FPSLREB Decisions

File: 166-2-27081 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN RICHARD ROBERTS (BLACKWOLF) Grievor and TREASURY BOARD (National Defence)

Employer

Before: J. Barry Turner, Board Member For the Grievor: Himself For the Employer: Ronald Snyder, Counsel Heard at Victoria, British Columbia, June 19, 1996.

Decision Page 1 DECISION The grievor, an Electronic Technician, EEW10s classification level, Canadian Forces Base (C.F.B.) Esquimalt, Ship Repair Unit (SRU), Department of National Defence, British Columbia, is grieving a three day suspension without pay imposed by the employer in June 1995. In September 1995 the grievor changed his name from Richard Roberts to Richard Blackwolf. For the sake of convenience, since the exhibits and the witnesses referred to the grievor as Mr. Roberts, I have done the same.

His grievance reads: Three Day Suspension for alleged misconduct. June 27, 1995 to June 29, 1995.

The letter of suspension dated 22 June 1995 and signed by S. Anderson, Acting Production Superintendent, reads: As a result of my investigation into the incident of 16 March 1995, concerning your alleged altercation with Mr. Bennett, I have determined, based on the evidence, you did misconduct yourself.

You will be awarded a penalty of a three day suspension to be served from 27 June 1995 to 29 June 1995. Mitigating* factors were your persistence in attempting to use the phone and your repeated refusal to leave the office area. Had you complied with your supervisor's demands, however abrupt you might have perceived them, the entire incident would have been avoided.

It is expected you will conduct yourself in a proper manner in the future. Minimize contact with Mr. Bennett and limit necessary communication to the business at hand only. Should this not happen and was a future incident to occur, additional disciplinary action would be more severe.

You have the right to grieve this decision. A copy of this letter will also be placed on your personnel file with the Base Civilian Personnel Office and will remain in effect for a period of two years.

* During his testimony, Mr. Anderson said that the word 'mitigating' should read 'contributing'.

Mr. Roberts is requesting the following corrective action: 1. Restoration of three days pay and benefits. Public Service Staff Relations Board

Decision Page 2 2. Removal of Sanction from personal file. I am being asked to decide if the employer's action was justified under the circumstances.

The hearing lasted one day with five witnesses testifying and sixteen exhibits submitted into evidence.

SUMMARY OF EVIDENCE 1. William Bennett, an Electronic Technician, Department of National Defence and a former Warrant Officer in the navy, worked with the grievor in the sonar shop from 1989 until March 1995. He said prior to the March 16, 1995 incident, he and the grievor did not have a good working relationship, and that "Mr. Roberts was a hard person to work with". On March 16, 1995, Mr. Bennett was the acting Chargehand and reported to Gary Edge, the then acting Foreman, who in turn reported to Al Bedows who reported to Steven Anderson, the acting Production Superintendent.

Mr. Bennett identified the notes he made after work on the day of the incident on March 16, 1995 (Exhibit E-1). He said the grievor entered the office and picked-up the phone without asking to use it as a common courtesy. Mr. Bennett said he was waiting for a call back from a ship and told the grievor five to seven times to go back to his workplace. He said he closed the office door after which the grievor hovered over him. Mr. Bennett did not leave the office because he felt he could control the situation. He said he attempted to escort the grievor out by turning Mr. Roberts' arm towards the door, but he would not move. He added the grievor then "threw the first punch" and that he was "scared shitless because Mr. Roberts is a big man". He added that he never kicked the grievor and that Mr. Carter, a journeyman at the time and now working in Ottawa, arrived on the scene. He testified that both he and Mr. Roberts were swearing during the altercation and that he later told acting Foreman Edge that they had had a fight. He added that he needed medical attention and the next morning saw a doctor who wrote a brief note with his observations (Exhibit E-2). He did not require time off.

He said that as a result of that altercation he received a five day suspension and was not allowed to act as Chargehand for two years. Mr. Bennett did not grieve this

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Decision Page 3 penalty because he felt he had done wrong and that he could have been fired "since fighting is a no-no at work".

During cross-examination Mr. Bennett said he once had an argument with some ship staff but could not remember which ship, who was involved, or what caused the incident.

When asked who asked him to prepare page two of Exhibit E-1, a statement by Mr. Bennett dated December 5, 1995, the witness responded: "No one". He added the reason for this statement that refers to a May 1992 incident was because the grievor had threatened him at the time.

Regarding the doctor's note, Exhibit E-2, Mr. Bennett said he went to the clinic around 1000 hours. There was some confusion between Mr. Roberts and Mr. Bennett as to whether the witness attended a clinic at the Tillicum Mall or the Can West Mall. When asked by Mr. Roberts if the injuries claimed on Exhibit E-2 sounded like he had been hit twice, Mr. Bennett agreed. He said he was struck in the face and that his glasses were knocked flying under the desk.

Mr. Bennett agreed that the grievor had been the shop Safety Representative for about a year and therefore had some safety duties to perform, but on March 16 he did not know why Mr. Roberts was going to use the phone. Mr. Bennett added "Mr. Roberts was working for me not me for him". He added that he never challenged the grievor to step outside to settle their argument, and did not leave the office area because he thought he could have settled things down. Mr. Bennett said he closed the office door to calm things down since the whole swearing incident was not normal. He added that during his first week of the two that he was acting Chargehand, Mr. Roberts always asked to use the phone. He testified that he tried to escort Mr. Roberts out of the office and did not initiate any pushing.

Mr. Bennett identified a military police desk report (Exhibit G-2) that reads in part on page 2 , 4.b. "he (meaning Mr. Bennett) stated he felt threatened by the size of Mr. Roberts and that is why he initiated the pushing match". He denied before me that he initiated the pushing by adding that Mr. Roberts pushed him into the corner of the office. He also denied ever kicking Mr. Roberts in the groin or that he had seen Mr. Roberts' injuries.

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Decision Page 4 The grievor entered a physician's report of the injuries he received as a result of the incident on March 16 (Exhibit G-3). Mr. Bennett responded: "I am not a doctor. I did hit you but I never kicked you".

Mr. Bennett agreed that in March 1995 he was on a peace bond for an incident that had taken place between him and his stepson at home.

During re-examination, Mr. Bennett Derek John Richardson referred to in Exhibit G-2 and that he gave a statement to the military police dated March 18, 1995 and signed it (Exhibit E-3).

Since this was the first time Mr. Roberts had seen Exhibit E-3, I allowed him time to read it. Mr. Roberts then asked Mr. Bennett if he had made the statement under oath to which Mr. Bennett replied that he did not believe it was under oath but added it was the truth as he knew it at the time.

2. Gary Edge, the Chargehand in the shop where Mr. Roberts and Mr. Bennett worked at the time of the incident, said that if a technician has a safety problem it is brought to the attention of the Safety Representative or the Chargehand, not normally to the Foreman. He said in March 1995 his working relationship with Mr. Bennett was fine, but it was not good with Mr. Roberts. He felt at times that the grievor challenged his authority and that they had a frustrating working relationship. On March 16, 1995, Mr. Carter, a sonar shop technician, phoned Mr. Edge, then acting Foreman, to tell him there had been an incident. Within minutes he said he saw Mr. Bennett in the Chargehand's office and agreed to talk to Mr. Roberts first. He spoke to the grievor near the office. He said Mr. Roberts was interested in a safety brochure and was acting as if nothing had happened. Mr. Roberts told him that Mr. Bennett had struck him, that Mr. Bennett was unstable and had abused his authority, but that he did not hit Mr. Bennett. Mr. Edge spoke with Mr. Roberts for about ten minutes and noticed swelling to his right eye.

The witness said he then spoke to Mr. Bennett who said Mr. Roberts did hit him, and that perhaps Mr. Carter had seen something. He noticed swelling to Mr. Bennett's right eye. Mr. Bennett told him he had a sore jaw. He concluded that Mr. Roberts should have obeyed Mr. Bennett and gone out of the office. Mr. Edge reported the incident to his Group Manager, Mr. Bedows.

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said he did not know the

Decision Page 5 During cross-examination, Mr. Edge testified that he has known the grievor since 1988. He described Mr. Bennett as a social friend whose home he had visited for a barbecue. He recalled a meeting between himself, Mr. Horn, a lawyer, and the grievor on March 24, 1995, but could not remember saying he saw nothing physically wrong with Mr. Bennett at the meeting.

On March 16, 1995, as acting Foreman, Mr. Edge knew the grievor was a Safety Representative, and that he had safety duties to carry out as per Exhibit G-4, duties of a shop Safety Representative. He agreed that "safety comes first", and that when it comes to safety there is no real hierarchy. He therefore agreed that Mr. Roberts' attempt to make a phone call for a safety related matter was appropriate. Mr. Edge said he was aware when he considered Mr. Bennett to act as Chargehand that he had had an incident years before. He was not aware in March 1995 that Mr. Bennett was under a peace bond but knew he had family problems.

3. Steven Anderson was the acting Production Superintendent in March 1995. He said the Group Manager, Al Bedows told him about the incident on March 16 just after 1000 hours. At the time, Mr. Anderson did not know Mr. Roberts or Mr. Bennett. He interviewed both of them; Mr. Bennett on May 1, 1995 (see handwritten notes, Exhibit E-4) and Mr. Roberts on May 15, 1995 (Exhibit E-5), the earliest suitable time for Mr. Roberts and his lawyer, Mr. Horn.

I allowed Mr. Roberts some time to read both exhibits since he had never seen these notes before.

Mr. Anderson added that he had spoken with Mr. Drought, a sonar shop technician, Mr. Singh, an apprentice at the time, Mr. Edge, Mr. Carter, Mr. Bennett, and Mr. Bedows before the May 15 meeting with Mr. Roberts and that he had explained this to Mr. Roberts before he asked for his version of events. Mr. Bennett attended this meeting as well. Mr. Anderson added that Mr. Drought and Mr. Singh said they did not see the fight but they heard a loud commotion and a verbal barrage mainly from Mr. Bennett.

When asked by Mr. Snyder if he (Mr. Anderson) was able to conclude who threw the first punch or who shoved who first he responded: "No. Both were equally culpable in my mind; both stories were closely related and both were worthy of

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Decision Page 6 discipline". Mr. Anderson concluded that Mr. Roberts was repeatedly told not to use the phone but to go back to work and therefore could have been insubordinate and provoked Mr. Bennett. He added they disliked each other, but Mr. Bennett could also have walked away or offered to make the phone call for Mr. Roberts.

During cross-examination, Mr. Anderson said that Mr. Bennett's injury occurred while on duty but rather than have the Workman's Compensation Board review it, Mr. Bennett took some time off as sick leave. The witness agreed with the policy extract dealing with accidents (Exhibit G-5), that if someone is injured on duty, he is required to report to first aid for protection in case of a later claim. Mr. Bennett did not report to the first aid.

Mr. Anderson testified that the grievor gave him a summary of the May 15, 1995 meeting (Exhibit G-6) on May 16 or 17.

The witness said the key point in Mr. Bennett's culpability was that he admitted he had been in a fight with Mr. Roberts and was sorry it had happened. He added the key points in Mr. Roberts' culpability were an admission that he had been in the office, that he chose not to leave the office and that he had been involved in an altercation by pushing Mr. Bennett, even though he denied ever hitting him. Mr. Anderson said that since both men sustained injuries, there was obviously an altercation.

Mr. Anderson concluded that he "had no reason to doubt Mr. Bennett did not kick you (Mr. Roberts) first, he just denied it".

Regarding Exhibit E-4, the May 1, 1995 interview with Mr. Bennett and Mr. Carter, Mr. Anderson said they were interviewed together but he saw no conflict because Mr. Carter had been earlier interviewed by Mr. Edge and Mr. Bedows.

Mr. Snyder commented that the grievor's character is not being questioned by the employer. Mr. Roberts therefore eliminated the need for some of his witnesses.

4. The grievor entered a Statutory Declaration dated May 16, 1995, that he said he drafted on March 17, 1995 as his statement and testimony (Exhibit G-7). He also entered a Shop 27 office layout (Exhibit G-8). Mr. Roberts disagreed with Mr. Bennett's interpretation of page two of Exhibit E-1 by saying that the purpose surrounding the Public Service Staff Relations Board

Decision Page 7 May 1992 incident referred to by Mr. Bennett was not because the grievor had allegedly threatened Mr. Bennett but was to inform themselves of the department's harassment policy. Mr. Roberts also said that Mr. Carter and Mr. Drought only saw "a slice of the incident" and could therefore not be very credible.

Mr. Snyder then cross-examined Mr. Roberts. During cross-examination, Mr. Roberts said that he entered the Shop 27 office and was denied use of the phone by Mr. Bennett who was sitting behind the desk and told him to return to his workplace. The grievor said he started to turn to leave when Mr. Bennett jumped up, closed the office door, and again said to go back to his workplace. The witness added that at that point, he did not want to have an incident but Mr. Bennett was blocking his exit. He added the first time Mr. Bennett told him to leave he was not obstructing him. The grievor agreed that it was his duty to obey the acting Chargehand. He added he wanted to call Mr. Edge, but it was not a matter of life or death but could not have waited either since there was a Safety Shoe truck in the yard. The grievor had a safety shoe catalogue he wanted to share with Mr. Edge in case other employees wanted to see what the truck had in stock since it was only going to be there until 1300 hours. The grievor considered this a safety issue as the Safety Representative.

Mr. Roberts said he felt Mr. Bennett was blocking his exit because he was intent on lecturing him, was yelling, and pushed the grievor off balance. He added that he had no pretext to be wary of Mr. Bennett, and that the difference in their physical sizes was not a practical matter since Mr. Bennett kicked him. The grievor maintained that throughout the incident he was polite, was not mad, and maintained control of himself to calm down Mr. Bennett. He added that he "was not interested in a fight with him".

At this point in the hearing, I was able to determine that Mr. Roberts' formal education went to grade 11, that he first joined the SRU in 1973 and worked there until 1976. He was asked to rejoin in 1988. He did so and is still employed there. He served in the Royal Canadian Navy as an apprentice in 1959.

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Decision Page 8 Also he clarified for me that initially the office door was open, then it was closed by Mr. Bennett. After some shouting at each other the door was opened again by Mr. Bennett before the altercation took place.

He added that he was wearing a heavy black leather jacket and that it was hard to hit him since he also had his hands up. He said Mr. Bennett did not fall or hit something but that the grievor saw Mr. Bennett's right hand was swollen. Mr. Roberts does not accept the doctor's report of Mr. Bennett's injuries (Exhibit E-2). He did not hear that Mr. Bennett had been injured until the May 15, 1995 interview. He added that he has grieved his punishment because he did not hit Mr. Bennett, and since he knew the most about the incident, even though his bargaining agent represented him at the third level of the grievance, he wanted to represent himself before me since he was there "to clear his name".

The grievor entered an affidavit signed by Mr. I. Singh dated 18 June 1996, Kitimat, B.C. (Exhibit G-9) swearing to what Mr. Singh had observed during a conversation he had with Mr. Bennett just after the March 16, 1995 incident.

Mr. Snyder objected since Mr. Bennett was no longer at the hearing to refute the affidavit and because he would not be able to question Mr. Singh regarding the affidavit. I allowed Exhibit G-9 subject to what weight, if any, it may carry, ordered the return of Mr. Bennett to the hearing, and recessed until he returned.

Mr. Bennett took the stand, read Mr. Singh's affidavit and responded to Mr. Roberts' question that he could "not remember speaking with Mr. Singh" after the incident. Regarding Exhibit E-2, the doctor's handwritten notes about Mr. Bennett's injuries, Mr. Bennett denied that he ever said Dr. Roper would sign anything for him. In fact, he added that he has had only one medical leave blue form signed in the last five years.

During further questioning by Mr. Snyder, Mr. Bennett said he has had a beard for about fifteen years and that his eye was bothering him when he met the military police on March 16. He added that he wears safety glasses at work that are wide and has a protector along the sides and had them on when he spoke with the military police. During a five minute conversation with Mr. Singh, as Exhibit G-9 alleges, when asked what part of Mr. Bennett's body Mr. Singh could have seen from a sonar

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Decision Page 9 workbench, Mr. Bennett said it would depend where he (Mr. Bennett) would have been standing and whether or not his hands were on the workbench. When asked why he did not complain to Mr. Singh about being hit, Mr. Bennett said again that he could not remember their alleged conversation. He added that he did not immediately attend the first aid because his injuries were not bothering him that much at the time.

I asked the grievor what he meant by "racial discrimination" in his Statutory Declaration (Exhibit G-7). He explained that he was a native American of Cheyenne background with dual U.S./Canadian citizenship since he was born in Canada to U.S. parents.

5. Shawn Gillis, a corporal with the military police, was on patrol at C.F.B. Esquimalt on March 16, 1995. He said that Mr. John Richardson, Civilian First Aid, contacted the police about the incident as per the police desk report (Exhibit G-2). Corporal Gillis investigated Mr. Bennett for assault. Mr. Bennett gave a limited statement. He added that Mr. Bennett complained to him of a sore jaw, that he observed reddening on Mr. Bennett's right fist but did not observe a bruise on his head nor did he see any other "open signs of injury and no marks apparent to me". He said Mr. Bennett had his glasses on. He also investigated Mr. Roberts who had a blue ice pack on his forehead when he questioned him. He also spoke to Mr. Carter who told him that he saw Mr. Bennett strike Mr. Roberts twice. Because of Mr. Carter's evidence, Mr. Roberts was not charged with assault. Mr. Bennett was. The crown never pursued the charges.

During cross-examination, Corporal Gillis said he saw no markings on Mr. Bennett's face or near his right eye when he interviewed him about three hours after the incident. He added since Mr. Bennett said his glasses had been knocked off, Corporal Gillis and his colleague, Corporal Price, checked his face for injury.

During re-examination, Corporal Gillis said he could not recall taking photographs of Mr. Bennett but that it was normal to take them when there are signs of physical injury on someone.

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Decision Page 10 ARGUMENT FOR THE EMPLOYER Counsel for the employer argued that there was clearly an altercation in the Chargehand's office on March 16, particularly since the two versions of events are essentially the same. He argued the grievor claims he merely blocked the blows from Mr. Bennett and that his claim he remained calm after being allegedly kicked in the groin is not believable. He said both agreed they were swearing at each other yet the grievor's statutory declaration (Exhibit G-7) is too cordial. Mr. Snyder concluded that under the circumstances this is not reasonable for me to accept. He said the grievor's claim that he did not hit Mr. Bennett is simply not true since there is a doctor's note (Exhibit E-2) that shows Mr. Bennett was injured. He also argued there is uncontroverted evidence that the grievor was told not to use the phone and to go back to work. Counsel argued it makes no sense for Mr. Bennett to get up, close the office door, and proceed to lecture the grievor.

Counsel argued that Mr. Anderson made it clear in his testimony that he did not decide who hit who first, who was more culpable, or which version of events was the most credible. He argued Mr. Anderson imposed punishment that was meant to be corrective because both Mr. Bennett and Mr. Roberts should have avoided the incident.