In a recent arbitration decision, Arbitrator Paul Craven had the opportunity to comment on these concepts. In U.S. Steel - Hamilton v. United Steelworkers, Local 1005, the grievor was by all accounts a good employee with a clean disciplinary record. As he was leaving the plant one day, he was selected for a random vehicle search. Plant security found a partial bottle of vodka in the trunk of the car, beneath some camping equipment. The Company had a 'zero tolerance' policy that prohibited the possession of alcohol on company property, and provided for a 3-day suspension for a first violation. The employee explained to the employer that he was driving his wife's vehicle that day, and that his daughter had previously used the car for a camping trip, and failed to unload the trunk. A phone call to his daughter, in the presence of security staff, confirmed this to be the case, and the employer did not disbelieve this explanation. However, relying on the policy, the employee was still given a 3-day suspension, which he grieved.
At arbitration, the parties agreed that the Hamilton steel plant was a "safety-sensitive" environment and that alcohol and drugs should be kept out of the workplace, but the union argued that an unintentional violation of the policy which had no impact for plant safety should not have attracted such a serious form of discipline (the last step in the disciplinary process short of termination). The employer argued that strict and consistent enforcement of the policy was necessary to ensure that employees did not become confused about the rules against alcohol in the workplace.
Arbitrator Craven began his analysis by reviewing the decision in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. Ltd. ("KVP"), which describes the test to be applied in assessing employer policies that have not been negotiated with and agreed upon by the union.
- It must not be inconsistent with the collective agreement.
- It must not be unreasonable.
- It must be clear and unequivocal.
- It must be brought to the attention of the employee affected before the company can act on it.
- The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
- Such rule should have been consistently enforced by the company from the time it was introduced.
In looking at how the employer applied the policy to the grievor, the Arbitrator found that the punishment did not fit the crime. The employer had mechanically applied a set penalty without first considering the employee's disciplinary record and his blamelessness in unwittingly violating the policy. The three-day suspension was found to be too severe, and was to be removed and replaced with a written warning.
The message to unionized employers should be clear. In the absence of an agreed-upon specific penalty clause in the collective agreement, the employer should not impose automatic disciplinary sanctions for policy violations, even where there is a legitimate and pressing reason for insisting on 'zero tolerance'. Zero tolerance should only be applied at the stage of determining whether there has been a violation of policy (i.e., an investigation should occur, and measures taken to address every violation). Once a policy violation is found, the employer must assess the seriousness of the violation, considering the actual or potential harm to the organization, the presence or absence of intent, the employee's disciplinary record, the level of discipline previously applied for similar violations, etc. Only by performing this analysis before taking corrective action can an employer later justify its actions.
Do you have questions about instituting new policies or the imposition of discipline? Contact Lance Ceaser for expert advice.