Arbitrator: Richard Brown

For the Union:

Ainslie Benedict

For the Employer:

Mary Gleason

Hearing:

April 26 and 27, 1999

Sault Ste. Marie, Ontario

Mike Senyck has grieved a five-day suspension. At the time of the incident for which he was suspended, the grievor had been an air traffic controller for 29 years and had no record of discipline within the preceding two years. Mr. Senyck was Ontario Regional Director of CATCA. There is little dispute as to what occurred and the association concedes the grievor’s conduct warranted some form of discipline. The only question is whether the penalty levied was appropriate in all of the circumstances. The answer turns largely upon the proper disciplinary response to safety infractions and the relevance of union office to discipline in this context.

I

The suspension resulted from Mr. Senyck’s conduct while on duty in the Sault Ste. Marie tower on January 1, 1998, between 12:30 and 2:00 p.m. Throughout this period, he filled both the air and ground control positions. During the ninety-minute interval, Mr. Senyck made thirteen personal telephone calls on the fax line. The calls had a combined length of sixty-three minutes and none concerned urgent matters. Some produced a busy signal or reached only an answering machine. Eight conversations resulted. During these conversations, Mr. Senyck had thirteen exchanges with controlled vehicles and made errors in eight. There were no mistakes in his communications with an aircraft which arrived and departed. No injury to person or property occurred as a result of the errors that were made.

The disciplinary notice, dated February 16, 1998, was issued by the tower manager, Steve Spiers:

The investigation of the grievor’s conduct was launched by Mr. Spiers after he was told by the airport manager that vehicle operators had complained. All communications in the control tower are recorded. The tape was transcribed and a summary of the transcript was entered in evidence.

During the first twenty-two minutes, Mr. Senyck made four personal calls, the first two lasting only a minute or so each, the third seven minutes, and the fourth almost twelve minutes. During the last telephone call, the grievor responded to a ground call in a prompt and otherwise appropriate manner.

Five seconds after ending the fourth personal call, Mr. Senyck made a fifth, lasting seventeen minutes, during which he had several work-related communications. Errors occurred in three of these exchanges. When the driver of Truck 91 reported leaving the field, there was a delay of thirty-two seconds before the grievor responded without any call sign and asked for the message to be repeated. This response indicated he did not know who was calling or what the caller said. The second error involved Blower 140. The operator reported off the field, the grievor replied four seconds later using the call sign for Blower 141, and the operator pointed out the error. Mr. Senyck testified no confusion resulted from his use of the wrong call sign because there was only one blower working on the day in question.

The third error during call five involved the emergency response vehicle, known as Red 2, and caused the greatest concern for the employer. The driver of Red 2 reported he would be out of the fire hall for a few minutes and could be reached via the hand-held radio system. Seventeen seconds later, the grievor responded by giving authorization for Red 2 to proceed to the service road. This error was not corrected. The exchange occurred less than four minutes before Canadian Regional Flight 1883 landed and thirty seconds before the grievor terminated his personal call. His totally inappropriate response to Red 2 indicated he did not know that the operator was no longer using the ground frequency. If the landing aircraft had crashed, and the operator had not yet returned to the fire hall, he would have heard the alarm, but he would have been unable to get further information from the tower until he had reached his vehicle, unless the grievor realized his error and switched on the hand-held frequency.

Six minutes after Mr. Senyck ended his fifth call, the fax received a weather report from the Flight Services Station. It was then sixteen minutes after the hour. According to the grievor, weather reports normally came ten to twelve minutes after the hour. He suggested his personal call had not delayed the weather report because it did not arrive until several minutes after he hung up and the sending fax automatically redials until the transmission is made.

A total of eight minutes elapsed between the termination of the fifth personal call and the initiation of the sixth. Calls six through twelve were short and took place in a span of fourteen minutes. There followed another interval of eight minutes with no personal calls.

During the final call, lasting nineteen minutes, Mr. Senyck conversed with Michel Bouffard, another controller. Once again, there were several work-related communications during the personal call. The employer takes issue with five of these exchanges.

There is some dispute as to what occurred during the first exchange. When the driver of Truck 27 reported leaving the field at the service road, there was a thirty-seven second delay before the grievor responded, without a call sign, by asking for the message to be repeated. The driver immediately repeated his call sign and message, and the grievor responded nine seconds later with only the call sign. According to the grievor, his response indicated he was aware Truck 27 had left the field. The employer contends what transpired immediately after demonstrates the grievor did not know where the truck was. Ten seconds after responding with only the truck’s call sign, having received no intervening call from any other vehicle, the grievor asked the "vehicle on the service road" to repeat its message. In my view, this request indicates the grievor did not know the driver of Truck 27 had reported off the field. His request to have the message repeated was made two minutes before Canadian Flight 1882 was given taxi clearance. The request elicited no reply, and the grievor did not attempt to communicate with Truck 27 again. Mr. Senyck testified he had placed Mr. Bouffard on hold while the plane was being cleared for take off.

In the space of six minutes, errors were made in four other exchanges which occurred after the departure of Canadian Flight 1882. The driver of Truck 91 asked permission to go on the field, and the grievor responded six seconds later by acknowledging that Red 2 was off the field. The driver of Red 2 had not requested permission to go on the field in the first place. The grievor failed to acknowledge a call from the driver of Mobile 8. A call from the operator of Blower 140 elicited a very prompt response to Blower 141. The driver of Truck 91 requested clearance to go on the field, and repeated his call sign ten seconds later. The grievor immediately terminated his telephone conversation and called Loader 150, rather than Truck 91, to find out what message had been transmitted.

As soon as he was confronted about this conduct, Mr. Senyck admitted it was inappropriate and apologized. In examination-in-chief, the grievor described his behavior as "extremely unprofessional". However, he noted the traffic on New Year’s Day had been very light. During his shift only two planes arrived and departed, compared with hundreds of arrivals and departures on an average day when the flight school was open.

II

As evidence of the standard of conduct expected of controllers, the employer relies upon the following extracts from Nav Canada’s ATSI-9702:

Functional goal #1 appears on a plaque posted in the Sault Ste. Marie tower.

The matter of personal phone calls is addressed in a regional management directive dated July 27, 1995 and issued over the signature of Frank Decarlo, then Transport Canada’s regional director. The directive states that controllers shall not make personal calls, even "urgent" ones, when occupying an operational position. This is the general rule but there is an exception for "one-person operations" where another controller is not available to provide relief. In this context, "urgent calls" of "short duration, normally no more than one or two minutes" may be made "during a period of no known or anticipated traffic." On January 1, 1998, the exception relating to one-person operations did not apply because two other controllers worked the day shift with Mr. Senyck. One of these controllers could have provided relief to the grievor.

The rule prohibiting controllers from making personal calls from an operational position was in effect long before 1995 when it appeared in the regional directive quoted above. In cross-examination, the grievor conceded a CATCA phone line in the tower had been removed in 1993 because management felt it was being abused. Mr. Senyck and two other controllers grieved the removal of this line and the grievance was eventually dismissed by the Public Service Staff Relations Board in a decision dated March 13, 1995. That decision sets out a memo from the tower manager, dated June 22, 1989, stating that "employees are using this phone line at the operational position so that they may chat while working" and that "warnings to cease this practice also have not been heeded." The manager proposed to remove the line at that time but was persuaded otherwise. It was removed by a subsequent manager in June of 1993.

Personal phone calls were again addressed in a memo to staff first issued on July 30 of that year by the then tower manager, T.D. Lee:

(This memo was reissued by Nav Canada on December 12, 1995, with all references to Transport Canada removed, but with no substantive changes.) The grievor was CATCA branch chair at the time the memo was first issued. In this capacity, he spoke to Mr. Lee about the controllers’ concerns and was told they should use their common sense in making phone calls. In cross-examination, the grievor conceded the use of common sense had to do with determining which calls were urgent. In other words, he and Mr. Lee did not discuss making calls from an operational position when relief was available.

In another staff memo, dated August 9, 1993, Mr. Lee wrote:

The fax is used for the transmission of weather reports and flights delays imposed for reasons of air traffic control.

Mr. Senyck admits he was aware of these written directives concerning personal phone calls. He contended Mr. Lee’s directive about the fax was canceled by the Nav-Canada directive issued in December of 1995. This contention is incorrect. As already noted, the Nav Canada directive merely replaced the substantively identical one previously issued by Transport Canada.

According to uncontradicted testimony, controllers at Sault Ste. Marie have not fully complied with management’s instructions. Mr. Senyck estimated a controller makes or receives three or four calls per day on average. Denis Catania, a controller and team leader within the bargaining unit, estimated a controller has two or three personal calls per shift some of which are not urgent. Neither of these witnesses testified as to whether controllers were making personal calls from an operational position.

Mr. Senyck contends the employer was aware personal calls were being made from the tower. The grievor testified he twice walked into Mr. Lee’s office while the tower manager was listening to a tape of Michel Bouffard engaged in such a call. These incidents must have occurred sometime after 1993 when Mr. Lee became tower manager. There is no evidence as to whether Mr. Bouffard made these calls from an operational position or as to whether they involved urgent matters. In cross-examination, the grievor conceded he does not know who initiated them, how long they lasted, or whether Mr. Bouffard made them while working alone. In short, the evidence does not prove the facts known to Mr. Lee disclosed any violation of the rules.

The tapes of tower communications are regularly reviewed by a controller designated as the unit operations specialist who is also a member of the bargaining unit. Mr. Catania testified a conversation about dinner, between him and his wife, was reviewed by Mr. Hutt as operations specialist two years ago. In cross-examination, Mbr. Catania conceded he did not know whether Mr. Hutt discussed this matter with management.

Mr. Senyck testified the spare telephone sat most of the time on the counter in the Tower, plugged into the same line as the fax. Testifying before Mr. Senyck, Mr. Spiers said the spare phone was kept in storage, indicating he had not seen it on the counter. He was not cross-examined on this point.

III

Counsel for the employer contends the magnitude of the appropriate penalty is increased by Mr. Senyck’s position as an officer of the association. The evidence indicates this factor did not enter into management’s choice of a five-day suspension. In the event I decide this penalty is not warranted on other grounds, counsel urges me to sustain it because of the office held by the grievor.

Employer counsel provided copies of two awards dealing with union officials. In Bell Canada and Communications Workers of Canada, (1989), 5 L.A.C. (4th) 40 (Burkett), the grievor was vice-president of the local union. He had completed "twelve years of unblemished service" before sabotaging company property, with a fellow union member, during a legal strike. Mr. Burkett began by reviewing the case law about union officers who participated in illegal strikes:

As to the rationale behind this approach, Mr. Burkett quoted the following passage from one of his earlier awards, Canadian Industries Ltd and U.S.W., dated January 7, 1977:

Through a process of reasoning by analogy, Mr. Burkett in Bell Canada applied the jurisprudence about unlawful strikes to the conduct before him:

The analogy between participating in an unlawful strike and engaging jointly in the destruction of property during a lawful strike is very close. In both scenarios, the activity is illegal and it is intended to further the objectives of the union, even if the illegality is not officially sanctioned by it. The union official, although doing no more than any other participant, is likely to be perceived as a leader, because the conduct is meant to serve the ends of the organization of which the individual is an officer. As Mr. Burkett explained, such leadership increases the resulting harm by encouraging others to join in the misconduct. This is the rationale for a more severe penalty.

The second award provided by the employer is Livingston Logistics Services Inc. and Industrial Wood and Allied Workers of Canada (1997), 66 L.A.C. (4th) 300 (MacLean), where the union’s chief steward was discharged for an act of pilfering. Upholding the dismissal, Arbitrator MacLean said about the grievor:

In coming to this conclusion, Mr. MacLean cited the decision in Bell Canada. The facts in these two cases are similar insofar as stealing and destroying property are both crimes, but the facts are different in as much as the pilferage had no connection to the trade union, whereas the sabotage was done in the context of a concerted refusal to work. When an official engages in misconduct lacking any relationship to the bargaining agent, the holding of union office does not encourage others to join in common cause. At most, the misconduct may influence how others behave in the future. In purporting to follow Bell Canada, Mr. MacLean did not consider whether this distinction was relevant to the determination of the appropriate penalty.

Mr. MacLean also cited another theft case, Livingston Distribution Centres Inc. and Teamsters Union (1996), 58 L.A.C. 129 (MacDowell) where the arbitrator said:

Two factors are addressed in this passage: the mere holding of union office; and the use of union office to communicate with other employees about the penalty for theft. In the last paragraph quoted, Mr. MacDowell suggested such communications are relevant in fashioning a penalty for theft. As to the relevance of union office alone, he merely said "there is much to be said" for following Mr. Burkett’s lead. Like Mr. MacLean, Arbitrator MacDowell did not address the distinction between theft sabotage during a legal strike and theft.

The facts at hand are distinguishable not only from Bell Canada but also from Livingston Logistics. Unlike the sabotage in Bell Canada, a violation of safety rules bears no relationship to the function of the bargaining agent, and therefore does not cast a union officer in the role of leader. Unlike the theft in Livingstone Logistics, Mr. Senyck’s misconduct was not a crime or otherwise unlawful. The authorities cited do not stand for the proposition that a union officer should face a greater penalty than other employees for misconduct which is neither illegal nor done to achieve organizational goals.

Nor is this a proposition which I am inclined to embrace. If union officers were to be treated in this way, why not everyone who might be seen as a role model by others in the workplace, including senior members of the bargaining unit, or even employees with positions of leadership elsewhere like civic politicians. Speculation about the possible influence of role models on the future conduct of other employees does not warrant differential treatment in the assessment of penalties. Indeed, it could be argued that imposing a heavier penalty on union officials for all types of misconduct is tantamount to discrimination based upon union activity.

My reluctance to accept the employer’s argument is buttressed by the words of Mr. Justice Estey in Douglas Aircraft Co. of Canada v. McConnell (1979), 99 D.L.R. (3d)385 (S.C.C.):

I conclude Mr. Senyck is not subject to heavier punishment by virtue of his union office.

IV

Counsel for the employer relies upon six cases dealing with penalties for the contravention of rules relating to safety. The first three involve air traffic controllers. In Whittley and Treasury Board, decision dated Feb. 10, 1997, the Public Service Staff Relations Board upheld the discharge of a air traffic controller with fifteen years of seniority and no previous discipline except a one-day suspension for profanity. Mr. Whittley twice left his operational post at the North Bay Tower unattended, for twenty minutes on one occasion and for several minutes on the other. During his first absence, while less than the normal level of service was provided by a flight service specialist, a military jet landed and a civilian passenger carrier took off on the same runway within one minute of each other. The grievor gave false testimony about the reason for his absence during this occurrence. Acting out a plan devised before reporting for duty, Mr. Whittley also left work two hours early, having falsified records to indicate he worked a full shift, and leaving one controller on duty when there should have been two. In upholding the discharge the adjudicator emphasized the important contribution made by a controller to air navigation safety: