I was green as grass. I was still in my Local Union. Still working as a technician in my plant. I had never presented an Arbitration case in my life. But the Union had sent me away on a week long course to learn Arbitration and now it wanted to put me to work.
Grievor – Male age 39
Seniority – 7 years
Job Title – Machine Operator
Rate of pay - $19.85/hr
Employee Record – Poor. Long history of attendance and absentee issues.
The Company employed about sixty workers in a machine shop where they machined and processed parts for industrial machinery, heavy equipment and, in the summer, for recreational boating. The plant was in a town about 70 miles north of Toronto and a lot of wealthy people from the city spend their summers up there.
The employee had a long record of attendance problems. His absenteeism followed a pattern in that most of his absences were on Fridays or Mondays. The classic pattern for a weekend, binge drinker. The Company had offered several times to get help for him but he would never acknowledge he had a problem.
One Friday afternoon he didn’t return after his lunch break. The foreman figured it would be just like many other Friday afternoons and made plans to administer further discipline when he showed up next week.
However he did return that afternoon, forty minutes late. When the foreman approached him he observed that his gait was unsteady and his speech was slurred. Also he could smell alcohol on his breath. He told the employee to go home for the weekend and report to him in his office Monday Morning. The Company called a Taxi and paid the fare because they didn’t want him driving.
When the employee came in Monday the foreman advised him his employment was terminated.
The Union filed a grievance alleging improper discharged and asked that he be reinstated with no loss of seniority, wages or benefits.
Did the grievance succeed?
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My First Ever Case
Re: My First Ever Case
My first thought would be it did not succeed. Then I remember the famous case on this side of the border where FCA employees were caught on camera by a news crew smoking pot on their lunch break. They were let go and the union was successful in getting them back on the job so I am going to say the union was successful in their efforts by getting the employee help for his addiction...Thank you for bringing these back. I always read them but didn't offer opinions much. I did appreciate the view from the other side.
Re: My First Ever Case
My first thought would be it did not succeed. Then I remember the famous case on this side of the border where FCA employees were caught on camera by a news crew smoking pot on their lunch break. They were let go and the union was successful in getting them back on the job so I am going to say the union was successful in their efforts by getting the employee help for his addiction...Thank you for bringing these back. I always read them but didn't offer opinions much. I did appreciate the view from the other side.
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Deleted User 14896
Re: My First Ever Case
My thought is he got back because the company did not prove he was under the influence.
Turkey Trot says nothing about the company administering some sort of blood or breath test before they sent him home.
I'm thinking Arbitration did not view the supervisor opinion that he was drunk as proof he was actually drunk.
The union could argue he was having some sort of medical episode, or was overly tired for some reason.
Turkey Trot says nothing about the company administering some sort of blood or breath test before they sent him home.
I'm thinking Arbitration did not view the supervisor opinion that he was drunk as proof he was actually drunk.
The union could argue he was having some sort of medical episode, or was overly tired for some reason.
Re: My First Ever Case
Um, if the employee, as you say, had a record of "Poor Long history of attendance and absentee issues" over the course of seven years, why was he still an employee to begin with? Why wouldn't he have been let go long ago?
New York and Chicago were all in with respect to their sanctuary status — until they were hit with the challenge of actually providing sanctuary. In other words, typical liberal hypocrisy.
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Deleted User 14896
Re: My First Ever Case
I agree with that.
But from reading Turkey's original post, I ponder if the years of discipline were nothing more than undocumented slaps on the wrist. He comes back from lunch drunk for what sounds like the 46th time, and all they do is send him home to sleep it off?
Discipline requires documented steps to discharge. Verbal warning, written warning, a couple of days off, a week off, and if they are still messing up, it's been nice knowing you. It doesn't appear to me from reading Turkey's post that this was happening.
The most messed up part of this is that the company acknowledged he's an alcoholic because they offered to send him to rehab and he refused. And then the company was still allowing him to come into the plant. Could you imagine the liability involved if he or another employee got hurt while he was under the influence? Even if the accident was not his fault? When they offered rehab, he should of been done coming in the plant until he went thru it.
Re: My First Ever Case
The burden of proof is on the employer. They must convince the Arbitrator the employee was drunk on the job. It's a lower evidentiary standard than in criminal law. It doesn't have to be proof beyond a reasonable doubt. It just has to demonstrate that, on the balance of probability, it happened. If it looks like a duck, walks like a duck and quacks like a duck, on the balance of probability it is a duck. If the Union want's the Arbitrator to believe it's something other than a duck, it must come up with a credible explanation.
Likewise with the question as to whether the employee was drunk. There is no way to absolutely prove it. Employees in Canada can not be compelled to submit to drug or alcohol testing. The foreman must give credible testimony, under oath, as to what he observed that led him to conclude the employee was drunk.
If the Union want's to sell an alternative explanation,, such as a medical condition, the employee's Dr. would have to be there and give testimony, under oath, as to the employee's medical condition that would cause him to stagger, slur his words and smell like alcohol.
If there is conflicting testimony from the two sides, the Arbitrator has to decide who is most credible.
Likewise with the question as to whether the employee was drunk. There is no way to absolutely prove it. Employees in Canada can not be compelled to submit to drug or alcohol testing. The foreman must give credible testimony, under oath, as to what he observed that led him to conclude the employee was drunk.
If the Union want's to sell an alternative explanation,, such as a medical condition, the employee's Dr. would have to be there and give testimony, under oath, as to the employee's medical condition that would cause him to stagger, slur his words and smell like alcohol.
If there is conflicting testimony from the two sides, the Arbitrator has to decide who is most credible.
I started out with nothing and I still have most of it.
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Re: My First Ever Case
The fact the person had a long history of unexcused absences with documented disciplinary record alone should have been enough. He showed 40 minutes late, so add one more the pile. By itself that was not enough.
The fact he showed classic signs, staggering, slurred speech and smelled of alcohol on the breath and accepted the ride home in taxi means that reasonably he was impaired or drunk.
My guess you negotiated to alcohol treatment and he got his job back.
The fact he showed classic signs, staggering, slurred speech and smelled of alcohol on the breath and accepted the ride home in taxi means that reasonably he was impaired or drunk.
My guess you negotiated to alcohol treatment and he got his job back.
Ask not what your country can do FOR you; ask what they are about to do TO YOU!!
Re: My First Ever Case
The case was about 100 miles away from where I lived, so no one there knew me. Not the Company, not the Local Union, not the grieveor. None of them knew it was my first ever case. That was a good thing.
I got to town two days before the hearing and booked in at the same hotel where the hearing was to be conducted. The first step in preparing for the case was to interview the grievor. He verified that the Company's version of the facts was accurate. So there was no use trying to argue the facts. They had the goods on him.
My best hope was to convince the Arbitrator to put him back to work on the condition that he gets treatment and abstains from alcohol.
That plan quickly changed at the actual hearing. I felt a little more confident when I learned the Company wasn't being represented by a lawyer. Just someone from upper management at the plant. Suddenly the playing field felt more level.
The Company's first witness was their H.R. Lady. She went through the grievor's employee record and his discipline record. She gave testimony as to what the foremen told her about the incident on the employee's final day at work which resulted in his discharge.
After she was finished, I expected the next witness to be the foreman but he wasn't there. He was the only person who could give direct evidence as to what happened. The testimony from the H.R. lady was only hearsay. Turns out the foreman had been fired about a week ago. They had expected him to appear at the hearing, but he didn't. They should have had him there under subpoena.
The manager asked the Arbitrator if he could adjourn the hearing to a later date so they could have the witness subpoenaed. The Arbitrator turned to me and asked if I had any objection. Of course I objected. I told him I had come from 100 miles away and I was prepared to go ahead and the Company should also have come prepared. The Arbitrator was sympathetic to that argument, because he had come in from Ottawa, 300 miles away. The Arbitrator ruled in favour of my objection and disallowed the request for an adjournment.
At that point it was unnecessary for me to put on the grievor as a witness. I said to the Arbitrator that the Company had not satisfied its burden of proof and asked him to put the grieveor back to work with full recovery of wages and benefits.
The Company asked the Arbitrator to dismiss the grievance and uphold the discharge. He argued that the testimony from the Company's one witness should be accepted as satisfying its burden of proof.
He asked the Arbitrator to draw an adverse inference from the grievor's failure to give any evidence and to be available for cross examination.
The Arbitrator ended the hearing and indicated he would send out his decision in writing.
I got to town two days before the hearing and booked in at the same hotel where the hearing was to be conducted. The first step in preparing for the case was to interview the grievor. He verified that the Company's version of the facts was accurate. So there was no use trying to argue the facts. They had the goods on him.
My best hope was to convince the Arbitrator to put him back to work on the condition that he gets treatment and abstains from alcohol.
That plan quickly changed at the actual hearing. I felt a little more confident when I learned the Company wasn't being represented by a lawyer. Just someone from upper management at the plant. Suddenly the playing field felt more level.
The Company's first witness was their H.R. Lady. She went through the grievor's employee record and his discipline record. She gave testimony as to what the foremen told her about the incident on the employee's final day at work which resulted in his discharge.
After she was finished, I expected the next witness to be the foreman but he wasn't there. He was the only person who could give direct evidence as to what happened. The testimony from the H.R. lady was only hearsay. Turns out the foreman had been fired about a week ago. They had expected him to appear at the hearing, but he didn't. They should have had him there under subpoena.
The manager asked the Arbitrator if he could adjourn the hearing to a later date so they could have the witness subpoenaed. The Arbitrator turned to me and asked if I had any objection. Of course I objected. I told him I had come from 100 miles away and I was prepared to go ahead and the Company should also have come prepared. The Arbitrator was sympathetic to that argument, because he had come in from Ottawa, 300 miles away. The Arbitrator ruled in favour of my objection and disallowed the request for an adjournment.
At that point it was unnecessary for me to put on the grievor as a witness. I said to the Arbitrator that the Company had not satisfied its burden of proof and asked him to put the grieveor back to work with full recovery of wages and benefits.
The Company asked the Arbitrator to dismiss the grievance and uphold the discharge. He argued that the testimony from the Company's one witness should be accepted as satisfying its burden of proof.
He asked the Arbitrator to draw an adverse inference from the grievor's failure to give any evidence and to be available for cross examination.
The Arbitrator ended the hearing and indicated he would send out his decision in writing.
I started out with nothing and I still have most of it.
Re: My First Ever Case
Forget the drinking issue, I don't understand why he was still an employee to begin with.
Um, if the employee, as you say, had a record of "Poor Long history of attendance and absentee issues" over the course of seven years, why was he still an employee to begin with? Why wouldn't he have been let go long ago?
New York and Chicago were all in with respect to their sanctuary status — until they were hit with the challenge of actually providing sanctuary. In other words, typical liberal hypocrisy.
Re: My First Ever Case
Most employers probably would have canned him long ago.
I started out with nothing and I still have most of it.
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Deleted User 15335
Re: My First Ever Case
They'll be coming to your town, their going to party it down...
New York and Chicago were all in with respect to their sanctuary status — until they were hit with the challenge of actually providing sanctuary. In other words, typical liberal hypocrisy.
Re: My First Ever Case
The written decision came down about two weeks later. The Arbitrator found that The Company had not brought forward any credible evidence to support the discharge of the employee. He ordered the Company to reinstate the grievor and make him whole for any lost wages and benefits. By then he had already been off the job for five weeks.
I started out with nothing and I still have most of it.