context was inappropriate, whether or not this workplace has a long history of profane shop talk which in some of the descriptions provided might well be seen to seriously conflict with the Board's code of conduct. It is also, I accept, to be considered on the milder side of inappropriate interchanges between employees and their supervisors, which have been described in various arbitration awards as leading to some discipline penalties. It obviously occurred and was over very quickly with the grievor having made an insulting remark either in terms as described by him, or very similarly by Ms. Von Neiderhausern. I also accept her testimony, as it appears more likely than not, that he asked her whose decision it had been. That additional remark is corroborative of his mind set of having little use for her authority. However, the situation ended very quickly without Ms. Von Neiderhausern even responding and indeed indicating in testimony that she would not have complained at all to her superiors had it not been for instructions received to report occurrences on her shift. Obviously, there was no work refusal of any kind, no real workplace disruption, nor any immediate follow through on his brief challenge to her authority in that they both went about their usual duties without continuing the conversation any further. There is no evidence he was refusing the Pearl 405 direction. It was obviously an off-the-cuff insult speaking to her exercise of authority and was reasonably taken that way.

28In dealing with the disciplinary penalty, one notes the grievor's past record consisting of a two day suspension for having used profanity in an aggressive way during an argument with his shift supervisor and head caretaker as overheard by an alarmed teacher, and there is also the previous act of dishonesty relative to claiming unworked overtime. However, the past disciplinary record must also be weighed against the relatively mild nature of the grievor's insubordinate remarks, enough so that his night supervisor did not take issue with him at the time and did not consider them to be worthy of an immediate complaint to her superiors, although including them in a periodic report submitted some eight days later. I am of the view, even with the grievor's past discipline and full well recognizing the significance of progressive discipline in curbing an employee's pattern of inappropriate workplace behaviour, this incident could not have generated more than a three day suspension as a justifiable disciplinary response all things considered. Had not the grievor any discipline on his file, it would have been the type of thing normally handled by a warning letter, if not just a verbal reprimand. It was certainly said by the grievor on the spur of the moment and was probably thought by him to be humourous in a workplace where profanity was commonplace, while at the same time it was obviously confrontational in the sense of seeking to put his supervisor in her place, and hence actionable to some degree.

29That said, in my view, this discipline cannot be sustained at ten days and is reduced to three days with monetary compensation to follow for any lost wages or benefits associated therewith. I remain seized pending implementation and in the event the parties are unable to finalize matters as aforesaid.

Upper Grand District School Board v Canadian Union of Public Employees, Local 256 (Kelly Grievance), [2004] CLAD No 282, LAX/2004-299

• ...the concept of insubordination must first be clearly understood. I have already defined "insubordination" as a challenge to the authority of an employer to manage the industrial enterprise. Consequently, verbal abuse of a foreman engaged in supervisory duties is improper not simply because abusive language is addressed to a supervisor, but because it denies the authority of a representative of management. This definition of "insubordination" rests upon the hidden assumption that the challenged authority is legitimate. A supervisor's act is supported by legitimate authority so long as both its purpose and the manner in which it is carried out bear a rational relationship to the objectives of the industrial enterprise. A challenge to legitimate authority is improper precisely because it impedes the accomplishment of those objectives...
• ... while no obscene language was used, there was certainly a strong element of disrespect and defiance in the manner in which the grievor conducted himself, and I refer here in particular to his approaching (his immediate supervisor) very closely and stating in a loud voice (the confrontational remark) .... The grievor was not asking a question of (his immediate supervisor). Rather, he was making a point and the point was that he was most unhappy with the work assignment he had just been handed and was not about to take it lying down, so to speak. In effect, he was venting his frustration at (the immediate supervisor) and he did so openly in the presence of other employees. Such flouting of authority, even though not accompanied by direct disobedience of an order, is impermissible, and, if left unpunished, could easily undermine managements right to direct the workforce. Accordingly, I am satisfied in the evidence before me that the grievor's conduct on the occasion in question was blameworthy and the employer had proper and sufficient cause to impose some discipline on him in relation thereto.