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FINDINGS AND DECISION

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					ref.#                                                                            Termination

                               FINDINGS AND DECISION
                                          IN A DISPUTE
                                             between

                  THE ST. JOHN’S TRANSPORTATION COMMISSION
                                  ("the Employer")
                                         and

                  THE AMALGAMATED TRANSIT UNION, LOCAL 1462
                                ("the Union")

APPEARANCES:
Grievor:               Mr. George Crocker
For the Employer:
        Presenter:     Mr. Harold M. Smith, Q.C.
        Advisor:       Ms. Judy Powell, General Manager
        Witnesses: (testifying under oath)
                       Ms. Heather Hopkins, Manager of Human Resources
                       Mr. Austin Spurrell, Manager of Finance (former Acting General Manager )
                       Ms. Teresita ("Terry")Richardson, Supervisor
                       Ms. Judy Powell, General Manager
For the Union:
        Presenter:     Mr. Randell J. Earle, Q.C.
        Advisor:       Initially Mr. Paul Churchill, then Mr. Larry Kinnear
        Witnesses: (testifying under oath)
                       Mr. Larry Kinnear, International Vice-President A.T.U.
                       Mr. George Crocker, President & Business Agent
                       Mr. Ken Walsh, Transit Operator
The Board:
For the Employer:      Mr. John Peddle
For the Union:         Mr. Jack Harris, Q.C.
Chairman:              Mr. John A. Scott

The hearings were held in St. John’s on Feb 21, 22, 24; May 29, 30, 31; June 1; August 21, 22, 24,
25; Sept. 6, 7,13; Dec. 15,18,19.

Statement of Grievance (dated November 4, 2005) reads: “Please accept this correspondence as
a formal request to initiate the Step Three grievance procedure in relation to the dismissal of George
Crocker. The request follows from the dismissal of George Crocker on 2 November 2005. ”

The Union requests that: “George Crocker be re-instated and made whole with respect to both his
wages and benefits.”


                                                  1
THE PARTIES AGREED THAT:
S    the Board was properly appointed and had authority to hear the case;
S    in the event of conflict the Chairman's notes of the evidence and argument as recorded in the
     final award will prevail;
S    all matters pertaining to the grievance procedure and all time limits, whether statutory or
     arising from the collective agreement, were either properly observed or are waived;
S    there were no points raised as to arbitrability or other preliminary objections;
S    all witnesses were excluded until all their testimony had been heard;
S    issues of quantum, if any, would be considered separately and if the parties do not reach
     agreement within thirty (30) calendar days they will be referred to the Board for resolution;
S    the Board will remain seised of the matter for thirty (30) calendar days after publication of
     the award to deal with matters of interpretation should they arise.

ITEMS TAKEN INTO EVIDENCE
Consent # 1 Collective Agreement expiring May 31, 2007
Consent # 2 Grievance dated Nov. 4, 2005
Consent # 3 Denial of Grievance Dated Nov 14, 2005
Consent # 4 Letter of Dismissal Nov. 2, 2005
Consent # 5 Handwritten notes of Sept. 21, 2005 union meeting
HH # 1 Arbitration Decision (Arbitrator Oakley) Nov.15, 2004
HH # 2 Letter: Ms. Hopkins to Mr. Crocker July 11, 2005
HH # 3 Grievance form July 5, 2005
HH # 4 Letter: Ms. Hopkins to Mr. Crocker June 29, 2005
HH # 5 Costing re Retiree Prescription Drug Plan (lifetime benefits)
HH # 6 Letter: Mr. Crocker to Ms. Hopkins July 11, 2005
HH # 7 Letter: Ms. Hopkins to Mr. Crocker (re JBC) July 15, 2005
HH # 8 Letter: Ms. Hopkins to Mr. Crocker (re Policy Grievance) July 15, 2005
HH # 9 Grievance form July 20, 2005
HH # 10 Letter: Mr. Lawlor to Mr. Crocker July 22, 2005
HH # 11 Letter: Ms. Hopkins to Mr. Crocker Aug. 29, 2005
HH # 12 Letter: Mr. Crocker to Mr. Spurrell Sept. 14, 2005
HH # 13 Letter: Mr. Spurrell to Mr. Crocker Sept. 20, 2005
HH # 14 Letter: Ms. Hopkins to Mr. Crocker Oct. 6, 2005
HH # 15 Article: Telegram Aug. 23, 2005
HH # 16 Transit Operator Handbook
HH # 17 Media Transcript: VOCM Back Talk 2:40 pm Sept. 1, 2005
HH # 18 Media Transcript: VOCM Night Line 8:51 pm Sept. 4, 2005
HH # 19 Letter: Mr. Spurrell to Mr. Crocker Oct. 17, 2005
HH # 20 Letter: Mr. Spurrell to Mr. Crocker Oct. 28, 2005
HH # 21 Letter: Mr. Crocker to Mr. Spurrell Nov. 1, 2005
HH # 22 Operator's Statement: Anderson Avenue Incident Sept. 13, 2005
HH # 23 Article: Telegram Sept. 17, 2005
HH # 24 Metrobus Information Bulletin: On the Front Line
HH # 25 Accident Investigation Report (Anderson Ave. Incident) Sept. 13, 2005
HH # 26 Media Transcript: VOCM Radio News 7:45 am Sept. 18, 2005

                                                2
HH # 27 Media Transcript: VOCM Night Line 8:00 pm Sept. 18, 2005
HH # 28 Media Transcript: VOCM Night Line 9:20 pm Sept. 18, 2005
HH # 29 Media Transcript: VOCM Radio News 7:45 am Sept. 21, 2005
HH # 30 Media Transcript: VOCM Open Line 9:00 am Sept. 21, 2005
HH # 31 Media Transcript: VOCM Back Talk 2:00 pm Sept. 21, 2005
HH # 32 Media Transcript: VOCM Back Talk 2:14 pm Sept. 21, 2005
HH # 33 Letter: Ms. Hopkins to Union Executive July 16, 2004
HH # 34 Letter: Mr. Lawlor (per Anderson) to Mr. Miller July 21, 2004
HH # 35 Letter: Mr. Wells to (name blacked out) Jan. 18, 2000
HH # 36 By-Law: City of St. John's 1308 passed May 17, 1993
HH # 37 Media Transcript: VOCM Night Line 11:33 pm Dec.14, 2004
HH # 38 Media Transcript: VOCM Open Line 9:36 am Dec. 15, 2004
HH # 39 Media Transcript: VOCM Radio News 1:00 pm Dec. 15, 2004
HH # 40 Media Transcript: VOCM Night Line 10:55 pm Dec.15, 2004
HH # 41 withdrawn exhibit
HH # 42 Letter: Mr. Crocker to Ms. Hopkins April 7, 2004
HH # 43 "Plan Outline" Group Insurance
HH # 44 Media Transcript: VOCM Open Line 9:19 am Dec. 15, 2004
AS # 1 Letter of Reinstatement, Mr. Spurrell to Mr. Crocker Dec. 21, 2004
AS # 2 Letter: Ms. Powell to Mr. Crocker Nov. 16, 2004
AS # 3 Letter: Mr. Lawlor to Mr. Crocker July 13, 2005
AS # 4 Media Transcript: VOCM Open Line 11:18 am Dec. 16, 2004
AS # 5 St. John's Transportation Commission Agenda & Minutes Sept. 29, 2005
AS # 6 St. John's Transportation Commission Agenda & Minutes Oct. 26, 2005
AS # 7 St. John's Transportation Commission Special Meeting Oct. 26, 2005
AS # 8 "Chronology of Recent Events Re: George Crocker"
AS # 9 Employer's Final Offer Dec. 14, 2004 (10:15 pm)
TR #1a,b Customer Complaint/ Supervisor's Investigation
JP # 1   AVL map (route 3-3) 5:00 pm trip Oct. 22, 2005
JP # 2   AVL map (route 3-3) 4:00 pm trip Oct. 22, 2005
JP # 3   Letter: Mr. Reardon to Mr. Kane Feb. 23,1997
JP # 4   Letter: Mr. Rice to Mr. Haley, Sept. 30, 1987
JP # 5   Letter: Mr. Long to Mr. Linthorne, Nov. 8, 1989
JP # 6   Letter: Mr. Lawlor to Mr. Hanlon Nov. 24, 1998
LK # 1    Sign-Off Sheet #135
LK # 2    A.T.U. National Operator Assault Survey Results 2005
GC #1 Cassette Tape recording of various VOCM interviews
GC #2 Articles: Telegram Nov. 30, 2004
GC # 3 OHS Ctte Minutes Report form Sept. 20, 2005
GC # 4 OHS Ctte Minutes Report form Oct. 20, 2005
GC # 5 OHS Ctte Minutes Report form Dec. 8, 2005
GC # 6 Letter: Mr. Spurrell to Mr. Crocker June 20, 2000
GC # 7 Letter: Mr. Crocker to Mr. Colbert June 5, 2003
GC # 8 Letter: Mr. Colbert to Mr. Crocker Aug. 10, 2003
GC # 9 Letter: Mr. Crocker to Ms. Hopkins April 7, 2004

                                           3
       GC # 10   Letter: Ms. Powell to Mr. Crocker April 29, 2003
       GC # 11   Letter: Mr. Crocker to Ms. Hopkins Dec. 18, 2003
       GC # 12   Letter: Mr. Crocker to Ms. Hopkins April 27, 2004
       GC # 13   Letter: Ms. Hopkins to Mr. Crocker May 21, 2004
       GC # 14   ATU/ Management Minutes Oct. 5, 2005
       KW # 1    Transit Operator Handbook (copy of small format)

                  ARTICLES OF THE COLLECTIVE AGREEMENT CONSIDERED
       Scope and Recognition
       WHEREAS the employees covered by this Agreement are all members of the Union. The
       Employer recognizes the Union as the sole and exclusive bargaining agent for all employees,
       current and future, of the St. John's Transportation Commission save and except the General
       Manager, Management, Supervisory Staff and Office Personnel.

SECTION 2 CONDITIONS OF AGREEMENT
2.1  ... It is also agreed that a Union-Management Committee shall be formed which shall meet once
     monthly...

SECTION 3 RIGHTS OF PARTIES
3.1  Management Rights
     The management, supervision, and control of the bus operations and direction of the working
     force shall remain an exclusive management function. Nothing in this Agreement shall be
     deemed to restrict or interfere with the right of the Employer to discharge any employee for just
     cause or legitimate reason.

3.2    Union Rights
       The Employer shall advise the Union in advance of any important contemplated action in respect
       to working conditions which affect employees covered by this Agreement. The Employer agrees
       to provide an least thirty (30) days notice of its intention to close down any part of its operations
       and of its intention to decrease the number of personnel employed as may from time to time be
       essential. The Employer reserves the right to pay affected employees in lieu of notice.

       The Union and the Employer desire every employee to be familiar with the provisions of this
       agreement and his/her rights and obligations under it. For this reason, the Employer shall print
       and supply, at no cost to the Union, two hundred and fifty (250) copies of this Collective
       Agreement within ninety (90) days, to be supplied by a Union printer if available.

SECTION 4 GRIEVANCES
4.1  Grievance Procedure
     Should any differences arise between the Employer and any of the employees from the interpreta-
     tion, application, administration or alleged violation of the provisions of this Agreement, an earnest
     effort shall be made to settle such differences without undue delay in the following manner:
     Presentation of Grievances


                                                         4
                STEP 1
        Any employee or employees having a grievance which they wish to take up with the Employer
        shall, within three (3) days of the origin of the grievance, approach their immediate supervisor,
        alone or accompanied by a Union representative, as the employee prefers, and state their
        grievance.
                STEP 2
        If no satisfactory settlement is reached within five (5) days, the matter shall be reduced to writing
        and presented through the Union Executive to the Manager of the department or his designated
        representative who will reply within five (5) days of the written presentation of the grievance. If
        no satisfactory settlement is reached, the Union Grievance Committee and the Employer
        Grievance Committee shall meet within ten (10) days. A representative of the Employer
        Grievance Committee will reply within five (5) days of the meeting.
                STEP 3
        If no satisfactory settlement is reached within five (5) days, the General Manager and the
        President/ Business Agent of the Union shall meet in an attempt to resolve the Grievance.....

4.2     Arbitration ....
        (f) The Arbitrator or Arbitration Board shall have the power to determine its own procedure, and
        it shall give full opportunity to both parties to present all evidence which they may consider
        relevant. The Arbitrator or Arbitration Board shall have the power to determine the issue in
        dispute, including a question of whether a matter is arbitrable, but shall have no power to amend
        or in any way modify the terms of this Agreement or to make a decision which conflicts with any
        clause of this Agreement.

5.5     Discipline and Discharge
5.5.1   Employer's Right to Discipline
        The Union agrees that it will not in any way interfere with the right of the Employer to discipline
        or discharge employees for just cause, provided however, employees who consider themselves
        unjustly treated in this regard shall have the right to file a grievance in conformity with Section 4
        of this Agreement. In cases of dismissal, grievances shall automatically be referred to Step 3 of
        the grievance procedure. The Employer agrees that when an employee is dismissed, all benefits
        will continue up to and including Step 3 of the grievance procedure.

        When an employee is requested to meet with management personnel for any matter which
        involves discipline, beginning at the verbal reprimand stage, management shall so advise the
        employee and shall arrange to have a representative of the Union Executive attend the meeting.
        Waiver forms shall be supplied by the Union and must be properly signed by employees who
        wish to decline Union representation.

        For the purpose of this clause, the initial investigation of a customer complaint shall not be
        considered disciplinary and shall not require Union representation.




                                                          5
5.5.3   Employee's Personnel File
        It shall be the duty of employees to notify the Employer promptly of any change of their address.
        If an employee should fail to do this, the Employer will not be responsible for failure of a notice
        to reach such employee.

        A copy of any document placed in an employee's personnel file, which might be used in
        assessment of any disciplinary action shall be provided to the employee who shall acknowledge
        receipt by signing the file copy. By signing the file copy, the employee does not necessarily agree
        with the contents of the document.

        Any record of disciplinary action in any employee's file shall be removed after the expiration of
        twenty-four (24) months from the date of incident, provided that there has not been a recurrence
        of a similar incident during that period. The following shall be included in the twenty-four (24)
        month period: absences of fifteen (15) consecutive working days or less, leave for jury duty,
        maternity/adoption leave, annual vacation leave, and Union business of sixty (60) consecutive
        working days or less.

        Employees shall, at any reasonable time, be allowed to inspect their own personnel file and may
        be accompanied by a representative of the Union, if they so desire.

SECTION 11 EMPLOYEE BENEFITS PLAN
     11.1 Group Insurance
     The Employer agrees to administer a Group Life and Health Insurance Plan for all employees
     covered by this agreement. The terms and benefits of the Plan shall be those in effect at the date
     of signing of this agreement. The Employer shall supply to the Union, a copy of the Group Life
     and Health Insurance Plan contract, complete with any and all appendix additions whenever they
     occur. If the employer elects to change carriers, the benefits contained in this agreement shall
     remain in effect.

        Any increases in Health premiums required on or after December 1, 2005 as a result of claims
        experience and/or financial experience under the Health Plan or as a result of future benefit
        modifications to the Plan will be shared equally by the Employer and the employees covered by
        this agreement.

        Prior to implementing any premium increases for employees covered by this agreement, the
        Employer shall arrange a meeting of the Joint Benefits Committee with the group insurance
        carrier or consultant to investigate cost control measures.

        The parties agree to the formation of a joint Benefits Committee which will be constituted of
        equal representation by management and the Union. The mandate of the Benefits Committee will
        be to make recommendations for changes to the employee Health Plan for the purpose of
        controlling costs.



                                                         6
       Any employee who retires after the signing of this Agreement will be entitled to continued
       coverage for prescription drugs exclusively with such coverage provided only in respect of the
       employee and the employee's spouse.

       Effective January 1, 2005, the Employer agrees to administer a group dental plan for employees
       covered by this agreement. The cost of dental plan premiums shall be equally shared by the
       Employer and employees (50/50 cost-shared).

SECTION 15
15.01 Occupational Health and Safety Committee
      An Occupational Health and Safety Committee shall be established, composed of equal represen-
      tatives of each party. The Committee shall operate in accordance with terms of reference and
      hold regular meetings to discuss issues related to health and safety in the workplace. The Com-
      mittee shall ensure that employees are aware of their right to refuse work and other rights as
      provided under the Occupational Health and Safety legislation.

SECTION 16           LETTERS AND MEMORANDUMS OF UNDERSTANDING
     Letters of Understanding and Memorandums of Understanding in effect between the St. John's
     Transportation Commission and the Amalgamated Transit Union, Local 1462 shall form part of
     this Collective Agreement and are subject to the Grievance procedure.

                             CONSENT # 4, LETTER OF TERMINATION
          November 2, 2005
          Mr. George Crocker
          18 Robinsons Place
          St. John's, NL AlE 4L1
          Dear Mr. Crocker:

                  On September 29, 2005, the Commission expressed its displeasure respecting
          your recent activities and public comments which the Commission concluded were not
          acts or statements that you could legitimately demonstrate were a reasonable exercise of
          your functions as President of the Union Local while also being an employee.

                  The Commission viewed some of your comments in the media on the drug plan
          issue and the transit operator assault issue, as false and malicious and that same were so
          disrespectful of the Commission and management that they could not be ignored,
          particularly as same constituted a violation of the Commission's rules. Management was
          directed by the Commission to review your statements in the media and your recent
          actions in the context of the Commission's "Transit Operator Handbook" and in the
          context of the direction as to the Commission's expectations set out in your letter of
          reinstatement dated December 21, 2004.




                                                       7
        After a detailed review of a series of events between January 13, 2005 through
and including September 2005, we have concluded that you continue to disrespect the
Commission's chain of authority; you are disrespectful of line managers, and have,
contrary to direction, attempted to contact the Commission Chair, whether personally, or
through an agent; and have failed to follow or abide by the Commission's policies. All of
these occurring within a period of merely ten (10) months since your December return to
active employment.

        By reason of the majority decision in your dismissal case dated November 15,
2004, we are compelled to review the incidents upon which the Commission and
management have taken into consideration and same have been summarized in Appendix
"A" attached to this letter.

         We take the view that your media statements respecting the dispute over benefits
for retirees contain outright false statements; for example; you stated Metrobus managers
do not have a cap on drugs after age 75 when actually the managers are not entitled to
any retiree drug or group benefits after age 75, so the question of a cap does not arise.
You also know and participated in meetings, to jointly construct a benefits plan for
retirees from which you withdrew the union only to file a grievance on behalf of the
union claiming failure of management to abide by the 90-day implementation date. This
forced management to institute a retirees benefit plan in mitigation of any losses that may
be suffered by our retirees (over age 75).

        You, negligently, failed to disclose in media statements that the extension of the
over age 75 benefits was to be under all of the principles in the Memorandum, not merely
those cited by you and, in particular, you failed to disclose that the Joint Benefits
Committee had, under the Memorandum of Understanding, the authority to develop and
implement a plan for the over age 75 retirees in conjunction with the plan's consultants.

        Your statements and actions also violated the requirement that you follow the
chain of command expectation contained in the December 21, 2004 correspondence,
notwithstanding being reminded to follow same in correspondence from Ray Lawlor
dated July 13, 2005. You also demonstrated disrespect of the management structure by
indicating falsely that the Commissioners approved and implemented the over 75 benefit
plan with the cap, when you knew management did so in response to the July 5, 2005
grievance. You further, contrary to direction, appealed to the Chair of the Commission to
change the decision of management and remove the cap.

        You further attempted to undermine the Commission's and management 's autho-
rity by attempting to make the issue, as discussed in the media, an issue for City Council
and an election issue, during the recent municipal election, which further demonstrates
insubordination and your disrespect of management and the Commission itself.



                                             8
        Without any knowledge of what management's cost of arbitration of the benefits
issue would be, you, in the media falsely attributed a highly inflated cost of arbitration as
a cost which would be paid by the City (read taxpayer) on the foundation that the
Commission's Chair had not done "the right thing".

        The statements made by you in connection with the operator assault incident
demonstrate your intent to defy management's right to determine whether a passenger
should be banned from the bus or not. This defiance took the form of a public expression
of intent to ignore the protocols of the Collective Agreement and the statute respecting
the Occupational Health and Safety concerns by holding a meeting to "advise our
operators" that they are to ban certain passengers from riding the buses, in the absence
of a directive of the employer to that effect or by following the appropriate procedures
under the legislation and the Collective Agreement. This action was falsely justified upon
your allegation that the "company" wasn't doing enough or giving you enough power to
conduct your job in a safe manner.

        Your public statement on Night Line that you wanted to "have our employer, you
know, have these people charged under this section of the Criminal Code" because the
employer, in your view, had not done enough on the issue of assaults on the drivers, is an
act that can reasonably be viewed as detrimental to the Commission's reputation.

        Placed in the context of the actual events of September 13, 2005, your media
statements and interviews fail to provide any balance as to why the customer assaulted the
driver, and appear to be designed to embarrass the Commission. Your actions and
statements in respect of this issue, without appropriate balance, unnecessarily created an
impression of an unsafe environment for passengers and drivers. We take the view that
such actions are detrimental to the Commission.

        While in isolation a particular incident may not have been viewed alone as a basis
for discipline; taken together, and looked at as a course of conduct, the incidents
referenced above and summarized in Appendix "A", demonstrate a direct violation of the
Commission's Policy A-6 in the "Transit Operator Handbook" and violations of our
expectations as to how you are required to conduct yourself while employed. Our
acquiescence in not strictly applying Policy A-13 to you as President is on the basis that
in our view, media comments are expected to be in the realm of the reasonable exercise
of your functions as President. In the circumstances, your comments do not fall within
that category and, more particularly, constitute a violation of Policy A-6, a circumstance
we have not previously accepted.

       Moreover, on Saturday, October 22, 2005, it was reported by a customer that you
deviated from your Route 3-3 at or about 5:00 p.m. When contacted by your supervisor
yesterday, November 1, 2005 about this complaint, you denied deviating from the route
and asked your supervisor, Terry Richardson, if she had checked the Automated Vehicle


                                              9
Location (AVL) system. When she indicated that she had not, you invited her to check the
AVL to determine whether the customer or you were correct. We have verified that the
customer was correct and you did deviate from Route 3-3 at or about 5:00 p.m. on
Saturday, October 22, 2005. This constituted a breach of Policy B-15 in the Operators'
Handbook and, in addition, the incident demonstrates evidence of your breach of Policy
A-12 in that you misrepresented the facts to your supervisor.

        Management has therefore concluded that you have failed to comply with items 1,
2, 3 and 5 of the letter of December 21, 2004. Management is satisfied that your failure to
comply is sufficient basis to discipline you. Having reported this to the Comission with a
recommendation which considers your disciplinary record as envisaged by Article 5.5.3
of the Collective Agreement, we have concluded that the employment relationship has
been irreparably damaged.

       Your employment, therefore, is terminated effective immediately.

       We trust you will take this opportunity to reflect on the reasons and guide yourself
accordingly in your future endeavours.

Sincerely, (signed by) Judy Powell , General Manager

I acknowledge receipt of this letter.

Signature (signed by) "George Crocker"       Date "Nov. 2, 2005."

                                 APPENDIX "A"
Date                                       Incident
Background - Retiree Benefits Over Age 75
December 21, 2004 Letter of reinstatement setting out employer expectations
                    respecting conduct of duties.

January 13, 2005       At a Joint Benefits Committee meeting with Mercer HR
                       Consulting, various options regarding the provision of retiree drug
                       coverage for those over 75 years of age wherein you requested
                       the Consultant to prepare some plan design alternatives and
                       pricing for the Union to review.

March 9, 2005          At a meeting of the Joint Benefits Committee, the plan design
                       alternatives were discussed and you indicated you would take
                       the alternatives and review the recommended coverage to the
                       Union's Consultant and provide a reply by March 11, 2005. No
                       reply was received.



                                            10
April 5, 2005   At a meeting of the Joint Benefits Committee, you advised that the
                Union was no longer willing to discuss options and wanted the
                existing retiree benefits extended beyond age 75. You indicated that
                such was the agreement between Gerry Colbert and Larry Kinnear
                during negotiations in December 2004. You advised that, even though
                you could not go directly to the Chair of the Commission (Colbert),
                you had someone who could, i.e., the International VicePresident and
                that you would instruct Larry Kinnear to do so.

April 6, 2005   At a meeting with management, you were advised that, if you
                contacted the Chair, you would do so contrary to the Commission's
                directive in its letter to you dated December 21, 2004. You were also
                advised that, should Larry Kinnear do so, we would consider such
                contact as a violation as he would be viewed as an agent of you. You
                indicated that you would seek a legal opinion on the matter.

May 17, 2005    You called the Acting General Manager (Austin Spurrell) and
                threatened that, if the Commission did not concede to the Union's
                demand to extend the existing retiree benefits beyond age 75, you
                would make it an election issue for Gerry Colbert.

July 5, 2005    Grievance filed claiming violation of the MOU by not putting the over
                age 75 benefits plan in place within ninety days.

July 11, 2005   Letter from the Union stating that none of the options presented were
                acceptable and sought equal level of coverage for drugs as the active
                members of the bargaining unit.
                You sought to discuss issues arising in operations with Heather
                Hopkins and Austin Spurrell without dealing with the Operations
                Manager, Ray Lawlor, and you were advised same was inappropriate.

July 13, 2005   You were provided with a letter advising you that you were not to
                bypass Ray Lawlor and reminding you of the directions / expectations
                of December 21, 2004.

July 15, 2005   Management Implemented one of the two options presented to the
                Joint Benefits Committee, the over age 75 coverage, with a cap of
                $7,500, as the Union rejected all options presented to the Joint Benefits
                Committee.

July 20, 2005   The Union filed a policy grievance respecting the MOU on retiree
                benefits beyond age 75 claiming the unilaterally imposed plan
                improperly provided for a $7,500 cap.


                                        11
July 26, 2005             Gerry Colbert was approached by Larry Kinnear for a meeting to discuss
                          the drug plan for retirees over age 75. The meeting was refused and Mr.
                          Kinnear was advised to follow the proper protocol and speak to
                          management.

August 22, 2005           You and a dozen or so retirees attended a City Council meeting and, as the
                          Council meeting broke up, several of the retirees tried to raise the issue
                          with Councillors and Commissioners.

August 23, 2005           You were quoted in The Telegram as "This (the cap on retiree benefits)
                          was put in after the agreement was signed". (parentheses added)

August 29, 2005           Letter to Union as to the status of the retiree drug plan grievance; response
                          to Step 2 answer, was long overdue.

August 30, 2005           You advised that the grievance would proceed and made a request to set a
                          meeting of the Grievance Committee which was later set for the week of
                          October 5, 2005.

September l, 2005         On VOCM Back Talk with Bill Rowe the following comments were made:

Bill Rowe:       I mean employees' problems and difficulties and concerns, I mean
                 these are legitimate issues during an election campaign. And yeah,
                 that would be great if you could get a debate going there and invite
                 people to it. And I'm sure you'd have a lot of interest in that one.

George Crocker: Well, we had a quiet protest at Monday's August 23rd meeting at a City
                Hall and when considerable amount of our retirees over age of 75
                turned out.
Bill Rowe:       No, I was just going to say these issues that are of concern to you as a leader and your
                 rank and file members are, are they, are they decisions that are made by the, by the
                 managers, the employed managers, the employed managers of the transit system, or
                 are they made by Council as a whole? How does it work, George? l mean who's,
                 who's the person you're trying to get to here, I guess is my, my point.

GeorgeCrocker:   Bill, the, the protocol is before these decisions are made, they have to (go) before the
                 Board, which is the Commission (parentheses added).

Bill Rowe:       Right, which, which includes those councillors you mentioned?

GeorgeCrocker:   Yes, Councillor Colbert, Sears and Galgay. They sit on this Commission.........

Bill Rowe:       Right.

                                                     12
   GeorgeCrocker:   .......among [?] private citizens as well.

   Bill Rowe:       Yeah.

   GeorgeCrocker:   And these, these decisions have to be approved by the Board.

   Bill Rowe:       Yeah.

   GeorgeCrocker:   So, you know, in order for them to be overturned, I guess they would have to be
                    approved by the Board as well.

September 4, 2005 On VOCM Nightline with Linda Swain, the following comments were made:
   Linda Swain: Good, how's your Labour Day weekend?

   GeorgeCrocker:   Not too bad. Very good. Wishing all the people in the labour movement a very
                    happy Labour Day. Linda, I understand some time next week, I believe it's on
                    Wednesday, we're going to have a candidate's debate for the municipal election
                    here in the City, going to be held at the Holiday Inn. I don't know if you're aware
                    of that. And, we're looking forward to attending that. We have some questions
                    we're going to have put forward to candidates that are running, especially the
                    incumbents that are there now, Mr. Colbert and Mr. Sears and Mr. Galgay, with
                    respect to a drug, a prescription drug cap that they've implemented on our retirees of
                    Amalgamated Transit Union which were former employees of Metrobus.

   Linda Swain: So what does that, that cap involve?

   GeorgeCrocker:   Well Linda, what it involves is right now is we have retirees over the age of 75 that
                    the employer says after you reach 75 years of age, you cannot use any more drugs
                    after 75 years after $7,500. Once you reach the $7,500 plateau, you're basically on
                    your own, you have to cover the cost yourself which is, was never agreed to.

   Linda Swain: So what are your members saying about that?

   GeorgeCrocker:   Well, the members are pretty ticked about it. And you know, we have, we have some
                    concerns and they're prepared to go to arbitration. But during negotiations, I mean,
                    Mr. Colbert stated himself to our international rep that he was a socialist and he
                    believed, you know, in the, in these, in these benefits and he believed that our retirees
                    - some of' them as high as 44 years of service with St. John's Transportation
                    Commission -- they should enjoy same benefits as the workers did with, with respect
                    to Council workers. And they don't have any cap on theirs. And, even the
                    management at Metrobus don't have any cap on theirs. And, now that the collective
                    agreement is signed the, you know, they turned around and put a cap on, on our drug



                                                         13
                    benefits which was totally unacceptable to us during the negotiation process and is
                    still unacceptable to us right now.

   Linda Swain: So this is actually better than what you had before?

   GeorgeCrocker:   Yes, it was better. We negotiated a, their prescription drugs for them and their spouse
                    after age 75 until they passed away and then their spouse subsequently two years, you
                    know, like I said after the collective agreement was signed, the employer turns around
                    and puts a $7,500 cap on these people which was never negotiated at the bargaining
                    table. So, we're looking forward to this debate and we're going to have some questions
                    put forward to Mr. Colbert, and I'm calling on Mr. Colbert to do the right thing now
                    and to lift this cap.

   Linda Swain: Are there any other issues that you want to bring to the councillors and the, the
                hopeful's attention?

   GeorgeCrocker:   No, that's basically it. You know, we, we signed a collective; agreement,
                    you know, in good faith. This was never talked about, like I said, at the
                    bargaining table. Nor is it, you know, ever, we would never agree to it at
                    the bargaining table. And, we're not going to agree with it now. And, if
                    Mr. Colbert doesn't do the right thing, well, I guess it'll proceed on to
                    arbitration and cost this City probably in excess of $100,000 to go to
                    arbitration on this.

The Memorandum of Understanding concerning the issue discussed by you in the media states:

       "Within ninety (90) days of the ratification of this Collective Agreement, the Joint
       Benefits Committee will ensure that drug coverage is provided for pensioners, beyond
       age 75 for their lifetime. In establishing this coverage, the following principles shall be
       applied:

       1.       Coverage will be effective on or after June I , 2004.

       2.       Coverage will be at the 80% co-pay level.

       3.       Two-year survivor benefit.

       4.       The Employer's Benefits Consultant will work with the Joint Benefits Committee
                to construct an appropriate plan in the most cost effective manner possible.

       5.       The premiums associated with the provision of the pensioners' drug coverage will
                be shared equally by the Employer and the Employee in accordance with the
                provisions of Clause 11. 1.


                                                 14
Background - Transit Operator Assault
         A customer, entered a bus, allegedly without paying the required fare, or showing his
monthly pass. The customer then got off the bus before the driver could get the fare. When the
customer attempted to board on the next occasion, the same driver was on duty. The driver tried
to collect the $1.75 fare from the earlier trip as well as the current trip. The customer refused to
pay or show his pass and got off directing obscenities at the driver. Near the Waterford Hospital,
the same driver saw the same customer (apparently waiting for a bus), but the driver stopped, he
left his bus and confronted the same customer, telling him that until he paid the $1.75 tare from
the first time, he would not be allowed on his bus. The bus departed without the customer en
route to the Village Mall.
         The same customer then walked to the Village Mall, arriving before the same driver and
his bus, and when the bus arrived the customer began shouting obscenities and the driver stayed
in the bus with the door closed. The same customer was next seen on Anderson Avenue waiting
for the bus and the same driver arrived at Anderson Avenue for a change over. As the driver
approached the relief point, the customer became agitated and proceeded toward and assaulted
the driver by grabbing the driver's clothing and pushing him backwards. After the altercation was
broken up the customer then proceeded to Metrobus, very upset at what he perceived to be
harassment by the driver; he was later arrested by the RNC outside the offices of Metrobus.
         You were briefed on the incident on September 13, 2005 and were aware that the
customer was a regular rider and held a monthly pass.

September 17, 2005
In an article appearing in The Telegram, you were quoted as saying:

       "We had an incident Tuesday where a driver was assaulted on his route", Crocker told
       The Telegram. "He was just relieving another operator when he was attacked by an
       individual and sustained injuries and ended up being off work for the rest of' the week."
       "Not only is the driver at risk, but you're talking about the general public when he's

       operating a bus and could be assaulted."
       "As far as we're concerned (people responsible for assaults) shouldn't be allowed back on

       the buses, and we feel the Company should be taking a more aggressive stand"..........
       "but, when you're dealing with courts. (sic) if they don't ban them from riding public
       transit, that's it".
       "Right now, I have to say the Company is not doing enough to protect drivers", Crocker

       said.
       "Under the Occupational Health and Safety Act, that's considered unsafe work and

       nobody has to perform unsafe work."




                                                15
September 18, 2005
On VOCM News, 7:45 a.m., you stated:
GeorgeCrocker:  "We're going to press our employer, which is Metrobus, which is operated, by the St.
                John's Transportation, to enforce the laws that, that are upheld on assaults in public
                places because we consider, you know, a bus to be a public place. As a Union, we're
                going to advise our operators that, you know, under the Occupational Health and
                Safety Act that, you know, you don't have to do unsafe work. And we consider this to
                be unsafe work and we'll be refusing passengers to board our buses as operators."
September 18, 2005
On VOCM Nightline with Linda Swain:
Linda Swain:    Well, I heard on the radio the disturbing story surrounding an assault on a Metrobus
                driver.
GeorgeCrocker:  Yes, that happened Tuesday last. We had an operator who was proceeding to his place
                of work on Anderson Avenue and he was assaulted by a, by a passenger waiting for
                the bus.
Linda Swain:    So now that's raised some concerns. You're going to be having a meeting on this
                  issue. My understanding is that bus drivers right now cannot ban anyone from
                  travelling on the, on the, on the system unless they have a court order to do so.

GeorgeCrocker:    That's correct Linda, the problem we have with it is we're out there trying to
                  enforce the rules of the employer, which is the St. John's Transportation
                  Commission which is headed by some councillors, as you know and, and private
                  citizens, the Commission is. And, we're trying to enforce these rules and collect
                  fares and we feel that our operators should not be subject to assaults when we're
                  just trying to enforce the rules of the employer. Now there is a section in the
                  Criminal Code of Canada that states, and it's section 2,217.1 (sic)of the Criminal
                  Code which states that everyone who undertakes or has the authority to direct how
                  another person, how another person does work or performs tasks is under a legal
                  duty to take reasonable steps to prevent bodily harm to that person or other
                  persons arising from that work or task. So what we're attempting to do now is
                  have our employer, you know, have these people charged under this section of the
                  Criminal Code. We feel that you know, why should someone who's trying, to per-
                  form their duties be subject to an assault and the employer not act on our behalf?

Linda Swain:      So, you feel that the Company isn't doing enough there to give you enough power
                  to conduct your job in a safe manner?

GeorgeCrocker:    Absolutely, what, what we're saying is anybody who causes a disturbance on these
                  buses, on these buses, or threatens an operator or threatens a member of the
                  general public on one of these buses, should he banned for, for an indefinite
                  period of time, until they get to court and let the courts decide on how this, you
                  know, how these incidents should be treated and take the direction from the
                  courts...
                                (...discussion of other issues)

                                                    16
Linda Swain:         So far as you know, there was an incident, but you don't have details of it?

GeorgeCrocker:      I'm not aware of the details right now. I, I never even heard the gentleman call in
                    actually. So I, it wouldn't be fair for, you know, for me to comment. And, and as
                    for the employer getting in the paper on Saturday and saying that the gentleman
                    received a whiplash, you know, that's medical information that we weren't even
                    privy to from this gentleman's doctor. So how the employer got to release that
                    information, I don't know, you know.

                                      OPENING STATEMENTS
FOR THE UNION Mr. Earle described the matter before the Board as raising a fundamental
issue in labour relations: the fundamental right of a Local President to speak for the member-
ship. Under provincial legislation Local 1462 is the certified Union. It is the Local President's
responsibility to speak for his members who have put him in that office, to represent them in
matters relating to the Agreement and at bargaining. Collective bargaining is not a picnic.
          In this situation it seems the Employer wants to have it both ways. Having agreed to
resolve a key outstanding issue, the Employer then reneged on that agreement, which was set out
in a strike-settling Memorandum of Agreement, by unilaterally imposing a prescription drug plan
for retirees over 75 years of age with a cap that was not agreed at the bargaining table. Then
when Mr. Crocker objected to the Employer's action, and complained publicly about it, the
Employer suddenly insisted that he must adopt a less adversarial manner. So it appears that the
Employer wishes to play rough when it is to their advantage, but does not want to be embarrassed
by public criticism.
          What the Employer does not understand is that the St. John's Transportation Commission
is a public service, run as a service of the City of St. John's. Its policies and administration are
matters of legitimate public, political interest. The right to run a public bus service is guaranteed
by statue to the City of St. John's, and delegated by the City to a Commission, three of whose
members are City Councillors.
          This grievance arises from the Employer's attempt to muzzle a Union leader who has
spoken out publicly on public issues. The issue is a normal premium-pay or seniority concern.
The issues are fundamental: keeping bargains, and insuring that employees are able to work in
safety.

                                                  17
       The Employer has imposed this termination in an attempt to cobble together every scrap
that they can against Mr. Crocker. They have attempted to say that he should not speak out. All
the members of the bargaining unit are involved. Safety on the buses is a public issue.
       The Employer cannot use its economic control over Mr. George Crocker to keep him
from doing his elected job, the job that the legislation of this province has authorized him to do.
The Board should not forget the rights of a trade union. This Union's voice is that of its
President, and it is his statutory right to speak out for the Union's members. The Employer
cannot take this away.
       The Employer will call this a continuing problem. It is. There has been a continuing
effort to shut the President of the Local up. The Employer has mistaken its earlier success as a
licence to permanently cripple him from exercising the rights of a trade union.
       The evidence will show that, having made the decision to fire Mr. Crocker for speaking
out, they then threw in the allegation that he drove down a wrong street as an additional grounds
for their action, despite the fact that no one had ever previously been disciplined for similar
action. This particular aspect of the discipline reveals the Employer's motivation for what it is.
       The Board must uphold the Employer's obligation to the Province's labour law and to the
Collective Agreement. The Employer's object was to get Mr. George Crocker. That is the object
of this whole exercise. But the Employer has lost sight of the Collective Agreement. The Board
must sustain the authority of the Collective Agreement.
       The Union will seek Mr. Crocker's reinstatement with full benefits and pay.
FOR THE EMPLOYER, Mr. Smith noted that, far from being the foundational issue described
by Mr. Earle, the case is neither difficult, nor complicated, nor dramatic. Stripped of the rhetoric,
it is a very straight forward case. An employee does not follow rules. Discipline is imposed.
The rules are broken and, based on a disciplinary record that can not be ignored, dismissal
follows.
       Mr. Crocker had a fourteen month suspension imposed in 2004. The Employer took full
account of the findings of the Award that imposed that suspension. Acting in accordance with it,
the St. John's Transportation Commission reinstated Mr. Crocker and gave him a letter listing
some expectations the Employer had respecting his conduct. Among these was the expectation

                                                 18
that he follow the rules set out in the Transit Operator Handbook. Another expectation was that
he should operate within the chain of command in his dealings with the Employer.
       The Agreement sets out provisions for handling disputes, including grievances and
arbitrations. Sections 4.01 and 4.02 are very clear. Numerous disputes have been resolved by use
of these provisions. The mechanisms for resolution for matters relating to health and safety are
also clearly set out in Section 15.01.
       Mr. Earle rightly claims that the Union must be free to speak. This certainly is covered
by the Agreement. But the matter before this Board is not about free speech or Union
representation. It is a case of not following the rules, and of building a disciplinary record. In
the Employer's view, dismissal is the appropriate response to Mr. Crocker's behaviour. Where do
you go after a fourteen month suspension?
       Mr. Earle says the Commission's decision to dismiss Mr. Crocker was an attempt to
muzzle a Union leader who was protecting the membership. In fact, the decision was about
violations of rules, some relating to public statements, some in violation of the Transit Operator
Handbook. It was also in response to the Grievor's acts that violated expectations explicitly set
out when he was reinstated after his last termination. The evidence shows these violations
justified his dismissal. But then a further violation of the rules occurred and was brought to the
Commission's attention.
       The issue is simple: Mr. Crocker does not believe that rules apply to him either as
President or as a Union member. He views himself as exempt from rules. He was disciplined for
breaches of rules, for falsifying records, and received a fourteen month suspension. Yet it is clear
that he still simply does not "get it". But the rules do apply. It is well established within the
jurisprudence that employees who do not follow the rules are at peril.
       The deviation from route was just another issue, more of the same. The termination letter
is long, but the matter is simple. This is not a free speech or a Union-bashing situation. In the
Employer's view, the employee has had reasonable opportunity to meet expectations, and this is a
measured response to his failure to do so. The Grievor has defied and ignored the Collective
Agreement which he, himself, signed and on which the powers of the Union are based.
       In the Employer’s submission, the grievance must be denied.

                                                  19
                                            EVIDENCE
THE FIRST EMPLOYER WITNESS was Ms. Heather Hopkins, Manager of Human
Resources with the St. John's Transportation Commission for two years and three months. She
estimated that there are approximately 90 Transit Operators, including both permanent and
temporary staff. There are also maintenance staff employees.
       Metrobus operates as a commission established under a City of St. John's by-law. There
is a General Manager and several other managers, including Manager of Finance, of Operations,
of Transit and Maintenance, and of Marketing and Information Services. There are also several
support positions. Office and supervisory staff are not in the bargaining unit.
       Ms. Hopkins identified the Collective Agreement (Consent #1) on which negotiations
began in the spring of 2004 and concluded in mid-December 2004 following a strike. Ms.
Hopkins was involved in the negotiations:
       Initially, I worked as the Assistant Negotiator to the General Manager, Ms. Judy
       Powell. When she went on maternity leave at the end of November I took over as
       Chief Negotiator while Mr. Austin Spurrell became the Acting General Manager
       in her absence.
       The General Manager or Acting General Manager reports to the Chairman of the
Commission, who in November 2004 was Mr. Gerry Colbert, the Deputy Mayor. Asked whether
the Commission manages the operational affairs of Metrobus on a day-to-day basis, Ms. Hopkins
answered:
       No. I understand that the Commission meets monthly with the General Manager.
       The Managers of the Commission take care of the daily operations and the
       administration of the Collective Agreement.
       Ms. Hopkins identified a copy of the of 2004 decision of an arbitration board chaired by
Arbitrator Oakley (HH #1), which she received around November 16th. That award reinstated
Mr. Crocker who had been terminated for
       ... falsifying fare box information. The Employer had proven that Mr. Crocker
       had deliberately tampered with the fare box. The Board agreed that discipline was
       appropriate, but replaced termination with a fourteen month suspension.
After the decision was received, Mr. Crocker was reinstated as a Transit Operator, the position
he had held prior to his termination . He was not reinstated immediately on November 16th.


                                                20
       His pay was reinstated on November 16th but he actually returned to the schedule
       during the week of December 21st. Normally a supervisor would have to assess
       driving skills prior to a return to duty. We also had to seek legal counsel to
       review the decision. He returned to a normal schedule with Saturday and Sunday
       off and a straight eight hour shift during the day.
       Asked when, after Mr. Crocker's return, she first looked at his activities with an eye to
discipline, Ms. Hopkins said:
       There was a full meeting of Commissioners on or about September 29, 2005. The
       Commissioners were displeased with some of his media comments in relation to
       two items internal to the Commission: the drug plan and a driver assault. The
       Commission asked the Acting General Manager, Mr. Spurrell, to investigate these
       media comments. Mr. Spurrell came to my office after the meeting and asked me
       to institute an investigation of the media comments... The two areas involved were
       the retiree drug benefits and the driver assault.
       Ms. Hopkins referred to page 53 of the Collective Agreement (Consent #1), where the
following Memorandum of Understanding between ATU, Local 1462 and the St. John's
Transportation Commission appears.
       Within ninety (90) days of the ratification of this Collective Agreement, the Joint
       Benefits Committee will ensure that drug coverage is provided for pensioners,
       beyond age 75 for their lifetime. (In establishing this coverage, the following
       principles shall be applied:
       1. Coverage will be effective on or after June I , 2004.
       2. Coverage will be at the 80% co-pay level.
       3. Two-year survivor benefit.
       4. The Employer's Benefits Consultant will work with the Joint Benefits
       Committee to construct an appropriate plan in the most cost effective manner
       possible.
       5. The premiums associated with the provision of the pensioners' drug coverage will
       be shared equally by the Employer and the Employee in accordance with the
       provisions of Clause 11. 1.

Ms Hopkins testified that this came into the Agreement during the negotiations.
       It was developed in relation to the retiree benefit issue.... while the Union was on
       strike. I'm not sure when during that three week period. The agreement was
       reached close to the resolution of the strike.
       Asked what steps had been taken to implement the MOU following the signing of the
Collective Agreement, Ms. Hopkins said:


                                                21
       The MOU indicates that the Joint Benefit Committee were to meet with the
       consultants and develop an appropriate plan for the retirees over 75 years of age in
       a cost effective manner... In January 2005 the committee had an initial meeting
       with the consultant ...
       Ms. Hopkins confirmed that the Joint Benefit Committee is established under Section 11.
4 of the Collective Agreement. Management's representatives on the committee were herself,
Mr. Spurrell, and Ms. Debbie Murrin, the HR assistant. The Union members were Mr. George
Crocker, Mr. Paul Churchill and Mr. Howard Chafe. All were present at the initial meeting in
January. The initial meeting was
       .... to meet with the consultants to discuss the terms of the MOU, possible plan
       design, and alternatives and measures for cost effectiveness.
The parameters governing plan design and costs are set out in the Memorandum of
Understanding. Ms. Hopkins summarized the results of that meeting:
       At the conclusion of the meeting Mr. Crocker requested that the Consultant put
       together a summary of alternatives and costings for the Union to review, which
       the Consultant agreed to do. Some possibilities were discussed including the use
       of a deductible, the use of annual maximums, and the use of a life-time maximum.
       Also a cap on dispensing fees and age restrictions were discussed.
Asked what limits, if any, the MOU imposed on the committee's work, she said:
       The MOU says that there shall be 'at the 80% co-pay level', which means basically
       that the retiree pays 20% of the cost. The deductible is determined on the basis of
       whatever the expenses are. These are then shared on the 80/20 basis.
       The next Joint Benefits Committee meeting was held on March 9th when the committee
reviewed seven alternatives and costings provided by the Consultants. Mr. Spurrell and Ms.
Hopkins attended for the Employer and Mr. Crocker, Mr. Churchill and Mr. Chafe for the Union.
       The information on the plans and costings was set out on an Excel spreadsheet which
       I printed and provided to the meeting. We reviewed the seven alternatives, and had
       some discussion of each option. At the conclusion Mr. Crocker asked me for my
       recommendation concerning the plan for retirees over 75 years of age, and I provided
       that to him. I had looked at what the claims expenses for the existing groups were,
       and found that the highest cost per unit was $7,500.00 On that basis we might
       implement a plan with a $7,500.00 annual limit per person. That was a fair
       assessment, and it allowed for constraint on the costs. It also allowed costs to be
       determined by the Benefits Consultant. So what I proposed was a $7,500.00 cap for
       each; so the retiree was eligible for $7,500.00, and his or her spouse also was eligible


                                                  22
       for $7,500 annually – that is not a life time cap – subject to index-ing. Mr. Crocker
       said that the Union would take my recommendation and other options to the Union
       for review, and respond to me by March 11th. We had to implement the plan within
       ninety days of the ratification of the Collective Agreement. I did not get the feed-back
       on Friday the 11th so I scheduled a further meeting for April 5, 2005. That meeting
       went ahead. The same members were present. There were no outsiders.
               I asked the Union if they had reviewed the options, and Mr. Crocker said that
       the Union did not accept any of the ones outlined, and would not accept any but the
       same benefits as those that existed for retirees under the age of 75.
               Under Section 11.1 of the previous Collective Agreement retiree benefits
       ceased at age 75. That was amended in bargaining to remove the reference to the
       benefits ceasing at age 75 because we were going to provide benefits subject to the
       MOU on page 53. The MOU applies just to those over 75.
       Asked whether Mr. Crocker had indicated why the Union took this position, Ms. Hopkins
answered:
       He said Mr. Kinnear had a meeting with Mr. Colbert during the strike, and they
       had agreed benefits would go to those over 75 without any restrictions.
       Ms. Hopkins testified she had not attended any meeting between Mr. Kinnear and Mr.
Colbert, and that Mr. Colbert had not been a member of the Employer negotiating team, but had
been Chair of the Commission at the time. Those negotiating for the Management were Ms.
Hopkins, Mr. Austin Spurrell, Mr. Ray Lawlor. and Mr. Sean Moony. For the Union were Mr.
Crocker, Mr. Kinnear, Mr. Paul Churchill, Mr. Howard Chafe, and Mr. Brian Collins. Ms.
Yvonne Scott was the Conciliator. Ms. Hopkins could not recall the exact date the MOU had
been agreed.
       It was the last day or the day previous to the last day of negotiations. The
       wording of the MOU was exchanged by the parties at that time and Mr. George
       Crocker signed.
Asked whether she had looked into the conversation between Mr. Kinnear and Mr. Colbert, Ms.
Hopkins said:
       No I did not. I said it was hearsay for me, and not part of the negotiating process
       and that what was agreed was the MOU in writing.
       Asked what she had done once the Union had refused to agree to any of the options, Ms.
Hopkins said she wanted:



                                                23
       ... to agree to something for the retirees, and to provide an option for them that
       was commensurate with the provisions of the MOU and that we could look at.
       Mr. Crocker said that he'd get Mr. Kinnear to contact Mr. Colbert himself because
       the committee clearly would not reach agreement. But Mr. Kinnear would get the
       details of the deal they had worked out... At that point I guess the discussion was
       quite heated. I said that the parties to the Joint Benefits Committee were the ones
       responsible to do it under the MOU, and Mr. Crocker said that under our letter to
       him concerning his reinstatement he could not go to the Chair of the Commission,
       but that he had someone who could, Mr. Kinnear... As Mr. Crocker left he said he
       would have Mr. Kinnear contact Mr. Colbert, and I told him that I did not think
       that was appropriate; and he said the Union was not prepared to accept a cap.
               On the 6th of April Mr. Spurrell and I met again with Mr. Crocker and Mr.
       Churchill to get clarification on a statement I had made to Mr. Churchill on the 6th.
       I told Mr. Churchill that if he or Mr. Kinnear were to contact the Chair it would be
       viewed as if Mr. Crocker had done it himself using an agent, and the result would
       be the same as if he had done it himself. The meeting was to clarify this for Mr.
       Crocker.
Asked whether this was made clear, Ms. Hopkins said:
       Yes. Mr. Crocker said he would review my statements with legal counsel to get
       advice. If he was advised to withdraw he'd refrain; but otherwise he would have
       Mr. Kinnear make the contact, and also have his lawyer prepare a letter to Mr.
       Colbert concerning the same issue. At the end of this heated meeting Mr. Crocker
       again said there was no way there would be a cap, and he would no longer take
       part in meetings of the Joint Benefits Committee.
       The 90 day limit the MOU set to introduce the plan ran out at the end of March 2005.
       Ms. Hopkins identified a July 11, 2005 letter (HH #2) she wrote Mr. Crocker concerning
the policy grievance submitted by the Union about the employee benefits plan (HH#3). HH #2
points out that the Employer is now awaiting Mr. Crocker's ...
       written response to (the Employer's ) correspondence of June 29, 2005, regarding
       the suitability of various plan design options that have been identified in
       consultation with the benefit consultants. I had hoped to have this from you
       today...
       Ms. Hopkins identified a June 29, 2005 letter (HH #4) to Mr. Crocker about the options,
and the spreadsheet (HH #5) setting out the prescription drug plan options for retirees over 75 .
       We had not yet got the Union's response to our request for their comments on the
       options provided by the consultant, and since we were unable to have a meeting of
       the Benefits Committee I prepared HH #4 in order to get the Union to respond to


                                                24
       the attachment. I requested a response to the options set out in HH #5 to give me
       feed-back on viable alternatives. I had hoped we could reach a joint agreement by
       July to get the benefits flowing.
       Mr. Crocker answered (HH #6) Ms. Hopkins's July 11, 2005 letter (HH #2) on the same
day (July 11), saying he wanted the same prescription drug benefits as active employees enjoyed.
       "... It is the Union's position and understanding that Section 11 Employee
       Benefits Plan, 11.1 Group Insurance, paragraph 5 states,
                 "Any employee who retires after the signing of this Agreement will
                 be entitled to continued coverage for prescription drugs
                 exclusively with such coverage provided only in respect of the
                 employee and the employee's spouse."
       Ms. Hopkins testified that at this point the Joint Benefits Committee had reached an
impasse, and she had concluded it was unable to develop a plan.
       In response to the grievance we were getting calls from retirees, and we felt
       obliged to do something. So I implemented a drug plan, and contacted our service
       provider to put that plan into place. The coverage was effective from June 1,
       2004 with a co-pay of 80/20 and a two year survivor benefit with an annual
       maximum benefit per insured person of $7,500.00.
       Ms. Hopkins confirmed this was done without Joint Benefits Committee agreement.
       I had told the Union that, in response to the July 5th grievance, the Employer was
       implementing the plan for retirees over the age of 75.
       The Employer implemented the plan, and gave the Union a statement of its intentions in a
July 15, 2005 letter (HH #7). HH #7 did not induce the Union to agree with the plan.
       The grievance over the failure to implement a drug plan did not proceed.
       I assume that the Union had accepted that we had implemented the plan in
       response to the grievance, and we got no further on that.
Ms. Hopkins identified the Employer's July 15, 2005 response (HH #8) to the July 5th grievance.
Ms. Hopkins is not aware of any further action on the July 5th grievance (HH # 3).
       The Union did, however, enter a further grievance (HH#9) dated July 20, 2005 alleging
violation of the Collective Agreement by implementing the drug plan, complaining in particular
of the restriction of an annual benefit maximum of $7,500.00. The Union again sought unlimited
prescription drug coverage for pensioners beyond the age of 75 for their life time.



                                                25
       Ms. Hopkins identified the Employer's response to this grievance as having been given by
Mr. Ray Lawlor, Operations Manager, on July 22, 2005 (HH #10) confirming the Commission's
view: "... there is no violation of the Collective Agreement, therefore, the grievance is denied."
       Ms. Hopkins said that when she returned from vacation in late July she asked (HH #11)
the Union to indicate its intentions in respect of this grievance.
       On that same day, August 29, 2005, Mr. Crocker came by the office and told me
       verbally that the grievance would be contested. He said he had a verbal agreement
       with the Acting General Manager to waive time limits concerning several
       grievances. I attempted to schedule a meeting with the grievance committee, but
       during the summer we were short-staffed, and had to postpone it until early
       September.
       Ms. Hopkins also identified a September 14, 2005 request from Mr. Crocker (HH #12)
that step 2 be bypassed. The Employer responded (HH #13) on September 20, 2005. A step 2
meeting was held and the grievance proceeded to step 3. This grievance has now gone to
arbitration. The Employer's position was stated in an October 6, 2005 letter (HH #14) which is
the Employer's response to the step 2 grievance committee meeting. That grievance was,
therefore, going through the normal procedure as of October 6, 2005.
       Asked whether there was anything else happening with respect to the Memorandum of
Understanding at this time, Ms. Hopkins said that Mr. Crocker had made some media comments
about it in August 2005. She identified a copy of an article from the Telegram (HH #15) for
August 23, 2005 entitled "Metrobus Union At Odds With City Over Benefits". Ms. Hopkins
testified that, in her view, the statements attributed to Mr. Crocker in HH#15
       ... are not accurate in that they suggest there was an agreement signed in respect of
       the drug plan whereas, in fact, there has been no agreement signed. What was
       signed was a Memorandum of Understanding under which the Joint Benefits
       Committee was mandated to develop a plan in a cost effective manner.
       Ms. Hopkins explained that the Commission obtained copies of the media statements
from Marquis Media, who had been retained to collect any media related to Metrobus ...
       because we provide a public service, and are concerned about our public image...
       We are a public service and have public funding. We feel it is important that the
       Transit Service's image is protected.



                                                  26
       Asked whether there are internal rules and regulations covering this, Ms. Hopkins cited
the Transit Operator Handbook, HH #16, which sets out the policy concerning news media and
making any false statements or misrepresentation. Ms. Hopkins noted Policy A6, which refers
specifically to "Public Image" and states:
       "Making or publishing malicious or false statements concerning any employee or
       the Commission, or other conduct detrimental to the Commission, its employees
       or the employee/Employer relationship will not be tolerated."
Ms. Hopkins also noted policy A13, "News Media" which reads:
       "No employee shall make any statements to the media regarding the Commission
       without prior authorization from the Commission."
       Ms. Hopkins confirmed that this policy applies to all transit operators employed by the
Company, and has been in place in this version since 1998.
       [Ms. Hopkins described her understanding of why HH#16 would be familiar to
employees. The Union objected to this understanding as hearsay. The Chairman ruled it
admissible subject to the weight which the Board might attach to it, since the document is among
records in Ms. Hopkins's possession as Manager of Human Resources, and falls in her area of
responsibility.]
       Ms. Hopkins testified that, prior to 1998 the Transit Operator Handbook was distributed
through the Dispatch Office Supervisor, and would have been provided to each employee with
the Supervisor scratching the names of a list. Ms. Hopkins then described work done
subsequently by herself and Ms. Murrin on a revision of the handbook. Ms. Hopkins said that
the handbook has never been an issue between the Employer and the Union.
       Asked whether she recalls any further media activity by Mr. Crocker which, in the
Employer's view, breached the regulations set out in HH#16, Ms. Hopkins said:
       I recall a radio show interview that was forwarded by Marquis. We received
       media transcripts from Marquis. The first of them (HH#17) was on September 1,
       2005. It was a Back Talk show on that afternoon with Bill Rowe.
[Mr. Earle, for the Union, objected to the introduction of these and other transcripts except as
documents that Ms. Hopkins has received in her official capacity. Their content amounts, in his




                                                27
submission, to hearsay. The Chairman noted the Union's objection on this point, and ruled them
admissible subject to weight the Board may find appropriate.]
        Ms. Hopkins testified that Mr. Crocker was talking about the prescription drug plan for
retirees over 75. Ms. Hopkins noted Mr. Crocker's statement that he had spoken to municipal
candidates ...
        and we had concerns with that, given that it is an internal issue within a dispute
        resolution process and now it is in the media as a political issue in the Council
        election.
Ms. Hopkins also noted that Mr. Crocker referred to the prescription drug plan for retirees over
75 as an issue that led to the strike ...
        whereas, in my recollection, it was other issues that had led to the strike.
        There are other aspects of Mr. Crocker's media statements that were misleading, in Ms.
Hopkins's view.
        For instance, the suggestion that this issue was being dealt with by a Board
        comprised of three councillors and other members of the public when, in fact, the
        matter was being dealt with by the Joint Benefits Committee. This matter was in
        the area of responsibility of the Joint Benefits Committee, and Mr. Crocker,
        himself, was a member. And yet there was no reference to either his involvement
        in, or his withdrawal from, that committee in his interview with Mr. Rowe... Also
        Mr. Crocker did not note a plan was actually put in place.
        Ms. Hopkins confirmed that Collective Agreement issues are handled by Metrobus
management, and called attention to Mr. Crocker's reference in HH#17 to a "quiet protest" at City
Hall. She felt that, after reading HH#17 listeners might have understood that management of the
Commission did not have authority to deal with these issues under the Collective Agreement; and
also that the Commission had somehow reneged on a deal. It was in her view, "A political
pressure tactic to influence the grievance arbitration process."
        Ms. Hopkins also identified a media transcript of Night Line with Ms. Linda Swain for
September 4, 2005 beginning at 8:51 pm (HH #18). She described several matters of concern to
management in comments attributed to Mr. Crocker in HH #18. Most particularly the suggestion
that the "cap" was implemented in contravention of a deal reached at negotiation.
        The Collective Agreement does not mention a cap, nor does it mention not having
        a cap. The Collective Agreement very specifically says that after the Collective

                                                  28
       Agreement is signed the Joint Benefits Committee will undertake to implement a
       cost effective plan...
                Another area of concern is Mr. Crocker's assertion that management
       employees have no cap on drug benefits for their retirees over the age of 75. The
       fact is that management, itself, has no benefit for retirees after age 75.
                The other concern arises where Mr. Crocker says "I'm calling on Mr.
       Colbert to do the right thing now and lift this cap." There are a least two things
       management finds of concern in this. First, is the suggestion management had not
       done the right thing in the first place; the second is that Mr. Colbert is being called
       on. This bypasses management of Metrobus.
                Also there is reference to the "$100,000.00" cost of arbitration. In the
       context of the procedure which the Union agreed as the internal dispute resolution
       mechanism, this is, in management's view, a distortion of the facts.
       Ms. Hopkins indicated there were other news stories and excerpts from other programs,
and noted that Mr. Crocker was informed of the details of the transcripts which management
found to be of concern in his letter of termination (Consent #4) particularly in Appendix A, p.2ff.
       The grievance on the over 75 drug plan has been referred to arbitration. She identified an
October 17, 2005 letter (HH #19) from Mr. Spurrell acknowledging Mr. Crocker's October 12th
request to proceed to Step 3. The Step 3 meeting was held on October 27, (HH #20). Ms.
Hopkins also identified a November 1, 2005 letter (HH #21) from Mr. Crocker to Mr. Spurrell
giving notice that the Union intends to proceed to arbitration under Section 4.
       Asked what prompts management concern with Mr. Crocker's behaviour in respect of
alleged assaults on Metrobus operators, Ms. Hopkins described...
       an incident on September 12, 2005... An operator reported having been assaulted
       by a passenger while the operator was on his way to the relieving point on
       Anderson Avenue near Freshwater Road at a relief point there where operators
       change. As the operator was approaching the relief point a passenger.. .grabbed
       him by the jacket and shook him... The driver was going through the parking lot
       of the Landell's clinic. It happened outside the Landell's clinic, not on the bus
       itself.
Ms. Hopkins said this was ...
       an unusual occurrence, the fourth with operators in 2005. But most are verbal.
       This was the only physical confrontation in 2005.... The driver was able to diffuse
       the incident, and called the dispatcher using his cell phone and requested
       immediate assistance. The dispatcher sent a Supervisor who went to the scene
       from our office. When the supervisor proceeded to the scene he passed the irrate

                                                 29
        passenger who was on his way to the office to express concern. The Supervisor
        went to the scene, spoke to both drivers, and got the names of witnesses. Then he
        and the driver involved in the incident went to the depot. Normally, we ask for an
        incident report to be completed when any incident occurs. The passenger was in
        the building at the time. The RNC had been called to the office and at that point
        the driver who had come in through dispatch and was unaware that the assailant
        was in Mr. Lawlor's (Operations Manager's) office having a discussion. When the
        driver approached Mr. Lawlor's office there was a bit of a fuss. The passenger
        was again irrate at the sight of the driver. The Operations Manager was able to
        diffuse the situation. The RNC arrived shortly after. ... They took the passenger
        into custody and one officer stayed behind to take the assaulted driver's statement.
        The passenger was taken away by police and charged with assault and uttering
        threats, but I believe they were subsequently dropped.
        On 13th September 2005 the driver gave the RNC a statement of events which she
identified as HH #22. This report said there had been previous dealings between the passenger
and the driver. As noted in HH #22, the driver had also reported confrontations with the
assailant about an unpaid fare. Asked whether the assailant was known to Metrobus, Ms.
Hopkins testified that ...
        We met to consider the incident and Mr. Crocker and I stayed back for a few
        words. Mr. Crocker said he was familiar with the assailant who was a regular
        monthly pass holder. There was, therefore, a question as to why there should be a
        fare involved at all.... I could not resolve that question; but the assailant did
        produce a pass for the month of July, the month during which the earlier fare-
        related incident had occurred. When asked about the bus pass, the assaulted driver
        said the passenger had been trying to find the change in his pocket, and had made
        no mention of his bus pass. So the driver assumed that he was not a monthly pass
        holder. We were not able to explain the discrepancy over the pass.
        There was an Occupational Health and Safety Committee meeting on September 19th and
the driver was interviewed. Those present were Mr. Crocker, Mr. Paul Churchill, the assaulted
driver, and Ms. Hopkins who is not herself a member of the committee. The committee is
constituted under the Act and is responsible to investigate incidents in the workplace. Asked
whether the driver had been injured during the assault, Ms. Hopkins said:
        He was shaken up. He shared with me the information that he had aches and
        pains. I had been in contact with the driver through the week and gave him a
        couple of days off to get over the trauma. He was to report back on Monday the
        19th of September; but I told him that, before going back on the road, we wanted
        to have the Occupational Health and Safety Committee to interview him about the

                                                30
       incident and also wanted to brief him if he were to encounter this individual again.
       I contacted him on the preceding Friday, the 16th, and told him what would happen
       on his return to work on Monday... I scheduled the time of the meeting. It was a
       special meeting, not a regular meeting. Not all the members were present. The
       members for maintenance were not there as the incident was with an operations
       issue... During the meeting each member of the committee asked the driver
       questions concerning the incident itself and the preceding events. Mr. Crocker
       had a number of questions. He asked the first, and I had a number of questions on
       behalf of the Employer. We heard a history of some of the relationship between
       the two. It was not a random event, and there may have been a precipitating event
       due to the previous encounters... The driver's recollection was that the first event
       was, 'when the snow was on the ground', but the passenger said that it was in July;
       and we could do no other than note this as a variance. The driver's not mentioning
       the pass but only the cash fare was also noted as a variance. It also occurred to us
       that the driver had been in contact with the passenger on at least two occasions
       concerning the unpaid fare, and he believed it was his duty to collect that fare.
                After the interview, I completed a draft of the Occupational Health and
       Safety Committee report and sent it to the City for review some days later.
       Normally what happens then is that the committee prepares recommendations
       arising out of their findings: for example, concerning reporting systems for health,
       and recommendations for management concerning any identified problems.
                He saw it as his duty as a driver to collect the fare; but it was not intended
       by us that he should pursue the issue with a passenger ... beyond asking on the
       second day. But if he were unsuccessful, he would report it to a Supervisor, and
       get help with that passenger, but not to put himself at risk with the passenger.
                The report was sent back to the Occupational Health and Safety
       Committee. I appended it to a review for the Employer, signed it for the Employer
       and distributed it to the various Managers involved.
Ms. Hopkins confirmed that the Union was involved in the committee.
       The committee received the report at a following committee meeting. I'm not sure
       of the exact date. It might have been early October. It was signed and distributed
       as I indicated... The recommendations were, first, to develop guidelines for
       drivers confronting difficult situations. Second, that there should be guidelines for
       Supervisors on how to respond. And third, that all incidents of verbal abuse,
       including threats, be reported on an incident report in writing to Supervisors.
       That's all I recall.
       She confirmed that in 2005 there had been four incidents, three verbal and one physical.
The physical incident involved ...
       a passenger who seemed to be 'under the influence' acting out on the bus, kicking
       and screaming. The driver restrained the person with the help of another

                                                 31
       passenger. Two of the incidents were verbal assaults, and then there was the
       assault on (Anderson Avenue)... After the Committee process, the report would be
       reviewed by Managers and, if approved, the actions would be implemented. The
       Commission adopted the recommendations on the Anderson Avenue incident.
       Ms. Hopkins also noted that Article C4 of the Operator Transit Handbook (HH #16) also
deals with handling unruly passengers.
       The guidelines I drafted fleshed out this section on what they might be able to do.
       We have not barred the passenger involved in the assault on Anderson Avenue.
       We have instructed the driver that if he sees that passenger at a stop he may pass
       that passenger and not take him aboard... The Motor Carrier Safety Act states that
       a driver of a bus is required to stop for any passenger presenting ... at a stop.
       There are some exceptions; for example, in the case of belligerent passengers, or
       anyone using profane language. So the Act, itself, says that the Commission and
       the driver must carry all passengers at bus stops, and only in some circumstances
       can we refuse a person. To get an enforceable ban we need a court order. If we
       wanted to we'd have to take steps to enforce the ban, and we don't have the
       resources as larger systems do to enforce the bans . .. I contacted the Crown to
       find out what had to be done, and was told that the passenger had been told to stay
       away from the driver's place of employment. I asked (the Crown official) if that
       included the driver's bus. She said that the document referred to any bus operated
       by the driver, but the passenger could use other buses. That was her
       interpretation.
       Ms. Hopkins said that the question of barring unruly passengers has not been brought to
the Occupational Health and Safety Committee: "Not since I've been at the Commission." Asked
whether the issue of barring unruly passengers had been raised with the Employer through the
Labour Management Committee meetings, Ms. Hopkins said:
       Yes it has. We had a Labour Management Committee meeting on Wednesday,
       September 21st. At that meeting there was some discussion of the assault
       guidelines I'd drafted, as approved by Ray Lawlor to supplement to the existing
       policy. There was a step-by-step procedure if the Operator faced a situation. After
       the Occupational Health and Safety Committee interview with the assaulted
       driver on the 14th I had told Mr. Crocker that I'd drafted guidelines, and he asked if
       there would be an opportunity for the Union to have input. I said that I'd have to
       type them and review them with the Manager of Operations, and that we would be
       happy to get the Union's input on the guidelines. He commented that, in his
       experience, there was 'no working together with the Employer', and that 'the
       Employer did what it wanted', and he hoped that I was 'sincere in my decision to
       work with the Union'. He said that operator assault was an area of increasing
       concern to the ATU in general, and that if I wanted him to be in contact with the

                                                32
Canadian Council of the ATU to obtain names of transit properties that have by-
laws in place regarding violence he would do so. I advised Mr. Crocker that I
would be happy to follow up if he provided these names.
        Mr. Crocker contacted me by phone later that day and gave me names of
four properties that have by-laws giving the transit authority the right to ban
passengers. I phoned or e-mailed them. In one case I had a contact name, so for
the other three I went through their web sites and sent requests for information
concerning any by-laws and policies they may have on barring passengers for
assaults on drivers.
        Halifax has Constables on staff able to enforce provincial legislation under
the Protection of Property Act. They issue tickets to unruly passengers
temporarily banning them, and, with their Special Constable status, they have
police powers.
        Edmonton transit sent their by-law which sets out unacceptable conduct
from passengers. There is a system of fines that may be enforced and it lists what
the security force or drivers may do if a passenger is unruly, including refusing
access to the bus or removing passengers from the bus.
        I didn't hear from London transport. St. Catherine's didn't respond, but
their web site outlines the type of conduct that is unacceptable and the refusal
rules that are in operation.
        I intended to tell the Union of this information at the next Labour
Management Committee meeting on the 21st, but because of the media reports
about the driver assault we hastened the posting of our guidelines and called it
"On the Front line". We posted it (HH #24) on the 21st because of the urgency,
and had not consulted the Union on the guidelines. The urgency was driven by
the media comments by Mr. Crocker which we felt were causing alarm to our
drivers and to the general public. So we felt there was an urgency to alleviate any
concerns that may be out there.
        The first of the media reports we had was from the Telegram (HH #23) on
September 17th. It was in the Saturday edition. We learned of it on the 16th,
Friday, through a call from the Telegram reporter looking for comments. I did not
speak to reporters. Linda Ryan, Administrative Assistant to the General Manager,
took the call and asked that the questions be forwarded to Mr. Spurrell's office. I
learned about this because Ms. Ryan forwarded the questions to Mr. Spurrell, who
forwarded them to me and to Mark Chancy our Manager of Marketing and
Information Services and media contact during Judy's absence.
        There were four questions. The first was whether there had been a physical
assault during that week. Second, whether there were any injuries to the driver.
Third, how many physical assaults were there during the year. And fourth, what
the company had done in relation to the incident. There may have been others,
but I don't recall.



                                        33
                  Mr. Spurrell and I met in my office and reviewed the questions, and Mr.
           Chancy was briefed by Mr. Spurrell on how to respond to them. The interview
           took place and was published on Saturday the 17th.
HH #23 p.A1 reads, in part:
           "We had an incident Tuesday where a driver was assaulted on his route," Crocker
           told The Telegram. "He was just relieving another operator when he was attacked
           by an individual and sustained injuries and ended up being off work for the rest of
           the week."
[It was pointed out that a line at the top of A2 reading "Crocker said the driver confronted a
waiting passenger" was later corrected in print to show that the passenger had confronted the
driver.]
           Ms. Hopkins pointed out that Mr. Crocker's description of the assault on the driver as
having occurred,
           ... "on his route", is not strictly accurate. The driver was walking to the relief
           point. It was actually in the parking lot of the Landell's clinic. The passenger
           was, in fact, in the shelter, and the driver was confronted in the Landell's clinic
           parking lot. Also, the fact that the driver "sustained injuries and ended up off
           work for the rest of the week", suggests greater injuries than in fact appeared to
           have been sustained. The driver merely said that he was "shaken up", and that he
           had some tenderness. The company had provided the time off in order to deal
           with other effects of the event."
Asked whether the driver had required medical attention, Ms. Hopkins said:
           No he did not. I asked the driver to go to the doctor and to complete a form for
           the Workplace Health and Safety Compensation Commission. The driver asked
           about days off and I said not to worry, and Mr. Lawlor said that he'd be paid the
           time off.
           Ms. Hopkins also stressed that concerns attributed to Mr. Crocker about assaults on
drivers on the bus really do not pertain to this incident since the driver was not operating a bus at
the time.
           Other portions of the article attributed to Mr. Crocker seem to suggest that the
           company was passive towards operator safety, and was not taking appropriate
           measures. To me, it suggests that the company was being negligent in respect to
           the Occupational Health and Safety Act.
           The Telegram article was not the only matter of concern. Ms. Hopkins identified HH
#25, the accident investigation report that had been prepared in respect of the Anderson Avenue

                                                   34
      incident, and HH #26 and HH #27 transcripts from VOCM for September 19, 2005. HH #26
      attributes certain comments to Mr. Crocker, including the assertion that...
             We're going to press our Employer, which is Metrobus which is operated by the
             St. John's Transportation, to enforce the laws, that are, that are upheld on assaults
             in public places because we consider, you know, a bus to be a public place. As a
             Union we are going to advise our operators that, you know, under the
             Occupational Health and Safety Act that, you know, you don't have to do unsafe
             work, and we consider this to be unsafe work and we will be refusing passengers
             to board our buses as operators.
      Mr. Crocker's suggestion that the Union was going to counsel its drivers not to permit passengers
      aboard carries implications for the Commission because of the requirements of the Act.
             Ms. Hopkins also highlighted comments attributed to Ms. Linda Swain in her September
      18th Night Line show (HH #27), which, in Ms. Hopkins' view, demonstrate that the fear- raising
      effect of Mr. Crocker's comments and their damage to the Commission's reputation with the
      general public. Mr. Crocker was not being directly quoted in HH#27. But Ms. Swain's
      interpretation of his views is significant in her view. Ms. Swain is reported as saying:
             George Crocker in the paper, I noticed, made the remark that if somebody has it in
             their mind that they're going to pick a fight with a bus driver particularly while the
             bus driver is operating his bus, that's not only a concern for the safety of the bus
             driver it is also a concern to the safety of the general public even if this person
             doesn't target the general public directly. Of course if somebody is operating a
             bus a potential is there for a very serious accident.
             Ms. Hopkins also identified as HH #28, the transcript of a later portion of the same
      September 18 2005 Night Line show with Ms. Swain (at 9:20 PM) onward, where (p. 2) Mr.
      Crocker, himself, is quoted in part as saying:
Crocker   :... And we're trying to enforce these rules and collect fares and we feel that our operators
          should not be subject to assaults when we're just trying to enforce the rules of the
          employer. Now there is a section in the Criminal Code of Canada that states, and it's
          Section 2., 2.17.1 of the Criminal Code which states that everyone who undertakes or has
          the authority to direct how another person, how another person does work or performs
          tasks is under legal duty to take the reasonable steps to prevent bodily harm to that person
          or other persons arising from that work or task. So what we're attempting to do now is
          have our employer, you know, have these people charged under this section of the
          Criminal Code. We feel that, you know, why should someone who's trying to perform
          their duties be subject to an assault and the Employer not act on our behalf?


                                                       35
Announcer: So you feel that the company isn't doing enough there to give you enough power to
           conduct your job in a safe manner?

  Crocker: Absolutely, what, what we're saying is anybody who causes a disturbance on these buses,
           on these buses or threatens an operator or threatens a member of the public on one of
           these buses, should be banned for, for an indefinite period of time until they get to court
           and the courts decide on how this, you know, how these incidents should be treated and
           take the direction from the courts."
         Ms. Hopkins understands that Mr. Crocker is alleging criminal behaviour against the...
                Commission, itself, all managers, all supervisors. My understanding is that the
                Code relates to criminal behaviour, and imposes a duty of safety on those
                directing the labour force... criminal negligence. Mr. Crocker seems to be saying
                ... that the Employer and their officers are to be charged under this section of the
                Code... The internal policies were in place, and we were taking action internally;
                and this was being brought forward publicly. It suggests a cause for concern for
                personal safety of the customers and the operators... and that this should have
                been of concern to the Employer who was not doing enough to deal with it.
                Asked why Mr. Crocker's opinion, or that of the Union, should pose a problem to the
         Employer, Ms. Hopkins answered:
                I guess the opinion that an assault on buses is a concern is certainly note-worthy
                for him to comment on. But to suggest that the Employer is not responding
                appropriately, and is being negligent, reflects on the public image of the company
                and its management.
                Ms. Hopkins also noted that the comments attributed to Mr. Crocker (HH#28, at p. 4)
         concerning advice to the membership to refuse passengers, ignores the fact that
                ... there are established protocols under the Occupational Health and Safety
                Committee, and that these matters have been raised with the Committee.
                Ms. Hopkins also noted that Mr. Crocker's reference to the information about whiplash
         (HH#28, p. 6) was, in her view
                ... intended to make the Employer look untrustworthy with confidential
                information.
                Ms. Hopkins identified HH #29 as a VOCM radio news item at 7:45 am on September
         21st about "The Union representing Metrobus drivers plans to lobby St. John's Council to allow
         the Transportation Commission to ban passengers who cause disturbances" that included a
         statement attributed to Mr. Crocker which, in Ms. Hopkins view, raises alarms both for

                                                         36
employees and for the public about the safety of the bus system and suggests the Employer is not
doing enough. HH#29 reads, in part:
       "George Crocker: Well we had one driver, as early as last week, which was
       physically attacked and assaulted. And you know, subsequently lost three or four
       days' work due to injuries sustained because of that assault. And you know that's,
       as far as we're concerned that's unacceptable. We're just carrying out the rules of
       the, of the employer and we don't feel that we should be subject to assaults for
       doing what is required of us."
Ms. Hopkins also identified HH #30, also a transcript from VOCM Open Line on September 21,
2005, in which Mr. Rowe is quoted as expressing concerns over safety on the buses.
Ms. Hopkins noted the media attention, and that mounting public concern ...
       about employee and passenger safety posed a serious concern to the Commission
       itself... I found it somewhat surprising in light of the comments that Mr. Crocker
       had made to me after the meeting of the 19th. After that meeting Mr. Crocker and
       I had a discussion of what took place, and Mr. Crocker said that it was perhaps the
       operator who had provoked the assault because of his actions in pursuing the fare.
       I had indicated to Mr. Crocker that there had been some mitigating factors, and
       there were some cues that the incident was escalating, but that did not justify a
       physical assault on the driver, and Mr. Crocker agreed that it did not justify a
       physical assault on the driver.
       Ms. Hopkins identified HH #31, the transcript of VOCM Back Talk on September 21st.
Ms. Swain's preliminary comment refers to the fact that "... the union representing Metrobus
drivers plans to lobby St. John's Council to allow the Transportation Commission to ban
passengers who cause disturbances." Ms. Hopkins said:
       I think interested parties can make their views known. But on this issue the
       Commission is set up as an entity under a by-law, and the issue is an employment
       issue. The suggestion being made is that the Commission has not done enough to
       ensure driver safety. The reference to the fact that the Union "plans to lobby..", in
       my perception, demonstrates that the Union is failing to observe the principles
       under which the Commission has been set up. The Union should go first to the
       Commission on worker safety, and not over the heads of the Commission and
       management to the Council.
       Ms. Hopkins identified HH #32 as another transcript from the VOCM Talk Back show of
September 21st, which reports a conversation between Ms. Swain and Mr. Tom Hann who was, at




                                                37
the time, campaigning for a position for councillor at large for the City of St. John's. Ms.
Hopkins suggested that this transcript also demonstrates
       ... that the matter was now spinning into a political issue on which candidates feel
       the need to express themselves in support of those who appear victimized by an
       increasing problem.
       Asked what her role was at this point regarding Mr. Crocker's public actions about the
cap on the prescription drug plan for retirees over 75 and driver assaults, Ms. Hopkins said:
       First, there was a complete review of the media. Second, a chronology was
       prepared covering both matters. The summary of this information was sent to the
       Acting General Manager, Mr. Spurrell... I reviewed it with Mr. Spurrell, and sat
       in on an (October 27th) meeting with members of the Commission where these
       matters were discussed... A unanimous decision was taken to terminate Mr.
       Crocker's employment... Our General Manager, Judy Powell, was returning on or
       about the 31st of October or November 1st and the Commission directed that the
       termination should be conducted by Ms. Powell on her return.
       Attending the meeting with members of the Commission, in addition to the three
members of council and four members of the public who formed the Commission, were Mr.
Harold Smith, Legal Counsel, Mr. Austin Spurrell, Acting General Manager, Ms. Judy Powell in
preparation for her return from leave, Mr. Sean Mooney, Mr. Ray Lawlor, and Ms. Hopkins
herself. Asked what transpired between that meeting and the letter of termination (Consent #4),
Ms. Hopkins said:
       We became aware of a customer complaint that a bus had deviated from route... It
       was investigated, and it was found that Mr. Crocker was operating the bus. When
       questioned by a Supervisor, Ms. Richardson, he denied deviating from the route
       and asked Ms. Richardson whether she had checked the AVL (Automated Vehicle
       Location) system. This operates on GPS, and shows where a bus is at any given
       time. The buses pass certain points and transmit data back to the system. The
       AVL system was checked, and it showed that the bus did not follow the
       prescribed route at the time the customer had indicated.
Ms. Hopkins confirmed that drivers must stay on route as required by the Transit Operator
Handbook (HH#16) at B15 and B4(c). Ms. Hopkins was not involved in the investigation, but
understands that the Supervisor, Ms. Terry Richardson, Mr. Ray Lawlor, and Ms. Judy Powell
were involved, and that information from the AVL system was supplied by Mr. Mark Chancy.



                                                 38
Asked whether she knows whether violation of B15 and B4(c) of HH #16 played a role in the
termination, Ms. Hopkins said:
        Yes, it was an additional example of Mr. Crocker not following the Employer's rules.
        Ms. Hopkins confirmed that she does not have authority to terminate, and did not sign the
letter of termination.
ON CROSS EXAMINATION Ms. Hopkins confirmed the particulars of her professional role
with the Employer. She had assumed her current position in November 2003, and that a year
later found herself in the midst of a major dispute. Initially she had acted as a member of the
bargaining team, and when the General Manager went on maternity leave she became Chief
Negotiator. She also confirmed that this was her first experience with a transit operator, but...
        I did negotiate an agreement before. I worked with Cable Atlantic, and was part
        of the team on two agreements with Persona Communications. I was involved in
        negotiating their first collective agreement, but this was the first with Metrobus. I
        was Chief Negotiator in negotiations for Cable until I began maternity leave.
        Ms. Hopkins had also served for six years with Memorial University in Human Relations
but had not been involved in labour relations at Memorial. Before becoming Acting General
Manager, Mr. Spurrell had been Manager of Finance. Asked to describe her involvement with the
Commissioners and the Commission before becoming Chief Negotiator and whether she had
regularly attended meetings of the Commission or had been called in on specific issues, Ms.
Hopkins answered:
        Normally I was not involved unless specifically invited by the General Manager.
        We normally would do a presentation of our functional areas to the Commission.
        I did that once... It was just prior to the current strike and the negotiating team met
        with the Commission to brief them on the status. The General Manager briefed
        and I attended and responded to questions I was asked by members of the
        Commission.
Asked whether Marquis Media is on a regular retainer, Ms. Hopkins said:
        I'm not sure what arrangements are with Marquis Media. I asked to be copied on
        any matters referring to the Commission and to the strike about the time of the
        strike, and I've been receiving the material since. Primarily I would get media
        relating to both topics. I understand that it was print and broadcast media that was
        monitored... Normally the transcripts would be received the following day or the
        day after they were printed or broadcast. During the strike it was hit and miss,

                                                  39
       because I was not in the office to get my email. I don't believe I was getting
       anything after the strike... I think I spoke to Linda and asked her to make sure I
       was copied. It was my understanding the General Manager or Acting General
       Manager would have been receiving that information...
       Ms. Hopkins confirmed the Commission exists under a City of St. John's bylaw.
       I guess I skimmed portions. As I recall, the by-law provides for the appointment of
       Commissioners, of whom three will be Council members.
Ms. Hopkins said she is not aware of any particular tradition concerning who is normally
Chairperson of the Commission.
       I'm only aware of the current and immediate past Commissions... I understand the
       other four members of the Commission are appointed by Council, and apparently
       there is an ad for an expression of interest.
At the time of Ms. Hopkins first meeting with the Commission Councillors Colbert, Sears, and
Galgay were members. The citizen members were Mr. Les Bruce, Mr. Derek Hutchings, and Mr.
Damian Ryan.
       Mr. Ryan told me, at a meeting of the Pension Review Panel, that he retired from
       the City as City Clerk.
       Ms. Hopkins confirmed her understanding that the Act refers to, a "Commission
appointed by council...to operate the bus service", and agreed with Mr. Earle, that therefore the
City could dismiss the Commission and run the bus service itself.
       Ms. Hopkins testified that during the negotiations for a Collective Agreement the
councilors were Mr. Colbert, Mr. Sears, Mr. Galgay, Mr. Damian Ryan, Mr. Derek Hutchings.
Mr. Bruce had died but Ms. Hopkins could not recall who had replaced him. Ms. Hopkins cannot
remember when first she dealt with Mr. Bruce's replacement and confirmed the possibility that
for a period of time the Commission ran without a replacement for him.
       As a result of its meeting on September 29th she was instructed to do certain things for the
Commission as it was then constituted by Mr. Colbert, Mr. Galgay, Mr. Sears, Mr. Ryan, Mr.
Norman, Mr. Duane Hutchings "and another gentleman whose name I'm blocked on." Asked who
were the commissioners at the October meeting subsequent to the council election, she said:
       Mr. Sears did not get elected and I think he was replaced by Mr. Tom Hann... the
       same Mr. Hann whose comments were earlier reported in HH #32... The Chair-
       person was still Mr. Gerry Colbert.

                                                40
       Ms. Hopkins also confirmed that during the Collective Agreement negotiations there were
a number of occasions when the Union's negotiating team was told that the Employer's team had
met with Commissioners. Asked whether that was with the Commission as a whole or with a
committee of the Commission, Ms. Hopkins answered:
       All of the Commissioners as I recall... Meetings with Commissioners were co-
       ordinated by Mr. Spurrell according to the progress and their interests. I provided
       an overview of where we were at bargaining, what was accepted, what was
       outstanding and what the two positions were. My understanding is that we had
       permission from the Commission for a certain amount to be applied as we saw fit;
       but that if we were to exceed that amount we would have to get permission. Mr.
       Spurrell was the one doing the costings, so he made the judgement if we were in
       danger of going over.
Asked whether issues of principle had to be cleared with the Commission, she said:
       My understanding is it was the dollar amount that we had to go back to.
Asked whether the Commission had approved the MOU, she said:
       As part of the general Collective Agreement.
Asked whether she had met with the Commission on the MOU, she said:
       Not the Memorandum of Understanding. We were dealing with wages.
Asked whether she had discussed the contents of the Memorandum of Understanding with the
Commission, Ms. Hopkins said:
       There was a phone call on the 15th of December. Mr. Spurrell called Mr. Colbert
       regarding a discussion that had taken place between Mr. Kinnear and Mr. Colbert
       that afternoon. Mr. Kinnear was on the bargaining team for the Union Local. At
       that point Mr. Spurrell asked if he could put Mr. Colbert on the speaker phone.
       Mr. Colbert said that he had suggested an MOU, and gave me the five items in the
       Memorandum of Understanding: the guidelines for constructing an appropriate
       plan in consultation with the benefit consultant.
       Ms. Hopkins identified a July 16, 2004 letter written to the Union (HH#33) denying a
grievance dated June 28, 2004; and also a July 21, 2004 letter (HH#34) denying a three day
suspension grievance. Ms. Hopkins confirmed that in both of these matters the final sentence
reads: " The Commission feels that there is no violation of the Collective Agreement and
therefore, the grievance is denied." Ms. Hopkins confirmed that the words "the Commission" is
used, not "the management". She added:


                                               41
       My understanding is that what is now the Employer was then the Employer ... I
       assume I was hired by the General Manager on her own authority. The
       "Commission" does not always mean the "Commissioners". They approve
       termination of employees. If someone on probation is terminated, we have the
       ability to terminate. In my understanding we do not have the authority to
       terminate otherwise without the Commission's approval.
       Asked whether there were previous dealings between the Chairperson of the Commission
and individual employees, Ms. Hopkins answered that:
       On January 18, 2000 Mr. Andy Wells, who was then Chairman of the St. John's
       Transportation Commission, had written a letter of discipline like HH #35 in
       respect of an illegal strike... I don't know what specific role Mr. Wells had in
       writing this letter.
       Asked how frequently she sees the Chairperson of the Commission around the office at
Metrobus, Ms. Hopkins answered:
       I may see him when he comes in for the monthly meeting. Frequently I do not, but
       I may... I think there may have been four contacts with the Chair ... during the
       strike. The first meeting was before the strike which started on November 30,
       2004 and ended on December 15th, the ratification date.
       Ms. Hopkins said she thought it would probably have been in late May or early June 2004
that opening packages had been exchanged between the Employer and the Union, and confirmed
that the Union had a position on retiree drug benefits written into its proposal. She also confirmed
that the parties had secured the assistance of a Conciliation officer. Section 11.1 was amended.
       Under the previous agreement drug benefits were available for the retiree and his
       or her spouse up to the age of 75. Essentially the same plan as for active
       employees was continued up to age 75. But they were covered for drugs only, as
       distinct from other health benefits. But the prescription drug plan was the same as
       for active employees on the basis of 80/20 co-pay of the cost of prescription drugs.
Asked whether there were any maxima for prescription drugs, Ms. Hopkins answered:
       No there were not. I understand there was automatic generic substitution adopted
       under the plan as a cost saving measure. New drugs were covered under our plan
       or if the doctor stipulated there were to be no substitutions. That was respected
       under our plan. There was no dispensing fee; that was included as an eligible
       expense as part of the cost of the drugs.




                                                42
Ms. Hopkins agreed that this meant both an active employee and a retiree up to age 75 were each
required to pay 20% of the prescription charge, and got his or her drugs. Asked what percentage
of the premium the Employer paid under the old Collective Agreement, she explained that:
       Under the old Collective Agreement the Employer paid 100% of the premium up
       until December 1, 2001. After that date it was 50/50 with the employees. This
       applied to retirees too. But there was a grand-fathered group, those who had
       retired on or before July 1, 1995, who did not cost-share that premium.
       Ms. Hopkins agreed that, when negotiations failed the Union was in a legal strike
position, and that the drug plan was an outstanding issue at the time of the strike.
       The Union had 8 language issues and all of the monetary issues. The Employer
       had made an offer, including an offer on the monetary issues, but it was rejected...
       The Union had 45 outstanding issues, but I'd not be able to tell you off the top of
       my head what they all were.
       Asked whether the drug plan for retirees over 75 was among them, Ms. Hopkins said:
       That was in the budget enhancements proposal. It was in the monetary issues.
       Ms. Hopkins agreed that, once a strike starts, a Collective Agreement is dead and there is
no employer/employee relationship at that moment. Asked when negotiations restarted, she said:
       The strike was on a Monday. It may have been Wednesday or Thursday of that
       week. I can't quite remember. The days all ran together. There were monetary
       and some non-monetary issues. One issue was how long disciplinary records
       should stay on file. We came up with language which both could live with. That
       was left with the mediator. All the other non-monetary issues were off the table,
       and then there was the monetary...
               We worked at trading packages rather than proposals in isolation. We
       traded complete packages back and forth. There was a number of iterations of
       that. A few items we had discovered. We identified some pension enhancements,
       and, obviously, there was the wage package. The negotiations continued back and
       forth until around the 13th of December, and we were at odds over a couple of
       issues at that point. We had had the decision about the Pension Review Panel, and
       travel to go to training, and some of that funding, and also the lead hand in
       maintenance and pension improvements. That was perhaps settled.
       Asked what had to be fixed in order to get a deal as of December 13th, Ms. Hopkins said:
       Up to that point it was wages, some benefit improvements, the dental plan and
       driver abstracts.
Asked whether drug coverage for life was an issue at that point, Ms. Hopkins said:


                                                 43
       That kind of came up late. There was no discussion of it at the table. It was
       included as a one liner from the beginning. In our response we said that we would
       go with a two year survival benefit, but not beyond 75. But there was no
       discussion at the table. It only came to our attention as important to the Union
       after the discussion on the open line show. It had not been mentioned to us as a
       priority issue, but it then surfaced as a bargaining issue.
       Asked whether there was a fair bit of discussion of the strike on the open line shows and
whether Mr. Crocker was appearing on the open line, Ms. Hopkins said:
       I was getting the media transcripts... We'd imposed a blackout during that time. I
       can't recall if he was on before the blackout or only after. I understood that, as
       Union President, he would speak for the Union on the negotiation position. There
       was a certain latitude.
Asked whether she was aware of any restrictions on his activity during a strike, she said:
       We could not take issue with him putting his position on an issue in negotiation,
       but if it was malicious or a misrepresentation of the Employer's position, then I
       think we could have a concern.
       Asked whether she was aware that the Commission had taken full page newspaper ads
about its position, Ms. Hopkins said: There were specific service bulletins to customers to keep
them informed. Asked whether their bargaining position was also set out she said: At one point
we did, yes. Ms. Hopkins testified that the negotiations came to an impasse ...
       around the 13th. We got to a point when there was no forward movement. I think
       we'd reached a point we felt we weren't making any progress, and at that point, as I
       recollect, the Union walked away from the table.
Asked to recall what the outstanding issues then were, Ms. Hopkins said:
       They are hard to recollect without my documents but... The wage package: there
       were some benefit issues including the retirees, driver abstracts, aspects of the
       Pension Review Panel, and the lead hand issue... pension benefits were still
       outstanding.
       Asked what the membership of the Pension Review Panel was, Ms. Hopkins said:
       It included the General Manager and myself, Mr. Damian Ryan, and two Union
       representatives who were Mr. Crocker and Mr. Churchill.
       Asked whether she knew who had heard the exchange between Mr. Colbert and Mr.
Randy Simms on VOCM on the morning of December 15th concerning pensioner drug benefits,
Ms. Hopkins answered:


                                                44
       I believe it was a Transit Supervisor who had been listening in the dispatch office
       and heard the introduction and called the Operations Manager, Mr. Ray Lawlor,
       who was on the committee, and he called our operator who shared it with the City.
Asked if any of the Commissioners had mentioned the radio comment to her, she said:
       Not until sometime later. It came up in a meeting we had with the Commission
       concerning retiree benefits, but not specifically that news story.
       Asked if there had been any specific decision on the prescription drug plan for retirees
over 75 issue up to December 13th, 2004, Ms. Hopkins said:
       It was just included in the package. There was no specific discussion on that
       item... On the morning of the 14th I was in contact with the Conciliator and asked
       her for a status report. One of the major issues was cost sharing on the benefit
       plan. That was a major issue for the Union, both for active members and for
       retirees. I forgot that, but that was major... I told her we were waiting for the
       word from the Union to see if they would go back to the table...
               In the meantime Mr. Crocker was on the radio saying that the Union had
       said 'No' to a five-year deal, but was willing to accept the first two years of a five
       year deal. A short time later I heard Mr. Colbert on the radio saying he was
       delighted to hear that they were willing to accept the Employer's three-year offer;
       but actually that was what was on the table before the Union walked away. He
       said that in response to what he thought he heard Mr. Crocker say. But Mr.
       Crocker also actually said was that the Union would accept a two-year deal.
       Mr. Earle asked whether she had heard Mr. Colbert talking about his joy at Mr. Crocker's
comments, Ms. Hopkins said:
       I was surprised, and that was when (Conciliator) Yvonne Scott called me to ask
       what was happening, and then broke off to listen to the Open Line. I didn't hear
       the whole thing. But I did (wonder) how it related to cost sharing arrangements. I
       now learn that the employees had no cost sharing, and the Employer was expected
       to bear the cost... So I was in contact with Yvonne. She was worried about
       negotiating in the media. I called ... Mr. Spurrell and asked him if he'd heard the
       Open Line. He said he had. I left it with him to deal with as he felt appropriate. I
       wasn't clear what was going to happen. I expressed concerns about it not being
       appropriate to continue these discussions in the media, but by then Mark Chancy
       had called in to respond... I'd spoken to Mr. Spurrell and clarified the situation
       about the Union. Mr. Spurrell said Mr. Chancy was clarifying the information.
Asked whether Mr. Colbert was on the radio any more, Ms. Hopkins said:
       I can't recall for that day. I went to the office and waited for a call from the
       Conciliation officer. It came around the middle of the afternoon asking if the
       negotiating team was prepared to meet at 5:00 that evening. She said she had been

                                                 45
       in touch with Larry Kinnear to say that two issues were essential to strike a deal.
       She did not say what they were.
Asked whether the Conciliation officer had told her of a contact between Mr. Kinnear and Mr.
Colbert, Ms. Hopkins said:
       Not at that time. I told Mr. Spurrell, and he said that he had just gotten off the
       phone with Mr. Colbert who said he had been contacted by Larry Kinnear. I asked
       Mr. Spurrell what the discussions were, and he said there were three items that
       Kinnear had shared with Mr. Colbert. First, retiree benefits over 75; second,
       driver abstracts; and the third, I think, was the lead hand issue. That's my
       recollection.
               I asked Mr. Spurrell what specifically had been discussed, and he called
       Mr. Colbert for clarification. At that point in time I was told by Mr. Spurrell that
       there had been a general discussion about outstanding issues, but no promises
       made. Mr. Colbert identified that he had made some general suggestions as to
       where we may go with these items, and at that point we left and went to the
       Beothic Building to resume negotiations at the Conciliator's office.
Asked whether she was aware that Mr. Colbert was now negotiating, Ms. Hopkins said:
       I was not sure what opinion the Union had going into negotiations.
Mr. Earle pressed the issue, pointing out that Mr. Colbert was part of the climate of negotiations,
and Ms. Hopkins responded:
       My understanding was that Mr. Colbert felt it was in good hands, and that we
       were to negotiate.
       Mr. Earle asked whether she could confirm that she knew that Mr. Colbert had been
speaking to members of the Union team. Ms. Hopkins answered:
       I feel it was Mr. Kinnear who contacted Mr. Colbert. Mr. Kinnear initiated the
       contact with Mr. Colbert.... Ms. Yvonne Scott was worried. It sounded as though
       we were negotiating in the media, yes.... Mr. Colbert told me that Mr. Kinnear
       gave him three issues, and that he had listened but made no promises. I said I did
       not know what the Union's impression was, but I was upset that the Union had
       gone over the head of management to speak to the chairman. I was concerned
       what their expectation was when we went back to the table.
       Asked whether the media monitoring revealed any other members of the Commission
speaking to the media, Ms. Hopkins said:
       I don't know if I actually have any here, but I do recall the strike issue being raised
       in Council. I recall it, but I don't have it here. I think it was Mr. Colbert saying
       there was a media blackout. He's the only one I can recall from the Commission.

                                                 46
       Ms. Hopkins resumed her account of what happened once the Parties had been called
back to the table by the Conciliator.
       We assembled the bargaining team, and had a call with Mr. Colbert. He conveyed
       the hot button issues and his suggestions, and indicated that he would like to get
       back to the table. He did not understand the lead hand issue, and had questions
       about the driver abstracts... He felt that, as far as the drug plan for those over 75
       was concerned, an MOU stating the Joint Benefits Committee could look at the
       options available and provide lifetime coverage for retirees. Our proposal was for
       a maximum of $1,500 and Mr. Colbert said: 'I don't know what the dollar amount
       is, but I don't feel that $1,500 is the right number.' It gave me the impression there
       was some right number. That was as much direction as he gave me on that issue.
       Mr. Earle noted that Ms. Hopkins had said that she had a problem with the fact that Mr.
Kinnear had approached Mr. Colbert, and asked whether she would agree that, Nonetheless, there
had been results? Ms. Hopkins said:
       Protocols are important. I guess, by way of backdrop, Mr. Crocker had been told a
       number of times – including by the Chairperson himself – to communicate with
       the management team. During negotiations Mr. Crocker had jumped to his feet,
       looked at me and pointed to Mr. Kinnear and said, 'Mr. Kinnear is an advisor, and
       does what George tells him', and that 'George makes all the decisions at this
       Local.' So when I heard that Mr. Kinnear had gone to Mr. Colbert I understood
       where it was coming from. George made it clear and explicit where the decisions
       were made.
       Asked whether there is any rule that specifies that Mr. Kinnear could not talk to Mr.
Colbert, Ms. Hopkins responded:
       It may not be a rule, but it is understood that during negotiation you deal with the
       Party at the table. I would have thought he would know the difference... No (there
       is no rule).
       Asked whether she knows what position Mr. Kinnear holds with the Union, she said:
       He is an International Vice-President, yes; but Mr. Kinnear did not object, or
       correct (Mr. Crocker's) description of him.
Asked whether she would expect a team member to undermine so strong a statement, she said:
       I know what I was told. I know the pecking order.
Ms. Hopkins confirmed she knows the Employer is required to deal only with the bargaining
agent and not with members of the Union, and that this requirement operates during the course of



                                                47
a strike. She also confirmed she knew, when she left Mr. Spurrell's office and went to the
negotiations, that Mr. Colbert had had a conversation with Mr. Kinnear.
       I understood that the Union had advised Mr. Colbert what the hot button issues
       were, and what it needed for a resolution. I also knew that $1,500.00 was 'not the
       right number.'
       Ms. Hopkins described the process of conciliation which involved two representatives
from either side meeting with the Conciliator as a group of five. The Union representatives were
Mr. Kinnear and Mr. Crocker. Asked whether she had said, either to Mr. Kinnear or to Mr.
Crocker, something like "Look, negotiate with me, not with Mr. Colbert"? Ms. Hopkins said:
       I believe I expressed my displeasure to Mr. Kinnear that he'd gone outside the
       bargaining process... I believe I told him that I was expecting that he would deal
       with the negotiating team, and that Mr. Colbert was not part of the negotiating
       team. In my view, it's just a matter of mutual respect. We respect their team. It
       should respect ours.
       Asked whether she would not agree that, in the midst of a strike, sometimes respect
breaks down, Ms. Hopkins answered: It did not on my end.
       Asked whether she had requested Mr. Colbert make the calls he made to Open Line, Ms.
Hopkins said, No. Asked whether Mr. Colbert had consulted her concerning invitations to speak
on Open Line, Ms. Hopkins said, No. Asked whether, during the conciliation session, the figure
of $1,500 had been raised, Ms. Hopkins said,
       I believe Mr. Kinnear asked if we'd had a contact from Mr. Colbert. I advised that
       we had. He asked what Mr. Colbert had told us about the retiree drug plan. That's
       when I told him about the MOU to develop a cost effective plan, and that $1,500
       was not the right number, and I may have mentioned work with the benefit
       consultant on that.
       Asked again whether there was discussion of the $1,500 not being "the right number," and
whether that observation had come from Ms. Hopkins herself, Ms. Hopkins said, Yes. Asked
whether there had been a discussion about that point, Ms. Hopkins said, Yes. Asked whether she
had been told that a cap was not acceptable, Ms. Hopkins said:
       I believe that Mr. Kinnear indicated that they did not want a cap; but then when I
       asked Mr. Kinnear whether Mr. Colbert had told him that $1,500 was not the right
       number he said, Yes.
       Asked how the Parties had got to the point of drafting an MOU, Ms. Hopkins said:

                                                48
       At that meeting I told Mr. Kinnear that I would draft an MOU with the contents as
       existing, and they accepted that MOU.
       Mr. Earle questioned Ms. Hopkins about locations from which various phone calls had
been made to Mr. Colbert. She said there had been...
       a call with Mr. Colbert from the Governor's Pub on the 14th, and there was also a
       call from the Conciliator's office during which we reviewed the content of the
       Memorandum of Understanding with him. I think he reiterated the points that he
       had told us earlier when I was in the Metrobus office and I had spoken with him. I
       had not taken any notes, and I recall that during the second call I wanted to get
       clarification on the MOU content and points that he had suggested to us.
       Ms. Hopkins agreed that during the second call with Mr. Colbert the basis of the content
of the MOU developed.
       Yes. Primarily because the Union sounded receptive to an MOU and the idea of a
       joint committee to develop it, so we felt it useful to go forward with that idea.
       Asked whether the five principles laid out in the MOU as it appears in the Collective
Agreement were reviewed with Mr. Colbert, Ms. Hopkins said:
       No. Just four of them were.
       Asked whether that means she had never told Mr. Colbert what the terms were, she said:
       Not specifically. Not that I recall. We had general discussion of its content. He
       may have suggested 90 days, and working with the benefits committee. They
       were concepts we had discussed before. The other elements were existing or
       devised for existing circumstances. No, I did not review these with Mr. Colbert.
       Mr. Earle pointed out that there is no mention of a cap in the MOU as it appears in the
Collective Agreement, Ms. Hopkins said:
       No; nor is there any mention of there not being a cap.
       Ms. Hopkins confirmed she had indicated to the Union that the $1,500 figure was
negotiable, and had also been told by the Union that they did not want a cap.
       Asked whether under the 80% co-pay it was possible that a participant might have to pay
more than the 20%, Ms. Hopkins said:
       It's possible if there was a catastrophic claim; but, as I pointed out earlier, that's
       just one of the principles, and it has to comply with all of the principles... I was
       quite disappointed when the Union withdrew their involvement in the Joint
       Benefits Committee in an attempt to provide the benefits.


                                                  49
       Asked to indicate which of the options set out in HH #5 comply, in her view, with the
MOU requirement that the committee can "construct a plan in the most cost effective manner
possible". She said that in her view options #s 2, 3, 5, 10, 11 & 16 do meet these requirements,
and also acknowledged that they carry a cost to the participants of "plus or minus 20%." Asked
whether, in her view, this still complies with the MOU, Ms. Hopkins said, Yes. Asked whether
she would not acknowledge there is room for argument as to whether the plan, as it is in place, is
a violation of the Memorandum of Understanding, Ms. Hopkins responded:
       That's why we have a grievance and arbitration... But personally, I do not see their
       interpretation of the MOU.
       Asked whether she had been involved personally in the preparation of the letter of
termination, Consent #4, Ms. Hopkins said:
       Not actually in the preparation of the document, but some of my information from
       the investigation was used in the Appendix ... (which) summarizes some of the
       information I provided to Mr. Spurrell.
       Ms. Hopkins confirmed that the termination (Consent #4) is dated November 2, 2005 and
that the decision to terminate was taken on October 27th. Yes. Around that date, yes. She also
confirmed that the full transcripts in evidence at this hearing were not included in the Appendix
to the termination letter. Asked whether the transcripts identified in evidence were not reviewed,
Ms. Hopkins said:
       I looked at everything in preparing the report for Mr. Spurrell. I was not involved
       in drafting the letter.
       Asked whether she had anything to show that the Commission, itself, had considered
anything more than is included in schedule A, Ms. Hopkins said:
       I'm not in a position to comment on that.
       Mr. Earle invited Ms. Hopkins to consider the by-law under which Council appoints
Commissioners (HH #36). Ms. Hopkins confirmed the by-law requires that a Councilor be
Chairperson. Ms. Hopkins also confirmed that under sub-clause 4.(1)(d) the Commission is
empowered to:
       "engage and fix wages and salaries for all employees necessary for the operation
       of the bus service and to layoff, discharge for cause, or retire any employee that
       the Commission see fit."

                                                50
She confirmed that it is the Commission that is empowered to do this, and that it was the General
Manager, Ms. Judy Powell, who signed Consent #4, the letter of discharge.
       Asked whether she knows that the Council must approve the Metrobus budget, she said:
       Yes, I was aware of that because Mr. Spurrell advised me of it.
       Ms. Hopkins understands the comment "This was put in after the agreement was signed"
attributed to Mr. Crocker in the August 23, 2005 Telegram article (HH #15) was a reference to
the issue of the cap on prescription benefits for retirees over the age of 75.
       The article refers to the cap. That is why I understood this as reference to the cap.
       Mr. Earle explored with Ms. Hopkins the accuracy of the Telegram article. She agreed
that the cap was, in fact, established after the Collective Agreement had been agreed. She said:
       The MOU agreed during the Collective Agreement was to make an agreement.
       Ms. Hopkins acknowledged that there was no reference to a cap in the MOU itself.
Asked whether the Commission did not, in fact, unilaterally put into effect a plan that included a
$7,500 annual cap, Ms. Hopkins said:
       We accepted to put a plan in place that had a $7,500 per annum cap. That was in
       response to the Union's grievance.
       Asked whether it was the Employer's unilateral action, Ms. Hopkins said, Yes; and agreed
that the unilateral action was taken after the agreement was signed. She also confirmed that
MOUs are part of the Collective Agreement under Section 16.
       Asked whether she would not conclude, therefore, that the Telegram's account is actually
correct, and that there is no untrue statement. Ms. Hopkins said:
       There is a suggestion in this article that there was an agreement on retiree benefits
       ... It was an agreement, "to construct an appropriate plan in the most cost effective
       manner possible".
Mr. Earle pointed out that the Union contends a cap violates both the Agreement and the MOU,
and that the Union held this position prior to August 23, 2005. Ms. Hopkins said these are
internal matters, handled under grievance procedure, and do not belong in the media.
       In my view it is false. The message implied in the article is that there was a deal
       we reneged on... They did not negotiate that deal with me. The Union never
       represented to me there was a deal: only that, from their perspective, the cap was
       not acceptable.


                                                  51
       Mr. Earle again pointed out that in the Union's view the cap constitutes a violation of the
Collective Agreement and the MOU. Ms. Hopkins responded that in the January and March
meetings of the Joint Benefits Committee those concerns were never raised by the Union. Only
on April 5th did that emerge, after three months.
       Asked to look at the grievance filed by the Union on July 20th (HH #9) in response to the
Employer's putting the drug plan for retirees over 75 in place, Ms. Hopkins replied
       Under the MOU, it was the Joint Benefits Committee that bore the obligation, not
       the Employer.
Mr. Earle again pointed out that, in the Union's view, this was a violation of the Collective
Agreement. Ms. Hopkins said: Yes, that's what they say in their grievance. Asked again to
comment on the Telegram article in light of these facts, Ms. Hopkins said:
       I say it is false. I cannot see that it is true for the Union to put this view. I believe
       that it was intended to be a misleading statement.
       With reference Mr. Crocker's comment, in the same Telegram article, to an arbitration
costing a $100,000 Ms. Hopkins said:
       It would surprise me that he would think that it would cost that much.
       With reference to the Transit Operator Handbook (HH #16) Ms. Hopkins said she was
not aware of any difference between the 1998 version and an earlier version. Ms. Hopkins
understands that the normal procedure was to distribute it via the seniority list. Asked whether
she had been speaking to anyone responsible for distributing the handbook, either in 1998 or
later, Ms. Hopkins said:
       Yes. I don't know if they have a record. I believe that it was Judy Powell's
       responsibility. I spoke to Mr. Lawlor who told me about this procedure.
Asked whether the document is publicly available, Ms. Hopkins said:
       Everyone is provided with a personal copy. It's not hung on a wall, not that I
       know. I have not looked in the dining room... It is important to Human Resources
       that employees be aware of the Employer rules.
Asked whether the same logo was on the version that was published in 1998, she said:
       I can't recall. I have a copy of the original handbook. I think the logo has
       changed... I understand that some Operators got a former version in a small book.
       That was the original book. I provided copies to Mr. Churchill for comparison.


                                                  52
       I've not compared the two, but the Handbook is printed from a file on my hard
       drive. I gave him hard copies from my filing cabinet. I don't have a pre-1998
       version, only two formats of the 1998 version.
Asked whether she had a record of the changes made in 1998, Ms. Hopkins said:
       I don't know. There could be something in the file or archive boxes, but not that I
       am aware of.
Ms. Hopkins confirmed the Employer position that, under A6 in HH #16,
       If statements aren't malicious or false, there is no problem. With reference to
       regulation A13, however, what is at issue in this case is "any statements..."
Asked whether that might include a statement about a forty year veteran retiree and his drug plan,
Ms. Hopkins answered:
        Presumably, Yes. The regulation refers to 'an employee'.
Mr. Earle asked whether it would require authorization from the Commission if an employee
were to speak, not as an employee, but as a private person; for instance, as a resident of Airport
Heights campaigning for Metrobus to increase its service in his area. Ms. Hopkins said:
       The language says, "any statements". I understand that the position has been that
       that it pertains to the employee's employment relationship with the Commission,
       and in such circumstances employees should get clearance.
       Asked whether, as an employer, she would discriminate between an individual speaking
as a Union officer and an employee talking about the Employer, she responded:
       I support the view that, as officers of the Union, we have provided more latitude
       on the issue than we would to other employees because they are representatives.
       Asked whether the Employer might think differently, if the President of the Union were to
go on radio and say that the Local 1462 believes there is a demand for more bus service and
Council should provide the Commission more funding for more buses and more drivers, she said:
       I have no problem with the Union expressing its position on a matter, but not if it
       is malicious in intent, or false, or misleading... I have a problem with issues
       internal to the Commission. Additional equipment is internal to the Commission.
Asked whether such statements might be objectionable, Ms. Hopkins answered:
       I would not think it is appropriate; but the position that there should be increased
       service is a stated position. The statement that the Union local feels that the
       Council should give more money is inappropriate, but not malicious or false.


                                                 53
Asked whether, in her view, it would violate the Collective Agreement, Ms. Hopkins said:
       I think that if that statement were made by a Union official I would say that we
       would permit it. It's against Section 13, but we'd ignore it.
Asked whether, to be very precise, what she complains of is malicious, false or misleading
statements, Ms. Hopkins said, Yes.
       Ms. Hopkins confirmed that the agenda is prepared in advance of the Commission's
monthly meetings The first time she recalls
       ... being asked to look at the media was after the Commission meeting when Mr.
       Spurrell asked me to... I may have been aware that there were media comments,
       but had not investigated them yet. I did have some discussion relating to the
       September 18th Night Line show (HH #28). I wasn't aware of that discussion when
       I met Mr. Crocker on the 19th after we spoke about the assaulted driver. Mr.
       Crocker mentioned to me about the Criminal Code reference – the part about the
       responsibility of an employer about the safety of everyone – and he felt that it
       should be applied to this driver assault. I thought he meant having the assailant
       charged under this Section. I indicated to Mr. Crocker that I thought that he was
       misunderstanding it, and that it related to employer liability. He said that he knew
       that, and had talked to legal counsel. I mentioned this to Mr. Spurrell a few days
       later, and he told me that Mr. Crocker had said it on Open Line on the 21st or 22nd.
       I had not been aware of this Night Line program prior to that.
Asked if Mr. Spurrell had asked her to take steps at that point, Ms. Hopkins said:
       Not at that time. I told him I could not believe that Crocker wanted to charge the
       Employer. That Section of the Code has to do with the Westray Bill C45 situation.
Ms. Hopkins confirmed that she had no involvement with the investigation apart from those
conversations prior to the September 29th Commission meeting
       Referring to the the interview between Mr. Bill Rowe and Mr. Crocker on September 1,
2005 VOCM Back Talk (HH#17 & Consent #4 Appendix "A" p. 2), Mr. Earle asked why the
letter of termination picks up around the middle of p. 3 of HH#17) and there were several items
that are not included. She said: I believe the full transcript went before the Commissioners.
Asked whether she had attended the Commission meeting, and how she knows what went before
the Commissioners, Ms. Hopkins answered:
       No, I wasn't. I know that at some point the transcript did go to the Commissioners.
       I knew it was requested at the 29th meeting, and there were people at the October
       meeting. The report came in in September, and I did start the review at that time


                                                54
       and I reported to Mr. Spurrell. I had to gather the material first, some from him,
       and some from Linda Ryan.
Asked whether she has any way of knowing whether the full transcript was before the
Commissioners , Ms. Hopkins said:
       I was not there. Mr. Spurrell is a better one to ask. He did not tell me in detail
       after the meeting what the Commissioners was concerned about.
       Ms. Hopkins was questioned about the Employer's concerns over the way Mr. Crocker
had linked certain issues to the strike. Ms. Hopkins said:
       One concern was the way retiree benefits was presented as part of the outstanding
       issues. It was in the monetary issues, but not what lead to the strike. It arose on
       December 12th. That was the day the Union had a meeting, and he asked me if I
       knew of a (particular) retiree ... concerning a benefit that had ceased on the 11th.
       They went on strike on a non-monetary issue. The one issue impeding progress to
       negotiations was non-monetary.
       Asked whether the fact remains that the issue of a prescription drug plan for retirees over
75 was not resolved until they went on strike, Ms. Hopkins answered:
       It had not been discussed. We were not going anywhere with negotiations unless
       the discipline issue was dealt with. And the issue on the last day was cost sharing.
       Mr. Earle pointed out that the issue was listed as one of the three items outstanding at the
point of final negotiations. Ms. Hopkins responded:
       It certainly was not listed as a priority. It was not an issue when the strike was
       called. Any issue had to be dealt with, yes. But one could not get to them. I don't
       know if we would have had a strike at all if it was not for the disciplinary matter.
       It was one of the eight that suddenly surfaced.
Mr. Earle noted that, once they reached agreement, it settled the strike. Ms. Hopkins agreed.
       Asked whether the Commissioners had been advised of the decision to implement the
plan for those over 75, Ms. Hopkins said:
       At the Joint Benefits Committee we had the parameters, so we informed them
       after the fact. We were responding to the grievance as Party to the Joint Benefits
       Committee. We were being asked to provide the plan because of the 90 day time
       limit was gone. We could not get agreement, and we felt obligated to the retirees.
       Mr. Earle pointed out that under the agreement the Employer was liable for any costs
since June of 2004. Ms. Hopkins answered:


                                                55
       These claims had to be adequate and in accord with plan design. I was getting
       calls from relatives asking when they could submit claims for the last year.
Asked whether she did not think this was a major decision, Ms. Hopkins said:
       During the last conversation with Mr. Crocker I told him I felt it was major, and
       asked him for a response, and he responded with a letter saying 'No.' He said,
       'You do what you've got to do, and we will grieve it.' It was a low risk decision.
       We'd end up with a plan anyway, and Mr. Crocker said we'd have a grievance. I
       discussed it with Mr. Spurrell, and our legal counsel as well. I don't know if Mr.
       Spurrell spoke to the Commission or not. I don't know if Mr. Spurrell spoke to
       Mr. Colbert. Its July meeting was after the introduction.
Asked how, in her view, HH #17 left a false impression, Ms. Hopkins said:
       It was false because it failed to recognize what was agreed in December, the
       MOU... We had the authority. It was decided under the Collective Agreement,
       that management had the authority. Mr. Spurrell told me to proceed. It was the
       last thing before I left on vacation. Whether Mr. Spurrell contacted Mr. Colbert
       afterwards, I do not know.
Asked when Mr. Spurrell had authorized her to do this, Ms. Hopkins answered:
       It may have been on the 14th before I drafted the letter on the 15th. So it may have
       been on the 14th I spoke to Mr. Spurrell... I contacted counsel because... I wanted
       to get a view on responding to the grievance by putting the plan into effect.
Asked whether she is required to report on outstanding grievances, Ms. Hopkins said:
       Normally we have to do a monthly report for the General Manager. It is very
       general, not spelling out particular grievances.
Asked whether that forms part of the General Manager's report to the Commissioners, she said:
That's my understanding, yes.
       The Employer's concern with respect to HH#18 was that ...
       The impression was left that the Employer was not allowed to put the cap in place,
       and did so. What I indicated earlier is that this gave the impression that we
       reneged on a deal with specific respect to the drug plan... Mr. Crocker knew what
       had gone on. He knew that there was no deal. It was malicious and targeted to
       make the Employer look bad. He knew it was not the case.
When Mr. Earle pointed out that the Union filed a grievance on this matter, Ms. Hopkins
responded that: We got a grievance on the unilateral implementation. When Mr. Earle pointed
out that the Union argues that the Employer reneged on the deal, she responded:



                                                56
       I do not think that the view is in good faith. They did participate in a process and
       there was no resistance to the cap in March. They said they would respond by
       March 11th. This was malicious on Mr. Crocker's part.
       When Mr. Earle pointed out that the Union twice has said "No" to a cap, she said:
       What is signed off is what is the deal; and the signed off deal says that the
       committee and the consultants will produce a plan in accord with the stated
       purposes, in terms of all principles. 80/20 is not the only principle.
       Asked if her problem with HH#18 is the same as with HH #15, she said:
       Yes ... And the second problem is the approach to Mr. Colbert.
       When Mr. Earle pointed out that Mr. Colbert was a participant in the negotiations, Ms.
Hopkins responded: No. Mr. Kinnear drew him in. Asked whether Mr. Colbert had not phoned
the Open Line himself, Ms. Hopkins acknowledged:
       Yes he did, and the Conciliation officer said it looked to her like they were
       negotiating in public. She said that she did not like it, and Mr. Colbert said that he
       would be delighted to get back to the table. That's what the media records say.
Ms. Hopkins said Mr. Spurrell had asked her to investigate Mr. Crocker's media comments.
       First I went to Mr. Spurrell's office to get the documents and information. It took
       a few days to get them together, and then I reviewed it and put together a
       chronology for Mr. Spurrell... One of the concerns Commissioners expressed
       related to Mr. Crocker's publicly urging Mr. Colbert to "do the right thing".
       Ms. Hopkins had not spoken to Mr. Colbert, himself, and did not explore what
conversations Mr. Colbert might have had involving retiree benefits or driver assaults.
       I recall saying (on direct examination) that we had concerns that Mr. Crocker's
       comments were directed at Councilors on the Commission. These matters were
       open to the grievance procedure. I could not see any reason why Mr. Crocker
       would raise it, other than to damage the reputation of the Commission.
       Asked how she might think that direct communication with members of Council on the
Commission could damage its reputation, she said Mr. Crocker had specifically
       named Councilor Colbert; and, in particular, said that the Commission had
       reneged on a deal. I think that suggestion does damage the reputation.
       Asked whether her investigation had included a review of Mr. Colbert's comments about
his own role in deal with the Union to settle the strike, Ms. Hopkins said:
       I do know he said he was leaving the negotiations to the Commission.


                                                57
Asked again whether she had reviewed Mr. Colbert's statements to the media, Ms. Hopkins said
No I did not. She had not included anything Mr. Colbert had said to the media about his
involvement in settling the strike in the summary she had prepared for Mr. Spurrell.
       Asked if she heard the December 14, 2004 VOCM's Night Line (HH #37), she said:
       I'm sure we did not. We were at the Delta on December 14th... I did not see this
       (transcript) until the content was compiled.
       Ms. Hopkins recalls the meeting "earlier in the evening" to which Mr. Colbert refers in
HH#37. Asked whether there had been a plan for Mr. Colbert to go on the air and speak directly
to the bargaining unit if negotiations did not go as hoped, Ms. Hopkins answered:
       Not to my knowledge. I had no knowledge of that. I had, from the meeting, the
       upper limits of what we were prepared to negotiate.
Pressed as to any recollection of Mr. Colbert having a plan to go to the media, she said:
       I don't recall that. I don't think that was his intent. His intent was to bring the
       sides together.
Ms. Hopkins agreed that the transcript shows Mr. Colbert outlining the Employer's position.
       I think he was outlining to the public. But, no; I wasn't aware he was going to do
       this.
       Asked whether the bargaining committee's position had been approved at the meeting
"earlier in the evening" by the Commission, Ms. Hopkins said:
       We reviewed our position and received our mandate, and the maximum that we
       could offer.
       Asked whether she recalls Mr. Colbert bringing up the retiree drug benefits issue at the
meeting, Ms. Hopkins said:
       It was discussed at the meeting. It was felt that members did not have a sufficient
       level of knowledge to comment on the plan, and it was decided to refer to the
       Mercer group for advice on the retiree drug plan. What was discussed at the
       meeting – philosophically all were agreed that all retirees should have benefits for
       life. Questions were specifically on plan design. I think it was agreed that they
       did not have expertise to consider how to come up with the plan and to consult the
       Mercer Consulting.
       Asked for her views on Mr. Colbert's comments (in HH#37) about "... every other
taxpayer or member of the St. John's Municipal Council", she said:


                                                 58
       Yes, it is over-reaching... It is an exaggerated statement.
Asked whether his account of what was agreed at the meeting was something more than she had
understood from the meeting, Ms. Hopkins said:
       What I understood was we were to provide retirees with a plan. I don't know if
       this is political posturing or excitement of the moment... What they did not want
       was it to end at 75. They all wanted to go on for life.
Asked whether Mr. Colbert's account differs from what she understood, Ms. Hopkins said:
       I didn't interpret it as you just pointed it out; but yes I guess it is different from
       what I had coming from the meeting... I did not have a meeting with (Mr. Colbert)
       daily, but Mr. Spurrell was replacing Ms. Powell who was on maternity leave, and
       he was in frequent contact with Mr. Colbert.
       Ms. Hopkins acknowledged her testimony during direct examination about a conversation
with the Conciliation officer about a VOCM Open Line conversation on December 15 (HH#38),
and confirmed there had also been an earlier VOCM conversation that morning (HH#44) during
which Mr. Crocker had outlined the Union's position. Asked whether she had been aware that
Mr. Colbert was responding to Mr. Crocker, and whether Mr. Colbert was getting into the midst
of negotiations here; and further whether she could confirm Mr. Colbert's claims about the three
year deal and its being an outstanding issue for a return to the table, Ms. Hopkins said:
       I think he was trying to get the parties back to the table... In my view there had
       been some misunderstanding about the duration of the deal being discussed. I
       think there may have been some misunderstanding. We had offered five years.
       They wanted two years, but management was not willing to take the two years and
       countered with a three year plan. Mr. Colbert thought the Union was accepting
       the three year deal. There may have been some political posturing here... the
       Conciliator did say to me later that there is a concern about the negotiating in
       public. The Conciliator told me she was waiting for the Union to reply and that
       there was no movement on the three year deal.
She confirmed she spoke to Mr. Spurrell, who was listening to Mr. Colbert on the radio.
       I told the Conciliator I did not know what was going on; and I really did not know.
       The Conciliator said that it appeared as though negotiations were going on on the
       radio. I thought it was inappropriate. The Union had eight more issues. This was
       not the only issue, and Mr. Colbert had misunderstood Mr. Crocker concerning the
       two year not the three year deal. So in my view it was inappropriate... In that the
       earlier call from Mr. Crocker, he had appealed to Mr. Colbert to get involved...
       What Mr. Colbert intended was to get the Parties back... He acknowledged he was


                                                 59
        not a member of the negotiating committee... I think he was speaking as a
        Commissioner, not as a negotiating team member.
        Responding to further questions about a on December 15 VOCM radio news (HH #39),
Ms. Hopkins confirmed her view that Mr. Crocker was not acting appropriately as President of
the Union in a strike situation...
        in trying to go past the negotiating team; and secondly, Mr. Crocker was outside
        the reporting structure, when he had been told not to contact the Chairperson.
        Asked whether she would agree that in the midst of a strike the Employer has no ability to
control the actions of employees, Ms. Hopkins said:
        No, management cannot control the communications during a strike. But I look at
        it as two bargaining teams that should do the bargaining... I don't believe there was
        a need for the strike in the first place. I believe it was orchestrated for
        inappropriate reasons... Management does have the option to say, 'This is our
        spokesperson.' I think the decision was made prior to Ms. Powell going on
        maternity leave. That is my understanding.
        Ms. Hopkins also identified HH #40, a transcript from VOCM Night Line on December
15, 2004. Asked whether she was aware that Mr. Colbert had been in contact on the phone with
Mr. Kinnear providing assurances, Ms. Hopkins said:
        I was aware that Mr. Colbert had spoken to Mr. Kinnear who said he was willing
        to go to three years, and that was not communicated to the Conciliator; and there
        was some discussion between Mr. Kinnear and Mr. Colbert about the MOU ... that
        Mr. Colbert had told Mr. Kinnear about the MOU. Mr. Colbert told the
        bargaining team about that conversation.
        Asked whether Mr. Colbert had told the team about this conversation after he had spoken
to Mr. Kinnear, Ms. Hopkins said:
        Mr. Kinnear called him out of the blue. Yes, Mr. Colbert contacted Mr. Spurrell
        after the conversation. Yes, he talked about the Employer offer. He told Mr.
        Spurrell what he had suggested to Mr. Kinnear as to how to resolve some of the
        other issues.
Ms. Hopkins said she was not present when Mr. Colbert told Mr. Spurrell this.
        No, but we did have a conversation in Mr. Spurrell's presence – it may have been
        the team actually – about the conversation with Mr. Kinnear. The plan was to get
        back at 5:00 pm. The team had a conference call to get from Mr. Colbert exactly
        what the conversation with Mr. Kinnear was about; and during bargaining we did
        contact Mr. Colbert on one occasion that evening.

                                                 60
       Referring to Mr. Colbert's comment (reported in HH#40) to the effect that 'when he was
needed, he got involved,' Ms. Hopkins said:
       That's not my understanding. No, the deal was negotiated at the table. Mr. Crocker
       had said there was one issue: the cost sharing of the plan. But when they got to the
       table they had seven or eight. Mr. Colbert felt glad that a resolution had been
       reached and was happy that he had played a role in that.
When Mr. Earle pointed out that Mr. Colbert suggests it was positive to have public exchanges
on the VOCM open lines, Ms. Hopkins responded that she could "not speak to his point of view."
       Asked whether she has ever considered the possibility that the Union might also have
considered Mr. Colbert played a role in securing an agreement, Ms. Hopkins answered, "It's
possible."
       Mr. Earle invited Ms. Hopkins to review Section 11 of the Collective Agreement and the
MOU. Asked whether, in her view, the mandate that the bargaining team received from the
Commissioners overrides the MOU as it appears on page 53, Ms. Hopkins answered:
       No. The Employer had provided the benefit consultants with a copy of the MOU.
       The consultants advised that the MOU put certain constraints on them in view of
       the requirement that the plan be retroactive commencing from June 2004.... They
       said it would need a 'cost plus' plan, not an insurance plan... The major discussion
       was on point #4, cost effectiveness. On that point the consultants gave us various
       options and designs.
       Asked what instructions she had given the consultants when she invited them to prepare
consultation papers, Ms. Hopkins said:
       I asked them to meet with the Joint Benefits Committee to review the terms of the
       MOU... The consultants met with me on a pension matter under the Agreement. I
       may have given them the MOU at that meeting... (At the first meeting of the Joint
       Benefits Committee) we talked about the information we would need to decide on
       a plan. They were trying to give us a starting point to sort things out. They threw
       out a number of ideas, and asked What direction do you want to take this in? We
       also had a discussion about which retirees fell into which group. We needed to
       know Who needed cards reinstated?... I think (the 'cost plus' structure) was
       probably discussed. I can't be sure... I believe they may have pointed out the two
       year survivor benefit would not add cost, and would later be based on experience.
       I can't recall any other issue.




                                                61
       Ms. Hopkins was asked whether by April 5th the Union had informed the Employer that
nothing less than the same benefit as enjoyed by those under 75 would be acceptable for those
over 75. Ms. Hopkins answered: They wanted the same benefit extended, yes.
Asked whether they made it clear that they thought it was agreed, Ms. Hopkins said:
       They said they did not want a cap, and they had not agreed to a cap, and would not
       agree to a cap.
       Asked whether she had checked with Mr. Colbert on what he had said to Mr. Kinnear
about the impression of what was agreed concerning the cap, she answered:
       They did not express that view prior to April. I felt that it was because of the
       ninety day limit. In fact, they had participated in a number of discussions and
       meetings at which a cap had been discussed.
Asked again whether she had checked with Mr. Colbert, Ms. Hopkins said:
       No, based on what happened at meetings. After the March 9th meeting Mr.
       Crocker asked for my recommendations, and agreed to respond by March 11th.
       There was no response from him, and on April 5th he just said, 'No cap'.
Asked again whether she had checked with Mr. Colbert, Ms. Hopkins again said that Mr. Crocker
had first mentioned the Kinnear/Colbert meeting on April 5th and added:
       The 5th of April was the first time it was raised... Mr. Colbert had already told me
       on December 11th that the only decision about the cap was that $1,500 was not the
       right number.
       When Mr. Earle said he understood the reference to $1,500 not being 'the right number'
had predated the conversation with Mr. Kinnear, she said: Not to my understanding.
       Mr. Earle questioned Ms. Hopkins about the issue raised at the April 5th meeting and
asked why she had not felt obliged then to check with Mr. Colbert. Ms. Hopkins answered:
       The MOU did not reference a cap. They did not say that it could not have a cap...
       Mr. Colbert had told me that we should go to the Joint Benefits Committee and to
       the consultants.
Asked whether she had not thought to speak to Mr. Colbert to determine whether there were
things the Union understood from him, Ms. Hopkins said she had a discussion with Mr. Colbert
on December 15, 2004.
       On July 11, 2005 Mr. Crocker wrote her (HH #6), in effect, saying that all the
       options put forward were unacceptable... At that point the Employer unilaterally


                                                62
       implemented the plan... We'd got the grievance complaining that the 90 days had
       expired, and the Commission felt it owed the retirees. So we implemented a plan
       that we knew would be grieved. That grievance was filed and is still outstanding.
       Asked why, in these circumstances, the Employer took offence at the Telegram article
(HH #15) in which Mr. Crocker is quoted as saying that the plan with the cap was implemented
after the agreement was signed, since based on the MOU, Mr. Crocker was, in fact, correct. Ms.
Hopkins answered: The MOU is an agreement to come to an agreement.
       Pressed on this point, Ms. Hopkins was asked whether, in fact, what Mr. Crocker said in
HH #15 is not strictly the truth: viz., that an agreement had been reached. She said:
       It suggests that there was a plan solidified; but what we had agreed to was
       included in the MOU... The problem lies in what (Mr. Crocker's comment)
       suggests: that the Employer was reneging on an agreement. That is not true.
       When Mr. Earle pointed out that the Union believes the Employer was reneging on an
agreement, Ms. Hopkins responded:
       I do not believe that Mr. Crocker believed that in January. He participated in a
       whole range of discussions, and at no time did he say 'No cap' until April 5th,
       which is four months later. The third meeting and the time limits had expired. On
       March 9th we had a discussion. He asked me for my recommendation and he
       sounded upbeat, and said that he would be back to me by the 11th.
       Mr. Earle suggested the Union had made it clear in negotiations that not only was $1,500
not the right number, but that they would not agree to any cap at all. She responded:
       As I said, it came up late in negotiations, a few days before settlement on the 14th.
       We put an offer including a $1,500 cap at about 11:00 pm on the 14th. On the 15th
       there was no discussion until we reconvened with the Conciliator, and at 5:00 pm
       was the first discussion of a $1,500 cap. I recall they said that they would not
       accept a $1,500 cap, and my understanding from Mr. Colbert was that, from his
       discussion with Mr. Kinnear, that was not the right number.
       Pressed on whether her understanding was based on her conversation with Mr. Colbert in
relating his conversation with Mr. Kinnear, Ms. Hopkins answered:
       ... And also from our discussion that evening.
       Asked whether, in the two-on-two conversation with the Conciliator present, Mr. Crocker
had not said that he would not accept a cap for those over 75, Ms. Hopkins said:



                                                63
       I believe that Mr. Crocker would not accept a $1,500 cap; and further that Mr.
       Kinnear had said that there would be no $1,500 cap and had discussed it with Mr.
       Colbert... So I assumed that there was a right number. I certainly did not take 'No
       cap' as the Union position from negotiations.
       Asked whether she would agree that she had entered into an agreement that did not
include a cap, Ms. Hopkins answered: There was no mention of a cap.
       Ms. Hopkins described the basis for the Commission's authority to impose Transit
Operator Handbook (HH #16) Regulation A13:
       The Employer sets the reasonable rules for work. It is a management right.
Asked whether she believes this to be a reasonable rule that can apply to Mr. Crocker who is
President of the Union, Ms. Hopkins answered:
       We had this discussion last time. The President can make known the Union's
       position, but not about the Commission. We have allowed as reasonable an
       exercise...
When Mr. Earle objected to her use of the word "allowed" Ms. Hopkins said:
       Perhaps "allowed" is not quite the word, but I what I intended to say is that we had
       not raised regulation A13 as an issue.
       Ms. Hopkins confirmed that she recognizes the Employer is limited in the restraints it
can place on a Union President. She said she had not considered the provisions of the Charter of
Rights, but recognizes that freedom of speech is guaranteed to Canadians, and that the
Commission exists by virtue of the St. John's Act. Asked whether she has any record of HH #16
being distributed, Ms. Hopkins said:
       I was not in human resources at that time and, so far as I know, the Employer has
       no record of (HH #16) being distributed. But it was in testimony during the
       previous arbitration.
Ms. Hopkins agreed that To some extent, yes, the parameters of the negotiation committee had
been changed by the Commission on the evening of December 14th.
       She confirmed that the Appendix to the Termination Letter contains excerpts from the
chronology she had prepared, But it is not the exact chronology.
       The media excerpts were referenced in the summary, but were more extensively
       recorded in the Appendix... I did not include the entire transcripts in the summary.



                                                64
       I believe I made reference to particular statements that were of concern. I quoted
       the particular statements.
Asked about the quote from the Telegram article (HH#15), Ms. Hopkins said:
       I probably paraphrased. I don't recall direct quotations. I may have; but mainly I
       paraphrased.
       Ms. Hopkins confirmed that she attended the meeting at which the termination decision
was made.
       It was also attended by managers, Ms. Judy Powell and Legal Counsel and took
       place after the Commission meeting.
Asked what had been distributed to the meeting, Ms. Hopkins said:
       I did not circulate anything to the meeting myself. I'm sure there was probably
       material circulated, but I am not privy to material going to the Commissioners
       before Commission meetings.
       Asked whether the concerns relating to HH #s 15, 17, 18, 23 and 26 to 32 were, in fact,
more extensively presented in testimony than in the summary, Ms. Hopkins said:
       My summary was quite extensive. The only difference was that I did not quote. I
       paraphrased. Some of the items listed in the Appendix to the termination letter
       were from the summary... I believe all the items mentioned in evidence were
       covered in the summary... HH #15 was of concern, not only because it suggested
       the Employer reneged after the agreement was signed, but there were other
       elements in that article as well.
       Responding to questions about her testimony in direct examination concerning the
Anderson Avenue incident, Ms. Hopkins said
       There was a verbal report about a week earlier.... That event took place at the
       Waterford Hospital and subsequently at the Village Mall where the same assailant
       had appeared to make threatening approaches to the driver... The driver...did not
       complete the report. The Supervisor reported it to the department Manager, and
       they were trying to find out who the assailant was. He was apparently well known
       to drivers. He has a monthly bus pass. He has a mental disability, apparently.
       Asked whether, during an Occupational Health and Safety Committee meeting, Mr.
Crocker had requested action against the assailant either for the Anderson Avenue encounter or
the earlier encounter, Ms. Hopkins said:
       I can't recall if he specifically asked us to do something about that assailant. I
       recall him making suggestions concerning by-laws that would allow us to bar


                                                 65
       those who cause disruption... Yes, Mr. Crocker did request that the company do
       something about passengers assaulting or confronting drivers.
Asked whether there had been any assaults on drivers in 2006, Ms. Hopkins said:
       I don't recall any being reported... But there were four incidents in 2005... Yes, a
       driver operating a vehicle is particularly vulnerable to anyone approaching from
       the rear, very vulnerable, I'm sure... We were unable to resolve the timing issue
       concerning the assailant. There was evidence he had a bus pass for July, but the
       driver said that there was still snow on the ground when the original incident had
       occurred... There was some inconsistency in this... We did not leave it in limbo.
       We followed up on the driver's information. He told us of the earlier incidents.
       The assailant had said that he could not understand why the driver was harassing
       him; but we did accept, and backup, the driver that the initial incident was about a
       non-payment of fare. We contacted the police on the day of the Anderson Avenue
       incident, and we asked the police to ask the court to bar the person. I was in touch
       with the Crown Prosecutor. They could not give me a court date. I made phone
       calls... No, I did not send anyone to the courts. I spoke with the Crown Attorney.
       I called several times. I called the RNC. They put me through to the clerk's office,
       and they referred me to the Crown Prosecutor's office.
       Ms. Hopkins said that during an Occupational Health and Safety Committee meeting, Mr.
Crocker had indicated that ...
       He had contacts, and that the Union could work with the Employer on this issue of
       devising by-laws in respect of unruly passengers. At the next Labour Management
       meeting I reported back on the contacts I had made as a result of Mr. Crocker's
       information on the by-laws in place elsewhere ... Yes, employees can refuse
       dangerous work under statute. The right to refuse is an individual right, and there
       is an established protocol. In this incident, evidence showed a history of escalating
       encounters between the driver and the assailant. There was a precipitating event.
       The operator had pursued it to where the assailant felt harassed. The Commission
       has tried to deal with (such incidents) through court orders.
       Asked whether Ms. Hopkins agrees that a driver can actually refuse specific passengers
when they feel there is a danger, Ms. Hopkins answered:
       There are occasions when the Operator has been instructed by his Supervisor to
       pass the stop with that passenger at it if there is a possibility of a confrontation
       with a passenger.
       Asked whether she accepts that the Occupational, Health and Safety Act has an overriding
authority, Ms. Hopkins answered:



                                                 66
       Yes. The safety of our employees is number one...There are established protocols
       for exercising these rights...Yes, the Collective Agreement takes precedence over
       Employer rules.
       Ms. Hopkins was asked about her concerns with respect to the Telegram article entitled,
Assault on the Buses, which appeared on September 17, 2005 (HH #23). She confirmed that Mr.
Crocker is quoted as saying that:
       ".. a driver was assaulted on his route." He was not actually on his route, but was
       passing through a parking lot on the way to where he was to take over the bus. He
       was not on the bus itself. The article is not clear. The title and the internal quotes
       suggest that the driver was on the route. It was a concern in that it makes it appear
       that there is a safety problem on the buses. Given the circumstances of the case, it
       was alarming. The driver acknowledges he pursued the matter of the fare, which
       he thought was reasonable, and that set the passenger off. This was a unique set of
       circumstances.
       Asked whether the Employer was withdrawing its concern that the article suggested the
incident had occurred on the bus, Ms. Hopkins said:
       No I am not. I got that from the headline and from the internal quotes... The facts
       were clarified there, yes.
Ms. Hopkins confirmed that Mr. Crocker did not write the Telegram article.
       Obviously, if it had happened while the bus was in motion it would be a concern.
       But this article raises the alarm with the public; and I raised this with Mr. Crocker
       on September 19th at the meeting. I suggested that it might prompt more assaults.
       I saw no reason to go to the paper with this.
       Asked whether the current language of the Act governing public transportation gives the
company problems, Ms. Hopkins said,
       Yes. We have a responsibility under the Motor Carriers Act to carry all unless
       there are specific reasons for not doing so.
Ms. Hopkins also noted that:
       Mr. Crocker is quoted as saying the driver "sustained injuries and ended up being
       off work for the rest of the week." We did ask him to go to the hospital to have a
       checkup, and he seemed a little in shock, and he had an opportunity to get some
       counselling; but he chose not to do so. I cannot speak as a psychologist. We sent
       him for a check, chest and shoulder, and the driver reported whiplash. That was
       why he was off for the rest of the week. He was not put off by a medical doctor.
       We recognized that it was traumatic, and suggested EAP. He said, No. The doctor
       said he had shoulder and chest tenderness. The driver described it as whiplash.

                                                67
       Mr. Earle directed Ms. Hopkins' attention to the transcript of VOCM Night Line for
September 18, 2005 (HH #28), and particularly to Mr. Crocker's reference to the Criminal Code.
Noting that the quotation is not entirely accurate, Mr. Earle asked Ms. Hopkins whether it is not
obvious that what Mr. Crocker is saying is that "We are trying to have those who commit assaults
charged." Ms. Hopkins responded:
       What this says is that it is about everyone who... "has the authority to direct how
       another person does work or performs tasks." The context makes it clear that he is
       talking about the company... When I met with George the next day I said to him
       that I thought he was misinterpreting the Code. I asked him if he was talking
       about criminal negligence. He said, "I've checked with the lawyer" and that he
       knew "what it meant."
Asked whether she had heard the actual broadcast, Ms. Hopkins said:
       No. I received it later in the week. When it was raised with me, I said I thought
       he was misunderstanding the Code, and he said that he knew. No... In my view he
       is talking about the Employer.
       Asked whose job it is to speak for the Union members if they feel that they are not
protected, Ms. Hopkins said:
       I have been told that it is Mr. Crocker's job. No other members are permitted.
       Asked whether she is aware that Mr. Crocker and the Union are concerned about the
violation of privacy associated with Mr. Chancy comments about "whiplash" on the last page of
HH #28, Ms. Hopkins said:
       The particular driver is not identified, so there was no breach of confidentiality.
Asked if the driver was not known to others in the workplace, Ms. Hopkins answered:
       If he provided the information to others... I understand the information was not
       tied to an individual, and that others internal to the organization would know. If I
       had been providing the information... I would not have provided it, no.
       Ms. Hopkins confirmed her understanding that Council has authority to make by-laws for
the operation of Metrobus, and was asked to explain how lobbying council to make by-law
changes could be a problem within a democracy. Ms. Hopkins answered:
       The issue was being dealt with internally between Union and management...
       Asked whether, in fact, Mr. Crocker was terminated out of "sookiness" or "pure spite",
Ms. Hopkins answered:

                                                68
       No. What I am saying is that he is, on the one hand, saying that he wants to work
       with the Employer, and then goes around behind the Employer... He is cutting the
       Employer out of the process. We are talking about the rules and the chain of
       communication.
       Asked what rule says a Union President not ask for a change in the rules, she said:
       It is the relationship between Employer and employees he is undermining ... This
       is his pattern of behaviour. He continually tries to bypass management.
       Asked again what rule she might cite that requires the Union to work with management in
order to get the law changed, Ms. Hopkins answered:
       I am not saying there is such a rule. It is the message these transcripts are sending
       that I am concerned about: when he says the Employer is not doing enough or not
       caring for employees, it is misrepresenting the facts.
       Asked whether she recognizes the adversarial nature of labour relations, she said:
       Yes, but I do not think that it has to be. The reasons for Mr. Crocker's termination
       are specified in the letter of termination: specifically that he consistently fails to
       follow the chain of command...
Asked whether she does not recognize that he is the Union President Ms. Hopkins said:
       Yes, but he is also an employee. We have made allowances, but the media
       comments are biassed. It has to be balanced. This has portrayed the Employer in
       a bad light. It must be based in fact. If it is based in fact, then it is balanced ...
       Yes, Council is a political forum, and three politicians are members of the
       Commission, but the majority are not politicians. It is in the by-law what the
       composition must be.
       Asked whether she is aware of anyone having been disciplined for route deviation, Ms.
Hopkins said: Not since I have been there, no. Asked if she is aware of any disciplines imposed
for route deviations prior to her working there, Ms. Hopkins said:
       I am aware of discipline but I am not sure of the details. I have seen reference to it
       in scanning the files. I don't know the specific details...
       Asked whether the route deviation in Mr. Crocker's case was not significant for her, Ms.
Hopkins answered: I was not the one responsible... Asked whether she had examined the files,
Ms. Hopkins answered:
       Some time ago, not recently. I was not involved in this aspect of the investigation.
       I did not look at the files relative to this matter.



                                                 69
       Asked whether Mr. Colbert had ever complained of being contacted or that he had been
contacted by Mr. Kinnear, Ms. Hopkins answered:
       I believe that in July of 2005 Mr. Colbert contacted Mr. Spurrell to say that Mr.
       Kinnear had approached him after a Council meeting about the retiree benefit
       plan. I think ... it was raised with the Commission.
       Ms. Hopkins confirmed that at the October 2005 meeting there was a new member of the
Commission, Mr. Hann. Mr. Earle suggested that Mr. Colbert had represented himself in the
media at the end of the strike as having played a key role in its resolution, and asked whether the
new Commission should have been made aware of this in considering Mr. Crocker's termination.
He asked, further, whether the Commission should have known that Mr. Colbert had held himself
out as giving assurances to the Union and to Mr. Kinnear. Ms. Hopkins pointed out that the
Employer did not terminate Mr. Crocker on these matters.
       The termination is based on an accumulation of things.
Asked whether the Commission should have been aware of the full details, she said:
       I did not deal with the Commission.
       When Mr. Earle pointed out that she had, however, provided the investigation report, and
asked whether she had included in that report the fact that Mr. Colbert had provided Mr. Kinnear
with certain assurances, Ms. Hopkins answered:
       I knew he had assured Mr. Kinnear concerning the MOU and the benefit
       consultants to help with design of the ...plan, but Mr. Colbert left it to the
       management team to develop this plan. He was not at the signing of the deal.
Asked whether, in her view, the assurance concerning the MOU was relevant, she answered:
       It is not my authority to deal with the Commission.
Asked why she had not included the information, Ms. Hopkins answered:
       It is in the Collective Agreement and the MOU... His enthusiasm after the
       negotiation? No, that is not relevant. I don't see that as relevant to the fact that
       we had advised Mr. Crocker not to contact the Chairperson and that we told him
       in 2005 that if Mr. Kinnear started doing so we would view it as him doing it
       himself. That was back in July, 2005. I feel the conversation between Mr.
       Colbert and Mr. Kinnear is reflected in the MOU.
       Asked whether Mr. Colbert had instructed her to ensure that the same benefit as
Councilors enjoy should be extended to the retirees, Ms. Hopkins answered:

                                                70
       No. That was in the public media statement for December 14th. I knew it a couple
       of days later. I only knew what we were instructed to do.
       Mr. Earle pointed out that the Union heard him say it in the public media, and asked
whether she did not think, therefore, that it was important. Ms. Hopkins answered:
       I do think it is important. And it was available in January and March meetings of
       the Joint Benefits Committee. The Union failed to raise it. It was not their view.
       It was a tactic at the last minute to get their way... Nothing until April.
       When Mr. Earle pointed out that the Union indicated that none of the options were
acceptable because there was a cap involved, Ms. Hopkins answered: Yes. That was in April.
ON REDIRECT EXAMINATION Ms. Hopkins testified that the Commission does not involve
itself in day-to-day management, but is responsible for policy. The Commission did not have any
ex officio or other status on the negotiation committee. She understands:
       Mr. Kinnear was advisory to the Union. Mr. Crocker told me that.
Asked whether Mr. Kinnear's status was discussed at bargaining, Ms. Hopkins said:
       Yes it was. I can't recall the particulars, but when I responded to a question from
       Mr. Crocker I responded to Mr. Kinnear and used the word "you", Mr. Crocker
       jumped up and said, I should respond to him as he made the decisions for the
       Union and Mr. Kinnear was 'purely an advisor.'
       Asked whether the drug plan instituted for retirees under the age of 75 is a co-pay plan
based on eligible expenses, Ms. Hopkins answered:
       Yes, at Section 11 para 5 of the Agreement. The previous agreement ceased at age
       75, but we took that limitation out...We have 3 Union plans at Metrobus: a plan
       for active employees for their health benefits, a retiree benefits for current retirees
       up to age 75, and one for those retirees over age 75. Then we have 2 non-Union
       plans: one for non-Union active, and one for non-Union retirees that ceases at age
       75. There is no difference between eligible expenses of the drug benefit plan for
       those active employees when compared with retired employees between the ages
       of 65 and 75. The current plan for those retirees over the age of 75 is also based on
       eligible expenses. The only difference is the maximum is 7,500 per year. The
       premium issue is resolved in Section 11 (para. 2) where it says:
               'Any increase in health premiums required on or after December 1,
               2005 as a result of claims experience and/or financial experience
               under the health plan or as a result of future benefit modifications
               to the plan will be shared equally by the Employer and by the
               employees covered by this agreement.'


                                                 71
       What that means is that the Employer paid 100% up to December 2005, and on or
       after that date it was 50/50 on any increases... The MOU point # 5 says the cost
       sharing is to be the same.
       Ms. Hopkins summarized the series of events after Mr. Colbert's conversation with Mr.
Kinnear from December 14th until the conclusion of the strike as follows:
       At 7:30 in the evening of December 14th, Wednesday – we'd spent the majority of
       the day trading proposals – and that evening the Employer presented the five-year
       deal. The Union returned a short time after and said that they wanted a two-year
       deal. It seemed as though we were a fair ways apart. It seemed that they wanted
       to cream off the best. It seemed we were not going forward, and Mr. Spurrell
       needed to talk to the Commission since it was beyond our budget ... We had a
       meeting with the Commission at the Governor's Inn. We reviewed our position
       concerning the five-year deal and the Union's position with the Commission to
       show how far apart they were. Some ideas were thrown around and we left with
       our upper limit or mandate for bargaining.
               On the retiree drug plan, the Commission felt they had no expertise, so
       suggested we contact Mercer's to get advice on how to proceed; and an appropriate
       way would be to develop an MOU saying that, with the help of Mercer consulting
       we would develop a plan for those over 75. So that evening after the Commission
       meeting we went back and looked at a three year proposal, and at 11:00 pm...
Asked whether the Employer had made a proposal on premiums, Ms. Hopkins said:
       The Employer proposed the cost sharing that we had initially rolled out to
       December 2001, and if they were willing to go to three years we would give on
       that... We did not provide a draft proposal at that point. That was tabled at
       approximately 11:00 pm on December 14th, perhaps 11:15. They opened it and
       said we'd 'rolled back the split from 2004 to 2001 and we're not happy', so they
       walked out....
               We were at the Delta and had some discussion. The Conciliator was aware
       that the talks had broken off, and she was going back and forth. We'd left just
       before midnight to go home. The Conciliator said she'd be in touch with both
       parties on the next day. On the 15th we were waiting to hear from the Conciliator.
       I'd heard from her before or after Mr. Crocker was on Open Line. She said that
       she was waiting to hear from the Union. At 9:00 o'clock Mr. Crocker called the
       Open Line and said that the Union was okay for a two year deal, and that the one
       stumbling block was the cost sharing plan for employees. Next was a call from
       Gerry Colbert to Open Line at 9:30. He thought Mr. Crocker had agreed to the
       three-year wage package. I heard this myself. He was quite excited and
       encouraging the Parties to reconvene. He thought we were close to a deal. I got a
       call from the Conciliator, and she asked if I had been listening. That was at 10
       o'clock. She said it was like negotiating on air, and I said that I'd follow up with


                                               72
      Mr. Spurrell to find out what is going on. I then headed off from home to the
      office and waited for a call from the Conciliator.
               At about 4:00 o'clock the Conciliator said that the Union would be ready to
      reconvene at 5:00. After I spoke to the Conciliator, Mr. Spurrell phoned me to say
      he had had a call from Mr. Colbert who had advised him that he'd had a call from
      Larry Kinnear that afternoon. They had some discussion about where things were
      ... I asked Mr. Spurrell if we should contact Mr. Colbert to get clarification.
               At 4:30 we contacted Mr. Colbert, and had a conference call about his
      conversation with Mr. Kinnear. They had discussed a number of things; but one
      of the key issues was the retiree drug plan. Mr. Colbert had suggested the MOU to
      Mr. Kinnear, to design a plan for the retirees in a "cost effective manner"... There
      was some discussion of the requirement for driver's abstracts. There was a feeling
      that it was intrusive. We felt it was important as a public safety issue. Mr. Colbert
      said there was some general discussion with Mr. Kinnear, and Mr. Colbert had
      listened to Mr. Kinnear's concerns concerning the lead hand issue and there was a
      fourth item. I believe it was training for the Pension Review Panel. There was
      some dispute over funding. I can't recall Mr. Colbert's suggestion on that...
               The bargaining teams went to the Conciliator's office and started two-on-
      two conversations with myself and Mr. Mooney meeting with Mr. Crocker and
      Mr. Kinnear about the lead hand. There was some discussion of other issues,
      including the retirement drug plan, and I mentioned Mr. Colbert's suggestion of
      an MOU to Mr. Kinnear. There was also some discussion of the Employer's
      suggestion the previous evening of a $1,500 cap; but Mr. Kinnear did not like the
      $1,500 cap, and asked what Mr. Colbert had advised me. I told him Mr. Colbert
      had said that that was not the right number, and that that suggested to me there
      was a right number. Mr. Kinnear said they needed to get together and talk; and so
      did we, so we took a break.
               Then Mr. Spurrell consulted with Mr. Colbert, and began to update him
      and advised him what we had proposed to the Union. Then there was two-on-two
      discussion with the Conciliator. The Union .. asked me to construct the wording
      to the MOU idea, as well as other issues... We were getting to 10 o'clock when we
      went back with the MOU language and language on other issues. The Employer
      had withdrawn its requirement for driver abstracts.
               Once we all got through all these issues, and the Union tabled a no
      discipline proposal to expedite the signing of the agreement, we agreed with hand-
      shakes and pats on the back and bargaining ended at 10:30.
      Asked whether the Employer has any problem with the Union grieving the wording of the
MOU, Ms. Hopkins answered:
      No, we already have a grievance outstanding on that.




                                               73
       Asked how she knows that Mr. Crocker is familiar with the Transit Operator Handbook,
Ms. Hopkins said:
       From his termination in 2003, where it was identified as HH #1a. That is the same
       as HH #16 on the current evidence list.
       Asked what protocols are in place for observing Occupational, Health and Safety Act,
Ms. Hopkins said:
       The legislation provides a protocol. We always tell Operators that whoever is in
       the seat is to make the call; then contact the Supervisor through dispatch if there is
       a problem.
       Asked whether any driver had ever been attacked prior to the altercation on Anderson
Avenue, Ms. Hopkins answered:
       Not since I've been there. I know there have been verbal confrontations, and one
       in which the driver had to restrain an individual... That may have been just before
       the Anderson Avenue incident: a passenger behaving irrationally. I think
       substances were involved: I assume drugs. The RNC told us...
       Asked about Mr. Colbert's contacts with the negotiating committee during the period of
the 14th and 15th of December, Ms. Hopkins said:
       Mr. Spurrell was in contact. I don't know how often. I know of specific calls we
       had and the face-to-face with the Commission on the night of the 14th. Aside from
       the conference call with him, we had a call with him on the 15th prior to going into
       bargaining, and a call with him that evening during the bargaining on the 15th.
In response to questions from Mr. Harris for the Board, Ms. Hopkins confirmed that the only
difference to the second paragraph of Section 11.1 is the December 1, 2005 date. She explained
what she understood Mr. Colbert meant about "50/50 or 80/20" in HH #37.
       Yes I understand he is talking about cost-sharing on the benefit plan; but I think
       that it was the split rather than the year - or whether there should be any.
She also explained that her meeting with Mercer's Consulting prior to the Joint Benefits
Committee meeting probably took place the previous week.
       We had met concerning pension improvements, and so I had the MOU. About a
       week before the Joint Benefits Committee. They asked whether it would be
       helpful if we based expenses on the current plan, and what its effects would be.
       They were looking for guidance as to what to bring. I told them, that any options
       for discussion would be helpful, and any information would help us decide. When
       they came to the meeting they did have a number of ideas, not even options. We

                                                74
       had a very generic discussion. A lot had already lost their coverage because they
       had reached 75. They needed clarification in order to work out a deal to insure,
       particularly in respect of insurability issues, etc. That's why it was so important to
       get it straight.
       Ms. Hopkins said the $7,500.00 was an annual, not a life-time, cap per person.
THE SECOND EMPLOYER WITNESS was Mr. Austin Spurrell who, in 2005, relieved Ms.
Judy Powell as Acting General Manager of Metrobus. Until then he had been Manager of
Finance. Mr. Spurrell took over on November 29, 2004 and remained Acting General Manager
until October 31, 2005.
       The night before negotiations with the Union had failed, and the Union went on
       strike. This was the first strike, other than one day wildcats, in 29 years.
       Mr. Spurrell described the issue at negotiation that brought on the strike was the sunset
clause governing the period of time discipline would remain on personnel files.
       Up to that point we had not dealt with monetary issues. The Union refused to
       discuss the monetary proposals we had made. I was Manager of Finance before the
       strike, and had done a lot of the costing of items on the table. After the strike
       began I was liaison between management and Commission members.
       Mr. Spurrell described the relations between the Commission and the management team
in terms of bargaining.
       The Commission is a board of directors that runs the system, and deals with
       anything of importance, any large budgetary items that need to be approved. My
       role was to keep them informed of how things were going. Commission is not
       involved in day-to-day running of the system. Management is given power to run
       the system; and the board of commissioners, as approved by Council, acts as
       liaison between Commission and Council. It takes all major decisions on how the
       transit system is run in St. John's. The Commissioners meet once a month. Rhe
       only person who meets with the Commission is the General, or Acting, General
       Manager. Other Managers may be invited if there are issues.
                I met monthly with the Commissioners. I was Spokesperson reporting to
       the Commission during the negotiations and the strike ongoing at the time. I
       spoke with the Chairperson on a daily basis if there was anything significant – if
       there was nothing, I didn't call – and he would, in term, update the members of the
       Commission.
Asked who operated as Chief Negotiator at the negotiation table, Mr. Spurrell said:
       Ms. Hopkins. Commission members were aware of that fact. I told them.


                                                 75
Asked whether he was spokesperson between Management and the Commission between the
December 14th and 17th, 2004, Mr. Spurrell answered:
       Yes I was. The bargaining team took direction as to its mandate from the full
       seven-member board of the Commission itself. I was present myself when the
       Commission discussed mandate issues, and was also present at the bargaining
       table. At the bargaining table for the Employer in addition to myself was Ms.
       Heather Hopkins, Mr. Sean Mooney (Maintenance Manager), and Mr. Ray Lawlor
       (Operations Manager).
       Asked whether the Commission had ever appointed him to speak for the Commission,
Mr. Spurrell said:
       I'm not comfortable with the media, so I went to Mr. Clancy and asked him to act
       on my behalf under my direction. I brought it to the Commission to have their
       approval to have Mr. Chancy speak on my behalf to the media. Their response
       was "fine," because they wanted to stay out of it.
Asked whether, in his view, they did "stay out of it", Mr. Spurrell said:
       I wish I could say Yes; but, no.... on the basis of media reports of Mr. Colbert
       acting up and feeling good about himself and interfering at that point...
Asked when he first had the occasion to deal with Mr. Colbert, Mr. Spurrell said:
       It was in the latter stages of the strike, two or three days before the end. He
       wanted people back to work before Christmas. He said that on the radio, and that
       sort of thing... He wasn't acting on behalf of the Commission. I did not take it as
       out of the way at the time... I said to him, 'I can't have two spokespersons.' He
       said, 'I have to get involved.' I said, 'You're not supposed to be'; and he said,
       'Alright, just carry on and keep me informed.'.
Asked whether that ended it, Mr. Spurrell said:
       Not really, when we got down to the end. At that point there were a number of
       issues including the length of the contract, the percent per year, and the issue of
       group insurance plan, the 50/50 split since 2001. Those were the three main
       issues. We were getting close to agreement... Apparently a retiree over 75 called
       Mr. Colbert to say that his retiree benefits terminated after 75.
Asked whether that was under discussion at that time, Mr. Spurrell said:
       Not a major item, no. In the days leading up to the final break-off a lot of stuff was
       happening in the media about the drug plan ending at age 75. Mr. Colbert was in
       the press, but Mr. Colbert never approached the management team about it. It was
       then that it became a major issue at negotiations. The context was that Mr.
       Colbert thought that those over 75 should have a plan. It should not end at 75.


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                I had a meeting with the Commission, with the team, to look at the final
       packages on both sides. The drug plan became a big issue at this meeting. I agreed
       that we just could not carry on without some kind of cap. It could not be
       unlimited, open-ended. We had talked with benefit consultants. A lot of
       employers were trying to get away from their plans after 75, even after 65. We
       were warned to try and get away from it... At the time there was no time to get a
       costing done, but we were told that we should be talking about a cap.
                 This was a day or two before the strike ended, around December 15th. Mr.
       Colbert was present at that meeting of the Commission. The Commission gave us
       a package including wage increases for each year of the agreement, an MOU, and
       there was some talk about the pricing of the group insurance plan since 2001. We
       would have a plan for life in the form of a MOU to work with a consultant to
       come up with a cost efficient plan. The MOU was signed at the bargaining table.
                They told us to take it back and see if we could negotiate it. We took it to
       the Conciliator who told us to write it up as a proposal and present it, as there
       were changes. The Union did not accept the package at the time.... They flipped
       to the last page... something they did not like. Mr. Crocker said, 'We're out of
       here.' The Conciliator asked us to wait for her to talk to the Union. She came
       back in ten minutes and said, No they are not willing to bargain any further. After
       that we broke off, and Open Line opened up with Mr. Crocker and Mr. Colbert.
       Asked whether it was part of the Employer's strategy to have Mr. Colbert insert himself at
this stage, Mr. Spurrell said:
       No, sir. It was not. Apparently the negotiation started on the radio. The retiree
       drug plan suddenly became the issue. We wanted this to settle, but had no time to
       cost it. We were told by our consultant that there could be a major impact on the
       Commission if it were unlimited: a major drain on the Commission.
       Asked whether such an unlimited plan for retirees was in place at the Commission at the
time, Mr. Spurrell answered:
       No: only the one that was introduced in 1983. We could not deal with it because
       the Union just walked away from the table. The three issues were the length of the
       contract, the drug plan, and the sharing of premiums.
       Asked how the settlement finally came about, Mr. Spurrell said:
       The word was out that there was a management misunderstanding. That came
       from a radio report from Mr. Colbert.
Asked what his reaction was at that point, Mr. Spurrell said:
       I cried. I couldn't believe it that he got on the airways like that. We had put back
       to the Union exactly what had been given us by the Commission.


                                                77
                When the Conciliator heard that Mr. Crocker had agreed to a three-year
        agreement there was now only one major issue: the drug plan for retirees over 75.
        The Conciliator said she was trying to reach Mr. Crocker to get the two teams
        back to iron out the problems that were now being discussed in the media. At this
        point there was only one issue.
                I got Mr. Colbert on the phone, a conference call with the team, so that all
        could hear what he was trying to say to us. There was word that Gerry Colbert
        and Mr. Kinnear had had a meeting. I presumed they did not, but it turned out
        they had spoken briefly on the phone. He had said he did not think that retirees
        should be without a plan, but that it was left to the bargaining team to come up
        with a plan.
        Asked whether this was the same or different information from what was being reported
in the media, Mr. Spurrell said:
        Different. I was hearing different things on the radio from what I heard from Mr.
        Colbert.
Asked if this was the day the Conciliator was trying to arrange a meeting, Mr. Spurrell said:
        Yes. It had been scheduled, I believe. After, or during, one conversation with Mr.
        Colbert we discussed the option of an MOU to get the deal finalized. So at 5:00
        or 5:30 we met with the Conciliator and with the Union. When we got there the
        issues were length of the contract, wage package, retiree plan, group insurance
        premiums, the driver abstract, and the lead hand in maintenance.
                Ms. Hopkins and I dealt with some of these issues. Sean and Heather dealt
        with one of the other ones, and Heather and I did the group insurance plan. Mr.
        Crocker and Mr. Kinnear were representing the Union side... On the retiree plan
        Mr. Kinnear kept telling us maybe a cap is the solution. We could not think of
        how much. We did not know because we did not know how to cost it. We talked
        about $1,500, but did not know. So maybe if we could sign off on an MOU and
        then get together to devise a plan. But that was only possible if we sign off. And
        we did sign an MOU.
        Asked whether there were any phone conversations with Mr. Colbert between 5:00 pm
and the time the agreement was signed, Mr. Spurrell said:
        That was because Mr. Kinnear kept telling us about a meeting he had with Mr.
        Colbert. I'm sitting there, not knowing what is going on, and I operate as a team. I
        wanted the team with me in the conversation. Mr. Colbert said that he had not
        met with Mr. Kinnear except briefly on the phone, and he said that he wanted to
        get a plan, but what the plan was was uncertain at that time.
        Mr. Spurrell confirmed that the MOU was signed, and that the Employer has since
instituted a plan.

                                                 78
       When I was preparing the 2004 audit, the Employer has to factor in benefits,
       including this drug plan, to be set out for the balance sheet. I did go back for this
       audit to the actuaries and ask them for a costing of the group plans. They did it for
       an unlimited plan and the costing came out close to $3.8 million...
               The strike was settled on the 16th. The Union took the package to their
       membership and we took it to the Commission for ratification.
       Mr. Spurrell identified a December 21, 2004 letter (AS #1) issued to Mr. Crocker after his
October 2004 reinstatement by an arbitration board chaired by Arbitrator Oakley (HH#1) from
the 2003 termination. AS #1 laid down certain guidelines to govern Mr. Crocker's behaviour.
Asked why there was a gap between the publication of the previous award and Mr. Crocker's
December 21st return to work, Mr. Spurrell said: We were considering the possibility of an
appeal, but then the strike came on. Mr. Spurrell identified a November 16th letter (AS #2) from
Ms. Powell to Mr. Crocker confirming November 15 as reinstatement date. Mr. Crocker returned
to driving after December 21st.
       Dealing with events subsequent to December 21st 2004 leading up to the second
termination in November 2005, Mr. Spurrell testified that:
       Mr. Crocker had been advised on a number of occasions, both by the Operations
       Manager and by me, that he was straying outside AS #1 and not following the
       rules.
Asked whether Mr. Crocker was disciplined in conjunction with these warnings, he said:
       Not specifically. He was given letters to remind him; not disciplinary, but
       reminders. One dealt with approaches to me. He came to see me. He wanted to
       talk about overtime in operations. I said, No. Take this to Mr. Lawlor, the
       Manager of Operations. There were other issues relating to management. One was
       his attempts to be in touch with Mr. Colbert about the drug plan for retirees over
       75.
       Mr. Spurrell identified a 07/13/05 letter (AS #3) to Mr. Crocker about operations issues.
Asked if this was a letter of discipline under the Collective Agreement, he said:
       It's a cautionary letter directing him to the guidelines concerning reinstatement.
Asked whether Mr. Crocker had then followed the rules, Mr. Spurrell said:
       There were problems concerning the retiree drug plan. We had to have meetings
       with Mr. Crocker and the executive to try and get it put into place. We had some
       outside meetings to see if we could get some costings, and Mr. Crocker would not
       accept any of the options. Then it got back into the media in the context of the

                                                79
       elections and Mr. Crocker was accusing Metrobus of being unfair and bargaining
       in bad faith, though he did not use those words. He just refused to accept any
       recommendations... He told myself and Heather that he would speak to Gerry
       Colbert and get it resolved. We reminded him of the reinstatement letter, and he
       said, If he couldn't do it he would get someone else to do it.
       Mr. Spurrell's attention was directed to HH #3, the July 5th grievance concerning the drug
plan, and Mr. Spurrell said:
       Yes, I recognize this as a grievance filed by the Union. It did not come to me, but
       to Heather Hopkins. Heather would have to speak to me about it... HH #3 is the
       grievance which complains that the Union did not want the $7,500.00 annual cap.
Mr. Spurrell said that Mr. Crocker went to the media about the plan for retirees over 75.
       But the Employer had not taken any specific disciplinary action at that time. I had
       a discussion with Ms. Hopkins on this matter. Mr. Colbert told me a couple of
       times that Mr. Crocker was at Council meetings. He had tried to get some
       Councillors involved in the issue he had at Metrobus about the drug plan:
       particularly Councillors O'Keefe, Sears and Galgay... Mr. Sears and Mr. Galgay
       were both Commissioners, and Mr. O'Keefe called me once for Mr. Crocker's
       number because Mr. Crocker was supporting him for re-election to Council. This
       was between mid-July and mid-August... Mr Crocker called and asked me to pass
       on to Mr. Colbert that if the Commission did not overturn the $7,500.00 cap he
       would make it a campaign issue against those sitting on the Metrobus
       Commission. I don't recall the exact date of that call... It was a full blown issue on
       the call in shows with Bill Rowe and Linda Swain... During July, August, and
       September there were regular monthly meetings of the Commission, and these
       issues were discussed at the Commission. The Commission said to me: Follow
       the grievance procedure. Let it go the route it is supposed to go.
Mr. Spurrell took holidays beginning on August 12, 2005.
       I met with the Commission before I went on vacation. In essence, it was because
       the last meeting was in July and there was one issue. I think it was the day before
       I went on vacation. We had met once about benefits to explain what the drug plan
       was all about, and what unlimited drug coverage for those over 75 would cost...
       As a result of that meeting the Commission told us to go ahead with the plan,
       including a cap of $7,500... I was then present at the meeting in September 2005,
       when I was asked by the Commission if I could conduct an investigation of Mr.
       Crocker's conduct since his November 2004 reinstatement.
Asked what had prompted the Commissioners' request for an investigation, he said:
       It was some of the issues that had come from the continuing defamation in the
       media about driver assaults and some of the statements were damaging to the


                                                80
       Commission and the Employer... Mr. Crocker was also looking for salary
       information about management, going beyond the role of a Union President. The
       things he was saying were intolerable; and they needed to see if I could put
       something together to see if we could consider possible termination ... The
       investigation was conducted with the management team... Management's team was
       made up of Heather Hopkins, Sean Mooney, Ray Lawlor, and myself. I had
       regular contact with Judy, but she wasn't there, and she had nothing...
               The results of the investigation were as set out in AS #1. We went step by
       step, and we tried to come up with how many of these rules had been violated. We
       found that four of the five rules were violated by him. Heather did most of the
       information-gathering and put it together. When it was all collected the
       Management team sat down and decided that he should be terminated again. I
       called Judy Powell. She was expected back late October or early November. I
       told her what the management team had come up with, and told her I'd be meeting
       with the Commission and presenting a recommendation at that time...
               I gave the Commission the list of events: a chronology of what had
       transpired over the past number of months. I gave it verbally. They did not get a
       copy. It was prepared by Heather. First there was an order of events. Then we
       dealt with the assault on the driver and finally the issue of not following the chain
       of command, four or five items like that.
               There were a number of Commissioners who were not there ten months
       previously, and who did not know the background of the continuous dealings with
       Mr. Crocker over the year. So I offered to take them to meet with Legal Counsel
       and get a legal opinion. That occurred, and a decision was taken at that time. The
       decision was Mr. Crocker should be terminated immediately, and that was an
       unanimous decision of the Commission.
       Asked if the Commission had given instructions about that decision, he said:
       Only that Mr. Crocker should be issued a letter of termination immediately. It was
       not done immediately, but done the following week, on the 1st or 2nd. Judy Powell
       was returning to work. It was felt that it was only right that she should do it as
       General Manager... The deviation from route had not arisen during the
       investigation, and I was not involved. I heard about it, but I was not involved in
       the investigation or in that issue.
       Mr. Spurrell's attention was directed to HH #7 & HH #8. He was asked whether he felt it
improper that the $7,500 cap had been unilaterally established. Mr. Spurrell said:
       I don't think that there is a conflict. The Commission gave management people the
       mandate to implement a plan as outlined here in HH #s 7 and 8. The purpose was
       to inform the Commission, because they were uncertain as to where it was going
       and the costs if we were going to do it: the cost there would be to the Commission
       and the taxpayer that has to pay for all of this.


                                                81
       Asked what had resulted from AS #3, the July 13, 2005 warning to Mr. Crocker over his
attempt to involve Mr. Spurrell in an operational (overtime) issue, he said:
       I asked to discuss these issues. The Union had a convention, and Mr. Crocker
       asked if he could bring Mr. Kinnear. I said that it would be fine as long as I had
       Mr. Lawlor and others. It took place in the office with Mr. Kinnear coming with
       Mr. Churchill, the Vice-President. We met with Mr. Ray Lawlor and a transit
       Supervisor. I am not sure which one. And we discussed the issue on how to
       resolve overtime work and overtime problems we were having. We did come up
       with an MOU on overtime two days later.
ON CROSS EXAMINATION Mr. Spurrell testified that members of the Commission have
authority over the General Manager or Acting General Manager. He also said:
       At the time of the strike the only monetary issues that were on the table were those
       that the management had proposed, and those were rejected. They would not
       discuss it until the sunset clause was dealt with. And, yes, it was dealt with.
       Mr. Spurrell confirmed that, as Acting General Manager, he was the only person who
spoke with the Commission and acted as spokesperson between the Commission and the
bargaining committee, in daily contact with the Chair throughout the strike.
       When the strike was about to begin we asked if Mr. Chancy would do the media
       relations and the Commission agreed. It would be better if the Commission stayed
       out of it during the negotiations.
Asked whether Mr. Colbert, the Chair of the Commission, had a media role at all, he said:
       No. I expressed some concern about the media exposure when it began, because of
       the reasoning expressed by the full Commission to the team. Its mandate to the
       team was not the one that he was voicing to the media.
       Mr. Spurrell acknowledged the Commission did not repudiate Mr. Colbert's media
statements, and he did not call the Union to tell them not to pay any attention to Mr. Colbert.
       We had words to that effect a little later... Mr. Colbert did not say he had had a
       meeting with Mr. Kinnear... but I did not ever say that Mr. Colbert had no
       authority to speak on behalf of the Commission.
Asked whether he was concerned that Mr. Colbert could create confusion, Mr. Spurrell said: Yes.
Asked whether Mr. Colbert's comments might confuse the Union, Mr. Spurrell said:
       My main concern was the management team, as to how they could be perceived
       because we were being accused of having a misunderstanding of the direction of
       the Commission.


                                                82
Asked whether he was, in fact, concerned that the legitimacy of the management committee
might be undermined, Mr. Spurrell said, Yes. Asked why he did not therefore take steps to
isolate Mr. Colbert, Mr. Spurrell said:
       The day the management committee and the team took the package that we had
       negotiated with the Union to the Commission I had made contact concerning the
       difficulties with the comments that Mr. Colbert had made and asked if he could
       get a copy of the paper and sent it back to me. Which he did.
       Asked whether he got the message to the Union that Mr. Colbert's comments were not to
be relied upon, Mr. Spurrell said: I did that with the Union at the table.
Asked if he had ever told the Union that the person that they had to deal with was Heather
Hopkins and not a political interest, Mr. Spurrell said:
       I did try to tell Mr. Kinnear that Mr. Colbert was not at the table, and that Mr.
       Kinnear was operating outside of the bargaining room, and it was all out of
       perspective here.
       Asked whether, nonetheless, he acknowledged Mr. Colbert as "the boss", Mr. Spurrell
first answered, Yes. Then he added:
       Let me rephrase that "yes". He is one of seven, all of whom have authority over
       me.
       When Mr. Earle pointed out that Mr. Colbert was on the public media claiming that the
committee had made a mistake, Mr. Spurrell responded
       Did you ever try to shut up a politician, Mr. Earle?
       Asked whether he had managed to "shut" him "up", Mr. Spurrell answered, No.
       Asked whether he might not understand, therefore, how the Union and its members might
not be able to ignore what Mr. Colbert was saying. Mr. Spurrell answered:
       There is a price to pay. The dollars had to come from somewhere, and that's why
       the consultant had to be brought in.
       Referred to the media transcript of Mr. Colbert's comments on Linda Swain's VOCM
Night Line for December 15th ( HH #40), Mr. Spurrell acknowledged that, as Acting General
Manager his understanding of what Mr. Colbert was saying might be different from that of an
ordinary listener to the radio, and also acknowledged that Mr. Colbert signed the Collective
Agreement for the Commission. Mr. Spurrell also acknowledged that Mr. Colbert wore a


                                                 83
number of hats: as a private citizen, as Deputy Major for the City of St. John's, and as
Chairperson of the Commission,
       ... just as Mr. Crocker wore several hats both as a private citizen and as a
       employee of Metrobus, and as President of the Local Union.
Asked whether he might agree therefore, that When Mr. Colbert holds himself out as speaking
for the Commission, given his role as Chairman, the ordinary person listening should not have to
ask, Is that approved by the Commission? Mr. Spurrell answered:
       Yes. But that holds both ways. Mr. Crocker has to be held accountable for his
       actions.
Mr. Spurrell confirmed that the benefit consultants recommended a cap.
       We were advised to be careful where we were going. A cap could be a help in
       letting us know where we were going. $1,500.00 was the amount most referenced.
Asked whether that might leave a lot for retirees to pay from their own pocket, Mr. Spurrell
answered, Oh yes. Asked what the current weekly premium cost for dependent coverage per
member, Mr. Spurrell said:
       I'm guessing. On a monthly basis I think it's in the area of $150.00 to $160.00 per
       month. I stand to be corrected on that.
       Mr. Spurrell confirmed that were two evening sessions of negotiations leading up to the
final agreement, and that ...
       Just before the first of those two evening sessions there was a full meeting of the
       Employer bargaining team with the Commission during which Mr. Colbert, as he
       says, 'lead the battle' for retiree benefits for those over 75; and the management
       team left that meeting with a new mandate... An agreement on drug benefits was
       not reached during that evening's negotiations because that evening's negotiations
       came apart over the sharing of the premiums dating to 2001. That was the only
       one issue that was still on the table; that and the length of the contract, as I
       understand it. There was no discussion on the drug benefits for those over 75 at
       that first evening session of negotiations.
       Mr. Spurrell also confirmed he was in his office on the morning of December 15th when
he heard the VOCM interview (HH #38) between Randy Simms and Mr. Colbert. Asked
whether he had spoken with Mr. Colbert prior to that call, Mr. Spurrell said:




                                                 84
       I'd called him the night before and told him that the Union had not accepted our
       offer and had walked away from the table. I do not recall speaking to him that
       morning.
Mr. Spurrell's attention was called to HH #38 (p.5) where Mr. Colbert is quoted saying:

       "...I am now will be in touch with, with our chief negotiator, who is listening
       intently on this, on this right now as is our team and the whole commission and I
       suspect every single person out there..."
        Mr. Earle noted that Mr. Colbert appears to know that Mr. Spurrell is listening to the
show. Asked whether he recalls any conversation with Mr. Colbert which might sustain Mr.
Colbert's view, Mr. Spurrell said:
       Mr. Colbert may be saying here that I am Chief Negotiator, but she Was Chief
       Spokesperson at the table.... I don't recall talking to him before he went on Open
       Line. He might have, I just don't recall... But that's the impression everybody
       would get listening to that, yes... I was aware the Conciliator was worried about
       Open Line negotiations.... Yes, the result of the Open Line exchange was that the
       Conciliator got the Parties together at 5:00 pm that afternoon.
Mr. Earle cited Mr. Colbert's prior comments (HH #38 p. 4):
       "So we made a commitment to the retirees, to the people who are going to retire,
       and to the retirees out there, by hook or by crook we are going to fix this. I don't
       know, we don't know how because it's a very complicated issue..."
Mr. Earle asked Mr. Spurrell whether he would agree that Mr. Colbert appears to making a
commitment to the retirees on this point. Mr. Spurrell responded,
       I do not know, sir. That's Mr. Colbert's opinion, sir... But he had no authority...
       At the negotiation table we did say that Mr. Colbert was not a member of the
       negotiating team for the management, and that ... he was not sitting at the table.
       We were the ones doing the bargaining. What Mr. Colbert had said to Mr. Kinnear
       ... we had no idea if Mr. Kinnear had a meeting...We told Mr. Kinnear and the
       Union bargaining team that we had no idea what Mr. Colbert had said to Mr.
       Kinnear. Mr. Kinnear said that he had a meeting, but I asked Mr. Colbert, and he
       said that he had no meeting, but he spoke to Mr. Kinnear briefly on the phone.
       Mr. Colbert assured me that he had made no deals, while speaking to Mr. Kinnear
       on the phone. To this day I don't know if a meeting between the two took place.
Under questioning, Mr. Spurrell recalled Mr. Kinnear saying that when he was at City Hall Mr.
Colbert was not there, and Mr. Colbert's secretary got him on the phone.
       Mr. Spurrell also confirmed that, during the final evening's round of negotiations...


                                                85
        the $1,500 cap had been bandied about, but the Employer was told that it was
        unacceptable. That's why we came up with the MOU.
Mr. Spurrell confirmed his understanding that:
        The $1,500 came up in the conversation between Mr. Colbert and Mr. Kinnear,
        and that the Union had said: 'No, not $1,500.00.' We were led to believe that a
        cap was a possible solution, but we did not know what cap.
        Asked whether he recalls a meeting with the Conciliation officer on the morning of
December 15th, in the presence of Ms. Hopkins and Mr. Kinnear and Mr. Crocker, and being told
at that meeting that a cap was not acceptable. Mr. Spurrell said:
        No. They said something greater than a $1,500 cap was acceptable. We were led
        to believe that something else might be, something higher.
Asked whether the Union had used the words "something higher", Mr. Spurrell answered:
        That's what we were led to believe. The actual words I recall hearing were, "A
        $1,500 cap is not acceptable."... That is an accurate recollection of what was said.
        Mr. Spurrell confirmed that this led to the MOU. He further agreed that the MOU is
silent on the issue of a cap, but that...
        It does say that we would work to develop a "cost effective plan".
Asked whether he might agree that in view of Mr. Colbert's intervention there was a danger that
his statements might have affected what the Union believed. Mr. Spurrell answered:
        Yes. We were also affected by what Mr. Crocker said on the Open Line about
        getting back to bargaining.
        Mr. Spurrell identified a media transcript of VOCM Open Line with Randy Simms on
December 16, 2004 (AS #4), and agreed that Mr. Colbert does there represent himself as having
taken part in the negotiations.
        Referred to AS #2, Mr. Spurrell was asked where the Employer derives the authority to
reinstate after the previous award but not to put Mr. Crocker back to work. He answered:
        The Employer can assign work. This was what the management team talked
        about. We were not prepared to have him go directly back to work.
Asked whether such an action constitutes a form of discipline, Mr. Spurrell answered:
        No, there was no discipline issue.
Mr. Spurrell was asked to clarify the meaning of AS #1 para 3 which instructs Mr. Crocker to


                                                 86
       "refrain from contacting the Chairperson of the Commission... and to follow the
       established and proper protocol with regard to contacting the Commission".
Mr. Spurrell said:
       If you have a problem, go to the immediate supervisor, not the General Manager.
       If you have a problem, deal at the level where it can be dealt with.
Asked whether this is written anywhere, Mr. Spurrell said:
       Probably not. It is the normal procedure...I've been there 29 years and problems
       are dealt with by the immediate supervisors.
       Asked what happens if the Union has a problem, and whether the Union has an
"immediate supervisor", and whether there are problems for which it is appropriate to go to the
Chairperson of the Commission, Mr. Spurrell said:
       It depends on the location of the problem, whether it is Operations or Maintenance
       .... It's been protocol for 29 years, probably longer... (Approach to the Chair) is
       only with the written approval of the General Manager. That's been protocol for
       years. It may be in the Union Management minutes, and it may be in the Transit
       Operator Handbook.
       Mr. Spurrell acknowledged there was a period when the current Mayor, Mayor Wells, was
himself Deputy Mayor and Chairperson of the Commission. On certain occasions, he had met
with the Union, and even debated with the Union on television. Asked for his understanding of
the basis of his authority as General Manager in limiting the Union in its right to approach the
Chairman or any member of the Commission, he said:
       If I remember properly, Mr. Wells wrote a letter to the Union telling them to take
       all these matters and go through proper channels... It was always protocol that if
       anyone wanted to meet with the Commission it was requested through the General
       Manager... The authority to deal with Mr. Crocker this way was given to us by the
       Commission... Managerial problems have to be handled at the management level.
       Mr. Spurrell confirmed that the request to conduct an investigation into Mr. Crocker's
behaviour was made at the Commission's regular meeting, the last Thursday of September 2005.
       There were a number of concerns over Mr. Crocker's behaviour, including
       defamation of the Commission.
Asked whether these included the assault on Anderson Avenue, Mr. Spurrell answered:
       Well, first of all there were (media) stories about the cap on retiree benefits and
       the grievances, and then later on the assault issue.


                                                87
       Asked whether Mr. Crocker's public comments on the cap was regarded as defamation,
Mr. Spurrell said:
       Yes. Claiming it was something bargained at the table, which it was not, and that
       we reneged on a deal... It never was. He was trying to deal with an outstanding
       grievance through the media, as he did with negotiations.
       Asked whether he would characterize Mr. Crocker's comments regarding the driver
assault as defamation, Mr. Spurrell replied:
       He said the Union was to have the Commission charged under the Criminal Code.
       It's in one of the transcripts.
       Asked whether he did not accept that what Mr. Crocker had said in that interview was that
he wanted those causing disturbances charged, Mr. Spurrell said:
       I don't think so, Mr. Earle. ...You can twist the words, but I do not see any other
       interpretation, No.
       Asked whether he had heard the broadcast, itself, Mr. Spurrell said, "No I didn't." After
listening to the recorded version of the broadcast, Mr. Spurrell was again asked whether he does
not agree that the actual spoken version makes it clear that Mr. Crocker is calling for the
Employer to have the disruptive passengers charged, Mr. Spurrell said:
       It explains why the Employer should be charged under the Criminal Code.
       Asked whether the reason for the Commission's request for an investigation was that Mr.
Crocker was also campaigning with Councillors and making it a political issue, Mr. Spurrell said:
       No, that had nothing to do with it.
       Mr. Spurrell was asked to indicate which of the particular requirements set out in AS #1
Mr. Crocker had violated and how. Mr. Spurrell said:
       He violated expectation #1 in failing to deal with the Operations Manager about
       an overtime issue. He made contact with me and with Mr. Lawlor and said to Mr.
       Lawlor, 'I'll go over your head', and would continue to do so 'because I'm not
       dealing with you anymore.' He said that Mr. Lawlor 'did not listen'. This was all
       in the context of the overtime issue. On the occasion that he came to me he said it
       was about overtime. I asked if he had spoken to Ray Lawlor, and told him 'I am
       not dealing with operations issues unless you deal with the Operations Manager.'
       He did not want to deal with the right people.




                                                 88
       Mr. Spurrell agreed that Mr. Crocker's "overtime" concerns related to an issue governed
by a MOU in the Collective Agreement.
Mr. Spurrell described Mr. Crocker's violation of #2
       .... by trying to meet with the General Manager without the Operations Manager
       present. He radioed Dispatch one day while he was on a bus and asked the
       Supervisor if a meeting could be arranged with me. The Supervisor called me and
       told me Mr. Crocker had radioed and asked if I could meet with him. I asked
       About what? Mr. Crocker would not elaborate on what it was about, and refused
       to say what he needed to see the General Manager about. I refused to meet unless
       he disclosed the subject, and he said, 'Forget about it.'
Mr. Spurrell described Mr. Crocker's violation of #3.
       By his continuing to try to contact the Chairman of the Commission, both
       personally and through his agent Mr. Kinnear about the retiree benefit plan
       dispute. At the September meeting ,when the Commission asked for an
       investigation, we already had two grievances outstanding; and Mr. Crocker was
       refusing to deal with this through the procedure. He was trying to deal with it
       politically... Mr. Crocker had attended several Council meetings. I can't specify the
       dates... during the month of July, and I'd say the month of August...
Mr. Spurrell passed over item #4 as not pertinent to the instant matter before this Board, and
addressed his understanding of Mr. Crocker's violation of item #5 by saying:
       Mr. Crocker failed to follow Commission policies and procedures in the proper
       conduct of his duties. He made a number of statements in the press condemning
       the Commission for its failure to act to protect Operators who are susceptible to
       attack, without dealing directly with the Commission and management.
       Mr. Spurrell was asked to explain what he had intended by the term "background" used in
his direct testimony when describing the fact that some councilors were unfamiliar with Mr.
Crocker's "background". Mr. Spurrell answered:
       Things that had transpired in the past. We could only go back to his personal file
       and only the last discharge was on it, dated September 2003.
Mr. Spurrell confirmed that he had the Oakley award with him, and some Commissioners had no
knowledge of that event. Mr. Spurrell noted there were four new Commissioners present at the
September meeting including Mr. Norman, Mr. Byrne, Mr. Hann, and Mr. Dwight Hutchings.
Minutes of this meeting had been kept.



                                                89
       Asked whether someone had passed the comment "We've had nothing but trouble from
him for years." Mr. Spurrell said: That could have been said, Mr. Earle, yes.
       Asked whether he had attended the September 29th meeting to request action, Mr. Spurrell
said, No. After the September 29th meeting the investigation was completed, and another meeting
of the Commission was held in October. Mr. Spurrell confirmed he was present at the October
meeting and had reported orally but had provided the commissioners nothing in writing
       ... because I was giving a verbal report. I gave them a chronological list of events
       that had happened that was prepared by Ms. Hopkins. I had asked her if there was
       some way that we could put something together to let them know of events that
       had happened, and she prepared this for me. The managers as a team sat down
       and reviewed what Ms. Hopkins had prepared for me.
Mr. Spurrell said he had relied entirely on what Ms. Hopkins had prepared.
       Asked whether he had brought to the Commissioners' attention anything of the way in
which Mr. Colbert had behaved on the open line shows, Mr. Spurrell answered: At the one in
October, no. Mr. Spurrell confirmed that, of the councilors present at the October meeting Mr.
Colbert, Mr. Galgay, and Mr. Damian Ryan had been present during the negotiations. Mr.
Spurrell does not know whether Mr. Byrne, Mr. Hann, or Mr. Hutchings knew anything about
what had transpired during negotiations. Asked to review the letter of termination (Consent #4),
Mr. Spurrell's attention was drawn to a number of items that related to issues that arose in those
negotiations, and was asked whether he had not felt it would have been useful to alert new
members of the Commission to Mr. Colbert's comments, for instance, about the desirability that
everyone should have a retiree benefit plan for life. Mr. Spurrell acknowledged he had informed
Commissioners that Mr. Crocker had gone outside the rules, but had not noted that Mr. Colbert
had inserted himself into the negotiations, or that he had spoken with Mr. Kinnear.
       I told them what transpired at negotiations. I led them through up to the retiree
       drug plan.

       Asked whether, at the October meeting, he had told Commissioners about Mr. Colbert's
statements on the radio, Mr. Spurrell answered:
       I'm not sure I mentioned the meetings with Mr. Kinnear. I told them about what
       took place at the table, and that Mr. Colbert thought that all should have this.


                                                  90
When asked whether he had told Commissioners that Mr. Colbert had said this on the radio, Mr.
Spurrell said: Specifically his comments? No." Mr. Spurrell confirmed he had read out the
chronology:
       ... as I had it in front of me, the entire chronology, but did not leave the document
       with them... We had four new members, and they asked to meet with legal
       counsel for discussion. It was a full Commission and management team meeting.
       Mr. Spurrell confirmed that the October 22nd deviation from route issue had not been
brought before the Commissioners in any meeting. Asked whether a record is kept of route
deviations, Mr. Spurrell answered:
       If it becomes known. We do not know all of them. If there is a complaint, then
       management notes it in a log book ... driver deviations, errors, or things like that.
       Mr. Spurrell identified as AS #5 the agenda and minutes for the September 9, 2005
meeting of the St. John's Transportation Commission. He prepared the agenda with the help of
the Administrative Assistant, who passed it to him for approval. Mr. Spurrell confirmed that the
first item under business arising, "G. Crocker's request for salary information" was the request for
salary information referred to in his earlier testimony and confirmed that the issue had arisen at
the time his termination was discussed.
       Mr. Spurrell also confirmed that under "new business" there was an item entitled, Driver
Assault and a sub-item "On the front line: guidelines and strategies". Asked how that item had
been placed on the agenda, Mr. Spurrell said:
       The Administrative Assistant was getting the media reports. She asked if we
       should put it on the agenda, and I said Yes.
       Mr. Earle noted the use of the phrase "taking the 'sting' out of the Union's meeting" (AS#5
item # 4). He asked what was intended by the word "sting" in this context. Mr. Spurrell said:
       It was because of Mr. Crocker's comments in the media. It was giving the people
       the message of dangers. He was trying to convey this attitude to member drivers.
Asked whether he was aware that under the Collective Agreement, Section 14.1 requires that
safety rests with the Operator, Mr. Spurrell answered:
       Yes I am familiar with that. But it has nothing to do with dangerous passengers,
       but more to do with safety on a slippery hill.



                                                 91
       Mr. Spurrell confirmed that:
       The media transcripts are e-mailed to us, and are then e-mailed to Commissioners.
       Therefore members of the Commission had copies of the transcripts that were
       being entered into evidence at this hearing.
       Mr. Earle suggested to Mr. Spurrell that the Commission had made up its mind to fire Mr.
Crocker on September 29th, and that the request to investigate that came out of that meeting was a
pretense since it was pretty clear all they wanted was legal approval to fire. Mr. Spurrell said:
       I disagree with that. The Commission's instruction was to investigate, and seek
       legal opinion. That's what I was directed to do....
       Mr. Spurrell identified the agenda and minutes for the October 26, 2004 meeting of the
Commission (AS #6). Mr. Earle noted the reference in AS#6 (p. 2) to Mr. Spurrell's comment
that "Mr. Crocker has referred to himself as two people". Asked whether he has some problem
accepting that Mr. Crocker has two roles, Mr. Spurrell answered:
       We have a problem dealing with Mr. Crocker because he tends sometimes to deal
       with people even he is involved... For instance, his dealings with the Operation
       Manager over the overtime issue.
Reminded that he had earlier testified this matter was actually a Union issue, he said:
       I was referring to one specific issue: an employee request for time off using his
       banked time. We didn't have coverage, so he had to be refused... Mr. Crocker
       stated to Mr. Lawlor that he was going over his head, and would continue to go
       over his head, because he felt that he (himself) should have been given this
       overtime.
       Asked whether the discussion held with Mr. Crocker had led to a change in the Collective
Agreement, Mr. Spurrell said:
       Yes because we had troubles (making the schedule) because of people off sick.
Mr. Spurrell confirmed that the AS #3 letter... Could have been dealing with the same issue, yes.
       Asked whether he accepts there is a distinction between Mr. Crocker the employee and
Mr. Crocker the Union President, Mr. Spurrell answered:
       I think that the President in any capacity has to be an employee first...Yes, we
       accept there is a distinction.
Asked why, therefore, the frustration is felt by the Employer, Mr. Spurrell answered:



                                                 92
       Because when dealing with Mr. Crocker it's hard to tell the difference. He blends
       the two.
       Mr. Spurrell confirmed that he accepts the result of the Oakley arbitration award.
       Mr. Spurrell said he had not referred to any of the media material during the October 26th
meeting, and had not pointed out to the Commission Mr. Colbert's role in the retiree benefit plan
issue. He also confirmed that the documentation referred to in AS#6 about "Mr. Crocker's every
breach of the employer's expectations of him as an employee" was not before the Commissioners.
A meeting for new members with Legal Counsel did take place.
       Mr. Spurrell identified minutes of the October 26th special meeting of the Commission
(AS #7). It was on the same day as the regular meeting of the Commission, but took place in
Legal Counsel's office. All members of the management team were present at his invitation ...
       as Acting General Manager, and the team was there in case Commissioners had
       any questions for any managers about their dealings with Mr. Crocker... They did
       not participate in the decision.
Asked why Mr. Spurrell had not issued the termination himself, Mr. Spurrell said:
       My tenure was ending on October 31st.
       Mr. Earle noted an item concerning the retaining of Dr. David Walker. Mr. Spurrell said:
       Yes, I set up a session with David Walker. He provided a session with supervisors
       and the management team in April or May of 2005 on 'bullying in the workplace.'
ON REDIRECT EXAMINATION Mr. Spurrell identified the "chronology of recent events re
George Crocker" (AS #8) which he had read to the Commissioners.
       He also identified the St. John's Transportation Commission Employer's final offer dated
10:15 pm December 14, 2004 (AS #9). Mr. Spurrell confirmed that the offer relating to retiree
benefits reads:
       'Prescription drug coverage will be provided to pensioners above the age of 75 on
       the basis of $1,500 per unit per calendar year.' We did not know if $1,500 was the
       right number, so we put it in there as the number being bandied about.
       Mr. Spurrell confirmed he had been involved in preparation of the termination letter
(Consent #4). I supplied the details of what happened during her maternity leave.
       Mr. Spurrell's attention was directed to AS #5 and asked to comment on the use of the
words "propaganda" and "sting". Mr. Spurrell said:

                                               93
       My understanding is he was going to instruct operators to leave certain people
       who may be a threat: to tell them not to stop, but to actually leave them at the stop,
       rather than call in to the Supervisor for permission. That's my impression.
Responding to questions from Mr. Harris for the Board, Mr. Spurrell testified that Mr.
Crocker's reference to the Criminal Code in a radio interview was to be interpreted as an
expression of desire that the Commission be charged.
       Yes, that is what Damian Ryan thought too and the whole Commission: that he
       was talking about charging the Employer.
       Mr. Spurrell also confirmed that the estimate of $3.8 million costing for the drug plan was
       ... an accrual accounting. Yes as a liability; and it referred only to those on the
       retiree drug plan from age 65 on.
       Mr. Harris also asked Mr. Spurrell to comment on Mr. Colbert's comments in HH #38 (p.
2) about "Union people calling" him. Mr. Spurrell said:
       At the time I did not know who he was talking about. We had a three year
       proposal, and he had me confused.
Asked whether he had followed this up with Mr. Colbert, Mr. Spurrell said:
       No, I did not. I just assumed that Union members had been talking with him. The
       Union was issued a letter from Mr. Colbert to deal with management. I had no
       discussion with Mr. Colbert about this.
Responding to questions from Mr. Peddle for the Board, Mr. Spurrell said that he did not
have a discussion with Mr. Colbert concerning his media interventions.
       No, Mr. Colbert said he'd be media spokesperson. Then he decided that he would
       not, and I asked Mark to do it. At this point I had two media people. Mark doing
       newspapers and Mr. Colbert steps in and takes over.
Mr. Spurrell also confirmed that:
       The media transcripts – for example HH #38 – were automatically sent to the
       Commission. They were auto-flagged and sent to us. Then the Administrative
       Assistant would send it on.
He also confirmed that the $3.8 million estimate had been based on an uncapped plan.
Responding to Mr. Earle's question sarising , for the Union Mr. Spurrell said that:
       The normal age for retirement is close to 55. If they are 55 they ask Heather to
       calculate based on the number of years. So a lot retire under 65.



                                                 94
       Mr. Spurrell also testified of the Commissioners who made the decision concerning
termination, Mr. Hann, Mr. Hutchings, Mr. Byrne , and Mr. Norman were new members of the
Commission and had not been present during the strike.
THE THIRD EMPLOYER WITNESS was Ms. Teresita ("Terry") Richardson who has worked
for Metrobus ...
       for the past sixteen years as one of five Supervisors responsible for ensuring the
       schedules and shifts are fully staffed and dealing with complaints and any
       difficulties Operators may encounter.
Ms. Richardson is familiar with Mr. Crocker, both as a driver and as Local Union President.
       Ms. Richardson identified as TR #1a the original of a two-sided customer compliment /
complaint form, which had been filed on October 22nd complaining that the driver may have been
talking on a cell phone, and "at each intersection the bus was stopping on top of crosswalks and
was always rolling ahead while waiting for a green light." The complaint also described the bus
as having deviated from route:
       Instead of proceeding through the Baird subdivision towards the university centre
       the bus had apparently turned right from O'Leary Avenue onto Thorburn Road,
       proceeded down to Prince Philip Drive, and turned left onto Prince Philip Drive
       along to the university centre.
Ms. Richardson became aware of the complaint...
       At 6:00 am on November 1st when I reported for my shift. Mr. Paul Prowse was
       the Supervisor on duty on October 22nd when the complaint was lodged by phone.
       (Paul told me that, even though the telephone code is not circled on the form.)
       Mr. Prowse passed the complaint to Mr. Lawlor the next day, October 23rd, and I
       got it on November 1st. I read over the complaint. Paul was on duty at the time. I
       asked whether he was sure it was George, and Paul said, Yes. After reading the
       complaint I asked Mr. Crocker to come into the office next day to discuss it.
Ms. Richardson identified TR #1b as the notes of this discussion during which Mr. Crocker
denied having deviated from route and suggested she check the AVL tracking technology.
       Mr. Prowse and I went through the AVL. It showed the bus went down Thorburn
       and onto the Parkway. It did not pole at Larkhall and Vinnicombe in the three
       areas that it should have poled. I wrote up what George had said, and passed it to
       the Operations Manager.
Asked why he would be expected call into the Supervisor if he were off route, she said:


                                                95
       That's the procedure if a driver is going off route. That's for customers: to let them
       know where our buses are at any particular time... With the AVL, we wanted to
       check with another Supervisor ... for another opinion...
Asked what conclusions she reached concerning the AVL Ms. Richardson answered:
       I didn't draw any myself. That's not my part of the investigation. I passed it to
       Ray to advise me. I passed it to Ray that day, actually.
ON CROSS EXAMINATION Ms. Richardson explained why there was a break between the
filing of the complaint and her attending to it.
       I was off for a few days, and I had to coordinate with George's shift in order to talk
       with him.
Ms. Richardson confirmed that:
       The standard procedure is to call in to the Dispatch Officer on duty, or to the
       Supervisor if the bus goes off route.
Asked if there is a Dispatch Officer on at all times, Ms. Richardson said:
       Usually just one doing the dispatching. Others may be doing paperwork.
       Asked whether the buses have radios, Ms. Richardson said:
       Yes. The Operators have a mic. We have it normally open to all channels so the
       driver on the bus can contact dispatch.... Yes, he takes it and holds it to his face.
       Ms. Richardson said she had not asked where the passenger who made the complaint was
sitting, and confirmed it could be possible that the driver might be talking on the mic and not be
seen by the passenger, who could nonetheless hear the driver. Asked whether someone speaking
on a cell phone usually holds it to the side of his or her face, Ms. Richardson said:
       They are not supposed to be operating the cell phone. They're supposed to step off
       if they are using a cell phone. Most people have the little ones in the ear now; but
       if it's a hand held, it would be visible to anyone behind.
       Asked if she had ever known of a driver going off route without realizing it, she said:
       Generally they call in. The only way that I would know if that happened is if the
       driver told me. The driver will call in and often say, I went off route. With the
       new drivers, yes. It's not usual with very experienced operators. It only surfaces if
       someone – either the driver or a complainant – reports it.
       Ms. Richardson then described the various routes that use the O'Leary/Thorburn Road
area, and also described the AVL system and its application.


                                                   96
       It's very useful for customers to check if there buses are on schedule... All the
       drivers know where the bus is poled. I don't know if there is a readout or not...
       Mr. Earle noted that, in his statements, Mr. Crocker seemed confident he was on the right
route. Ms. Richardson responded: I asked him if he was on route, and he assured me he was.
       Mr. Earle noted that Mr. Crocker would know if the AVL were to show whether he was
on the right route or not. Ms. Richardson answered: I guess that's why he suggested we check.
       Asked if she had told Mr. Crocker the AVL showed him off route, Ms. Richardson said:
       No. I made up my report: just the three items, and briefly checked the AVL with
       Paul Prowse, and passed it to the Operations Manager.
       Asked if she had checked what route Mr. Crocker had done that morning, she said:
       He was on overtime at that time. No I did not.
Ms. Richardson confirmed that drivers doing overtime can do more than one route a day. She
identified Mr. Crocker's regular shift at the time as 'Monday to Friday Route #1,' and described
the pattern of route #1, which does not include the Avalon Mall area.
       Ms. Richardson testified that she had not spoken to the complainant. The handwriting on
the report is that of Mr. Paul Prowse who took the complaint.
       Asked whether calls noting deviation are recorded, Ms. Richardson said:
       Yes we note it; or try to. At times it may get missed if we get real busy. But we
       make it for customer service reasons. Most of the time we do, not always. Some
       Supervisors may be better than others at noting this.
Asked whether she had checked the log, Ms. Richardson said:
       I asked Paul Prowse, the Supervisor on duty when George was on duty and when
       the complaint was taken. I asked if he was aware of any returns or breakdowns –
       specifically a breakdown – and he said, No. I asked Paul if George had any route
       deviation reported, and Paul said that he did not. That was at the 6:00 am briefing
       before George came in for his route.
       Ms. Richardson confirmed that drivers call dispatch for all kinds of reasons, including for
personal messages. Asked whether route 3 was usually busy or slow on Saturday afternoon
picking up at the Avalon Mall and the next stop is Memorial, Ms. Richardson said:
       No there would not be a lot on Vinnicombe and the Larkhall at the schools on a
       Saturday.



                                                97
ON REDIRECT EXAMINATION Ms. Richardson testified as to various other routes, and
then, in response to questions from Mr. Harris for the Board, confirmed that:
       We don't pick up a lot on Vinnicombe or Larkhall, especially on a Saturday....
       Route 3 has not changed at all. It has been the same for years.
THE FOURTH EMPLOYER WITNESS was Ms. Judy Powell, who has served as General
Manager since September 2003, prior to which she had served as Manager of Finance and
Human Resources since 1993, and the combined Finance and Human Resources since January
1997. She was on maternity leave from November 29, 2004 until October 31, 2005 during which
she was replaced by Mr. Austin Spurrell as Acting General Manager. She had been in contact by
phone or e-mail "once or twice a week on an as-needed basis" during her maternity leave.
       She testified that the General Manager's role...
       is to manage the operation of the Commission. I report to the Commission, and I
       am responsible to that seven person group. We normally have monthly meetings:
       usually the last Thursday of the month if convenient for all members.
Normally Commissioners would not be involved in the day-to-day affairs of Metrobus. She
acknowledged that the by-law (HH #36) passed by Council on May 17, 1993 governs the
operation of Metrobus, and particularly noted the "Powers" sub-clauses under "Operations",
Section 4(1)(b) & (d ) which say that the Commission shall have the power:
       (b) to issue and cancel passes to patrons or classes of patrons;
and
       (d) to engage and fix wages and salaries for all employees necessary for the bus
       service and to layoff, discharge for cause, or retire any employee as the
       Commission sees fit...
Ms. Powell confirmed that:
       These powers are exercised by management, not by the Commission directly. The
       Commission has hired a management team to carry out the daily affairs of the
       Commission; and supervision of that management team is achieved via the report
       of the General Manager who reports to the Commission through the Chair,
       normally at monthly meetings. If there is an issue during the month, I will contact
       the Chair. That is my contact.
       Asked what process is used to collect the issues for decision or for inclusion in the report
to the Commission, Ms. Powell answered:



                                                98
        My assistant keeps a file and prepares an agenda for my review, which is sent to
        the Commissioners a few days before the meeting, along with materials for the
        meeting.
        Asked whether she had been aware of any issues involving Mr. Crocker before her
maternity leave, Ms. Powell said:
        Yes. We recently had an award concerning his termination. That was around the
        15th or 16th of November, 2004, and we were in negotiations at this time, which he
        was leading for the Union. I was at the table until midnight on November 28th.
Ms. Powell confirmed that AS #1 constituted the reinstatement protocol, and that it was issued
while she was on maternity leave. Ms. Powell did not, herself, have input specifically to the
letter, but said that:
        I did indicate before leaving that I wanted this to be done.
        Ms. Powell said that the protocol was established under policy and procedure including
the Transit Operator Handbook (HH #16), which was not always published in the current large
format, but normally in a small book format.
        We printed the small book in 1998. About three or four years later we ran out of
        copies, and produced it in large format. I was involved before 1998 in updating it
        for printing and distribution from a prior version. We distributed it to Supervisors
        who were responsible for ensuring that everyone got a copy. Often it was done
        through the pay cheque. Either way, the seniority list was covered.
        Asked whether she knew personally that Mr. Crocker had received a copy, Ms. Powell
answered:
        Yes. I had several occasions to discuss contents of the Handbook with him as
        President of the Union concerning himself or another employee... The issues in
        Mr. Crocker's prior termination case related to the Handbook.
        Ms. Powell confirmed that she had issued the termination letter, Consent #4.
        I returned from maternity leave on October 31st, so I was General Manager when
        this was issued, and was involved in the decision-making that was its basis prior
        to November 2, 2005. On the day of the September meeting of the Commission
        Mr. Spurrell called me at home and discussed the meeting and the report that the
        Commission asked to be prepared concerning the details of all of Mr. Crocker's
        activities concerning issues that happened since his return to employment.
                There were several conversations with Heather Hopkins and Mr. Spurrell
        concerning the proposed report and the media reports, conducted via e-mail. And
        then a day or two before the October meeting, we discussed what would be

                                                 99
       submitted. Then Mr. Spurrell asked me attend the evening meeting on October
       26th... The outcome was a decision to terminate, and that I would carry it out on
       my return in the following week...
               In the interim, we became aware of a customer complaint and a number of
       infractions, including Mr. Crocker's operation of the bus at crosswalks and
       possible use of a cell phone. These were investigated. I became aware of the
       complaint on October 31st, and agreed Ms. Richardson should meet with Mr.
       Crocker the next morning. Ms. Richardson presented the TR #1a document and I
       saw TR #1a & b on November 1st, in the morning. At that time Ms. Richardson
       had checked the AVL. It showed that Mr. Crocker did deviate from the route. I
       asked for hard copies of the AVL system...You can create a map at any point in
       time.
       Ms. Powell identified two maps printed from the AVL system (JP #1 and JP #2), and
answered questions interpreting these maps to explain the deviation from route. Ms. Powell
concluded by saying that, in her view, these maps confirmed the customer complaint of deviation
from route. She noted that Mr. Crocker denied using a cell phone or rolling at crosswalks.
       So it was difficult to make a determination without another witness, so we gave
       the driver the benefit of doubt.
Asked what element of the complaint Metrobus management had found valid, she said:
       The fact that he deviated from route.
       Ms. Powell testified that Operators are required to follow routes at all times and required
to report any changes.
       It was determined that no reports had been made to dispatch, and also that no
       construction or other valid reasons justified deviation. Requirements to maintain
       established routes are set out at B15 in the Transit Operator Handbook.
Asked whether other drivers had been disciplined for breaches of Section B15, Ms. Powell said:
       Yes there have: both for deviation from route and for operating ahead of schedule
       ... I should refer you also to B18, 'Keeping Buses on Schedule,' which is another
       area specifically addressed.... I contacted the Chair of the Commission and told
       him of the breach of policy. He said he wanted it included in the termination letter
       as another example of breaking Commission policy.
       Referred to the Termination letter (Consent #4), Ms. Powell said that the Commission
viewed some of Mr. Crocker's




                                               100
       ... comments in the media on the drug plan issue and the transit operator assault
       issue, as false and malicious and ... disrespectful of the Commission and
       management... They constituted a violation of the Commission's rules.
Ms. Powell cited the October 26th evening meeting with the Commissioners as the basis for these
comments, and also noted that Appendix to Consent #4 provides detail. She described August
23rd Telegram (HH#15) as reporting one of the comments that, in the Employer's view, was false
and malicious.
       He was giving the impression of dishonesty and questioning the integrity of the
       Commission.
Ms. Powell also described certain interviews with Mr. Bill Rowe and Ms. Linda Swain, noted in
Appendix A, as
       ... disparaging management in the eyes of the public by claiming that management
       had no authority, and that it was being dishonest, and, in particular, by suggesting
       that management has benefits which workers do not get.
       Ms. Powell also described the grievances which were filed and the Union grievance
concerning the retirees drug plan dated July 20th.
       [A Union objection concerning the relevance and competence of the witness to
       deal with matters that had taken place during her leave, was overruled and
       questioning proceeded on the contents of Consent #4, a document she signed.]
Ms. Powell testified that the Joint Benefit Committee had ...
       worked together for two months in 2005... that the Union had withdrawn and
       subsequently filed a first grievance at the expiry of 90 days, and then another
       complaining that the plan that the Employer had implemented did not conform
       with the Collective Agreement. These grievances were still outstanding (at the
       time of the radio interviews) ... Mr. Crocker would have been aware of the
       grievances as (HH #11) shows.
Ms. Powell also addressed matters raised in the termination letter touching on
       ... Mr. Crocker's attempt to contact the Chair, thus disrespecting the Commission's
       chain of authority... Mr. Crocker bypassed the Operations Manager, Mr. Lawlor,
       on July 13th; and on July 20th he told Mr. Lawlor he would continue to go over his
       head... Mr. Crocker had also told Ms. Hopkins that he would go to the Chair of
       the Commission, or have Mr. Kinnear do so. In July this was also raised as a
       concern... On August 22nd there was a "quiet protest" at Council, and there were
       meetings with Council members who served on the Commission about the drug


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       plan... There were also the media appearances, including the call for Mr. Colbert
       to 'do the right thing' implying that management had done the wrong thing.
       Ms. Powell described her participation in the evening meeting of October 26th.
       I had access to all the documentation, the transcripts, the chronology and a copy of
       the reinstatement letter.The Commission did ask for my recommendations during
       the meeting. In reviewing the reinstatement letter, four of the five expectations
       had been violated. He had a fourteen month suspension on file. I recommended
       termination in view of the fourteen month suspension and these violations.
       Ms. Powell was also aware that other Operators had been disciplined for route and
schedule deviations. She identified a five day suspension (JP #3) imposed on a Mr. Kane for
deviation from route in 1987, and a letter of warning (JP #4) addressed to a Mr. William Haley,
also in 1987, for operating ahead of schedule. Ms. Powell also identified a reprimand (JP #5)
issued to a Mr. Linthorne in 1989 for operating out of schedule, and a 1998 letter of discipline
(JP #6) to a Mr. Richard Hanlon for "deviating from route".
ON CROSS EXAMINATION Ms. Powell responded to questions concerning the maps,
generated by the AVL system (JP #1 and JP #2) and to questions relating to alternate routes that
follow something of the same pattern.
       Ms. Powell also confirmed that JP #3, 4, 5 and 6 all refer to disciplines dating back to the
'70s, the latest being '98. Ms. Powell said that:
       There was one other in the late '90s, but I can't recall the name. These are not all
       the occasions on which it has happened. On many occasions management has
       decided it was a "honest mistake". I don't recall a discipline I was involved in... I
       would not necessarily be involved if it was dealt with by a Supervisor.
       Ms. Powell confirmed that the only letter of discipline in evidence during her own period
of time with Metrobus is JP #6, and that is a written reprimand, the lowest level of discipline
other than verbal discipline. She acknowledged that in some instances verbal discipline has been
recorded, but not in all. Asked whether she had heard drivers speak of falling into a pattern so
that even when driving their own cars they would pull into a bus stop, Ms. Powell said:
       I heard that on one occasion that happened, yes.
       Ms. Powell said that she had not checked which route Mr. Crocker had been driving
earlier on the day of the deviation, but said she was aware that ...


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       He was doing a route earlier that day. If there is a route deviation or the bus gets
       off time the driver is supposed to radio in. They are not supposed to go ahead of
       schedule at all... They will call in if there is a problem on the route.
Asked if all construction and similar detours are always recorded, Ms. Powell answered:
       It is supposed to be. I can't say that it is always recorded.
       Ms. Powell also confirmed that:
       A passenger is not always able to see what the driver is doing, especially where
       cell phones and microphones are involved.
       With respect to the reinstatement letter setting out the Employer's expectations of Mr.
Crocker on his return to work (AS #1), Ms. Powell confirmed that the prior termination
arbitration had not provided for the Employer's imposing terms on Mr. Crocker's reinstatement.
AS #1 had been written to Mr. Crocker in his personal capacity as an employee. She also
confirmed that:
       Ms. Hopkins had told Mr. Crocker that if he asked Mr. Kinnear to contact Mr.
       Colbert, he would be considered to have used Mr. Kinnear as his agent.
       Ms. Powell acknowledged that Mr. Kinnear is an International Vice-President of the
Transit Workers Union and that the Union Local 1462 holds exclusive bargaining rights at
Metrobus. Mr. Earle asked by what authority Ms. Hopkins or the Employer might prohibit the
ATU or Local 1462 from making contact with anyone in the course of carrying out their duties of
representation. Ms. Powell answered, that:
       As Employer, and having signed the Collective Agreement, I have expectations
       concerning the protocols outlined in the Collective Agreement that the Union
       signed and agreed to... I have authority to tell an employee, who may be an officer
       of the Union, whom he or she may contact with respect to operational policy.
Asked where she derives this authority, Ms. Powell answered:
       Officers of the Union are also employees. These are not exclusive roles. They are
       expected to follow protocols of the organization.
       Asked to explain what authority she claims to have over Mr. Kinnear who is not an
employee, Ms. Powell answered:
       I don't have direct authority over Mr. Kinnear at all... Mr. Crocker was told that
       the Employer would regard Mr. Crocker as having used Mr. Kinnear as an agent.



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       That was based on dealing with Mr. Crocker over the years, and hearing him say
       that he is the Union and nothing happens in that Union unless he sanctions it.
Ms. Powell agreed that the Union, itself, has rights independent of its officers. Ms. Powell also
testified she understands that when an individual is acting as an officer and not as an employee ...
       The two roles are not mutually exclusive. The employee cannot use the position
       to violate the rules of the Employer. We have not strictly applied the rules in Mr.
       Crocker's case in representing the employees and carrying out that role... We
       understand that dealing with the media on policy issues they do have the right to
       make public their policy positions.
With reference to the issue of his communications with Mr. Ray Lawlor, Ms. Powell said:
       In my experience it was George, himself, that was involved. He was not
       representative of others.
       Asked to clarify where the Employer perceives it has a right to make restrictions on whom
Mr. Crocker should talk to, Ms. Powell said:
       The dispute mechanism comes from the Collective Agreement... He had filed a
       grievance, so the Collective Agreement provides authority with respect to a
       grievance issue. He has to follow protocols in the Collective Agreement which
       were in the process of being done.
       Asked where the Collective Agreement explicitly provides authority to restrict with whom
the officers of the Union can make contact, Ms. Powell said:
       Those words are not in the Collective Agreement, but the Collective Agreement
       outlines the grievance procedure at Section 4.1. By signing the agreement you
       agree to the process... As an Employer, we set out rules; and as an employee he
       has to follow certain protocols as with any employee, except for certain things.
Ms. Powell acknowledged that Mr. Crocker's dealings over the drug plan for retirees over 75
were on behalf of the Union.
       Asked for her understanding of the Commission's discussion as reported in the St. John's
Transportation Commission Agenda & Minutes September 29, 2005 (AS #5), she said that:
       The October 26th meeting discussed these matters again; so the September 29th
       meeting was not final... All members of the Commission attended the meeting on
       October 26th and the management team and Mr. Smith, Legal Counsel. The
       appendix to Consent #4 is a summarized version of AS #8, which was a report
       prepared by Ms. Hopkins.
With respect to the meeting on October 26th (AS #7), Ms. Powell confirmed that:


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       I would have been aware from the action item that the decision to terminate Mr.
       Crocker was pending legal confirmation. Yes, based on the action item.
       Ms. Powell also confirmed that she was aware that Mr. Spurrell had not given the
Commissioners copies of the chronology (AS #8), but had read its contents.
       I learned that at the October meeting. I would not have been aware at the time,
       how it was presented, no.
       Ms. Powell also confirmed she had prepared the termination letter on the basis of the
chronology. Asked how she could be sure that the Commission was aware of anything added that
was not covered in AS #8, Ms. Powell answered:
       Unless it was something discussed verbally.
       Mr. Earle asked how Ms. Powell could be confident that the Commission was aware, for
instance, of the full context of Mr. Crocker's conversation with Ms. Linda Swain on September
18th,. Ms. Powell pointed to AS #5, the minutes of the meeting of September 29th in which the
Vice Chair quoted the particular portion from the September 18th Night Line more extensively.
       Asked if Appendix A really formed the basis for the Commission's decision to terminate,
Ms. Powell said: I was not at the meeting. Asked whether any member of the Commission was
present at the September 29th meeting, but not at the October 26th meeting. Ms. Powell said:
       Mr. Sears last meeting was the September 29th and Mr. Hann replaced him. Mr.
       Don Norman was absent from the September 29th meeting and present at the
       October meeting. So there were two members of the Commission present at the
       October meeting who were not present on September 29th.
       Asked if the transcripts were available at the October 26th evening meeting, she said:
       It's normal practice for Linda to forward them all to the Commissioners. I am
       confident to say, Yes they did see them. They were not specifically referenced at
       that meeting, no. They were not at the table. The conversation referenced the
       media comments. I can't tell you they had them at the meeting, and I was not at
       the other meetings.
       Asked whether she would agree with Mr. Rowe's comment (noted in an interview) that
"...employees' problems and difficulties and concerns, these are legitimate issues during an
election campaign..." Ms. Powell said:
       No, I would not. These are issues for the bargaining table.



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Ms. Powell agreed that Mr. Rowe's comment demonstrates there is an alternative view to her
own. She also agreed it would be "fair to say" the minutes are the best record of what the
Commission actually considered, and added:
       I forwarded a copy of the letter prior to sending it to Mr. Crocker to be sure their
       understanding was the same as mine. It was a draft, on the 31st or the 1st, to ensure
       that the grounds for the dismissal were as presented. It was sent to all members of
       the Commission except for one who had no e-mail. I can't say if it was couriered.
       Ms. Powell confirmed that the allegation of deviation from route had not been discussed
with the Commission before its inclusion in Consent #4. Asked whether any member of the
Commission had raised that issue with her, Ms. Powell said:
       I do recall feedback, but don't recall what or who. I do recall adding a deviation
       from route after the first draft. I also phoned Mr. Colbert about the deviation
       issue, but did not call any other Commissioners.
       Ms. Powell stated that there was no record of employees having received the Transit
Operator Handbook, HH #16, but confirmed that Mr. Crocker had spoken with her about it at
meetings. She could not recall whether A13 existed in the document prior to 1998. Nor could
she recall whether Article A6 existed prior to 1998. She could, however, confirm that discussion
with Mr. Crocker involved issues raised after 1998 ...
       because he became President in 1999... I know he is aware of these policies
       because Mr. Crocker has been disciplined under A6 and A12.
Asked whether he has been disciplined under A13, Ms. Powell answered,
       Only to the extent that it would have violated A6.
       Ms. Powell was asked whether a route deviation that might well have occurred because
the driver followed a route he'd driven earlier that morning was really worthy of a discipline. Ms.
Powell answered:
       It's very difficult to make general statement. In most cases a driver will call in
       when he realizes the mistake.
       Ms. Powell was asked what she concluded from the fact that Mr. Crocker, himself, had
suggested that Ms. Richardson check the AVL, and whether she would agree it was an indication
of a clear conscience? Ms. Powell said:



                                                106
       No, I don't agree with that. His approach is 'I don't need to follow the rules. You
       can't touch me. I am the President.' Further, he claims that the former General
       Manager said that we would not use the AVL for discipline. This may have been
       an attempt to test that.
       Asked whether she had ever considered Mr. Crocker's attitude may reflect Ms. Powell's
attitude towards him, Ms. Powell answered:
       No, I have not considered it. I have based my view on what I have observed.
ON REDIRECT EXAMINATION Ms. Powell was asked how she became aware of the alleged
commitment of the previous General Manager concerning the AVL. She answered: Mr. Crocker
told me that.
       Asked whether she can recall the general tenor of the feedback she received from the
Commissioners on the draft of the termination letter, Ms. Powell said:
       There was nothing negative. They were all fine with it.
       With reference to Ms. Linda Ryan's practice of providing transcripts to members of the
Commission, Ms. Powell was asked whether she had any reason to think that Ms. Ryan had not
done so on the occasions of concern in the instant matter. Ms. Powell said,
       No, I'd be on the same list as the Commissioners when I received e-mails during
       my maternity leave. It was to the Commissioners.
THE FIRST UNION WITNESS was Mr. Larry Kinnear a resident of Ashbourne, Ontario and
an International Vice-President of the Transit Union. He was appointed to that position in 1995,
and holds it to the present day. Mr. Kinnear described his job as:
       responsible for locals from Thunder Bay to St John's, including Portland, Chicago,
       Long Island, helping with contract negotiations and pension benefits and similar
       issues.
       He is familiar with Local 1462, having begun involvement with the Local in the 1995
contract negotiations. He served at three rounds of negotiations with that Local since 1991. An
International Vice President handles ...
       any other issues as they may arise including, for instance, the wildcat strike by
       members of the 1462 Local.
       In course of his dealings with Local 1462 Mr. Kinnear has had dealings with three
General Managers: Mr. Bill Thistle, Ms. Janet Bradshaw, and Ms. Judy Powell. He is familiar


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with the structure of the St. John's Transportation Commission. He has had dealings with
members of the Commission, including Mr. Gerry Colbert and Mr. Andy Wells, the former
Chairperson. Asked how he found dealing with Mr. Wells, he said:
       We had some issues on crew assignments dealing with seniority. They had a
       program here for scheduling that violated seniority. That was when Andy was
       Chairperson and Janet Bradshaw was General Manager. Myself and President
       Crocker had some dealings with Andy. There was a challenge put, and the two
       appeared on television. Both of them debated the issues in respect of the wildcat.
Asked where he had met Mr. Wells, Mr. Kinnear said:
       George and I had met with him in his office. Andy was always one to invite you
       in if you had the time.
Mr. Kinnear confirmed that their conversations always had to do with the bargaining unit. Asked
whether he had any other prior dealings with Commissioners, Mr. Kinnear said:
        No, just Gerry Colbert; except in casual post-Council conversations.
       Asked whether he had received any feedback on whether his dealings with Mr. Wells had
been acceptable, Mr. Kinnear said:
       He'd say, 'Go take it up with them down at the bus depot.' But he would listen to
       what we would say. It was supported by Andy. We put out a questionnaire to see
       what the crews wanted, and we found it was what the leadership of the Union
       wanted; so that's what we did. At the last round of negotiations in '04 – late May
       and early June of '04 – the issues were not getting resolved. I was advisor to the
       President. In some Locals you become the lead person; in others you share it half-
       and-half with the leadership. I sat in one long May weekend in preparation and
       submission of proposals to the Employer. We put the proposals together.
               Before I got involved in 1995 it was one sheet listing eight or nine issues.
       But I identified issues of language that they had put in concerning grievances and
       problems. One of the issues was the drug plan. Members were upset at the
       premiums they were paying, and pensioners were upset. Just prior to negotiations,
       the Employer tried to get them to pay part of it. They said, We're not employees.
               Anther issue that the Employer was after was an abstract of the drivers'
       licences. In the meantime there was an issue about tools in the tool crib, and
       benefits and money was always an issue.
Asked how the face-to-face negotiations had gone, Mr. Kinnear said:
       One day we seemed that we were scoring; the next day, no. We were off property,
       at the Governor's Pub upstairs. We were not getting any closer about the so called
       "cap" on the active employees. The members were adamant about it. They were


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       $8 to $10 per week. It had crept up from $1 to $8. Members were picking up a
       portion of the cost increases. It was 50/50 cost shared on the increased premium...
       There was no progress on this issue, and there was a strike...
                There were money issues and language we had not straightened out. One
       clause concerned discipline, how long it should be kept open. In 2001 it was open
       ended, and Mrs. Bradshaw put it at four years. We pressed her and she said, 'Try
       again next time.' The Employer tried to characterize it as having to do with Mr.
       Crocker and his incident; but it affected everybody. We were getting nowhere, and
       we took job action on November 29th. The cost of increases to the drug plan was
       still outstanding at the time of the strike was called.
Asked about the issues of a drug plan for pensioners over 75, Mr. Kinnear said:
       It was in our proposals. We had not even got the $8 or $9 to the employees dealt
       with, but we had not ...
       Mr. Kinnear testified he was in St. John's during the strike.
       On November 29th the Monday, we went on strike; and I flew in on Wednesday
       the 1st and kept in contact with the Local itself. I had a couple of contacts I was
       involved with... I flew back the following week, and around the 6th of December I
       walked the picket lines. I find it really takes about a week or so, once you have a
       job action, before minds begin to change. The Council meetings are on Monday
       evenings here in St. John's.
                We were in constant contact with Yvonne Scott as our Conciliator. The
       members were still adamant on the cost sharing. It had to go. We met at the Delta
       Hotel and tried to resolve some of the issues. We were making some headway.
       Sometime on the Saturday we wanted the cost sharing waved forever, but we
       agreed to... getting a one year stay. What we'd say would be that the Employer
       would pick up 100% for that year, but the following year from December 2005
       they would look at the premiums and any increase would be on a 50/50 cost
       shared basis. It was not what we wanted, and not all the members were happy.
       We were looking at a two year agreement at this time, so the contract would
       expire in May of 2006. So with the December 1, 2005 to June 2006, that would
       be six or seven months of paying and then we would have a go around this year.
       We wanted a two year agreement, exactly what they proposed, two years. Their
       bargaining people said they could take a look at it and get back to us on Tuesday,
       December 14th.
                At 4 or 5 o'clock on the 14th they were meeting the Conciliator. Mr.
       Spurrell was leading negotiations and Heather Hopkins was spokesperson. They
       said that they would get back to us. At about 10:00 pm the Conciliator called and
       said, No. They had said three years. What upset us was the argument on cost
       sharing was now reversed. It was all I could do to pull them off the ceiling, an
       abrupt exchange of words and then we left. We left the room and told the


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       Employer the media blackout was over. We went up to our room, and the next
       thing we heard was Gerry Colbert on the Open Line show.
Mr. Kinnear confirmed that HH #37 is a transcript of what they heard on the radio.
       I could not say it was word-for-word, but yes... I said to George "$600 is not a
       signing bonus. It's retroactive pay to June 1st.' I told him he should call and clarify
       this on the show, which is exactly what he did. And what followed was an
       exchange between Gerry and George. But this happens all the time when a strike
       is going on: putting a spin on it. It is normal for the heat of the conversation when
       they decide to speak on the radio.
       Asked whether he had previously met Mr. Colbert, Mr. Kinnear said:
       No, but I knew who he was. On November 29th, the first day of the strike, the
       members went to Council and tried to engage him in conversation, but he just
       walked the other way.
       Asked what had transpired after the Open Line exchange, and whether there was a
discussion with the Conciliation officer, Mr. Kinnear said:
       They more or less said their piece... She was wondering what was going on on the
       radio. But we explained we said there was no blackout.
               Early Wednesday morning myself and the committee were down because
       we thought that we had an agreement, but the Employer had withdrawn what we
       had earlier agreed to. We thought on Wednesday that we would be into a long
       strike. I slept in, and about eleven o'clock or noon I heard Mark Clancy on the
       radio. He was the spokesperson in the media for the Employer. He was not at the
       bargaining table; and what he was saying was not what was contained in the
       Employer's last proposal. I called the committee and said ... I thought I should try
       to contact Mr. Colbert who was leading the negotiations in the background. I got
       Mr. Crocker to drive me to City Hall. I went up to the office and asked to talk to
       Mr. Colbert.
       Mr. Kinnear's attention was drawn to HH #38, and he was asked whether he knew
anything about Mr. Crocker being on the radio that morning. Mr. Kinnear said:
       I knew one of the committee members had called, but I did not know what he said.
       Mr. Colbert was not in his office. I identified myself to the lady at the desk and
       she said, I think that Mr. Colbert would like to speak to you. I'll get him on his
       cell phone. She told him that I was there, and put me on. His first words were, he
       apologized. His words were, 'The Employer's words were mis-communicated to
       the negotiation committee.' He went on to say:
               'Mr. Kinnear, it's up to me and you to get this resolved. It's just
               stunned concerning the pensioners not having benefits beyond 75
               because' ...

                                                110
       He told me, he had delivered newspapers when he was a kid to some of their
       homes, and 'it was just stunned that they were going to loose benefits at 75.' He
       told me that he knew
              'it was going to be a hell of a cost but they were going to make it
              happen.'
       I was not thrilled about the 8%, but he was prepared to do things for the
       pensioners, and the 50/50 cost share was pushed back to December 2004 as we
       agreed. So he said he'd be getting hold of the negotiating committee and we
       should try to put the buses on the road as soon as possible.
              At about 2:45 or 3:00 o'clock I got a call from Yvonne Scott who said that
       she was calling a meeting at 5:00 pm at her office. So we arrived there at 5:00 pm.
       Our full committee was there, and so was the Employer committee. There was
       some general discussion concerning outstanding issues that we could resolve very
       quickly, and we had a two-on-two: myself and George and Austin Spurrell and
       Heather Hopkins, with Yvonne Scott. And we went to another office to discuss ...
       There were some issues, including driver's abstract and lead hand language, and
       we talked about the pensioners' drug plan.
       Asked for his understanding about the pensioners' drug plan as a result of his discussion
with Mr. Colbert, Mr. Kinnear said:
       I thought it would be cheaper if the whole group was in. We talked about a
       possible price break if we used one drug store. Me and Gerry talked about this.
       He said, Ya...a letter of understanding and no different benefits for those under 75
       and those over 75.
       Asked what he understood from his conversation with Mr. Colbert about a cap, he said:
       There was no cap. We did not talk about it. The whole thing was there should be
       no difference between those under 75 and those over 75. In the two-on-two,
       Heather Hopkins said 'Maybe we could cap it at so much.' She had statistics of
       $2,500 to $3,000 as the average cost. George was very clear about it. There had
       only been one cap before, and there was never going to be another and that's what
       we were fighting here, the prices for active members.
Asked whether the Parties reached agreement Mr. Kinnear said:
       Yes, and that appears on page 53 of the Collective Agreement. That's the letter of
       understanding we drafted up. The retirees were supposed to bring their receipts to
       the Employer and it would be an 80% co-pay as with the active people, not 80%
       up to $7,500 and then nothing. And we also had a two-tier survivor benefit... We
       had a retiree pass on, and the Employer took the benefits the next day.
               The fourth item was put in to investigate what city workers had: one drug
       store. The plan design seemed to be cost effective. That was the basis on which
       the Collective Agreement was agreed. Section 11.01 was changed so that after


                                               111
       December 1, 2005 the increases in premiums would be shared equally. That
       provided for a one year delay in the 50/50.
       Mr. Kinnear said his understanding was that the final wording of the MOU was finalized
with the Conciliation officer.
       Once the other outstanding items had been settled, we had a tentative agreement;
       and we, as a committee, were prepared to take it back to the membership with a
       recommendation for approval. And we were looking at the following day. For the
       Employer, Heather Hopkins was in contact with Gerry Colbert. She would step
       out and use the phone, and she'd come back and say that she was talking to Gerry
       while we were having a discussion. They were prepared to recommend it to the
       Commission. This wasn't any different from what transpired in 2001 when Andy
       was head of the Commission. Ms. Bradshaw would confer with the head of the
       Commission concerning issues.
Asked whether he had any contact with Mr. Colbert after the tentative agreement had been
reached, or whether he had heard Mr. Colbert speak about negotiations, he said:
       No, I didn't. George Crocker went on radio – and I heard it myself – and thanked
       him for his participation in getting the whole process together. Gerry was quite
       happy about that...
               As we said, in the first ninety days from January to March the Employer
       kept bringing up a cap on the benefits, and I explained that we never agreed to a
       cap. I took it the Employer was just trying to squeeze it in. There was no talk of a
       cap with Gerry Colbert at all. It was going on and on, and then the Employer just
       arbitrarily set a $7,500 cap which we were all shocked about. The Employer said
       they had to get something started for those over 75, but we had already agreed
       with the Employer that those over 75 would bring in their receipts and they would
       be paid.
       Asked what further contact he had with Mr. Colbert once the Employer had arbitrarily
imposed the $7,500 cap, Mr. Kinnear said:
       I cautioned Mr. Crocker and the executive to file grievances and to 'watch your
       time lines' in respect of this Employer. Sometime after that I said to George to
       follow the grievance procedure, but I may have to make some type of contact with
       Gerry Colbert because this agreement we made was between me and Gerry
       Colbert ...
               In the week of July 25, 2005 we had what we call our 'Canadian Council'
       meeting. All the properties we represent in Canada had a conference in St. John's
       in that week. I attended Our Executive Board meeting along with Mr. Crocker.
       He is on the Board. The meeting ended early in the afternoon. I said to George,
       'Let's head down to City Hall,' because I knew the Council meeting would be on


                                               112
       Monday night, and it starts at 5:00 pm. George and I decided to go to the Council
       meeting. After it is over the Councilors go back to their office. I said to George,
       'Go wait for me in the car.' That was based on the fact that me and Gerry Colbert
       had made this agreement. I wanted to discuss it with him, just between the two of
       us. So George did that, and I waited outside the offices on the second floor.
               Finally Gerry Colbert came out and started to proceed down the stairs, and
       I called his name: 'Gerry', and he said, 'Yes, Mr. Kinnear.' I said what's going on
       with our agreement over the pensioners, and he said:
               'I really don't want to discuss it here. I know there is a problem.
               Please give me some time. Please give me some time.'
       He kept repeating that. I said, 'Okay', and he proceeded down the stairs. I then left
       and went out to George in the car, and I explained what had transpired. It was my
       belief that there was a couple of bumps on the road, and he was going to straighten
       it out. That's how I left it.
Asked if there was any further contact with Mr. Colbert on this, he said:
        I'd say nothing. When I'm in town I go to the Council meeting. I see him and say,
       hi, but there is no dialogue since then.
       Asked to estimate in how many of the properties with which he deals he has contact with
the municipal governments, Mr. Kinnear said:
       All of them that are public. I have one private, Acadia Lines. But if it is run by a
       city council – and most are – , I repeat, 'not one.' I cannot go there and not talk to
       them. That's how we resolve issues.
       Mr. Kinnear confirmed that when he comes to St. John's he attends Council meetings.
       I attend as many as I can: Windsor, Guelph, Toronto, Thunder Bay, Saint John
       New Brunswick, Moncton... Moncton and Saint John are both run by commissions
       ...Yes, in Saint John it's not unheard of me to go and have a beer with the head of
       the Commission.
Asked why he carries on this pattern of relationship, Mr. Kinnear said:
       When you get into contract negotiations, sometimes it takes yourself and the head
       of the commission to get it done. You can't just fly in every three years and say,
       'Here I am.' So I try to build a rapport. And now with the gas tax, there's more
       dollars and they want some input: where do you want to put it?
Asked how this rapport is maintained when things go wrong, Mr. Kinnear said:
       If I kept a grudge I'd never get anything done. I thought we left on a positive note.
       So you put the stoppage behind you. Because you disagree on an issue, you can't
       make them personal.



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ON CROSS EXAMINATION Mr. Kinnear testified he has two roles. He is an International
Vice President and, as such, advisor to Local 1462.
       But, as I testified on direct examination, I have a certain lead role in some aspects
       of the negotiations. I would classify it as both. I advise the committee on certain
       clauses and speak at the table; which you may want to classify as lead. But at the
       end of the day the Local President has final say. These roles differ with different
       Locals. A local of 100 is different from a Local of 8,000.
       Asked whether Mr. Kinnear recalls Mr. Crocker having made it very clear that he "speaks
for the Local", Mr. Kinnear said:
       I don't think that he said, "speaks for"; "runs" was the word. I remember him
       saying that he "runs" the Local at the bargaining table, yes.
       Mr. Smith noted that the Local, not the International, is certified here, and it appears Mr.
Crocker took active part in the bargaining. Mr. Kinnear answered: He spoke for the Local, yes.
       Mr. Kinnear confirmed bargaining started in the first week of June and that Ms. Powell
was there until November 29th. After November 29th she was not there. Asked whether he had
attended all the sessions between June and November, Mr. Kinnear said:
       I'd say maybe one day I missed in early bargaining.
       Mr. Kinnear identified LK #1 as sign off sheet #135 which he described as
       ... the monetary package or compensation package from the 2004 collective
       bargaining... I believe all the drug plan issues were on the one sheet.
Mr. Kinnear said that LK #1 shows retiree benefits as covered under "drug coverage for life".
Mr. Kinnear said that a Conciliator was called:
       In the middle to latter part of August. Some issues were signed off, but I'd be
       guessing...at the exact number.
       Asked whether the bargaining broke off on the 24 month discipline sunset clause, Mr.
Kinnear said: It was one of the issues, yes.
       Asked whether there was an ultimatum on this issue, Mr. Kinnear said:
       We did not get to monetary issues until the non-monetary was addressed, so it
       would not get lost as it does when the monetary phase starts.
       Asked he recognized that Mr. Colbert was not a member of the bargaining team, he said:
        He was not at the table... He was in the background.


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Asked whether that applied similarly to the Union membership, Mr. Kinnear said:
       That's correct. But I would not call a membership meeting to get direction. Your
       side was doing so.
Asked whether the membership decides what the proposals are to be, Mr. Kinnear said:
       The executive board takes proposals to the membership. We will read them and
       they will decide if we are to go forward... Yes we try to do it in a democratic way.
Asked whether the executive board is answerable to the membership, Mr. Kinnear said:
       If they have a meeting, and there is a question, yes.
       Asked if he is confident that what was agreed was a lifetime benefit for retirees over 75
without a cap, Mr. Kinnear put his hand on the bible and said: "Absolutely."
Asked whether, having reached that conclusion, and in the light of the fact that the Employer
disagrees with that view, he would not agree that there is a dispute under the Collective
Agreement, Mr. Kinnear said:
       All I am speaking of is what was clear between me and Colbert.
Mr. Kinnear agreed that when there is a dispute under the Collective Agreement, You file a
grievance, Yes. He confirmed that HH #3 and HH #9 are evidence of the grievances relating to
this matter. With respect to HH #9 Mr. Kinnear said, "I told them to file it."
       Asked why he had instructed the Union to file such a grievance if he was aware that there
was an agreement in place for the Employer to pay bills for the retirees, Mr. Kinnear said:
       Because the 90 day period was to put a plan in place; not a plan to pay the bills.
       That was a bandaid to get it in place.
Asked in what way he feels the Employer acted arbitrarily, Mr. Kinnear said:
       Because there was a cap. $7,500 was arbitrarily put in.
       Mr. Smith directed Mr. Kinnear's attention to HH #4 and HH #5 and asked whether it was
on his advice that the Union withdrew from trying to design a plan, Mr. Kinnear said:
       We had a discussion, and we said that any plan that had a cap we're not going to
       agree with.
When it was pointed out that HH #5 contains options which are without cap, Mr. Kinnear said:
       Okay. I said to the Local, if they introduce a cap then, then we aren't participating
       because we agreed no cap... I advised that if there is any discussion with regard to
       a cap we're not going to participate.

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       Mr. Kinnear said he was aware there were other options, and that the MOU commits the
Union to "work with". Asked why the Union would not stay to discuss the three options that
were without a cap, Mr. Kinnear indicated that, in his view,
       The benefit after 75 was to be the same as before 75.
Asked whether the steps in following the grievance were observed, Mr. Kinnear said:
       I'd anticipate that these were followed. There was an issue about going back to
       June '04, but the Employer picked up the costs because the carrier would not go
       retroactive...
       Mr. Kinnear confirmed that retirees can vote for three executive positions, and can vote
for Mr. Crocker's position, and also confirmed his understanding that the active employees pay
the premiums for the retirees.
       Mr. Kinnear confirmed that, in his view, the only difference between the policy for those
under 75 and those over 75 is the $7,500 annual cap. Mr. Kinnear also said that the $7,500 cap
was grieved in HH #9. Yes, the $7,500 arbitrarily imposed. Asked with whom Mr. Colbert had
an agreement, Mr. Kinnear answered:
       Did I have it written down? No I didn't.
       Asked what authority Mr. Kinnear feels he has to bind the Employer to the agreement
since it is the Local that is certified, Mr. Kinnear confirmed that the agreement was based on a
telephone conversation, and the understanding was actually prior to the formal MOU. Yes, based
on the agreement between Mr. Colbert and myself. Mr. Kinnear also agreed that the MOU
embodied and reflected the agreement between himself and Mr. Colbert, and that MOU was
negotiated in the presence of the Conciliation officer. Yes, on December 15th."
       Mr. Kinnear also confirmed that there is a grievance, HH #9, between the Parties as a
difference under the Collective Agreement.
       Mr. Kinnear said he does not recall any discussion of a cap on retiree benefits during any
of the press or media discussions around December 15th leading up to the settlement of the strike.
Asked whether he recalls any discussion with Mr. Colbert concerning the cost of extending the
benefits to those over 75, Mr. Kinnear said:
       He said it is going to be an enormous cost, but it is the right thing to do.


                                                116
       Asked whether he recalls any discussion about trying to make the plan for those over 75
"cost effective", Mr. Kinnear said: We talked about different carriers and a single drug store, and
agreed that the phrase "cost efficient" was used.
       We believed by using a single service provider, or binding retirees to using a
       single drug store in the area would have a significant impact on the cost.
        Mr. Kinnear said he does not know what happened to the HH #9 grievance after it was
filed on July 21, 2005, and could say whether, between July 21, 2005 and September 30, 2005,
there was any action to move the grievance forward taken by the Local Union.
       Gerry Colbert said, 'Give me some time, give me some time.' So we gave him
       some time.
       Mr. Kinnear estimated that he
       ... perhaps visited once or twice, between July 25 and December of 2005. I was
       here on November 13th at a Union meeting and possibly one time prior to that. I'm
       not even sure of that.
       Mr. Kinnear identified LK #2 as a document produced by the Canadian Council having to
do with assaults on operators, an issue that had been taken up by the Council.
       Yes, in association with CUTA, the employer group. It's the operators' assault
       survey for 2005.
       Mr. Kinnear said he knows the Local is currently in trusteeship. Asked if he knows of
allegations, dating back to before November 2005, pf Mr. Crocker's threatening behaviour
towards management, Mr. Kinnear said, I am not aware of any threatening statements.
ON REDIRECT EXAMINATION Mr. Kinnear testified that the benefits for those beyond 75
were to be seamless with those under 75.
       Asked about any discussion of the retiree plan during the two-on-two conversation with
the Conciliation officer present that reached the final settlement, Mr. Kinnear said:
       It was then made very, very clear that there was to be no cap. Ms. Hopkins knew
       that when she left that meeting. Ms. Hopkins would step out and talk on the
       phone, and when she came back she'd say she had just talked to Mr. Colbert.
THE SECOND UNION WITNESS was the Grievor, Mr. Crocker, who testified he had been
employed for approximately 21 years as a Transit Operator with the St. John's Transportation
Commission. His standard shift is an eight hour rotating schedule. He also testified that he holds


                                                117
the position of President of the Amalgamated Transit Union, Local 1462. He was Shop Steward
for three years, and then President and Business Agent since January 1, 1999. He secured that
position by election, and has stood for reelection. The normal term of office is three years, and
there have been two elections since 1999. On both occasions he was reelected. The last election
was in 2004. As President of the Local, Mr. Crocker is involved in negotiating the Agreement,
and has also been involved in processing grievances and in dealing with government officials.
Mr. Crocker confirmed that there is a Labour Management Committee system in place with the
Employer, and
       I sit on the labour management committee. I also sit on the Occupational Health
       and Safety Committee as Co-Chair... There are approximately 98 active members
       of the Local, and about 49 retirees. The 98 active members of the bargaining unit
       are drawn from three separate units within the workplace: maintenance and
       mechanical, utility, and transit operators.
Mr. Crocker confirmed that he signed the last Agreement on December 15, 2004.
       I was on the negotiating committee as Chief Negotiator and President and
       Business Manager of the Union. As Business Agent I am the Chief Administrator
       of the Local, and spokesperson on behalf of the Local, and I sit on various
       committees as well. In addition to the President there is an Executive Vice-
       President, a Secretary Treasurer, and an Executive Board Member for
       Maintenance as well as an Executive Board Member for Transportation. All
       members of the executive of the Union are full time employees of the
       Transportation Commission.
       The bargaining team for the Union was comprised of Mr. Crocker, the Executive Vice
President, the Secretary Treasurer, the Executive Board Member for Maintenance, and with the
Assistance of the International Vice President Mr. Larry Kinnear. Asked how he and Mr.
Kinnear had divided their duties Mr. Crocker said:
       Mr. Kinnear and I worked together as a team. We assisted each other during
       negotiations.... Being a small Local, we call on the expertise of the International
       office. Brother Kinnear is quite experienced in pensions and benefits language.
       Asked how the MOU in the current Collective Agreement came about, Mr. Crocker said:
       During the negotiating process our retirees pointed to this. When they reached 75
       the Collective Agreement did not allow any benefits for them. We negotiated the
       MOU that provides prescription drug coverage for the retirees and their spouses.
       It's an MOU incorporated into the Collective Agreement. ... We were on strike for


                                                118
       three weeks, and this was one of the issues. It was important to the Union and to
       the members. It was one we indicated we were adamant. We had to have it for
       our people who retire.
Mr. Crocker said there had been no agreement on this matter prior to the strike.
       There was a considerable amount of discussion, but nothing concrete or put in
       writing as far as I can recall... At that time the Employer's position was that there
       was a considerable amount of cost with respect to this benefit; and there was also
       some discussion about how those over 75 would be covered, concerning (those
       who had already reached 75 whose coverage had already been discontinued).
Asked to describe how the MOU actually came to be put in place, Mr. Crocker said:
       There was some discussion in the media about this, and the International Vice
       President had spoken with Mr. Gerry Colbert about it. And we went back to the
       table after Gerry Colbert indicated that he was not aware that the retirees over 75
       had no benefit. We went back to the table with Yvonne Scott as the Conciliation
       officer and the MOU with the five points. And there was a number of discussions
       about how it was to be implemented with cost factors. There was a discussion of
       the possibility of obtaining prescription drugs from one chain of drug stores, and
       there was the idea of three month prescription filling at one time in order to cut
       fees, and there was supposed to be an exercise program at work to help people
       improve their eating habits, and maybe for costs of dispensing fees there could be
       a flat fee. At that time the pensioners over 75 had no coverage and the Employer
       agreed to have these people pay for their own prescription drugs and bring the
       receipts to the Employer for reimbursement. That was for anyone after June 1st
       who had incurred costs and the Employer would reimburse them.
       Asked if Mr. Kinnear had described his conversation with Mr. Colbert, he said:
       Yes, sir. I understood from Larry Kinnear that he spoke to Mr. Colbert, and Mr.
       Colbert's comments were that he basically was floored: that he didn't realize that
       those over 75 retirees did not have any coverage for prescription drugs, even after
       they reached the age of 75. He was unaware of the fact. Mr. Kinnear told me that
       he said he was "a socialist," and he "believed that anyone that put in excess of
       thirty years service with Metrobus and did not have a drug plan past the age of 75
       when it was most needed..." Mr. Kinnear told me that he said that he "didn't care
       if it cost two million dollars, these people were going to have this benefit."
       Asked whether, according to Mr. Kinnear's report, Mr. Colbert had said how the benefit
for those over 75 was to compare with those under 75. Mr. Crocker said that:
       It was the same; and for 2 years after the spouse's death the widow would get it.




                                                119
       Asked whether the benefits enjoyed by city workers have any significance in negotiations
for Metrobus workers, Mr. Crocker said:
       Yes they do. We would like to be on par with them in terms of benefits. If they
       have greater benefits we try to seek them, and I guess they do the same.
       Asked what discussion there had been during negotiations about a limit or cap on the
benefit for those over 75, Mr. Crocker said:
       I believe the figure of $1,500 was mentioned by Ms. Hopkins during negotiations.
       I made it quite clear on two separate occasions that we would not be party to any
       cap, and there would be no cap. I made that quite clear.
Asked what occasions he was referring to, Mr. Crocker said:
       That took place at the Delta, if memory serves correctly, when Heather Hopkins
       spoke of a cap of $1,500 for those over 75... It was late in negotiations. I believe
       the other was one more time before the MOU was signed. Heather Hopkins said,
       maybe $1,500 is not the right number. I said there was only one cap on premiums
       by Dave McNiven... 'I am not being tagged with a cap. There will be no cap.'
Asked to explain his reference to the "McNiven cap", Mr. Crocker said:
       I was not a member of the executive at the time, in 1995, when costs associated
       with the drug plan reached a certain amount. Any excess in the cost of premiums
       would be shared equally by Employer and employees in the bargaining unit.
Mr. Crocker then explained what he understood each of the 5 items in the MOU to mean.
Specifically with reference to the reference in item # 4 to "cost effect manner" he said:
       This provision required the consultant to work with the Joint Benefits Committee
       – I sit on it, with other executive and management people – and we would all
       develop a plan that was cost effective. We talked about that during the negotiation
       procedure. We talked about using one store, and repeated prescriptions filled at
       one time to save prescription charges, and developing an exercise program at
       work, and healthier eating habits, ... and one other that I can't recall right now...
       Item #5 said that any premiums would be the responsibility of the Employer and
       active employees of the Employer, not the retirees.
               I believe we (the Joint Benefits Committee) met a couple of times. The
       Employer brought forward a number of different packages... HH #15 is the list of
       options presented to the Joint Benefits Committee for consideration... There is a
       series of options, and all of them have a maximum benefit attached.
       Asked what the bargaining unit thought of maximum benefit provisions, he said:
       We were not in agreement with an option with a maximum benefit.... We
       specifically stated that we were not in agreement with a cap or a maximum

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       benefit. We did not agree to it in collective bargaining, and we weren't going to
       agree to it after. We'd made it clear during the bargaining process that it was not
       acceptable and it was not acceptable to the Union now.
       Acknowledging options #14 & 15 have deductibles per prescription filled, he said:
       This was not acceptable to the Union... The reason was that during the negotiation
       process I believe we talked about the dispensing fee. I think $5 was the number,
       and it was not agreed upon by the parties at that time, and we talked it over as a
       committee and the view of the committee was that we did not agree to a
       dispensing fee at that time. It was the view of the Union executive that we were
       not in agreement with it afterwards. There was to be unlimited coverage. Those
       under 75 do not pay a deductible or a dispensing fee.
Mr. Crocker also confirmed that option #13 on HH #15 was not acceptable.
       At that time it had something to do with generic drugs.
Asked whether those under 75 were on a managed formulary, Mr. Crocker said, "No."
       Asked what occurred when the Union said it wouldn't agree to any of the options, he said:
       I filed a grievance just after the last time the Joint Bargaining Committee met... At
       that time they had no plan in place. At that time the retirees were carrying 100%
       of the cost, and had to wait on the Employer. We talked to the executive, and felt
       that it was the right thing to file a grievance... (Then) the Employer implemented a
       plan with a $7,500.00 maximum on prescription drugs... I felt it was a violation.
       We had made it clear there was to be no cap. I assume the Employer had the same
       understanding.
       Mr. Crocker's attention was drawn to the portion of the letter of termination which refers
to his statements in the media. Asked in what capacity he was acting when he made statements,
Mr. Crocker answered: As President and Business Agent of the Local 1462. Asked whether Local
1462 has a media relations officer to deal with the media, he said:
       No. Our bylaws clearly say that the President and Business Agent shall be the
       spokesperson for the Local.
       Mr. Crocker recalled conversations with Mr. Rowe (noted in Consent #4 Appendix A)
that aired on September 1 and September 4, 2005. He pointed out that the entire conversations
are not reproduced in Appendix A. Asked whether he had taken steps to secure the contents of
the entire conversations, Mr. Crocker said:
       Yes sir... I obtained... (these interviews) in written and audio form.
Mr. Earle, noted for the Union, that:

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       "We do feel that the allegations of false and disrespectful are not supported by the
       tone of the recording. The pacing and the pauses do give a better understanding of
       the meaning."
Mr. Crocker identified the (GC#1) audio tape of HH #17, HH #18, and HH #28, and said:
       The three transcripts don't correspond exactly, but they're pretty close though.
Asked whether, in his view, there is anything "false and malicious" in these conversations, as
Consent #4 represents them to have been. Mr. Crocker said:
       I don't see them false, or malicious, or disrespectful.
       Mr. Crocker was asked whether he had called VOCM Back Talk on Sept. 1, 2005 (HH
#17) or VOCM had called him. He answered:
       I had one incident when I was contacted by the media, but it might have been the
       Night Line with Linda Swain. It was the Sunday before Labour Day.... I called in
       on September 1st.
Asked whether he had placed the call on his own behalf, Mr. Crocker said:
       No, it was issues that I believe our members... The retirees are still members in
       good standing.
       Asked why some of the Councilors seeking re-election had contacted him, he said:
       One gentleman I approached had someone representing him at Metrobus: Mr.
       Ellsworth's campaign manager. He was there for Mr. Ellsworth's campaign. He
       was doing business putting signs on the back of the buses. His agent saw me on
       the parking lot, and he indicated that Mr. Ellsworth would like to speak to me on
       issues we had outstanding. I spoke with another candidate as well who approached
       me – Tom Hann, who is now a Councillor – at the August 23rd meeting at City
       Hall. He was in the public gallery. I approached Mr. Ellsworth myself before the
       election. They were putting up signs, and I stopped and spoke with Mr. Ellsworth.
       I'm not sure if it was before or after the agent came to me. And in May, before the
       election, Paul Sears approached me at the Delta during a Pension Plan Panel. He
       was Councillor at that time. We were at a conference. He approached me and Mr.
       Paul Churchill, the Vice President, who was at the conference with me. Mr. Sears
       sat on the Pension Panel as well. He approached me and asked how things were
       going on at Metrobus. I said, "I'm not supposed to talk to you." I told him I was
       not too pleased. He asked me why, and I said "It's my view that you shafted us on
       the drug plan." He indicated that things would work out, and we would have it all
       straightened out. Then it got around to whether I would support or endorse him
       through the membership.
Asked whether he had any contact with Mrs. Duff at city hall, Mr. Crocker said:


                                                122
       I think it was at the August 23rd meeting as well. The conversation was about the
       drug benefits for retirees. It was a brief conversation.
       Mr. Crocker was asked to explain his September 1, 2005 comment on VOCM Back Talk
(HH#17 p. 3) that ".. Mr. Sears stated that right now the (retiree drug) issue is being ... discussed
amongst the Transit Commission. But I've spoken to senior management at Metrobus and they
are unaware of any meetings, any issue being discussed..." He said:
       At that meeting Mr. Colbert was absent and Mr. O'Keefe raised the retirees' issue
       and why the retirees were there. And then, before the meeting, Mr. Sears said that
       it was not a matter for Council, but the issue was being addressed, either by
       management or the Commission. I can't be sure what he said. After the meeting
       was over a couple of retirees ... one of them approached Mr. Sears in chambers
       after the meeting; and Mr. Sears said at that time that discussions were ongoing
       with management. I took from that conversation – that I overheard – that
       management were having discussion about this issue... A short time after that I
       saw Heather Hopkins in her office. I asked Ms. Hopkins, and she replied that, to
       the best of her knowledge, there were no discussions on that issue. I'm not sure if
       it was the next day or a little after that I asked her that question, but it was a short
       period of time after.
       Referred to HH #17 (at p. 4), Mr. Crocker explained the context of his comments to Mr.
Rowe about his approach to Councillors and the Commission by saying:
       The decision to implement the retirees' drug plan for those over 75... It was to be
       brought to the Commission by management, so I am asking the Commission. It
       would have to approve its being overturned. That's what I was led to believe. I've
       been told by Ms. Powell and other general managers that all labour issues are
       reported to the Commission.
       Asked whether he had, in fact, had the conversation reported in Appendix A of the
Termination letter (Consent #4) at the September 4th entry, Mr. Crocker said:
       Yes, sir. I don't think that is the entire conversation... The tape is pretty close to
       what's on HH #18 ... I was called by the producer of the Night Line that night at
       my residence, yes... I was home, and someone answered the phone and said that
       Cheryl Gullage was on the phone. She identified the issue as 'retirees'. I told her
       Yes; and she said 'I will call you back when we get a free line.' I waited a few
       minutes and then they called back.... (I was speaking as) President and Business
       Agent of Local 1462.
       Mr. Crocker also explained his insistence (HH #18) that the Collective Agreement had
made no mention of the $7,500 cap.


                                                 123
       There was mention of $1,500.00, and I made it perfectly clear that we would not
       agree to $1.500 or any other cap. There was one cap: the McNiven cap. I'm not
       going to be tagged with no cap for our members.
       Asked whether, when he signed the MOU, he thought both the Employer and the Union
understood there was to be no cap, Mr. Crocker said:
       There was to be no cap. There was to be an 80/20 co-pay. The $7,500.00 figure
       never came up in negotiation.
       Mr. Crocker also confirmed he made the comments reported in HH #18 about Mr.
Colbert's conversation with Mr. Kinnear.
       Mr. Kinnear had told me that Mr. Colbert had said that the amount 'would be
       astronomical, but we were going to have it.'... Mr. Colbert said, by 'hook or by
       crook we're going to have the benefits for these people,' maybe on an open line.
       Asked why he had said on September 4th (HH#18), "Even management at Metrobus don't
have any cap on theirs", Mr. Crocker said:
       It was my understanding that management at Metrobus were the same as at City
       Hall; and at that time I understood that they had the same benefits; but I was
       wrong. I learned after that management at Metrobus has no drugs after 75.
       Asked why, in the same interview, he had said: "I'm calling on Mr. Colbert to do the right
thing now and lift the cap", Mr. Crocker explained:
       I had been told that all labour issues go to the Commission, so I am assuming he
       knows that the $7,500 cap is imposed, and I am calling on Mr. Colbert not to have
       the cap.
Asked why he had also said, in the same interview, "And if Mr. Colbert doesn't to (sic) the right
thing I guess it will proceed on to arbitration and cost this city in access to $100,000 to go to
arbitration on this", Mr. Crocker said, I said
       Because we had one $20,000 arbitration and a $30,000, and this one would be
       $100,000 because we would be out to get benefits consultant as most of the
       panels. That's why I said in excess of $100,000. Consultants are not cheap as we
       all know. My opinion is that it would probably cost the Employer perhaps twice
       as much as the Union... I saw the cost as astronomical in man-hours not worked.
       Mr. Crocker confirmed his recollection of the portion of an interview with Ms. Swain on
September 18 (HH #27) quoted in the Termination letter Appendix A (at p.7) and noted that,
while it is "fairly accurate" he thinks "there are some things missing. It is not verbatim as the


                                                 124
audio." He confirmed that he was speaking "as President and Business Agent of Local 1462 in
the city." He believes he did hear the item about an assault on a Metrobus driver referred to by
Ms. Swain at the opening of the interview. Asked to describe the incident, he said:
       The operator... was reporting for duty on Anderson Avenue. He was physically
       attacked and assaulted by a person he had confronted some time ago in a dispute
       over a fare. The incident was in or around the bus shelter ... As a Union, we don't
       want our members assaulted. As far as the Union was concerned, this was serious.
       He was seriously attacked and shaken. I believe he had sustained some injuries,
       and the outcome was that this could have taken place on the bus; and if it had, I
       mean, it could have been a lot more serious than it was. A ten ton bus on a street;
       it could have been a lot worse... It's my job to bring forward issues that other
       members have just concerns over. They did have concerns. It's a safety issue.
Asked to describe his view of what the Employer could do about it, Mr. Crocker said:
       I think they have the ability to do more than what they did and what they're doing.
       There was a Front Line (HH#24) policy put forward... The Union's view is that
       their willingness is when they're pressured; and we feel that, for our members and
       for the general public that we're carrying...
       Asked why, in the same interview, he had responded as he did to Ms. Swain's question
about banning unruly passengers, Mr. Crocker said:
       We can ask people to leave the bus... We have a clause in our Agreement that says
       the Operator is in sole charge of the safety and operation of the bus... We have to
       go through the dispatch to get RNC if we want someone removed from the bus...
       The Union's view is that I believe, as a Union President, we should have transit
       police who could come out and remove passengers. Two cities have bylaws that
       give it authority to ban or suspend people, but...the current policy, I have been told
       by senior management that, with these kinds of incidents, you go on a priority
       sequence at the police station which could take a considerable amount of time, and
       it could escalate to a more serious act of violence. I want our Employer to have a
       legal right to protect us as operators. I want them to enforce the law and protect
       our members.
       Mr. Crocker was asked to explain who he was saying should be "charged" when, in the
same interview, he said:
       "Now, there is a section in the Criminal Code of Canada that states, and its section
       2.,2.17.1 of the Criminal Code which states that everyone who undertakes or has
       the authority to direct how another person, how another person does work or
       performs tasks is under legal duty to take the reasonable steps to prevent bodily
       harm to that person or persons arising from that work or task. So what we're


                                                125
       attempting to do now is have our employer, you know, have these people charged
       under this section of the criminal code. We feel that, you know, why should
       someone who is trying to perform their duties be subject to an assault and the
       Employer not act on our behalf?"
Mr. Crocker answered: The people who are causing the disturbances on the buses and the threats.
[At Mr. Earle's request the audio tape of this particular portion was played for the hearing.]
Again asking what action he was asking the Employer to take, Mr. Crocker answered:
       The Union was seeking the Employer to act on our behalf to have those who were
       threatening or disturbing or throwing rocks ... to have them prosecuted to the full
       extent of the law.
       It was pointed out to Mr. Crocker that the Employer interprets him to have said that
"employer ... people" should be charged, Mr. Crocker answered: No. Definitely not.
Mr. Crocker testified that he was....
       stating the Union's position that the Employer should get court orders to bar
       people the same as a threat on an airline stewardess...
       Asked to comment on his observations concerning the increasing number of such
incidents, Mr. Crocker said:
       We've had numerous incidents of rock throwing with one individual (injured), and
       significant delays in service and threats to operators... I was personally assaulted
       and threatened a number of years ago on a number of occasions. That went to
       court and the person was banned... The Union's view is that, yes, the incidents
       have been increasing. It's not the same as twenty years ago. There is a different
       clientele with different social problems. One operator was shot in Toronto. One
       was beaten very badly in Edmonton: all Amalgamated Transit Union members.
Asked whether he feels that this applies to St. John's, Mr. Crocker answered:
       I'd say they would have to be recognized. These things do happen and it's time
       someone did something about it. Time to do something before someone is hurt or
       a member of the public is.
Asked whether all these incidents are reported, Mr. Crocker said:
       No. Operators sometimes don't take the time to fill out the form. I personally have
       a web site for confidential reporting in conjunction with CUTA, the Canadian
       Urban Transit Association. It's an attempt to lobby the government to have
       assaults on transit operators treated as a federal offence. I attended a national
       seminar on this issue a couple of months ago. There were forty managers there.
       Ours weren't.


                                                126
       Mr. Crocker was reminded that,in the interview with Ms. Swain (HH #28), he spoke
about the Occupational Health and Safety Act and the right of the membership to refuse unsafe
work. Mr. Crocker said:
       We carry passengers whom we know can cause a problem. We know who they
       are as operators. Our supervisor has told us, 'If you foresee a problem don't take
       him on the bus.' Under the Health and Safety Act we can not take these
       people...We feel we have a right to advise our people of unsafe work.
Asked how frequently people who are 'under the influence' ride the bus, he answered:
       With me it has happened on numerous occasions, and I've heard from others and
       under the Mental Health Act... In my conversation with (Ms. Swain) I understood
       another caller had raised the issue of another rock throwing. As a Union we take
       that as a form of assault.
       Mr. Crocker also confirmed he had complained, during the same interview (HH #28),
about the Employer's violation of privacy in revealing, in the Telegram article (HH#15), that the
operator who had been assaulted in the Anderson Avenue incident had suffered "whiplash".
       I mean the Employer does not have the authority to release information on any
       employee concerning an injury, whether it was sustained on or not on the job.
Asked to describe what it is like when a rock is thrown at a bus, Mr. Crocker said:
       Well the best way to put it is to say it is like a bomb going off, or a shot gun,
       inside the bus. One operator got glass in his eye. Buses were rerouted. Then
       there is the expense to the Employer with windows broken. It's not a pleasant
       experience.
       Mr. Crocker's attention was directed to the Telegram article for August 23, 2005 (HH
#15) which quotes Mr. Crocker several times, and also quotes Mr. Paul Sears. The article quotes
Mr. Crocker as speaking of the retirees' drug plan cap and saying, in part: "This was put in after
the agreement was signed." Mr. Crocker confirmed he had made this comment, and also
indicated that the Employer's action in doing so was unacceptable. He said, however, that...
       The portion concerning the Union being "prepared to spend the $100,000 that
       arbitration might cost...Is the city?" is inaccurate. I'm confident that I did not say
       that.
Mr. Crocker confirmed, however, that the view attributed in the article to Mr. Sears that "the
issue is being discussed" is accurate, and corresponds with what he had heard.



                                                127
       Mr. Crocker's attention was directed to the Telegram article for September 17, 2005, ( HH
#23) "Assault on the Buses", where he is quoted as saying that "we had an incident Tuesday
where a driver was assaulted on his route". Mr. Crocker said:
       They appear to be pretty accurate... in saying "Right now, I have to say the
       company is not (doing enough to protect drivers), " I am talking about the safety of
       the general public if a driver were assaulted while the bus was in motion. If a
       driver is operating a bus and is physically attacked or assaulted someone on the
       street or on the bus or on another vehicle. A bus out of control, in our opinion, can
       do a lot of damage... In our opinion as a Union we did not feel the company was
       taking an aggressive stand on assaults. We feel the company should not be telling
       us to go to the police and doing that themselves and seeing to it that these people
       are prosecuted to the full extent of the law.
Mr. Crocker confirmed that he provided these comments to the Telegram ...
       As President and Business Agent. The Telegram contacted me on that issue.
       Mr. Crocker's attention was directed to On the Frontline: Dealing with Conflict and
Confrontation on the Job (HH#24), and asked when he first saw it. He said:
       I believe it was in a meeting, and it was brought forward before it was to be
       posted. I don't recall when, but we were shown it before it was to be posted ... It
       was after the incident on Anderson Avenue.
He confirmed that incident was not the first in which a driver had been assaulted by a passenger.
       Referred to the third ground for his dismissal set out in Consent #4, Mr. Crocker said he
had not made contact with Mr. Colbert during the period between January and September, 2005,
and described his recollection of the encounter following a Council meeting described by Mr.
Kinnear in his testimony.
       Mr. Kinnear told me to sit in his car while he spoke to Mr. Colbert. Yes, that did
       occur. Yes that happened. Mr. Kinnear attempted to contact Mr. Colbert... Mr.
       Kinnear indicated to me that he was going to talk to Mr. Colbert concerning the
       issue.
Mr. Crocker said he had not requested that Mr. Kinnear contact Mr. Colbert.
       Asked why, as a Union President, he would call upon Mr. Colbert to "do the right thing",
Mr. Crocker answered:
       He is a politician. He was involved in the bargaining process, and he told Mr.
       Kinnear that we would have the benefit even if (the costs were astronomical).
       He's a politician. He is Chairman of the Commission.

                                               128
Mr. Crocker recalled his dealings with Mr. Lawlor as noted in AS #3 and testified:
       We had an operator who put in for time off out of his overtime bank, and we were
       advised by the operator that he did not get the time, even though he had it in the
       bank and people were available on the board to cover it. There was no reason why
       he should not got it as there is a provision in the Collective Agreement that allows
       for that... I requested a meeting with the General Manager and Ms. Hopkins.
       Asked whether he had also said that he is "not talking" to Mr. Lawlor because "he doesn't
listen," Mr. Crocker said:
       Sometimes I find that Mr. Lawlor won't listen, and sometimes he is not open to the
       Union issues, and doesn't take their concerns seriously.
Mr. Crocker described the meeting with Ms. Hopkins when he requested a meeting with herself
and the General Manager: She asked what it was about, and I said, 'overtime and operations'.
Mr. Crocker confirmed he had told her about the issue he had with Mr. Lawlor, and that he had
made this approach as ...
       President of the Union ... If memory serves, I would have got the overtime if the
       Collective Agreement had been followed.
Asked whether he would have had to take the overtime, Mr. Crocker said:
       No, my name was on the overtime board – where those who want overtime
       indicate this – and the Employer chooses based on seniority. It records overtime
       hours worked and refused.
Asked whom he and Mr. Paul Churchill were representing in the matter, Mr. Crocker answered:
       I was representing the Union and the members.
       Mr. Crocker testified that
       Mr. Colbert has not been the Chairman of the Commission ever since I became
       President. Andy Wells was for a period of time during my term as President... In
       addition to Mr. Sears, Mr. Galgay, and Mr. Colbert there have been other
       Councillors who have been members of the Commission, including Mr. Wells and
       Ms. Duff. I have met with prior Chairpersons on a couple of occasions. Mr. Wells
       and I did debate a forum on CBC. The moderator was Debbie Cooper. I have the
       video. The debate was over an illegal walkout that was held in 2000.
       Asked whether during his period as President he has had Councilors, other than Mr.
Sears, approach him as President of Local 1462, Mr. Crocker answered:
       Yes, and Commissioners who are not members of Council as well. I had a
       conversation with Councilor O'Keefe about the election... We talked about

                                               129
       election issues and the subject came up about supporting him for Deputy Mayor
       through the membership and me personally. And we made a financial
       contribution to his campaign. As well, I knocked on some doors, and did some
       campaigning for him. Councilor Duff approached me at City Hall, and wanted to
       be briefed on the prescription drug plan and the issues. I even had a brief
       conversation with Mr. Coombs. He's in my ward....
Asked whether any other Commissioners had made contact, Mr. Crocker said:
       Other than Mr. Wells. I don't think he was on the Commission at the time when
       he approached me with respect to the election. We talked about the election and
       issues. I said we'd support him as Mayor, and we'd support him through the
       membership even though we'd had our differences. I found him a pro-transit
       mayor. He was not on the Commission at the time. He is pro-transit. If asked, he
       would speak at two conferences on transit, at the Canadian American conference
       and the Canadian Council conference.
       With respect to the the Termination letter's reference to the October 22, 2005 deviation
from route, Mr. Crocker confirmed Ms. Richardson's evidence of the November 1st meeting.
       That morning she approached me, and said she needed to speak concerning a
       customer complaint. We went into a little office off dispatch. Terry spoke to me
       about the October 22nd incident. The complaint was about route 3-3 on Saturday,
       October 22nd, and apparently I had deviated from my route at 5:00 pm leaving the
       Mall. I hadn't deviated from my route, and I suggested she check the AVL system.
       She appeared to me to be unsure that she could check it, so I asked her to check it
       so she could be sure. She indicated to me that up to that time she had not. I think
       later that afternoon she came back and told me she had checked it, and yes I did
       deviate. It wasn't a long conversation... a couple of minutes. It was early in the
       morning before my shift. The later conversation was less than a minute. I don't
       know if she checked it herself or had someone else check it.
Asked whether Ms. Richardson had asked him anything else about the deviation, he said:
       No. I said I didn't recall it. I indicated in the meeting that I had not deviated...
       because I did not recall deviating from the route.
       Reminded that Ms. Powell had noted his concern that the AVL might be used for
discipline, Mr. Crocker said:
       When the AVL was being talked about we had concerns about discipline. Ms.
       Bradshaw told us that it would not be used for discipline, and only recently Mark
       Chancy reiterated that; and that's in the minutes... It was prior to November 2nd
       but probably between July and... I can't say for sure.
Asked why he had suggested that Ms. Richardson check the AVL, Mr. Crocker answered:


                                                 130
       I suggested AVL to confirm whether I deviated or not: to confirm what Ms.
       Richardson had been saying... I don't recall being on a cell phone at that time....
       Yes, there have been a couple of times. We are permitted to use cell phones at
       layover times. I called Ms. Hopkins on one or two occasions. I've called dispatch
       once when I knew I couldn't get through on the radio that's in the bus.
       Mr. Crocker then reviewed in detail the various routes that touch on areas involved in the
deviation. Mr. Crocker confirmed that 3-3 is not his normal route.
       When I was dismissed was 1-2 from Monday to Friday, 6:40 am to 2:32 pm. On
       Saturday the 22nd I was working overtime. I had not worked 3-3 all day... I believe
       I worked the 15-1 that morning. It's serves the Avalon Mall as well and comes
       down Thorburn Road, crosses over the Parkway and turns left onto Freshwater...
       Sometimes you are directed to deviate. On other occasions it is just a slip. A
       couple of weeks before that I had deviated from my route... She just made light of
       it... The procedure is to call in and notify dispatch. Normally there is not any issue
       if you call in and let them know.
Asked what he concludes from the AVL data, Mr. Crocker said:
       My conclusion is Yes, I did deviate. I don't have any recollection of it. I was
       probably thinking about something else. I don't know. I've called in to bus stops
       in my own private vehicle on occasion. All of us do.
ON CROSS EXAMINATION Mr. Crocker testified he has currently served approximately nine
years as President. "I'm in my third term." He also confirmed he is not now either President or
Business Agent because of the trusteeship. He estimated there are approximately 100 active
members of the bargaining unit and about 50 retired. The total membership of Local 1462 is:
       between 140 and 150; 50 are retired and approximately 12 are over 75. The entire
       membership are eligible to vote for President, Vice-President and Secretary /
       Treasurer positions, including the retirees. The active membership, yes. We
       normally hold the vote at the Transit Commission on the first Wednesday of
       December... If there is a vote... The second and third terms there was no vote for
       any of the officers... Eligibility to be able run for office includes attendance at six
       meetings per year in the previous two years of the term and to be a member in
       good standing...
               There are regular monthly meetings, according to the by-law, on the
       second Sunday of each month, and there are some special and emergency
       meetings. That can vary... In 2005 there was one – to do with the driver assault
       issue – maybe two. If there was another I can't recall the issue right now... There
       was no reason for election on either the second or the third terms because the
       matter was decided by acclamation...


                                                131
               It is difficult to get the quorum of 15 at regular monthly meetings. I can't
       recall how many meetings did, in fact, reach a quorum in 2005... In the absence of
       a quorum, business is handled by the executive board members that administer the
       affairs of the Local... During 2005 the executive board member for transportation
       position was not filled. The maintenance post was filled for a while by Mr. John
       Connors. Mr. Paul Churchill was Vice-President and the Secretary/Treasurer was
       Mr. Howard Chafe... The President must be an employee of the Transit
       Commission... and other executive officers must also be employees. If memory
       serves, it's a constitutional requirement... During 2005 there were four persons on
       the executive board, Mr. Churchill, Mr. Chafe and myself, and the fourth was the
       Executive Board Member, Mr. Connors...
       Mr. Crocker confirmed that, due to lack of quorum throughout 2005, these four officers
operated the affairs of the Union. Asked whether he recalls whether there was also a quorum
problem in 2004 in the period leading up to the strike or during the negotiations, Mr. Crocker
said: No. I think we had quorums.
       Mr. Crocker confirmed that the Employer's initial offer was taken to a general meeting for
approval. Mr. Crocker also said that
       Mr. Kinnear does not have a position on the Executive Board. I requested Mr.
       Kinnear to come in for the International office to go over the proposal with me...
       Basically I had prepared the proposals with the help of the Executive Board and
       the membership. His role was to come into the Local, to review the proposals
       with the Local.
Asked whether he held meetings with the Local members to get their views, he said:
       I held a meeting... what proposals people had from the floor. And if they could not
       attend, they could ask an alternative to do it for them. Around the 24th weekend
       the proposals were presented to the Employer. I don't recall precisely. It could
       have been late in May or early June.
       Mr. Crocker estimated there had been five bargaining sessions between May and the
November 29th strike. "We tried to sit multiple days. It is not always achievable." The Union
bargaining team included Mr. Crocker himself, Mr. Paul Churchill, Mr. Chafe and the executive
for Maintenance Mr. Brian Collins, (replacing Mr. Connors who was defeated at election) and the
International Vice President. On the Employer's side were Ms. Judy Powell, Ms. Hopkins, Mr.
Spurrell, Mr. Lawlor, and Mr. Mooney. He said that:
       The pretty standard approach is that we try to stay away from monetary issues
       until the general language is done. For that reason there was virtually no

                                               132
       discussion about monetary issues, aside from the discussion about the cap, up until
       November 29th. There was no talk about monetary issues, except 11.01, up until
       November 29th... Conciliation began in August and as of November 29th there was
       virtually no discussion of monetary issues... The Employer indicated a couple of
       times they wanted to move to monetary issues.... Of the 120 items, I'd say a
       significant number .. more than a dozen ... (had been signed off).
       Mr. Crocker remembers November 30, 2004 Telegram article entitled "Bargaining
Questioned: Metrobus Union Holding Out for President Commission Claims". Mr. Crocker said
he does not recall saying to the Employer in bargaining, or making the statement (attributed to
him on page 2) – that
       Once this (disciplinary) language is dealt with, we'll go back to the table and deal
       with monetary and other issues.
Asked whether the parenthetical insertion "(disciplinary)" in this quote was accurate, Mr. Crocker
said, "I could have said that." Mr. Crocker confirmed that, at this point the Parties were on strike
and a long way from a deal, and that he was making these statements "as President and
Bargaining Agent for Local 1462." He also recalls saying, "We presented (the Employer's) offer
to our members... and 95% voted against it."
       Asked how many employees might individually benefit from the "discipline" clause in
dispute, and whether he could name one for certain, Mr. Crocker said:
       Possibly two or three.... Me.
Asked whether it was true, therefore, that the bargaining unit was on strike for issues that had not
yet been discussed, Mr. Crocker said:
       The bargaining committee was in an impasse with the Employer over language
       issues that applied to all, but benefited certainly one, of the bargaining unit
       members.
Asked whether there was anyone else that was benefited by this language, he said:
       There may have been two more. It may have affected Paul Churchill and ...
Asked if he could name anyone else, Mr. Crocker said:
       Not right now I can't.
       Asked whether the strike was about language issues, Mr. Crocker said, "Yes."




                                                133
       Asked whether there were virtually no monetary issues that had been discussed at all
despite management team's efforts, Mr. Crocker said, "Yes."
       Mr. Crocker also confirmed that the process dragged on between November 29th and
December 15th to a final agreement, and that at some point in that period Mr. Crocker had made it
clear who was empowered to bind the Local. Asked whether he remembers making this clear to
management and the Conciliation officer, Mr. Crocker answered:
       I advised them that I was the Spokesperson and Chief Negotiator.
Asked if he had also said that if there was to be a deal it would be "with Me"? Mr. Crocker said:
       ... With the Union Executive.
       Mr. Crocker also confirmed that, after the settlement, he personally held a number of
positions in the unit in addition to President and Business Agent. Mr. Crocker confirmed these
positions included:
       the Labour Management Committee, the Occupational Health and Safety
       Committee, the Pension Review Panel, the Scheduling Committee, the Uniform
       Committee. I believe that's it.
Asked to name which Other Executive members served on these committees, he said:
       the Pension Review Panel was represented by myself, Mr. Churchill, and Mr.
       Chafe. On the Occupational and Health and Safety Committee, Paul was on for a
       while, but he asked to step off, so I did it. Scheduling was myself and Paul
       Churchill. The Uniform Committee was myself and Paul Churchill, and Howard
       Chafe: and the Labour Management Committee was myself, Paul, Howard, and
       Mr. Connors 'til his defeat; then Brian Collins.
Asked whether he had been active on these committees, Mr. Crocker answered:
       I try to be active, yes. I was Co-chair and I was Spokesperson for the Union.
Asked whether there were any committees listed in the Collective Agreement that he was not on,
Mr. Crocker said:
       Yes, the Scholarship Committee. Howard Chafe represented the Union on that.
Asked whether the Scholarship Committee was operational in 2005, Mr. Crocker said:
       I'd say Yes. It did not meet that often.
       Mr. Crocker also confirmed that the management team for the conduct of the negotiations
for the Collective Agreement changed in 2004 after the 28th.


                                                  134
       To my knowledge the Spokesperson was Austin Spurrell. Mr. Spurrell was the
       Chief Negotiator and Ms. Hopkins was the outside Spokesperson. Prior to Ms.
       Powell's leave, Ms. Powell was Chief Negotiator.
Mr. Crocker confirmed that the last day of bargaining was December 15th, and that the MOU was
concluded at that time.
       I think it was close to 10 o'clock in the evening. Mr. Kinnear's discussion with
       Mr. Colbert was about 3:00 pm that afternoon, and the parties were asked to get to
       the table at about 5:00 pm.
Asked whether it would be fair to say that they resolved the issues between 5:00 pm and 10 pm,
Mr. Crocker said:
       I'd say that's fair. The issues outstanding at 5:00 pm were drivers' abstracts, and
       some language on issues in the maintenance department concerning the lead hand.
       I think there may have been issues in Operations concerning the temporaries – but
       perhaps not that day – the drug plan, and perhaps one or two others.
       He confirmed there also were issues about the adjustment of the date in Article 11.01.
Asked whether the MOU was still outstanding, Mr. Crocker said:
       I can't recall for sure, but I think it was... There was an issue mis-communicated; I
       don't know how. Apparently it was not the same offer. Mr. Colbert
       communicated about it in the media.
Asked why the Union had broken off negotiations on the 14th, Mr. Crocker said:
       In our proposals we submitted for the Union there was a proposal, that I proposed
       myself, related to the second paragraph on page 31, Article 11.01 which had to do
       with any increases. We submitted our proposal package and we wanted that
       paragraph deleted from the Collective Agreement. We wanted this out. We were
       paying 50/50 cost share and it was up to $6 or $7 at this time. We wanted that
       section gone. If memory serves, we agreed to start paying again and the paragraph
       would read 2005. The Employer would not agree to change the 2001 to 2005... I
       thought we had an understanding. That's what did not turn up in subsequent
       proposals from the Employer. They had the date changed on it again. Our
       proposal was in the original proposals that we put to the Employer... The Union
       did not consent to our members paying any more than management were paying.
Referred to the issue of retroactive pay (raised in HH #37), Mr. Crocker said:
       We sat down as a caucus and we figured that each person on average would get
       three or four hundred dollars. They would get it anyway, based on retroactivity.
       They would not have got it before Christmas.... Yes, as a signing bonus everybody



                                               135
       would get it before Christmas, and there would be different people who would get
       different amounts.
Asked how his personal situation might be affected, Mr. Crocker answered:
       I can't tell you what I'd get on retroactivity, but my reinstatement date was Novem-
       ber 15th. Ya, that's the first time I see this. I don't know. I'd not be able to tell you.
       Asked whether there was any discussion at the table at all about the benefits for those
over 75 at that point, Mr. Crocker said:
       I believe that was the next day between him and Mr. Kinnear on the telephone... I
       think they talked about a couple of things, yes... I know that Mr. Kinnear told me
       he and Colbert had talked about why management was not in the same plan.
Mr. Crocker also confirmed that at no time was Mr. Colbert present at the table.
       Not physically at the table, no. But Mr. Kinnear thought that management had
       called him.
       Mr. Crocker also confirmed that, when the Parties talked about ways to keep costs down
and agreed to develop a "cost effective" plan with the assistance of a consultant...
       We made our position clear. There was to be no cap. We talked about a plan, and
       about where the employees could participate in a healthy life style... not just for
       those over 75, (but) for everyone... The healthier life style plan would be a cost
       reduction issue for all plans, and not just for those over 75. We talked about a
       fitness program for the employees, because they were the people who were going
       to be paying the premiums. The retirees were not paying the premiums. The
       employees wanted the fitness plan because that would keep the costs down.
Asked whether the reference to cost effectiveness was not restricted to the plan for those retirees
over 75, Mr. Crocker said:
       No. And it was not restricted to the retirees under 75.
Asked whether the retirees had a vote in the ratification Agreement. Mr. Crocker said:
       Retirees have a voice, but no vote, except in elections.
       Mr. Crocker confirmed he had been acclaimed President in November 2004.
       Asked about the initial workings of the Joint Benefits Committee and how many meetings
of the Committee were held between January and June 29th he said:
       I can't recall. I know there was one... We discussed the retirees bringing in their
       receipts to be paid. The first thing I wanted was the retirees issued with a card so
       they could get their drugs. There were different things. I can't recall right now.


                                                  136
       Mr. Crocker agreed a consultant was asked to provide a series of options, and that was
arranged by the Employer. Asked what parameters had been provided, he said:
       I made it quite clear that we could not entertain a cap. That was discussed.
       Mr. Crocker confirmed that the options were sent (HH #4) for his comment and the ..
The options set out in HH #5 were not exclusive or final or definitive.
       I understood that she was putting options. We were not going to accept $7,500.00
       or any cap.
Asked if he believed that those set out in HH #5 were not the only possible options, he said:
       No, I didn't. The Employer was trying to implement a cap. Heather Hopkins told
       me: Pick one of these.
       Asked whether other Union members on the Joint Benefits Committee had seen the
options (HH #5) and the letter requesting the Union's response (HH #4), Mr. Crocker answered:
       I don't know. I think Mr. Chafe saw it. I'm not sure... Our mailing address is a
       post office box on Hamlyn Road and the Union office is on Portugal Cove Road.
       Since my first dismissal everything is mailed to the Union post office box as is
       very clear in HH #4.
       Mr. Smith asked Mr. Crocker whether he would agree that there is no indication in HH #6
that he wanted to get back to the discussion in the Joint Benefits Committee for reviewing or
establishing the plan. Mr. Crocker answered:
       Ms. Hopkins wanted a $7,500.00 cap and we said, No.
Asked whether the $7,500.00 cap is the only difference between the plan that is in place for those
under 75 and those over 75, Mr. Crocker said:
       I don't know, sir.
       Mr. Crocker could not recall whether there was anything further done after July 15th in
pursuit of the July 5th grievance, once the Employer had implemented the plan.
       Between July 20th and September 30th myself and Mr. Spurrell agreed to postpone
       grievance meetings because of lack of coverage.
       Turning to the driver assaults issue and his expressions of concern in the media that the
Employer was not doing enough, Mr. Crocker was asked what more dramatic action Metrobus
could take. He answered:



                                                137
       The company could put road Supervisors out there, with access to vehicles, to
       catch the people.
Asked whether there are not Supervisors on duty now, and whether he could call in a Supervisor
if there were a rock throwing incident, Mr. Crocker said:
       Yes, but the Supervisors should be put on the buses in the trouble areas. I've
       asked management to put Supervisors on the buses to catch them, or plain clothes
       police officers.... I had eggs thrown at me 18 or 20 years ago.
       Asked whether there have been any new technologies installed on the buses to protect the
drivers and passengers, Mr. Crocker confirmed that:
       There are now display signs to show outside viewers to call 911, and there is some
       training in how to deal with situations. There is also a new radio system with a
       locator on the buses that lets you call in. If you key in a number, they recognize
       you and get back to you. That lets the system warn them of unruly passengers on
       the bus... There is also a facility for on open mic that allows dispatch to listen in
       on conversations without the driver having to touch the mic.... Mr. Lawlor told us
       we could bypass anyone we knew to be a trouble maker, but to notify dispatch.
       Asked whether he would agree that the Employer appears to take the safety of passengers
and drivers very seriously, Mr. Crocker said:
       To some degree, ya... I've had spit, verbal abuse, and a balloon full of urine
       splashed all over me and the Employer took no action.
       Asked what he knew within 24 hours of the Anderson Ave. incident, he said:
       I learned within 24 hours that he was attacked and pushed up against the structure.
       I'm not sure if the Union knew of the inquiry within 24 hours. I knew the
       Supervisor walked over, and the attacker walked over in a rage to see Mr. Lawlor.
Asked whether the incident had grown out of a question about the collection of some fares from a
person who may have had a pass, Mr. Crocker said:
       The passenger got on, and the driver thought that he was under the influence of
       alcohol, and didn't have his pass or correct fare.
Asked what had upset the passenger, Mr. Crocker said:
       Apparently there were a couple of incidents with that passenger regarding one fare
       in question, or a bus pass... I knew the individual. I did not know he was mentally
       impaired. I knew there were some issues with him. I believe he had an incident
       with someone on Freshwater Road. I've never had a problem with him. He
       normally has a bus pass getting on the bus I was operating.



                                                138
Asked whether the Employer had contacted the RNC, Mr. Crocker said:
       I believe they were called to the building. I don't know who called them.
Asked whether it was raised with the Occupational Health and Safety Committee, he said:
       Yes. We spoke of the issue sometime after the event, within the week.
       Asked to describe the mandate of the Occupation Health and Safety Committee, Mr.
Crocker said it was to ensure the safety and well being of all employees. He confirmed that
minutes are kept of the committee's meetings, and identified GC #3 as an incident report filed by
the driver who had been attacked.
       Mr. Crocker identified GC #4 as minutes of the meeting held on October 20th, and
confirmed that there is no reference to disturbances on the buses in either these minutes or in the
minutes of the December meeting (GC #5) of the same committee. Mr. Crocker had returned as
President and Business Agent of the Local by November and December of 2005, and was then
serving on the Occupational Health and Safety Committee.
       Mr. Crocker said that there are restrictions on the committee in their investigation of
safety and health related matters, in that
       The Employer has told us that they are carrying out the incident investigation first
       prior to it going to the committee.
He said that this had applied to the Anderson Avenue incident, but could not recall when he
learned of the investigation. He understands that the attacker was later charged in court. A report
was filed with the Occupational Health and Safety Committee while he was still a member of that
committee. The procedure of incident report followed by Employer investigation and report to the
Occupational Health and Safety Committee has been in place for some time.
       How long I don't know, but as long as I was on the committee... I think I raised
       concerns that the committee should be involved in investigation prior to it going
       to the committee.
       Mr. Crocker confirmed he had sat in on the interview with the driver, conducted by Ms.
Hopkins and Mr. Lawlor. When asked whether he had suggested that there might have been
reasons for the passenger being upset, Mr. Crocker said:
       We had a one-on-one, and I believe I talked along that line, yes.
Mr. Crocker confirmed that disturbances on the buses were "on the committee's radar".

                                                139
Asked what action the Union was seeking, Mr. Crocker answered:
       We asked for training. It was my view, and of other Union representatives, that
       people report these incidents as soon as possible. Drivers had to fill out police
       reports. I was told by the General Manager that it was to have (those who cause
       disturbances on the bus) charged... I was not told why the Employer can't fill out
       the reports... I encouraged the operators to fill in reports and with the police.
       Mr. Crocker confirmed that he had spoken to the members about picking up passengers as
he had indicated to Ms. Swain (HH #28).
       The Union took the view that Mr. Lawlor had said, By-pass the passenger in
       question and report the fact to dispatch... I advised them that they would have to
       make the decision to bypass or not... I advised if it was unsafe, if they came across
       a disturbance, they would by-pass but to report to dispatch as per Mr. Lawlor...
       Mr. Lawlor told me of it the day before the Anderson Avenue incident. I would
       do it myself... not all operators would..
Asked about his reference to the Criminal Code in the interview with Ms. Swain, he said:
       I was ready for it, yes. I had the Section in front of me... I had it to read out on the
       program.
Asked who it is, in his view, the Act refers to as "having the authority", Mr. Crocker said:
       That would have been the Employer.
Asked who, in his view, has a duty to "take reasonable steps...": Mr. Crocker said:
       Yes, that's the Employer.
Asked then, what he means when he says, "have these people charged", Mr. Crocker said:
       I believe the Employer has the duty to have these people charged...
Directed to the announcer's response to his Criminal Code comments, he said:
       The individuals have the power to get them charged... What I am saying here is
       even if the Operator does not file a complaint, we wanted the Employer to file a
       complaint as well.
Asked whether he recalls having had a discussion with Ms. Hopkins about this statement, he said:
       I don't know if it was Heather Hopkins or Mr. Spurrell.
Asked whether he had said he thought the Employer could be charged, Mr. Crocker said:
       Definitely not.
Asked whether he had said he understood that Section? Mr. Crocker said:
       I may have said that, yes. We talked about that Section, yes.

                                                 140
Asked whether he thinks it is appropriate for an employee to suggest that management should be
charged criminally, Mr. Crocker said:
       Speaking for myself, if the Employer breaks the law, it would be appropriate to
       have them charged.
Asked why he had gone to the media, Mr. Crocker said:
       I was contacted by the Telegram.
Asked what prompted him to tell the Telegram that the Employer was not doing enough, he said
       We felt as a Union and our members felt that the Employer was not doing enough
       to get these incidents stopped.
Asked how he proposes that the Employer should stop these incidents, Mr. Crocker said:
       I talked to Heather Hopkins about city by-laws that give the transit authorities or
       bus companies the power to bar individuals themselves, and asked would she
       lobby the Commission to come in with such a by-law.
Asked whether the Employer has taken those who guilty of assault to court, he said:
       Not on my behalf.
Asked when a meeting of the membership was held to decide on this policy, he said:
       I can't remember the date. I think it was after the 18th. It was an emergency
       meeting of the membership. I would assume it was after the 18th. We did get a
       quorum for that meeting dealing with assaults.
       Mr. Crocker agreed to secure the minutes of that meeting. Asked whether, in addition to
a by-law to ban individuals, and the installation of transit Supervisors on the buses, there was
anything further that should be done, he said:
       No. One of the things was to have Supervisors riding the buses in areas that were
       causing concern and to have them charge these individuals. We talked about
       having protective cages around the operator. I brought that up, and training for
       operators. We wanted some by-laws changed to give them the authority, and the
       Commission to ban those causing disturbances. There may have been a couple of
       more. I can't think of them right now.
       Asked how many had been raised at Occupational Health and Safety Committee
Meetings, Mr. Crocker answered,
       Training was talked about, and having the RNC doing the training with the
       operators.... I don't think the training has been completed, I don't know.



                                                 141
       Asked why he had chosen to go to the media when the supports were already in place, and
whether he felt that public fear and lost fares might result in lost jobs Mr. Crocker said:
       As a Union we felt it was a public concern... It may (instill fear) for a few... We
       felt that public education was important.
When it was pointed out that none of the Employer's actions had been noted in his interview with
Ms. Swain, Mr. Crocker said: It was in the Telegram.
       Asked if there were any attacks on drivers while buses were in motion in 2005, he said:
       There may not have been one; but I was assaulted while the bus was in motion... I
       brought it to a safe stop. I could not find (the attacker). .. I did (call the RNC)
       yes... Preventing that incident might not have been possible. But, nonetheless,
       educating the public is important.
Asked whether he felt the heightened sense of alarm was justified, Mr. Crocker answered:
       Members of the public could be at risk as well... As a Union we take the assaults
       on Operators as seriously as assaults on airline passengers.
       Asked whether he thinks that five or six incidents in 2005 when placed against the 3 to 6
million trips represents a very small proportion of incidents, he said:
       One incident is significant, if the assault was on a member.
       Asked whether he does not consider the internal mechanisms sufficient to deal with these
matters, including the Labour Management Committee, the Occupational Health and Safety
Committee and the legislation, Mr. Crocker answered:
       The purpose of speaking out was to speak not only to the travelling public but to
       the attackers. We have a right to voice our concerns. We wanted our concerns
       heard. We were contacted by the media... I wasn't contacted by the Telegram, but
       I was by VOCM... Yes, I contacted them on September 18th. It was an issue in
       Operations, and I felt I had a reason to speak for the Union. I was approached. A
       lot of Operators approached me to ask what we were going to do about it...
       Mr. Crocker confirmed that the Collective Agreement regulates the dispute mechanism,
and that he had signed the Collective Agreement. He agreed that health and safety issues can be
dealt with in accordance with the Collective Agreement. He added:
       As a Union we have a right to speak on issues, and that is what I did.
       Asked why he objected to Mr. Chancey's reference to "whiplash" in the Telegram article
HH #28, he said: In our view it was medical information. Asked what safety relevance it had,


                                                 142
and why it occasioned criticism of the Employer, he said: I thought it was inappropriate to release
that information. Mr. Crocker confirmed he was aware of the LK #2 National Operator Assault
Survey Results 2005.
       It was produced by the Canadian Council and some consultants firm. I don't know
       what specific survey group was targeted.... Yes, St. John's is there, in Appendix C
       listing the participating Locals including Newfound-land with a "140" operators.
       The number 140 is not accurate, but that likely includes mechanics and others...
       I'm not sure if I sent off any data for this. I can't recall.... Yes, I requested time. It
       was denied. I believe I asked Operators to supply copies if there were any incident
       reports. I supplied two, I think... to whom ever was involved with the survey.
Asked whether that return was sufficient to be included in the data, Mr. Crocker said:
       No. We weren't part of it... I asked for the information from the Employer, but
       they refused it.
Asked whether he was supposed to secure the information from the Employer, Mr. Crocker said:
       I don't know. I requested the information on assaults, and it was subsequently
       denied.
Mr. Crocker was questioned about the questionnaire (LK #2 p. 25), and said:
       There had been some discussion about this sheet, and it was changed but it was...
Asked where this sheet suggests securing information from the Employer, Mr. Crocker answered:
It does not say on it to request information from the Employer. Mr. Crocker also confirmed that
the protocol sheet, (LK# p. 30) does not suggest Employer input. Asked, therefore, why the
Local did not participate, Mr. Crocker responded:
       We did. There were two. Myself and one other operator, I believe, completed the
       sheet.
       Asked why only two individuals had completed this survey over the preceding 18 months
if assault was such an important issue, and whether the driver assault was on the agenda for the
2005 conference held in St. John's, Mr. Crocker answered:
       I believe at the Canadian Council the survey sheet was to be changed, and we were
       waiting for new sheets. At a conference meeting we were waiting on new sheets
       to come out... I'm not sure if it was '04 or '05... I can't recall. It may have been.
Asked how many of the 5 or 6 assaults occurred before the July 2005 meeting, he said
       Probably half of them. I'm not sure.



                                                  143
Asked what made this issue so important for media attention six weeks later, he said:
       The assault on the driver on Anderson Ave. It was raised on the Open Line and in
       the papers.
       Directed to the September 1, 2005 VOCM interview with Mr. Rowe (HH #17) and his
reference (p.3) to "a quiet protest at Monday's August 23rd meeting at city hall...when a
considerable amount of retirees over the age of 75 turned out", Mr. Crocker explained:
       "We", in this case, means the Union had a quiet protest. We had our retirees come
       down. Mr. Fleming called as many as he could to come.
Asked why he had attended, and why this protest was made at City Council, he said:
       As a citizen and tax payer of the city and as President of the Union. We had issues
       outstanding, and I've told Mr. Spurrell we would be making them political issues.
       We were there to let the Councilors and the Commission know we were in protest
       ... "Why?" Because it was an election and we had Councilors on the Commission.
       The Union's position was that the Employer had put the cap on, contrary to the
       Agreement... Yes, that was grieved and the grievance was outstanding as of
       August 23rd, the night of the silent protest... The dispute was about the MOU.
       Asked why he would choose to go outside of the Collective Agreement when there was an
agreed mechanism within the Agreement to deal with such differences, he said:
       Because I dealt with this at grievance, and I knew it would not be settled there...
       We have a right to protest.
Asked whether the purpose of the protest was to get the Employer to reverse the decision, Mr.
Crocker answered:
       Yes. We were in the middle of an election and we decided to apply pressure to
       make the change.
       Asked whether the Collective Agreement allows him to apply pressure to make
operational changes, Mr. Crocker answered:
       No, probably not.
Asked then, why he had breached the Collective Agreement, Mr. Crocker answered:
       We did not breach it.
Asked why pressure had been brought rather than following through on the grievance and
arbitration procedure, Mr. Crocker answered:




                                                144
       Because these people are politicians seeking votes from our members and we
       decided to make this an election issue.
Mr. Crocker also confirmed that once the election was over he had
       not stopped trying to get the matter changed... I have a right to confront a
       politician I vote for.
       Asked whether this was the only occasion he had approached Council about disputes in
the work place rather than going through the Collective Agreement, Mr. Crocker answered:
       I had lobbied the previous Council a few years ago, yes. I believe I can talk to
       politicians. That's my God given right... on a significant dispute, yes.
Asked who determines what is "significant", Mr. Crocker answered:
       I'd guess we would have to sit down as an executive and see what approach is to
       be taken.
Asked when the "cap" had become an issue Mr. Crocker answered:
       It finalized when I got the letter concerning the $7,500.00 (HH #7).
Mr. Crocker confirmed that he had served on the Joint Benefits Committee, and been present
when the consultant provided the advice.
       Asked, in respect to HH #4, whether he could recall if the Committee had agreed to have
the consultant develop these options, Mr. Crocker answered:
       I don't know whether the Committee agreed or whether the Employer directed it. I
       made it perfectly clear there was to be no cap.
Asked how the Joint Benefits Committee could develop a plan without direction on options from
the Committee, Mr. Crocker answered
       Development of the plan was to talk about issues relating to the MOU.
       Asked whether Mr. Crocker recalls asking Ms. Hopkins which of the various options she
would recommend, Mr. Crocker said:
       Yes I do. I believe it was in her office.
       Asked whether he recalls a March 9th meeting of the Joint Benefits Committee when the
consultant outlined various things that they might do, Mr. Crocker answered:
       Yes, we talked about dispensing fees, and we talked about having drugs dispensed
       on a three month rotation and one dispensing fee for multiple prescriptions and
       better eating and things like that... Costs were not at issue. Mr. Colbert had said,


                                                   145
        'we're going to have that benefit'... Mr. Kinnear had been briefed by the entire
        executive, including my self and was acting on behalf of the membership of the
        Union, to get Mr. Colbert to live up to the agreement that he had made in
        collective bargaining.... To bring the dispute to resolution... He had made a
        commitment in bargaining, and I repeated this to Mr. Spurrell.
        Asked if, between July 15th and July 30th, there had been any meetings of the
membership, Mr. Crocker answered: If there was a quorum there should be minutes, yes.
Mr. Smith requested that Mr. Crocker produce these minutes.
        Responding to a challenge on relevance from Mr. Earle, Mr. Smith pointed out that there
is an allegation that Mr. Kinnear was acting as an agent for Mr. Crocker in his approach to the
Commissioner. Mr. Crocker intervened and said:
        I don't know if he got direction from a meeting. Mr. Kinnear talked with Mr.
        Colbert and solidified the deal.
Asked whether that was on Mr. Kinnear's own initiative or whether he had been asked by the
executive to resolve the issue, Mr. Crocker answered:
        He was not asked by the executive, no.
Asked, therefore, why he had asked him stay in the car, Mr. Crocker said:
        Mr. Kinnear said: "This was a conversation between me and Gerry, and best to
        stay that way: one on one."
        Mr. Crocker identified GC #6 as a June 20, 2000 letter to himself from Mr. Andy Wells
who was then Chairman of the St. John's Transportation Commission. Asked how he had
interpreted the last sentence in the letter, Mr. Crocker said:
        He did not want to be approached as Chairman of the Commission.
        Mr. Crocker also identified a July 5, 2003 letter (GC #7)he'd written Mr. Colbert
requesting a meeting with the Commission "...to discuss the workplace harassment and violence
policy..." Asked whether Mr. Crocker had been told to deal with management on this matter, Mr.
Crocker answered:
        I'm not sure. He may have responded to this letter. He may have.
        Mr. Crocker confirmed that a response from Mr. Colbert dated August 10, 2003, (GC #8)
did, in fact, relate to GC #7 and directs that:



                                                  146
       "Any further questions or concerns on this or any other issue, please direct your
       inquiries to our General Manager... Commission members as a group or
       individually should not be directly contacted on operational matters. To do so
       may be reviewed as an act of insubordination that could result in sanctions, at
       management's discretion."
Mr. Crocker responded that:
       The matter did not deal directly with operational matters and, as President of the
       Union, I feel I have a right to contact the chair of the Commission on issues
       operational or otherwise.
Asked whether Ms. Powell had reminded him of this protocol, Mr. Crocker said:
       I believe, probably not in writing. We did have a discussion.
       Mr. Smith reminded Mr. Crocker that, after the meeting between Mr. Kinnear and Mr.
Colbert in July, the Union had submitted a grievance which was pending as of August 23rd when
the "silent protest" occurred, but "lack of coverage" had delayed the grievance process...
       As mutually agreed by Mr. Spurrell and me it was one of the outstanding
       grievances, Yes... As (HH #18 and GC #1) show, the media got involved in the
       matter shortly after August 23rd.... The producer of the Linda Swain night show
       called me for comment on September 4, 2005. Ms. Gullage is the producer, and
       said it was the Labour Day weekend and wanted to deal with the issue on the go
       with Metrobus, and I said, OK... I told Ms. Swain what the issue was: the cap on
       prescription drugs for retirees over 75.
       Mr. Crocker's attention was directed to his reference (HH#18)to Management employees
enjoying a drug plan after age 75. Asked whether he did not, himself, know that management
had no such benefits as he there claimed , Mr. Crocker answered: I learned that after.
       Asked whether, in fact, he had been aware of that fact prior to making the statement, Mr.
Crocker answered: Probably not.
       Mr. Crocker identified a series of letters (GC #9, 10, 11) between himself and Ms.
Hopkins concerning the Union's request for documents and information relating to various
policies and letters and memorandums of understanding, Mr. Crocker said:
       I recall receiving a packet of policies, but I believe I was requesting MOUs ... for
       the collective bargaining. I did get some MOUs and LOUs, yes.
       Asked if he had been disciplined under Transit Operator Handbook (HH#16), he said:




                                                147
        The first termination was based on that, I understood. I believe it was the small
        one. I have a box, letters of consequence. I'll check (to see if I have a copy of the
        small one). I'll bring it. You will have it. You'll have it. It was the one I was
        given in 1985... That one (HH#16) was entered at the previous termination hearing
        ... I don't know if it's the updated one or if the cover was changed. I'm not sure.
[Mr. Crocker later informed the hearing that he had looked for the Handbook he had been
initially issued, but "It's been thrown out."]
        Asked if the new version had come up in conversation with management, he said:
        I believe it did, yes. In a Union-Management meeting, but I can't recall the issue.
        I believe the Union wanted input, and there may have been another issue.
Asked whether he could confirm that he had knowledge of the document, he said:
        I never was given a copy of it. The only one I was given is the one I believe that I
        have at home... I may have been shown it during the course of the hearing. I don't
        think I was ever given one to keep.
Asked whether he had ever received a copy of the Group Benefits Policy, he said:
        I got a copy of the group benefits policy with a lot of material blacked out. I
        believe that I did correspond with the Employer on the blacked out parts. It
        looked like it had been done over with a marker and then photocopied.
        Asked whether he had received the same benefits information twice, he said:
        Not that I recall. I don't think I did. I got a response back from GC #11 which
        said that it was intimate information relevant to management.
        Mr. Crocker said he had not been told what information concerning management had
been blacked out. He identified as GC #13, a letter dated May 21, 2004 to Mr. Crocker from Ms.
Hopkins enclosing the "information you requested regarding the group insurance plan for Union
employees of the St. John's Transportation Commission." Asked whether this document relates
also to information concerning the plan enjoyed by management of the Commission, Mr. Crocker
said:
        I only received one document and it was the blacked out one. Let me make that
        clear.
[At this point Ms. Hopkins left the room at the request of Counsel for the Employer, as she
might be required to provide rebuttal evidence.]




                                                 148
       Asked whether he was aware of the drug benefits enjoyed by retirees in 2004 and whether
he had reviewed the booklet governing this plan, Mr. Crocker said:
       I may have. I can't say for sure.
Asked whether he had gone into bargaining with no knowledge of the plan that those who were
retired were under, Mr. Crocker answered:
       No. I knew that our retirees had no drug plan after 75.
Asked how he had come to believe that management people enjoyed a drug plan after age 75, Mr.
Crocker answered:      From the retirees at city council.
       Mr. Crocker was reminded he told the public, through the media , that management
employees received the benefit past age 75. Asked where he got this information, he said:
       I believe I had that from Mr. Damian Ryan who is a Commissioner. I believe he
       and I had a discussion about benefits at the Pension Review Panel. He told me he
       had his benefits after age 75, so I assumed all management had benefits after 75.
       When I talked to Mr. Ryan he told me that they had it at City Hall for life.
Asked whether he made the false media comment based on this "assumption", he said:
       I meant that they did have a benefit but no cap. I've got to be truthful.
He confirmed it was based on his assumption arising out of a conversation ...
       with Damian Ryan during a ... meeting in May... I believe it was before the strike.
       Mr. Crocker identified GC #14 the ATU management minutes for October 5, 2005. He
confirmed he is supplied with copies of the minutes.
       Questioned about the deviation from route cited in Consent #4, Mr. Crocker said that he
had, initially, indicated to his supervisor that he had not deviated. Mr. Crocker then detailed
various other routes using the maps supplied earlier in testimony, JP #1 and JP #2, and noting the
AVL registration notes on those maps. Mr. Crocker observed that when he had made a mistake
some two weeks earlier "she had made a joke of it."
       Mr. Crocker disagreed with Mr. Smith's assessment that the deviation shows he was "not
doing his job." Asked whether he might agree that there was some inattention involved, Mr.
Crocker said: It could be, yes. Asked whether he would agree that it was an instance of
carelessness, Mr. Crocker said:



                                                149
       I agreed that I was inattentive. I believed I had not gone off route, so I asked her
       to check it. I made a mistake, an honest mistake. I accept this is what I did. Two
       weeks before I missed the Westerland Road stop. I called in and Ms. Richardson
       made a joke of it... If it's policy, I do it.
       Asked if he has ever been disciplined for a similar matter, Mr. Crocker answered:
       A long time ago. I can't recall if it was deviation from route. Either I was early or
       deviated from route.
       Asked whether he does a lot of overtime, and whether, in July 2005, there might have
been overtime, Mr. Crocker answered:
       I put my name in as much as I'm available... I understood Mr. Lawlor cancelled or
       changed a driver's banked time off. I would have been the one to get the overtime,
       I believe, if he had got the time off as per the Agree-ment. Vice President
       Churchill brought it to my attention... I believe I spoke to Mr. Lawlor as to why
       the operator did not get the time off as per the Collective Agreement. I don't know
       if I filed a grievance... Yes, I spoke to Ms. Hopkins and Mr. Spurrell. I asked why
       operators were being denied time off out of their own bank.
Asked if he had taken it to Mr. Lawlor directly, Mr. Crocker said: No, I went over his head.
       Asked whether he had been reinstated with certain expectations, or if he had grieved the
letter stating those expectations (AS #1), Mr. Crocker said:
       There were no conditions attached to my reinstatement by the arbitration board...
       No, on the advice of legal counsel it wasn't grieved.
       Asked whether, after his termination on November 2nd (Consent #4), he had attended a
meeting with the major of St. John's in an attempt to get his job back, Mr. Crocker answered:
       I met with the Mayor, yes. With Mr. Kinnear.
[Mr. Earle objected to this post-grievance line of questioning. Mr. Smith responded that, in the
Employer's submission, this evidence demonstrates Mr. Crocker again used the political route.
Mr. Crocker intervened to say: Mr. Wells told me, anytime I had a problem...]
       Asked why he had wanted to see the Mayor, Mr. Crocker answered, "My dismissal."
Asked whether he had approached any other member of Council, Mr. Crocker said:
       I'm not saying I did not attempt to, but I did not succeed.
Asked whether he had made contact with Mr. O'Keefe, Mr. Crocker said:
       I may have yes. I know I spoke to him a couple of times after I was fired. Mr.
       Wells asked for a copy of the dismissal letter.

                                                150
Mr. Smith directed Mr. Crocker's attention to HH #18 in which he appeals (p.4) to Mr. Colbert to
"do the right thing". Asked for his understanding of Mr. Colbert's powers, he said:
       He is chair of the Commission and City Councilor. He has influence on the
       Commission.
       Mr. Crocker's attention was directed to the interview with Ms. Swain on the evening of
September 4, 2005, HH #18, of the transcript where he says (p.4) that, "this was never talked
about..." Mr. Smith asked how this squares with his testimony to the effect that you had made it
clear at the bargaining table that there was to be "no cap". Mr. Crocker answered:
       We would not agree to the $1,500 cap.
Asked why he had chosen to talk about arbitrations costing upwards of $100,000, he said:
       The Metrobus gets $6,000,000.00; so it's public money.
Asked whether he thought the only way to remove the cap was through the Commission, and
what he thought arbitration was designed to do, Mr. Crocker answered:
       I believed it would have to be a minute of the board. Before it goes to arbitration
       the Commission would have to overturn it. .. Yes, we (filed a grievance on this)...
       It can be resolved before going to arbitration.
       Mr. Crocker's attention was directed to Consent #5 which he described as the September
21, 2005 notes for membership special meeting. Asked whether people sign in when such a
meeting is held, Mr. Crocker answered:
       Normally, yes... We have a sign in book... The attendance book is not in my
       possession, and never was. I don't know if it was signed in as an ordinary or an
       emergency meeting. According to the by-laws the regular meeting is held on the
       second Sunday of the month but that the executive has the right to change it... As
       these notes show, I passed Mr. Lawlor's instructions about leaving troublesome
       passengers at the bus stop to the membership... The right to refuse unsafe work
       under the Occupation Health and Safety Act... it says I informed the company of
       that... I may have said that they have the right to refuse. Mr. Chafe's notes are
       general and they do not reveal everything I said, perhaps.
       Asked whether he regarded the views recorded in Consent #5 as authorization for him to
go to the press with his concerns over driver assaults, or whether he could point to anything that
authorizes him to go to the press on the assault issue, Mr. Crocker said:
       No, I didn't take it to mean that.... Yes. The bylaws... The President and Business
       Agent is spokesperson on any issue.


                                                151
       Mr. Crocker's attention was also called to one of the notations on the last page of the
notes that reads: "G.C.- under B-C- 45     217 we can charge the Employer." Asked what further
efforts he had made in line with the discussion at that meeting after the meeting of September 21,
2005 to secure a by-law change, he said:
       I raised this with Ms. Hopkins again after the meeting. Membership wanted some
       action. They were upset about the Anderson Avenue issue. I asked her to lobby
       council to change the by-law and we'd do the same. We talked to Councilors
       Hann, O'Keefe, and Sears, and I believe I had a discussion with the Mayor.... Yes,
       all these discussions were before the election – but one was after, the one with
       Tom Hann. I campaigned with Tom Hann and Paul Sears, perhaps before he was
       appointed to the Commission.
       Mr. Crocker identified as GC #14 the minutes of the Labour Management Committee for
October 5, 2005.
       [Mr. Earle objected that these minutes are, in effect, post grievance since they
       were not signed until February 2006. The Chair ruled the minutes admissible as a
       document prepared prior to dismissal.]
Mr. Crocker confirmed that the item referenced as "#9, AVL", is accurate in its comment that:
"G. Crocker questioned if the AVL would be used for disciplinary purposes."
ON REDIRECT EXAMINATION Mr. Crocker testified the Local had pursued 3 arbitrations
during his terms in office. Each cost the Local between $30,000.00 and $40,000.00.
       Mr. Crocker confirmed he had signed GC #14 in the new year of 2006. Asked why he
had asked about the AVL, Mr. Crocker said:
       It was... to get accurate information... I'd had discussions with Ms. Bradshaw who
       brought in the service, and she told me that it was not brought in for disciplinary
       measures against operators. Mr. Chancy reiterated that at the meeting, and
       clarified it in the meeting.
       Referring to the notes of the membership meeting on September 21st (Consent #5), Mr.
Crocker confirmed that he had spoken to the membership about incident reports.
       I emphasised that they were very, very important and not to forget the data ...
       Management also gets a copy of incident reports... The notations concerning rock
       throwing and related incidents (recorded on p. 3 of the notes).. These were not the
       only incidents of aggression by passengers mentioned at the meeting... No, I think
       there were more brought up.


                                                152
       Mr. Crocker denied he knew the policy might actually have indicated otherwise when he
had made the statement on a talk show with Ms. Swain about what benefits retired management
employees enjoyed. He testified that portions of the policy he had received were "blacked out".
       [Mr. Smith indicated that he proposed to call rebuttal evidence on that point.]
Mr. Crocker also testified he had received information from Mr. Damian Ryan who was a
member of the Pension Review Panel and also on the Commission.
       Mr. Earle asked Mr. Crocker about his statement in cross examination to the effect that
the Agreement had made 'no reference to a cap, either one way or the other'. He said:
       When we left the table all of these people here knew there was to be no cap. I
       made it specifically clear on two separate occasions to Ms. Hopkins and to Mr.
       Spurrell... Those over 75 would have the same level of coverage as those younger
       than 75 in respect of drug coverage... as per Mr. Colbert's agreement... The cost of
       premiums for those retirees under 75 and over 75 was to be absorbed by the active
       membership in the bargaining unit on a 50/50 cost sharing arrangement between
       the employees and the Employer.
       Mr. Crocker was asked for his understanding of plan options open, and whether there
were options not listed on HH #5 that could still be explored. Mr. Crocker said:
       I did not have that understanding from her. I understood it was a matter of picking
       one of those listed on HH #5.... Nothing without a cap was acceptable to the
       Employer or with Ms. Hopkins... It was in her office Ms. Hopkins said, it would
       be 'like a free bar'; the costs would be so astronomical if it were open ended.
       Asked to describe the other 6 or 7 assault incidents that had occurred in the prior year as
referenced in HH #28, Mr. Crocker spoke of one operator ...
       who was grabbed from behind the wheel while the bus was stopped at the Village
       Mall. A couple of operators were subjected to verbal threats; two while the bus
       was in motion, and numerous rock throwing incidents... They are assaults... By
       numerous ... I don't think five would be exaggerating... A female operator was
       verbally threatened by an affiliate of the Hells Angels and there was a rock throw-
       ing incident in Kilbride. On Jensen Camp Road we had a driver get glass in his
       eye, and perhaps a passenger as well, and then the incident on Anderson Avenue.
       Asked to explain why, in his view, the level of response provided by the Employer was
inadequate, Mr. Crocker said:
       I think the Employer should be taking it more seriously. It's getting out of hand in
       these incidents... The only thing is this Front Line publication they instituted after


                                                153
       the (Anderson Avenue) assault. I don't think there was any training, no self-
       defence training, since then that I am aware of.
With reference to the Anderson Ave. incident Mr. Crocker said:
       I understand that the assailant was charged under the Mental Health Act. He had
       not gone to court. It was well after the interview with Ms. Swain... He approached
       me... and told me that himself.
       Mr. Crocker confirmed he had had contact with Mr. Wells after Mr. Wells had left the
Commission. Mr. Wells had said,
       If you have a problem with Colbert, see me... I may not be on the Commission but
       I'm still the Mayor.
       Mr. Earle asked Mr. Crocker whether he had ever previously been required to rely on Mr.
Chafe's handwritten notes as apposed to his finished minutes. No, they are being typed now..."
In response to questions from Mr. Harris for the Board, Mr. Crocker confirmed that the Mr.
Ryan to whom he had referred in testimony was formerly the City Clerk.
       Asked whether there were any non union staff at Metrobus who are not members of
management, Mr. Crocker answered: Yes, clerical staff.
In response to questions from Mr. Peddle for the Board, Mr. Crocker confirmed, as noted in
Consent #5, that there had been no regular meeting since the previous year. Asked whether
minutes were kept of the executive board meetings he said:
       I can't say if there is or not. When we have a meeting we report back to the
       meeting.
In responding to questions from Mr. Scott for the Board, Mr. Crocker explained the notation
"Under B-C-45 217. We can charge the Employer" (Consent #5, p. 6).
       I believe the question was asked of me at the meeting, whether we could have the
       Employer charged, and I said, Yes.
In questions put by the Parties arising from questions asked by the Board, Mr. Crocker was
asked by Mr. Earle if the fact there had been no meetings after December 2004 should be
interpreted to mean there had been no meetings called. He said:
       No, meetings were called every month, but there was no quorum.
THE THIRD UNION WITNESS was Mr. Ken Walsh, a Metrobus Operator for nineteen years
and has served on many different routes. The routes themselves can vary from day to day.


                                              154
       That is the way the shifts run. We have an assigned shift but if called for overtime
       it depends on what they need. I generally work Monday to Friday since I am one
       of the senior people.
Mr. Walsh confirmed that he has had experience of going off route while working.
       It's human nature to make a mistake. I was called to do a 2 run, and all summer I
       had been on a 3. I turned off LeMarchant, but then changed back. It happens,
       even after more than 19 years. I picked up the bus at Parade Street, at the bus
       terminal; and it was pointed west up Freshwater, but I was supposed to go to the
       Village Mall. It's happened a number of times over the years: not too often, but it
       has happened. It's human nature. I usually call dispatch and straighten it out and
       turn around. Most of the time you straighten it out as soon as it happens; other
       times the passengers let you know. You call dispatch first, and let them know that
       you are turning and apologize to the passengers and go on. That's what's required.
       That's procedure. But there are times, not too often, that I've not called.
Mr. Walsh said he had never been disciplined for a deviation.
       Asked if he had seen the Transit Operator Handbook before: Yes, in the smaller format.
He confirmed that KW#1 is a photocopy of the smaller format version.
       All operators have one... I've not read it in the handbook itself but I know it is
       proper procedure. You normally follow procedure. Once they told me that I had
       missed a stop, and I had to go back and stop at the college.
ON CROSS EXAMINATION Mr. Walsh confirmed he had not realized that he was off route
until he had received the call from the dispatcher telling him he was off route.
In response to questions from Mr. Peddle for the Board, Mr. Walsh confirmed that he had
only gone a very short distance before correcting his mistake once a passenger "Mrs. Murphy"
had corrected him.
IN REBUTTAL EVIDENCE FOR THE EMPLOYER, Mr. Smith called Ms. Hopkins on the
issue of the blacked out copy of the drug plan.
       Mr. Smith said that the Employer seeks to show that Mr. Crocker's testimony is false
when he claims he was unaware of the benefits plan enjoyed by management retirees at the time
he made the media statements. In Mr. Smith's submission this is a matter of credibility and the
Employer was not in a position to lead evidence on these matters prior to Mr. Crocker's own
testimony.
       Ms. Hopkins testified that prior to 2004 she responded to a request ....


                                                  155
       from Mr. Crocker asking for copies of all group insurance plans and the
       memberships in these plans, primarily demographic information about family size,
       and coverage, and things like that. HH #42 is Mr. Crocker's request and HH #43
       is the group insurance plan for employees of the St. John's Transportation that was
       provided to Mr. Crocker in response to that letter together with the demographic
       evidence that he was seeking. GC #13 is that copy letter.
[Mr. Earle objected that the Employer was splitting its case in chief. Mr. Smith responded that
Mr. Crocker denied receiving a plan that revealed benefits available to management employees
and the Employer, therefore, could not anticipate Mr. Crocker's denial of this.
       Mr. Crocker intervened to note:
       I may have seen a document with this information. I had not seen the benefit plan.
       So I mean that Mr. Smith is trying to set me up in a contradiction.
       Mr. Smith observed that it is appropriate to demonstrate that Mr. Crocker did receive a
version of the plan that was not blacked out.
       The Chairman ruled that HH #43 is admissible. It is referenced in GC #13. Ms. Hopkins
is free to testify as to what she sent Mr. Crocker.]
       Ms. Hopkins confirmed she had sent GD #43 and other materials "to the Hamlyn Road
office" at about that time.
       Asked whether Mr. Crocker had, prior to September , 2005, ever made a statement that
was contrary to his claim in a VOCM interview that the Metrobus management retirees enjoyed
prescription drug plan after 75, Ms. Hopkins said that during bargaining on December 15th Mr.
Crocker had stated that management and the Union had the same plan and the same carrier but
that management did not pay the premiums while the Union did. She identified as HH#44 the
transcript for VOCM Open Line for December 15, 2004 where Mr. Crocker makes this statement.
       Mr. Earle pointed out that the issue in discussion in HH #44 is not retirees.
ON CROSS EXAMINATION Ms. Hopkins testified that in her files
       I have a copy of GC #13 and of the attached documents, but GC #13 and the
       attached documents are not, in fact, attached. I have a separate binder with the
       policy in it so I did not bother to copy it for the file. It takes up a lot of room.
       Ms. Hopkins confirmed that she types all her own correspondence...
       I took copies. They are kept in my office.



                                                 156
Asked who puts these documents in the mail, Ms. Hopkins answered:
       Our Administrative Assistant. The mail box is just up the street. Or our Manager
       of Finance sometimes takes it.
       On the issue of the Operator Handbook, Ms. Hopkins confirmed that she had attended the
earlier arbitration concerning Mr. Crocker's first termination and HH #16 was there entered by
consent.
       Asked whether she disputes that at one point Mr. Crocker was given a blacked out version
of the drug plan, Ms. Hopkins said:
       I understand he was provided with a copy of the plan by Ms. Powell, a blacked out
       version.
Asked whether she is aware that such a blacked out version exists, Ms. Hopkins answered
       Not to my knowledge.
       Ms. Hopkins said the bargaining unit members at Metrobus and management appointees
have the same group insurance plan. Asked whether there are exceptions, she said that the dental
plan is slightly different, and that the bargaining unit has no LTD.
       Before the last contract the Union did not have a dental plan. We put one in the
       last time round.. Retiree benefits were on the table as of December 15, 2004, one
       of several items, including cost sharing on employee benefits.
ON REDIRECT EXAMINATION Ms. Hopkins testified that the issue of post 75 retiree
benefits came on the table when,
       one of our members turned 75 on the 11th and it came forward on 12th of
       December, I think the next day. Prior to that there was no mention.
       Asked whether she had any reason to believe that Mr. Crocker did or did not receive the
documents associated with GC #13, Ms. Hopkins said:
       He never asked me for the information after, so I assumed that he had received it.
       I assume he would have asked for it again if he had not got it.
In response to questions from Mr. Harris, for the Board, Ms. Hopkins testified that HH #43
shows that the benefits are the same both for unionized and for management employees with the
exception for dental and LTD.




                                                157
                                          ARGUMENT
FOR THE EMPLOYER Mr. Smith undertook to establish that the decision to terminate the
Grievor was justified in the circumstances of the case. The grievance arises from Mr. George
Crocker's dismissal on November 2, 2005, and seeks to have Mr. Crocker "reinstated and made
whole with respect to both his wages and benefits." The facts are simple and straight forward.
The case law supporting the Employer's action is also simple and straight forward. In Mr. Smith's
submission, the Board has simply to apply the facts to the law, and deliver its decision on two
questions: Was there a cause to discipline Mr. Crocker? Was termination the appropriate
discipline?
        The Union has argued that Mr. Crocker has some immunity in making media statements
that arise from the legitimate exercise of his role as President of the Local Union. The Board
should look carefully at the first paragraph of the Termination Letter (Consent #4). The Employer
specifically acknowledges this, and explicitly states that his "acts or statements" on which the
termination was imposed were...
       not... a reasonable exercise of your functions as President of the Local Union
       while also being an employee.
In the second paragraph the Employer clearly asserts that the fact that it views
       ... some of your comments in the media on the drug plan issue and the transit
       operator assault issue as false and malicious and ...
as grounds for Mr. Crocker's dismissal. The Employer believes it has strong evidence to support
the characterization of the Grievor's comments as "false" and "malicious". Any pretence to
immunity is eliminated in accordance with the established jurisprudence.
       In its second paragraph the Termination Letter the Commission records the Employer's
view that some of Mr. Crocker's comments were:
       so disrespectful of the Commission and management that they could not be
       ignored, particularly as same constituted a violation of the Commission's rules.
Those rules are set out in the Transit Operator Handbook (HH #16) which includes rule A6.
"Public Image", which says:




                                                158
       "Making or publishing malicious or false statements concerning any employee or
       the Commission, or other conduct detrimental to the Commission, its employees
       or the employee/Employer relationship will not be tolerated."
Thus, a specific Employer rule against malicious, false, or other conduct detrimental to the
Commission is codified in the Handbook.
       The grounds for the dismissal are clearly set out. The Employer has relied on the false
and malicious statements of the Grievor that have placed him outside the realm of any possible
immunity a Union officer might seek to use as a shield in exercising his role as a leader within
the collective bargaining context.
       There have been hours upon hours of evidence to show that Mr. Crocker either knew, or
ought reasonably to have know, that some statements he made were false, or failed to make
appropriate enquiries in order to verify them.
       The Employer had no objection to Mr. Crocker's going to the press on some of the issues.
These are covered in the case law, and are recognized as a natural, normal aspects of responsible
Union business. But the case law is very clear that going beyond the limits set in that case law
invites discipline. That is what has happened in the instant matter.
       It is also clear from the evidence that the Commission was involved in the decision to
terminate, and were informed of all these matters. It is true that the Commission decided to
terminate before they knew about the route deviation on October 22, 2005. While the decision to
terminate was taken without knowledge of that incident, nonetheless it is presented in evidence.
It reinforced the decision, and the Board should see it as just another example of Mr. Crocker's
pattern of not following rules. In Mr. Crocker's view, rules do not apply to him.
       Mr. Crocker steadfastly refuses to follow rules. They apply to everyone else but, in his
view, they do not apply to him. Mr. Crocker has been warned and disciplined concerning rules.
He has, in fact, served a fourteen month suspension for failing to follow the rules. Mr. Crocker is
not an employee with whom the Employer can work.
        The Employer should not be required to accept the pattern of behaviour Mr. Crocker has
demonstrated since his reinstatement in November of 2004. The Board should review the letter
the Employer wrote Mr. Crocker on December 21, 2004 (AS #1) outlining their expectations for



                                                 159
his conduct following his reinstatement under the terms of the November 15, 2004 arbitration
decision by a Board chaired by Arbitrator Oakley (HH #1a). These expectations, which are the
same for all employees, arise out of a review of that decision, which outlines a very difficult
employment history. That Board found that the work history was not actually referenced in the
Letter of Termination, and the Employer was unable, therefore, to rely on it in justifying the
termination.
         Nonetheless, the award imposed a very substantial suspension of fourteen months instead
of the dismissal that was imposed for falsification of the Employer's records. Mr. Crocker was
using an electronic system to record a false ridership, even though he had no reason to do so and
gave no explanation as to why he had done so. It is simply another example of rules that do not
apply to Mr. Crocker. The termination and reinstatement with suspension provide the context for
AS #1.
         There is case law to support setting out an Employer's expectations. It is clear that some
people do not realize what is expected of them once they assume high Union office and the
responsibility to provide vigorous leadership. Such duties must, nonetheless, be balanced by an
employee's obligations to an Employer. Mr. Smith invited the Board to review Meadow Park
(London) Inc. and Canadian Auto Workers, Local 302, Ontario, Arbitrator T. Crljenica, 122
L.A.C. (4th) 431, October 2003, which deals with an emplo-yee's duty of fidelity, and reviews the
key jurisprudence that addresses this duty which an employee owes an employer regardless of
whether the employee holds union office.
         Meadow Park draws, at p.441, from Re Camosun College and C.U.P.E. Local 2081
(1999) B.C.C.A.A.A. No. 490, where Arbitrator Germaine quotes Arbitrator Weiler (Re British
Columbia (Attorney-General) and BCGU (1981), 3 L.A.C. 3rd at p.158):
         What is this duty of fidelity? In general terms, an employee must display a certain
         degree of loyalty to his employer. Malcontents and troublemakers can be so
         disruptive of normal production in the workplace that they thwart the desires of both
         the employer and fellow employee to get on with the job. These kinds of employees
         have no constructive role to play in a productive workplace and their disloyalty
         destroys their usefulness as employees...




                                                  160
Arbitrator Weiler goes on to cite Arbitrator Kennedy in Re Regional Municipality or Hamilton
Wentworth, 1978, 18 L.A.C. 2nd at p.46 who writes,
       An employee is under a duty to serve his employer with good faith and fidelity
       and not deliberately do something which may harm his employer's business.
Arbitrator Germaine continues at para. 89 of Camuson College:
       "The duty and fidelity does not compel an employee to keep quiet in the face of
       what Arbitrator Weiler described as "wrongdoing" in the work-place. But
       employees are not free to act on mere suspicions. Before making public
       allegations of misconduct, the employee is under an obligation to investigate and
       verify the concerns as far as possible. The employee is also obliged to take every
       reasonable opportunity to correct the concerns within the organization before
       taking them public.... What is clear is that an employee will be in breach of the
       duty of fidelity owed to his employer if he makes false public statements which the
       employee either knows them (sic) to be false or is reckless as to the truth of the
       statements. When an employee fails to use the available resources to determine the
       accuracy of critical comments about one's employer, or when the employee refuses
       to use other means to bring his criticisms of the employer to the attention of those
       in the position to rectify the problem, he is in my view in breach of the obligation
       of loyalty which he owes his employer."
       In Mr. Smith's submission, Arbitrator Weiler's comments apply equally to those who hold
executive union leadership. False and malicious statements remove any possibility of immunity
that may have crept into the jurisprudence. A number of cases deal with the special relationship
of union representatives, but such a special relationship is not absolute.
       Mr. Smith urged the Board to look at a November 2001 award by Arbitrator Alcock in
series of grievances between the same parties arising out of an illegal strike in January 2000. It is
clear from that award that Mr. Crocker, himself, has had full warning that he is not immune from
discipline. Actions contrary to a union officer's role in the administration of the Agreement will
not be tolerated by the arbitral process. The Employer fully acknowledges that there is freedom
of speech in this country. But that does not give Mr. Crocker or anyone else carte blanche to say
what is untrue or malicious. The Alcock award stands for the principal that the actions even of a
union president cannot be sanctioned if they cross the line.
       Mr. Smith also invited the Board to pay particular attention to a case, Re National Steel
Car Ltd. and United Steelworkers of America Local 7, Local 7135 Arbitrator O.B. Shime, Q.C.,



                                                161
2001, which is especially on point since the Grievor in that case was the "Union co-chairperson
of the Health and Safety Committee" (p. 319). A key reason for discipline was that the Grievor
was found to have been operating with limited knowledge in his public statements. Arbitrator
Shime (National Steel Car p.101) quotes with approval from Arbitrator Picher as saying, at
Burns Meats Ltd. and Canadian Food and Allied Workers, Local P139 (1980), 26 L.A.C. 2d.
379, M.J. Picher p.384:
        The fact that a statement is false and that it might appear harmful to a reputation is
        not enough to make it actionable. Striving to tailor the law to the realities of
        industrial relations, the Court has limited actionability to offensive statements that
        are malicious in that they amount to a deliberate or reckless falsehood...
        Arbitrator Shime (National Steel Car p.325) goes on to note that:
            While the principles in Linn and Austin may have been developed in the
            Courts of another country, they are not principles which are necessarily
            foreign to our law. The standard of conduct to be applied to a Union
            steward in cases of discipline for challenges to the authority of
            Management was well expressed by the sole arbitrator in Re Firestone
            Steel Products of Canada and U.A.W, Local 27 (1975), 8 L.A.C. (2d) 164
            (Brandt) at pp.167-8.
                For the purposes of assessing whether or not conduct is
                insubordinate the standard of conduct that the company is entitled
                to expect should be different when applied to the acts of union
                committeemen engaged in the legitimate discharge of their duties
                ... A committeeman is, while attempting to resolve grievances
                between employees and company personnel, always functioning
                on the borderline of insubordination. His role is to challenge
                company decisions, to argue out company decisions and, if in the
                discharge of that role he is exposed to the threat of discipline for
                insubordination, his ability to carry out his role will be substan-
                tially compromised. This is not to say that a committeeman has a
                carte blanche to ignore at will management instructions and to
                instruct others not to carry them out. His immunity, if it may be
                called that, is limited to acts or omissions committed in the
                discharge of his functions and to acts or omissions which may
                reasonably be regarded as a legitimate exercise of that function.
        The Employer acknowledges the jurisprudence recognises a latitude to be accorded the
work of union officials in the discharge of their duties. But it is clear that this is limited to the
exercise of their union functions, and that union officers can go "beyond the bounds of privilege."


                                                  162
(National Steel Car at p. 325). In the instant matter the Employer is not asking the Board to
ignore these fundamental principles set out in the jurisprudence. But the Employer submits that
Mr. Crocker has crossed any legitimate line that could be drawn.
       At National Steel Car p.326-327 (relying upon Re Canada Post and C.U.P.W. (Van
Donk) (1990), 12 L.A.C. (4th) 336 which, in turn, relies in part on Burns Meats) Arbitrator Shime
clearly endorses the Arbitrator Van Donk's agreement that a statement is "malicious" if it is
"knowingly or recklessly false.
       Whereas the arbitral authorities are divided the labour board decisions that deal
       with the right of a union official to public criticise the employer have embraced
       the reasoning articulated in the award of Arbitrator Picher in Burns Meats, supra.
       The labour boards have defined the right of a union official to represent
       employees to encompass public criticism of the employer in matters related to
       collective bargaining and the administration of the collective agreement so long as
       the statements are not "malicious in that they are knowingly or recklessly false".
       The labour boards hold that such a right operates during collective bargaining and
       during the term of the collective agreement...
Similarly, the majority of the Board in Re Bell Canada and CEP (Hofstede) (1996), 57 L.A.C. 4th
289, (Dissanayake) held...
       "... Mere militancy or overzealousness should not result in penalty. A union
       official must be able to press his point of view with as much vigour and emotion
       as he wishes, even thought (sic) it may turn out in the end that his point of view
       was wrong.
               However, the foregoing considerations do not mean that there are no limits
       to acceptable behaviour on the part of a union official. A balance must be struck
       between the right of a union official to be accorded a wide latitude in the manner
       he goes about carrying out his union duties and his concomitant responsibility as a
       union official to scrupulously refrain from the abuse of his union position to cloak
       patent subordination and defiant challenge of management's rights to manage the
       workplace and to carry on production without disruption. (see, in relation to
       factually incorrect statements by union officials about members of management,
       Arbitrator Picher's reference to a need to balance the employers, "dignitary
       interest" with "the need in collective bargaining for free-wheeling debate and open
       expression", at p.382 of Burns Meat decision (supra).) Given the delicate
       balancing required between the right of the employer to be able to manage its
       workplace and to carry on its operation without any interruption and the right of
       the union official to vigorously push the union's point of view in dealings with the
       employer, it is impossible, and in our view would be dangerous, to attempt to set a
       definitive test in order to determine when a union official's conduct ceases to be

                                               163
       protected and becomes disciplinable. Each case must be determined on the basis
       of the total surrounding circumstances."
Arbitrator Shime in National Steel Car goes on, however, (at p.330) to say:
       "After reviewing the decided cases and after considering the difficult role of union
       officials, who are also employees, in representing the interests of Union members,
       I am of the view that considerable leeway should be given to employee/officials in
       performing their proper union responsibilities. Such employees/officials are
       entitled to be sheltered from discipline and discharge for their acts and conduct
       and protection may range from immunity in some instances to requiring an
       employer to strictly prove either malicious or reckless conduct on the part of the
       employee/union official in other instances.
Arbitrator Shime goes on (also on p.330) to say:
        "Also, some distinction should be made between internal and external speech and
       conduct. Thus, where an employee/official, acting within the scope of his/her
       authority as a union official, engages in abusive speech in a closed door meeting,
       he/she may be immune from discipline. However, speech or statements made
       outside to third persons, such as the press, by an union official, may attract
       discipline only if the speech or conduct is malicious or reckless.
               Further, employee/union officials, not only owe a duty of fidelity to their
       employer, but because the Union is co-author of the collective agreement,
       employee/union officials are required to act reasonably and in good faith in the
       administration of their collective agreement responsibilities..."
Mr. Smith invited the Board to review Arbitrator Shime's comments in the light of the facts
presented in evidence here.
       We have the altercation that occurred on Anderson Avenue. This was immediately
investigated. Mr. Crocker was, himself, a participant in the investigative process. And yet Mr.
Crocker chose to use press and radio to make statements to the effect that the Employer was not
doing enough.
       He was fully aware of what had been, and was, being done, and is silent about these facts.
He was aware drivers have access to an open mic, and also of the standing instruction not to pick
up difficult passengers. He was aware, also, that drivers could call for a supervisor's assistance.
There is a whole series of aids; and yet he chose radio to accuse the Employer of not being
responsive to employees' needs, with no evidence offered by the Union to suggest that the
Employer was, in fact, being unresponsive.



                                                164
       Mr. Crocker then went further and actually made accusations of criminal activity. This
clearly crosses the line. In his testimony Mr. Crocker chose to reinterpret the plain evidence of
the audio tape and the transcript to suggest that the reference to criminal activity was to focus on
those persons who were causing the problems on the buses. But that does not stand scrutiny in
light of the notes made by the Union of the Union meeting on the assault issue (Consent #5, p.6).
       This shows what Mr. Crocker said. Clearly the reference was, in fact, to his Employer as
the target of this reference to criminal activity. In this context the Board should look carefully at
the evidence of what Ms. Swain says immediately after Mr. Crocker's "Criminal Code" comment.
She clearly understands his phrase "these people" to refer to the Employer.
       On September 18th Mr. Crocker makes statements that are unambiguously reckless, in
suggesting that the buses are dangerous, both for drivers and passengers. Mr. Crocker had a right
to do this within the Occupational Health and Safety Committee, but the evidence shows that he
did not himself take it to this Committee. Instead, he chose to make a public stand while the
Committee was itself working on the issue.
       As President of the Union, Mr. Crocker signed the Agreement that sets out how the
Occupational Health and Safety Committee works. Yet he chose to offer these reckless press
statements. The case law puts him well beyond the immunity limit at this point.
       Speaking as President of the Union does not mean that the President of the Union ceases
to be an employee. The President of the Union must act with good faith and within the limits
both of the jurisprudence and his own responsibilities to the Collective Agreement.
       In the Employer's view, by going public in this manner Mr. Crocker intentionally fostered
public concern over the issue of safety, even though he knew the facts were not as simple as he
was presenting them.
       For instance, in the Anderson Avenue case elements of provocation were involved; and
the altercation occurred outside of the bus. If Mr. Crocker did not know the actual facts, his
comments were nonetheless, malicious since he should have found out. This is the principle that
National Steel Car makes clear. It shows that Mr. Crocker did not have the right to jump to the
media, and accuse the Employer of criminal activity where the customers of the public transit



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system are able to hear it. Mr. Crocker did this knowing that he was bound both by the
Collective Agreement and by statute in Occupational Safety Act.
       Mr. Crocker could have sought the protection of the Act. He chose to go to the media to
frighten the public, and assert that the Employer was not addressing safety issues. He sought to
give the impression that the buses were unsafe, that the drivers were at risk, and that only he
could order them not to work in these conditions. In fact, he was well aware of the standing
instruction to drivers not to pick up trouble makers. There is no wonder the Commission took
this issue very seriously, as shown in the agenda and minutes of the September 29, 2005 meeting
(AS #5). The Commission took serious notice of Mr. Crocker's comments on the September
VOCM Nightline show. In Mr. Smith's view, the Commission firms up its action against Mr.
Crocker at this moment.
       Mr. Smith also asked that the Board pay particular attention to HH #1a, the Award of the
Board chaired by Arbitrator Oakley in Mr. Crocker's first termination. As that award makes very
clear, the Grievor was certainly aware of the Transit Operator Handbook. That Award
addresses (at p 10) the details of the Transit Operator Handbook, in particular section B12.
There is no doubt Mr. Crocker is aware of the existence and contents of the document, and
cannot now credibly deny that awareness. It formed part of the basis upon which the Board
chaired by Mr. Oakley awarded him a fourteen month suspension.
       It is also referenced in the Letter of Termination (Consent #4 at p.3), where Mr. Crocker
is informed that his violation of the Commission's policy A-6 forms part of the reasons for his
dismissal. This is described in more detail in the minutes of meetings of the Commission (AS #6)
and in AS #1. Mr. Crocker's termination is the result, in part, of clear violations of Clause A6 of
the Handbook.
       Metrobus' public image has been maliciously and falsely tarnished by the statements that
Mr. Crocker made concerning violence on the buses. His reference to charging the Employer
under the Criminal Code of Canada was also malicious.
       Mr. Smith also urged the Board to review Re Pacific Press and Communications, Energy
& Paperworkers' Union, Local 115M (C. Bruce) 1997 which stands for the proposition that you
cannot justify going to the media when the issue can be resolved within the grievance procedure.

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If you do so, then you open yourself to discipline. This case (especially at pp. 223 and 232) is
particularly instructive on the case law as it covers the public statements Mr. Crocker made about
the retirees' drug benefits and cap. The disrespect shown to the Commission on that issue must be
reviewed in the light of this case.
       Mr. Smith asked the Board to consider the evidence of Mr. Crocker's use of the media on
issue of the over 75 retirees' drug coverage. It is important to note the circumstances surrounding
the implementation of the drug plan and the $7,500.00 cap. Mr. Crocker took this to the press
and to the Chairman of the Commission in an attempt to undermine Commission management.
It should be borne in mind that the Union had already grieved, claiming that the Employer had
violated the Collective Agreement by failing to implement a drug plan within the 90 days. That
grievance itself alleged that the Employer was somehow responsible for failing to implement the
plan. Mr. Crocker himself had signed the memorandum of understanding and the Collective
Agreement. He was fully aware that the Employer did not have the responsibility for putting the
plan in place within 90 days. Nonetheless he grieved it, seeking as redress that the plan should
be put in place within the 90 days. So the Employer responded by putting a plan in place as Mr.
Crocker had requested in the grievance. But it was a plan with a cap.
       Once the Employer had implemented the plan, the original grievance was then abandoned
and a new grievance introduced grieving that the plan was unacceptable. But the matter did not
even get to arbitration before Mr. Crocker was in the press suggesting that the cap was a breach
of the Agreement. Yet he, himself, was a member of the Joint Benefits Committee acting under
the Agreement and responsible for putting a plan in place.
       Evidence clearly shows that Mr. Crocker was a party to the Joint Benefits Committee and
that it began its work, and tried to design a plan. Mr. Crocker, himself, effectively ended the
work of that committee by filing the first grievance. Mr. Crocker told the press none of these
things: nothing to show that he was, in part, responsible for what was happening. He did not
point out that the Employer had, in fact, a plan in place as an interim plan. None of that got into
the press. Knowing these facts, he proceeded to obscure them.
       Mr. Crocker knew that the matters were proceeding under the Collective Agreement, but
yet went public in the face of the fact that the grievance procedure was underway, suggesting that

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the Employer had reneged on a deal. He asserted this as a fact. He was trying, maliciously, to
undermine the managers at Metrobus by appealing to their political masters to "do the right
thing", suggesting that management had done the wrong thing.
       Mr. Crocker's insistence that Mr. Colbert should, "do the right thing" is really quite
irrelevant. Mr. Colbert was not at the bargaining table. What Mr. Colbert did or did not want to
do is not part of what the Collective Agreement requires of the two parties to it. He contacted Mr.
Colbert, despite having been told twice not to do so, using the media to make that contact. Mr.
Smith invited the Board to review Mr. Crocker's public statements concerning the plan. It is, in
the Employer's submission, absolutely contrary to the case law for an official of the Union to act
in this way.
       Mr. Crocker's going public breached the standard set in the jurisprudence, first because
the matter was at arbitration; and second because he had not exhausted the process available to
him within the workplace, in particular the Joint Benefits Committee; and finally, by offensively
suggesting the management had reneged on a deal, knowing the Employer is a public service
body. He clearly demonstrates what he is not supposed to do: undermine the chain of authority.
He organized a silent protest at Council... chose to make it an election issue... chose to meet with
candidates and with the Commission... called on the Commission to "do the right thing". The
letter of termination sets out these matters.
       There is, as well, the portrayal of the Commission as wasting public money by talking
about the costs of arbitration in inflated terms. The Grievor felt quite comfortable going to the
press as the forum through which to address a difference with the Employer, rather than using the
grievance procedure, the process agreed to under the Collective Agreement. Mr. Crocker claims
to want to avoid the costs of arbitration. The fact that it was the agreed process appears not to
have bothered him.
       It is further clearly established in the jurisprudence that anyone who goes to the press has
the responsibility to be accurate, and not to ignore the facts. For instance, in describing what is at
grievance the facts of the grievance have to be laid out with some clarity and accuracy. This is
the role of a President of a Union, to sustain the Agreement. Such an officer of a union has no
right to go public if the structures to which the Parties have agreed have not been observed. But

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Mr. Crocker apparently does not see things this way. Instead he talks in terms of very highly
inflated costs for the simple purpose, so far as the Employer can see, of spreading the belief that
Metrobus wastes money and has no concern for costs.
       Mr. Crocker also stated that Metrobus management enjoyed the benefit of a cap-free drug
benefit for those over 75. This is simply and plainly false, and he knew it to be false, as the
evidence of his earlier media statement shows. He had earlier stated that the two plans were the
same. The evidence shows he was sent a copy of the plan. But Mr. Crocker leaves the public
with the impression that Metrobus management were denying to employees a benefit that the
management itself enjoyed. Mr. Crocker did this knowing that it was not the Employer, but the
Joint Benefits Committee of which he was a member that was, in fact, responsible for the plan.
The media got no wind of the true facts; nor did the retirees.
       Mr. Crocker also knew that the plan with a cap was introduced as a response to his own
grievance. But despite this, he attempted to persuade the elected Commissioners otherwise in
order to try to get them to change a management decision. The Agreement, itself, references the
Commission's by-law authority, under which the management is responsible for the Collective
Agreement. The reality is that the Agreement is administered by management. No
commissioners serve on the Joint Benefits Committee.
       The Employer takes the view that Mr. Crocker's public statements clearly exceeded his
legitimate Union functions, and breached his duty of fidelity. He is not protected by any type of
immunity. His statements fall outside the kind of latitude that case law recognizes as appropriate
for an officer of a union in exercising his or her duties.
       Mr. Smith invited the Board to review Re School District #22 (Vernon) and Canadian
Union of Public Employees, Local 5523, British Columbia, Taylor, Devine, Bell, 2002, L.A.C.
104 (4th), especially at pages 441 ff. The circumstances in that award show it is possible for a
union representative to go outside of the boundaries of any immunity, especially in statements ..
       "that are malicious in the sense that they are knowingly or recklessly false."
       Casellholme, Home for the Aged, v. C.U.P.E., Local 146, 2004 case, 128 L.A.C. 4th at
425 ff. makes the same point, especially at para. 19 which again cites the National Steel Car
with approval. It is not appropriate for a union officer to act in bad faith, insubordinately, or to

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attempt to undermine and malign management. The arbitrator in Castellholme sums up the
position by saying, (at para. 22):
       ... it is my view that the Grievor's comments were reckless in that many of the
       most critical remarks were unfounded and could easily have led to a loss of
       confidence of the public in the home and in those who were responsible for its
       administration... The Grievor's remarks were also malicious in that they
       constituted an attack on the administration of the home in what appeared to be a
       deliberate attempt to undermine those responsible for its operation... Worse still,
       the Grievor was cautioned... to be more circumspect about making derogatory or
       negative comments about the home in public. Rather than taking that advice to
       heart, the grievor returned to the public forum and criticized the home for having
       suspended him, for the waste of money resulting from his suspension and then
       called for the resignation of those responsible. There was, therefore, not only a
       breach of fidelity but an element of insubordination in the Grievor's continued
       assault on the employer's image.
In the Employer's view, Mr. Crocker's comments fall into the category named in Castellholme.
       Mr. Smith directed the Board's attention to Canadian Anglo Machine and Ironworks Inc.
U.S.W.A., Local 90974, 119 L.A.C. (4th), 2003 where the arbitrator notes (at para. 91),
       I have also recognized that "immunity" for union officials is not absolute...
           ...union officials or stewards, in their representative capacities, are to
           be accorded substantial and broad protection when they express their
           bona fide views or disagreements with managements on issues of
           legitimate concern and these views may be expressed, when required,
           in a forceful and open manner. This is true of labour management
           meetings, collective bargaining, or when processing grievances
           through the grievance procedure.... But, the arbitral authorities draw
           the line when a person attacks or vilifies a member of management or
           another person by a statement which is knowingly false or is made in
           such a reckless or careless manner as to have no regard for the truth of
           the statement or the consequences that may flow from it...
       The Termination Letter sets out the Employer’s considerations in deciding to terminate
Mr. Crocker for, among other things, a reckless attack on the Employer, going to the extent of
suggesting a criminal act. Discipline is required in such a situation.
       Mr. Smith pointed to Re Corporation of the City of Brampton and Amalgamated Transit
Union, Local 1573, 1989, at p. 300 ff. which summarises the jurisprudence:
       What becomes clear throughout these cases... is that the test is whether the
       employee, who is also a union executive, has intentionally misrepresented the

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       truth or carelessly or recklessly disregarded the truth in the statements made with
       a detriment to the employer.
And (at p. 324) the board says:
       "... The evidence is such that I can conclude ... that what the grievor intended and
       did in writing the letter impaired the employment relationship. Allegations of
       lying by staff without evidentiary support clearly goes (sic) beyond propriety and
       is at least inflammatory..."
A union official cannot make careless public statements, such as ignoring the relevance of the
work of the Joint Benefits Committee, and the casual charge of criminal activity.
       Mr. Smith also noted a pre-charter case, Re Chedore and Treasury Board, (Post Office
Department), 1980, Arbitrator D. MacLean, which introduces itself by saying:
       In a general manner of speaking, this case involves a question of free speech in the
       modern society.
At p 59 - 61, that award reads:
       It could be said that public criticism of an employer is a challenge to the inherent
       employer/employee relationship... The extent of that criticism...must be related to
       the terms and conditions of the employment...
       Mr. Crocker's return to work in December of 2004 was subject to clear expectations
arising out of the Oakley award. The Employer recognized it must observe the outcome of the
Oakley case. The dissent in such matters has value and Board should look closely at it.
       The Employer's expectations are listed clearly in AS #1. Specifically, Mr. Crocker was
cautioned to observe the chain of authority that is laid out in all levels of management. He had
already been told, by both Councilor Wells when he was Chairman of the Commission and
Councillor Colbert during his tenure as Chairman, not to approach them on management issues.
The Grievor also breached the AS #1 expectations by trying to have Council change the decision
concerning the cap. He breached those expectations as well by virtue of his insubordinate
behaviour in attempting to make contact with the Chairperson in his violation of the Transit
Operator Handbook at A6. (The Employer has not relied on Section A13, until Mr. Crocker
violated Article A6.) This is clearly substantiated by the case law submitted.
       Further, it is clear that Mr. Crocker violated the expectations set out in AS #1, and normal
expectations of a Union leader, by failing to make use of the Occupational Health and Safety Act


                                               171
and its provisions and by failing to live within the Collective Agreement procedures as agreed.
Mr. Crocker has stepped over the boundary and therefore merits discipline.
       Mr. Smith also suggested that the Board could not ignore the fact that while the Oakley
case did, in fact, reinstate Mr. Crocker, it did so with a fourteen month suspension. There is no
place to go after a fourteen month suspension but to termination, especially in view of the fact
that the Grievor has now raised the level of rhetoric, not just against management but to embrace
members of the public and politicians.
       The employer/employee relationship has been irreparably damaged. Here we have a man
who has overstepped all the boundaries. There is now no room left except termination. No
remorse has been shown here. Mr. Crocker thinks that the office of President provides him
immunity from any kind of discipline.
       Re G.D.X. Automotive and United Steelworkers of America, Local 455, 116 L.A.C. 4th,
p.265 ff. and Re Quality Meatpackers Ltd. And United Food and Commercial Workers Union,
Local 175/633 at 108 L.A.C. 4th provide clear indication of the jurisprudence on this matter.
Canada Post Corporation and Canadian Postmasters and Assistant Assn. (Walsh grievance),
C.U.P.W. NF-96-004, Arb Montgomery deals with mitigating factors in such matters at p.32
Arbitrator Montgomery lists nine factors that might be considered in mitigation. Yet none of
these factors have any bearing or relevance in the present matter.
       Even the issue of his deviation from route is more evidence that the rules do not apply to
him. If he had gone off route, why did he simply not acknowledge it and say, 'Okay, I made a
mistake.' But no! Mr. Crocker had to push things to the limit. Asked if he went off route, he
said, No. The other operator who appeared for the Union, Mr. Ken Walsh, did not, in fact,
support Mr. Crocker's position at all because, his testimony about his own deviations from route
showed that they were quickly reported and corrected within a few hundred yards.
       The level of trust required for Mr. Crocker to reenter the workplace is no longer there.
The Employer urges that the Board dismiss the grievance and permit the discipline to stand.
FOR THE UNION Mr. Earle observed that this particular case presents some issues that the
case law does not address. In the instant matter there are particular circumstances to which one of



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the Employer's cases makes very precise reference when it insists that each individual case must
be examined on its own merits.
        In his testimony, Mr. Austin Spurrell said that Mr. Crocker thinks that he is two people:
George Crocker the employee and George Crocker the Union President. It is the Union's
submission that the Employer has difficulty with that fact. Simply put, that is the regime they
have been given by the labour relations legislation of this province. The Board should bear in
mind that it is this regime which sets the starting point for the determination of this matter. At all
relevant times Mr. Crocker was President of the Local Union 1462 of the Amalgamated Transit
Union. Under Newfoundland legislation, Local 1462 is the Union. The Board must review
carefully the Labour Relations Act and particularly the definition:
       2(w) "trade union" or "union" means a local or provincial organization or
       association of employees, or a local or provincial branch of a national or
       international organization or association of employees within the province that has
       as 1 of its purposes the regulation in the province of relations between employers
       and employees through collective bargaining but does not include an organization
       or association of employees or a council of trade unions that is dominated or
       influenced by an employer...
       No entity has a legal relationship with the Commission on behalf of its employees other
than Local 1462. It is important to recall Mr. Crocker's testimony that, under the constitution of
the Union, he is the spokesperson for that Union. He and only he, not "he" George Crocker, but
"he" President of Local 1462. A Union can only speak through its officers. This Union
constitutionally speaks through its President.
       The Board must bear in mind that the relation of a union with an employer is entirely
different from the relationship between an employee and an employer. A union is an entity to
itself. As such, it has a statutory right to demand an employer negotiate a collective agreement
with it, and a statutory right to administer that collective agreement and to represent employees'
best interests in respect of that collective agreement. An employer is governed by the relationship
it has with the employees under the terms and conditions of employment that spell out in the
collective agreement, to minimal extent, certain rules that an employer may make. But there is no
legislative or contractual relationship between a union and an employer that permits the employer
to govern a trade union.

                                                 173
        This can create difficulties at times. For instance, when a shop steward disobeys an order
on the shop floor, he or she may claim that he is acting in his role as representative of the union.
But he is, nevertheless refusing to do an employee's work and as an employee he is subordinate
to the employer's wishes in the workplace. Thus, he would be insubordinate.
       But it is at this point that the Union parts company from the Employer's analysis of the
jurisprudence as it applies in the instant matter; in the Union's submission, so does the case law.
In the Union's submission, the case law shows that the onus under the Collective Agreement lies
with the Employer in its dealings with the Union. It appears that Mr. Smith, for the Employer,
does not accept this. When a union official is working outside the workplace the bar is lowered
because it engages the public.
       The Union undertakes to demonstrate that the case law accepts that going to the press on
issues arising from the administration of the Collective Agreement or collective bargaining is
part and parcel of what a trade union leader does, particularly when the Employer is rendering a
public service because these are matters of public interest. Mr. Smith suggests that on the shop
floor there is more latitude, and that the Union can engage the public only when the Collective
Agreement is not operating. The Union strongly holds the reverse to be true. The case law shows
that greater freedom off the floor. Mr. Earle cited: Samson v. Canada Post Corporation, Canada
Labour Relations Board, (1987).
       39 It seems to us that if Canada Post has the right to promote and explain to the
       public the foreseen impact of its Corporate Plan on its own employees and on the
       public at large, it is only fair that the union, through its chosen representatives, be
       allowed as well to express to the public its own views on that same Corporate Plan.

       40 In our view, the stance adopted by the employer in the instant case effectively
       denies the union executive members the right to speak out publicly in an attempt
       to represent their members for the most fundamental of reasons – the protection of
       their jobs. It appears as reasonable to this Board ... that a union can take recourse
       to the media, the government and other influential bodies such as the public in an
       attempt to influence the employer with relation to matters that directly concern its
       membership, particularly, as here, during collective bargaining. It is to be noted
       that Mrs. Samson always spoke out in her capacity as a union officer. Her
       evidence with regard to how she handled questions at Arichat is testimony of this.
       There was nothing in the press reports of what Marie Samson said at the various
       public meetings or in her testimony which indicated that she was saying anything

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intentionally malicious about the Corporation. Nor was she speaking recklessly. It
was Mrs. Samson's objective that her statements cause the public to put pressure
on the government in order to have the CPC change its Corporate Plan.

43. Furthermore, we are not prepared to accept the position of the CPC that would
limit the right of a union officer to speak out only in times of collective
bargaining. Rather, we subscribe to the words of the OLRB in the case of The St.
Catherines General Hospital,([1982] OLRB Rep. March 441):
    To the extent that the Northwestern Health Unit case seems to require that
    every action of a union official be submitted to the membership in order to
    trigger the status of union activity under the Act we would decline to
    follow it. While there may be circumstances where a union official would
    clearly be on a 'frolic' of his own, the Act specifically recognizes ... the
    concept of 'scope of authority' with respect to the everyday action of trade
    union representatives. We decline to hold that the grievor before us... was
    not representing the complainant associa-tion in attending the press
    conference and making the statements that she did. She and the
    complainant were interested in the implementation of the Assessment
    Committee report which was a report prepared under the terms of the
    collective agreement between the parties. The report and the concerns of
    the grievor related to staffing. Staffing is a legitimate employee concern
    particularly in the context of nursing. Such issues have given rise to
    significant grievances and arbitral responses... Nurses, as are other health
    care professionals, are legally accountable for their actions and can be
    joined in negligence actions arising out of inadequate patient care...We
    would also accept that, because of the involvement of patients, the matter
    was of potential interest to the public and it was this overlap in interest
    that the union officials sought to exploit. We must consider whether
    statements that seek to involve the public (as opposed to more inwardly
    directed statements at employees or the employer) constitute a protected
    lawful activity of a trade union under the Act and, if so, whether the
    precise content and circumstances of the grievor's statements in the context
    of this collective bargaining relationship support her claim for statutory
    protection. We specifically reject the notion that statements must be
    'timely' to be even considered as trade union activity. Conduct giving rise
    to this type of problem can reasonably arise during an organizing drive;
    during negotiations; during grievance meetings; and on other ad hoc
    occasions. A collective bargaining relationship is an ongoing relationship.
    The adoption of timeliness considerations in analyzing alleged union
    conduct would create artificial rules quite inconsistent with the dynamics
    of collective bargaining. (p. 481; emphasis added)




                                       175
        The Chedore analysis is no longer accepted.. It is now accepted that engagement with the
public in the media is a normal part of a union leader's job. The only issue is how it is done, not
the effect of the leader's activities. The malicious / false /reckless test continues to apply, but it is
very important to understand the distinction between actions of a union leader and an employee.
        The evidence shows that in each of the instances complained of, Mr. Crocker was acting
solely as "the Union." When Mr. Crocker speaks publicly about the drug benefits for those over
75 years of age, that has nothing to do with him personally. When Mr. Crocker speaks publicly
about risks drivers face, and danger to passengers from assaults, he is not talking about himself
personally. On no occasion complained of by the Employer was Mr. Crocker engaged in his duty
as an operator or acting on his own interests as an employee of the Transportation Commission.
        The assertion by the Employer that Mr. Crocker was insubordinate is simply wrong. The
Union cannot be insubordinate to the Employer. Insubordination can only occur when you are
acting as an employee. This case sets in strong relief the contrast between George Crocker as an
employee and George Crocker as the Union. We have a small Union with no paid employees.
Officers are also employees of Metrobus.
        Mr. Earle invited the Board to consider Re Ford Motor Company Canada Ltd. and
United Automobile Workers Local 707, E.E. Palmer, (1976) where Arbitrator Palmer notes
(p.336) in the concluding paragraph that:
         "...When acting in his representative capacity a union steward stands in a position
        of equality with management."
Equality and insubordination are mutually exclusive concepts. Ford Motor Company is an old
case, but it expresses the seminal principle that stands to the present day. It sets out the basis of
the distinction that the Employer seems unable to grasp, and is very similar to this case. In Ford
Motor Company case the grievor was acting solely in his union capacity.
        Burns Meats Ltd. and Canadian Food and Allied Workers, Local P139 (1980), 26 L.A.C.
(2d) (379), M.J. Picher, similarly stands for the principle, central to the Union's submission, that
the effect of a union officer's actions are not what matters, but how he or she conducts business.
Its stands above all for the principles that a union cannot be muzzled .




                                                  176
        If union stewards are to have the freedom to discharge their responsibilities in an
        adversarial collective bargaining system, they must not be muzzled into quiet
        complacency by the threat of discipline at the hands of their employer. In our
        view the principles developed... disclose the standard to be applied. The
        statements of union stewards must be protected, but that protection must not
        extend to statements that are malicious in that they are knowingly or recklessly
        false. The privilege that must be accorded to the statements of union stewards
        made in the course of their duties is not an absolute licence or an immunity from
        discipline in all cases. A steward who openly exhorts employees to participate in
        an unlawful strike obviously cannot expect that his union office will shield him
        from discipline for his part in engineering the breach of both a collective
        agreement and the Labour Relations Act... a steward may not use his union office
        and a union newsletter to recruit and direct employees in a deliberate campaign to
        harass a member of management... Conduct so obviously illegal or malicious is
        outside the bounds of lawful union duty and can have no immunity or protection.
        The Union has no problem accepting this standard. The Employer has not made out any
case that Mr. Crocker's actions are of the sort covered by the Burns Meats reference to "obviously
illegal or malicious or outside the bounds of lawful union duty". The criterion set in Burns Meats
is strong: "knowingly and recklessly".
        There is a recognition in Burns Meats that we are not dealing with people who are
schooled in diplomacy. It is important to recognize that the officers of this bargaining unit use a
manner and style of speech that is required by the bargaining unit and by the situation. If the
Employer is not satisfied with that, then it can hire men and women with different expectations at
a different level of pay.
        The Board should also review a recent case Re City of Nanaimo and International
Association of Firefighters, Local 905, (2002) Arbitrator H.A. Hope, Q.C. which deals directly
with a statement by a union president in the press which, in the employer's view, was a lie. A
similar allegation is made in the instant matter before this Board. In City of Nanaimo the
arbitrator found that the employer failed to establish conduct deserving of discipline and this
finding was based on the fact that the arbitrator was persuaded that the union officer did actually
believe that the employer was acting in bad faith. Thus, the "knowingly and recklessly" test,
when applied appropriately, exonerated the union official in that case and, in the Union's
submission, must do so in the instant matter before this Board.



                                                177
       The same considerations apply Re Interforest Ltd. and International Woodworkers, Local
1-500, (1990) Arbitrator J.W. Kilgour from Ontario which clearly supports the position adopted
in other cases. The Chedore line of reasoning is appropriately laid to rest, and the principle that
union officials have somewhat wider latitude in permissible speech than other employees when
acting in their capacity as union officers is set out particularly in Samson v. Canada Post
Corporation, Canada Labour Relations Board, (1987) which reviewed different approaches of
Chedore and Burns Meats and follows the more enlightened approach adopted in the latter case.
       The principles set out in Samson v. Canada Post are crucially important in the Union's
view. Mr. Smith argues that public statements are only permitted to be made when collective
bargaining is underway. That is not the case, and is not borne out by the jurisprudence. St.
Catherine's Hospital case, referenced in Samson, speaks of exhausting internal remedies, but the
final pages of Samson deal directly with this issue. Re National Steel Car Ltd. and United
Steelworkers of America, Local 7135, 101 L.A.C. 4th O.B. Shime, Q.C. from October 2001 at
pages 317 ff. agrees. So long as the statements made are not knowingly or maliciously false
there is no requirement to exhaust internal remedies or to limit oneself to the grievance process.
On this point Re Canada Post Corporation and C.U.P.W. (Van Donk) 1990, 12 L.A.C. 4th 336
(Burkett) and Burns Meats are relied on by Arbitrator Shime in National Steel Car who says, at
p.327 of that award:
       In a similar vein, the majority of the Board of Arbitration in Re Bell Canada and
       C.E.P. (Hofstede) (1996), 57 L.A.C. (4th) 289 Dissanayake), suggested that
       considerable leeway be given to Union officials. The majority stated at pp.
       297-98:
           In our view, the question of whether a union official is entitled to
           immunity from discipline must depend on the facts of each case. The
           starting point must be that there must be a recognition that once an
           employee is elected to union office his status in the work-place changes
           substantially. He has a dual role. As an employee, he must conform to the
           same rules and policies as his co-workers. However, when acting in his
           union capacity he is an integral part of the collective bargaining regime
           that governs the workplace on a day-to-day basis. He is then on an equal
           footing with members of management when carrying out his union duties.
           He must be free to police the collective agreement for compliance, and
           enforce it with vigour. In so doing, it is unavoidable that he will be
           required to take a higher profile than his fellow workers. Inevitably from

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           time to time he will encounter areas of conflict with members of
           management. Regardless of the individual's degree of tact and diplomacy,
           it comes with the territory than on occasion he will be bordering the line
           between vigorously representing his fellow workers and engaging in
           insubordination towards members of management. Given this difficult role
           undertaken, the right of a union official to properly carry out his duties
           must be strictly protected except in the most extreme cases. Mere
           militancy or overzealousness, should not result in penalty. A union official
           must be able to press his point of view with as much vigour and emotion
           as he wishes, even thought (sic) it may turn out in the end that his point of
           view was wrong...
In Mr. Earle's view, it is important to note that Mr. Crocker was, at all material times, acting as
spokesperson for the Union. (The Van Donk case is also well worth reviewing especially at p.334
where Van Donk addresses Samson and St. Catherine's General Hospital. )
       Mr. Earle also relied on Alcan Smelters and Chemicals Ltd. V.C.A.W., Local 2310,
(1996), and also re Government of Alberta and the Alberta Union of Provincial Employees,
Local 6, 57 L.A.C. 4th at p.400 ff. Mr. Earle noted that Board's comment that:
       In modern times, the information age, it is now common that both employer and
       union representations with respect to labour issues might be made in public...The
       necessity to vent concerns through internal channels has not survived. Essentially
       union representatives acting in their representative capacity, may speak out on a
       very broad range of issues. The statements, however, must not be motivated by
       personal animosity nor may the statements by malicious in that they knowingly or
       recklessly false.
       In summary, Mr. Earle said it is clear that the Employer and Union have different views
of the state of the law. The Employer has dismissed the Union President. He was dismissed by
the Commission. The onus therefore is on the Commission to show that the reasons for that
dismissal constitute just cause. The onus is to show those reasons, not a post hoc justification,
and not something added after the decision was made, such as the route deviation.
       In the Union's submission, Consent #4 does not provide evidence as to why Mr. Crocker
was dismissed. That document was written after the decision was made. It is arguable that the
decision to terminate was made as early as September 29th. AS #5 is evidence for that. That is
when the decision was made, subject only to Mr. Smith's confirmation that Metrobus could get
away with it. That was not a request for an investigation, as Mr. Smith suggests. The evidence


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shows the Commission was determined to get rid of Mr. Crocker, so, 'Sent it all down to the
lawyer, and lets be sure we can do it.'
       Miss Hopkin's testimony, (HH #36 at p.2) lodges the authority of the Commission to
operate under the "powers" of subsection #4. Admittedly. the seven people who make up the
Commission Board do not make all the decisions. There are people who carry out the work of
the Commission. But it is clear, from the documentation provided by the Director of Human
Resources and the Acting General Manager at the time, that the decision to discharge an
employee was not delegated under 4.1.d. The sole power to discharge for cause rests with the
Commission. It is not a management right. The Commissioners had to decide the basis for the
decision to terminate.
       The Board must look carefully through the three detailed minutes of the deliberations,
(AS #5, AS #6 and AS #7) and consider Mr. Austin Spurrell's evidence very carefully. Mr.
Spurrell was the Acting General Manager at the time, and was present at all meetings. AS #5
provides clear evidence that the original idea for getting rid of Mr. Crocker came from the
Commissioners.
       Mr. Earle also asked the Board to consider the organization of the agenda set out in that
document as revealing the actual intent, and to compare the agenda with the way in which that
document actually records how the matters were dealt with. In Mr. Earle's view, "by the time we
reach the end of item #4 we are firing Mr. Crocker." There is no separate item, for instance as
reflected in item #6.
       Mr. Earle also noted that the Board might take note of the fact that there is evidence that
the Employer is scurrying to cover a perceived lack of action in rushing the Front Line document.
This demonstrates that Mr. Crocker was right. There was a need for something to be done, if,
Mr. Sears' comment (AS #5 p.5) has any meaning when he refers to taking "the sting out of the
Union's meeting".
       The Board does not have full evidence of what Commissioners actually had. We do
know that they did not have the tapes which are very different from the transcript. The Vice-
Chair's expression of concern that Mr. Crocker should "not be running off to the press" shows
that the Commission fails to recognise the role of Union President. This is clear when he says "he

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should not be allowed to continue his employment with the Commission" based on the letter (AS
#1) to Mr. Crocker on reinstatement following the Oakley decision. That understanding of the
expectations is itself entirely out of order. The Employer does not have the right to dictate
expectations concerning the conduct of the duties of the President of the Union. That letter can
only apply to Mr. Crocker in respect of his duties as an employee. The Employer has no
authority for paragraph 3 of AS #1 where Mr. Crocker is:
       required to refrain from contacting the Chairperson of the Commission unless
       specifically authorized to do so in writing by management and to follow the
       established and proper protocol with regard to contacting the Commission
       A union with bargaining rights is free to contact whomever it wishes. Should that person
not wish to be contacted, his remedy or her remedy is to say: "I am not talking with you. You
must talk to someone else, for instance Mr. Ray Lawlor." An employee, as a subordinate, can be
told to follow the chain of command. But what the Employer is here asserting is that it has the
right to tell the Union how it goes about its business. It cannot interfere with how the Union does
its business. The Board should know at Section 23. (1) of the Labour Relations Act:
       An employer or employers' organization, and a person acting on behalf of an
       employer or employers' organization, shall not
             (a) participate in or interfere with the selection, formation or
             administration of a trade union;
This distinction is crucial in the instant matter, in the Union’s view.
       The workplace is key. The cases Mr. Smith has entered all deal with the balance of the
rights of the union versus the rights of the employer to do its proper work. But that is not what is
at issue here. We are not talking about production and the right to get production done. We are
not taking about Mr. Crocker calling Mr. Spurrell and asking for Saturday off. In such matters,
clearly, he has to follow the Employer's workplace rules. Under the Act, how the Union organizes
its business is the Union's affair. Section 24(1) reads:
   An employer and a person acting on behalf of an employer shall not
      (a) refuse to employ or to continue to employ a person, or otherwise discriminate
      against a person in regard to employment because that person is a member of a
      trade union;




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The Union has the right to speak out and speak with anyone in public office. That is what these
Commissioners are. They are in public office. They are not Commissioners as private persons.
It is no different from someone living, for instance, on Shea Heights saying, 'We should have
more buses...I'm calling Gerry Colbert.'
        The Employer has the right to organize the workplace and govern how work is done. But
in terms of how the Union conducts its business under its statutory mandate, the Employer
simply has to accept that. AS #5 shows that the Commissioners are confusing the roles of
President George Crocker, and George Crocker the employee.
        It should also be noted that Mr. Spurrell's reference to Mr. Crocker's behaviour as not
being subject to rehabilitation and that there had been problems "over many years" violates the
Collective Agreement's prohibition that establishes a barrier as to what can or cannot be
considered by the Employer: twenty-four months providing there is no reoccurrence. Reference
to matters "over many years," therefore, is beyond the scope of this clause.
        Rhetoric continues to heat up on page 5 of AS#5, and by page 6 the decision is, in effect,
made with the further reference to his being fired for his actions once again. The Union finds the
attitude toward the earlier arbitration decision troubling. Is Mr. Crocker being terminated again
because they could not get what they wanted during the last arbitration. There is evidence they
are still shaking their heads over that decision, and feel that the strike was a retaliation for it.
        Clearly, in the Union’s view, there are inappropriate and extraneous considerations at
play here; amounting, in fact, to what could be called and unfair labour practice. It's a case of
Mr. Crocker not being 'the sort of Union leader we want? That is not for the Employer to say, as
the Union's jurisprudence shows. Mr. Earle also took issue with the delay in reinstating Mr.
Crocker after publication of the Oakley award. There was an undue delay since the award had
ordered Mr. Crocker reinstated, not suspended for a further period.
        Mr. Earle also reflected other comments attributed to Commissioners in AS #5. He noted
(p. 6) a reference to:
      Mr. Crocker's most recent actions... public statements respecting the Union's
      discussions with the Employer about the benefits package...to the assault on a transit
      operator, the Acting General Manager was directed to immediately seek a legal



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     opinion respecting the Commission's right to fire Mr. Crocker and to provide council
     with a complete review of events to assist in providing that opinion.
It is not clear, in Mr. Earle's view, whether Mr. Crocker was fired for his actions as recorded in
this paragraph, or for something else: something larger. If it is something larger, then consider
the total package and those things that happened "many years ago" are simply not appropriate for
consideration according to the Collective Agreement.
         Just what is Mr. Crocker being disciplined for? It is not sufficient for the Board to accept
that his discipline is based on what has been reduced to the reasoning set out in Consent #4, since
management did not make that decision. The Commission did not consider, for instance, the
route deviation issue, and management cannot now supplement what the Commission did
consider. The Commission cannot fire Mr. Crocker because he was an efficient leader in the
strike, and then bring in a letter to say he was fired because he was late at a particular stop on his
route.
         This Board has to deal with the real reasons for Mr. Crocker's dismissal, and must pay
particular attention to the first full paragraph and the fourth full paragraph on page 4 of AS #6.
When, in the latter paragraph, the Chair refers to Mr. Crocker's behaviour "historically and
continually" one has got to ask how far back does this consideration reach? This is germane in
coming to a recognition of what is, and what is not, legitimate under the terms of the Collective
Agreement. It is also important to note that by the time AS #6 is in play there are two new
members of the Commission, two new Commissioners.
         Mr. Earle also urged that the Board pay particular attention to AS #7 which carries
comments concerning intimidation and bullying behaviour attributed to Mr. Crocker. Is this
therefore one of the reasons that the Employer seeks the Board to use in its adjudication of the
matter? What evidence has the Employer offered in support of this allegation? None. The onus
is on the Employer to establish, on the balance of probabilities, that the reasons it advances
provide just cause for its actions. Mr. Spurrell's statement that this was not a grounds for
dismissal does not explain why it appears, nonetheless, in the evidence. Similar references to
Mr. Crocker's participation in the municipal election campaign are raised as though they too
might be punitive grounds for discipline in the Employer's mind. The Board, in Mr. Earle's


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submission, will have to decide why he was terminated and whether the Employer has made out
just cause for its action.
        Mr. Earle asked the Board to pay attention to the way these meetings were conducted. At
least as presented in the evidence before the Board there appear to be two press statements that
are the focus of the Commission's decision. The first concerned the assault and appears, in part,
in the minutes. But there is no indication that the text of the other statement concerning the drug
benefits for those beyond 75 was ever before the Commission. Mr. Spurrell said Commissioners
were sent e-mails of important statements; but whether they received these emails has not been
established for the Board. Some Commissioners appear to talk about these statements in the
minutes, but it is not clear whether they could all be said to be talking about the same thing. Did
some hear these on the radio? We know for certain that the statements were not presented at the
meeting .
        We do know that, between the time of the AS #5 meeting and the second meeting on
October 26th, there is a change in the Commissioners. So at least one individual has dropped out
and one has been added. There is no reason to conclude, from Mr. Spurrell's evidence, that Mr.
Hann would have been given the September 29th meeting minutes or the media transcripts. It is
unclear whether anyone received them, and, in Mr. Earle's view, it is unlikely that he had
received them. The Board must satisfy itself as to the Employer's real reasons for terminating
Mr. Crocker. AS #s5, 6 & 7 as well as the chronology AS #8 must be considered carefully by the
Board in order to satisfy itself on the real reasons.
        The Board must satisfy itself in order to determine whether the actual reasons for the
dismissal constitute just cause in and of themselves. If the Board were satisfied that one reason
he was dismissed was because the Commission felt the strike was in retaliation for the earlier
discipline, then that is an improper reason. A Union in a legal position to strike can strike for any
reason, good or bad.
        The Board must also satisfy itself as to the real reasons behind the dismissal because it is
only on basis of those real reasons that the Board can determine whether the Employer, who
carries the onus, has discharged that onus. Should the Board find that the Employer's reasons are
as, in fact, set out in Consent #4, then, in Mr. Earle's view, the Board must recognize the test is

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very clear. The Employer has no authority to impose discipline for something that the Employer
did not like the Union doing.
        Rather the question becomes whether the person representing the Union is an employee
whom the Employer can discipline when he makes statements that are knowingly false or when
that individual has been reckless as to the truth or has been malicious in his statements.
        "Reckless" does not mean "wrong". One can be wrong without being reckless. Not all
accidents are cases of reckless driving. Recklessness is a wanton disregard for the truth, an
attitude which is heedless, and does not provide any basis at all for making the statement.
        Mr. Earle went on to describe malicious as "intended to do harm." This is a tricky area in
the context of labour relations, because of the adversarial nature of labour relations, where you
put pressure on the other side in order to achieve goals. The goal is to extract something from the
other side, whether in negotiations or elsewhere, which the other side does not want to give up.
        A lot of people would call that pressure "harm". In the case law, pressure unrelated to
the labour relations goals is what constitutes "malicious". For example, referring to the personal
life of a manager in order simply to embarrass that manager might be termed "malicious". But to
speak in such a way as to pressure the Employer to make changes in the work place is not, in and
of itself, malicious.
        Mr. Earle quoted from the opening paragraph of Consent #4. He noted that, despite the
phrasing, it is the Employer – not the Grievor or the Union – that bears the onus in this matter;
and that the Employer is quite wrong headed in shifting the onus to the Grievor by inviting him
to "legitimately demonstrate" that his "acts or statements... were a reasonable exercise of your
functions as President of the Local Union while also being an employee."
        Mr. Earle also noted the reference in Consent #4 (para. 2) to "a violation of the
Commission's rules" both as set out in the Transit Operator Handbook and the expectations set
out in AS#1. In Mr. Earle's submission, this is a classic example of cobbling together a
justification after the fact. There was no direction given to management to do this in AS #5, AS
#6 or AS #7. This is a post factum attempt at justification. Further, it is not at all specific. What
rule is at issue?



                                                185
       Transit Operator Handbook A 6 is mentioned and there is also reference in Consent #4
(p. 3) to rule A13, which requires the consent of the Commission in order to speak to the press.
The jurisprudence shows that this cannot apply to the Union. Mr. Earle recalled his cross
examination of Ms. Hopkins on this issue. She had said that they eased off on Mr. Crocker since
he was the Union President; but she confirmed that, in her view, the rule still applies to him.
However the case law clearly demonstrates that resort to the radio and press generally is a normal
part of everyday labour relations in the contemporary climate. To suggest that his activities in
this regard were a violation of the rules, or the Commission's expectations as set out in the
reinstatement letter simply does not make sense.
       The Union does not accept that these expectations apply to Mr. Crocker, President of the
Union. It is only when conduct reaches over to his conduct as an individual employee that an
employer has any standing whatsoever. To the extent these comments in Consent #4 assert a
right to limit the Union's ability to speak out on labour relations issues, Mr. Earle asks that the
record show his view that there is no authority, and that none has been shown as arising from the
Collective Agreement or from the jurisprudence. In particular Mr. Earle again directed the
Board's attention to Samson. The press is part of labour relations.
       The third paragraph of Consent #4 asserts of Mr. Crocker that:
       you continue to disrespect the Commission's chain of authority; you are disre-
       spectful of line managers, and have contrary to direction attempted to contact the
       Commission Chair, whether personally or through an agent...
In fact, however, the evidence is to the contrary. Mr. Crocker did not contact the Chair. Nor, in
fact, did he ask Mr. Kinnear to contact the Chair. Mr. Kinnear told Mr. Crocker to stay away. It
was between Mr. Kinnear and Mr. Colbert that the genesis of a settlement of the over 75 drug
plan benefit arose ... at least in the Union's view of the affair, although management thinks
otherwise. But the fact is, Mr. Colbert made representations in the media as to his own role and
his speaking to Mr. Kinnear, and it was appropriate for Mr. Kinnear to contact Mr. Colbert,
because there was a feeling that there was a deal.
       Mr. Crocker did not contact Mr. Colbert. That is a fact. But the proposition that Mr.
Crocker could not contact Mr. Colbert if he had wanted to, is itself not to be accepted. Mr.



                                                 186
Crocker suffered an improper constraint on his office as a Union President. Mr. Colbert is
Chairman of the Commission. As elected politician he is accountable to the public. The Union is
part of the public. More particularly, nothing permits the Employer to dictate to its union that it
cannot seek to speak to the most senior level of the organization. The Union has a statutory
mandate to represent its employees. On what grounds is it blocked from talking to anyone?
       There is also a suggestion in the evidence from Mr. Spurrell that Mr. Crocker sought to
arrange a meeting on an organizational matter with Mr. Spurrell, and Ms. Hopkins and they said,
No, speak to Mr. Lawlor. Mr. Crocker responded that he was not about to speak to Mr. Lawlor
because Mr. Lawlor 'would not listen to him'. However, Mr. Spurrell said that when they worked
out an MOU on overtime Mr. Spurrell, himself, met with Mr. Crocker because he had to as
Acting General manager vis-a-vis Union President. How can it be disrespectful of management
to speak to those who have a proper authority over a Union matter? On all these issues Mr.
Crocker was acting as Union spokesperson, Union President. If it had been in relation to Mr.
Crocker's own interests as an employee, then clearly he was right to be told to speak to Mr.
Lawlor. But as Union President he is on an equal status according to the case law.
       The first paragraph of Consent #4 (at the top of p.2 ) refers to "certain outright false
statements", and the appendix to Consent #4 quotes conversations between various VOCM hosts
and Mr. Crocker where these alleged falsehoods occur.
       Mr. Earle invited the Board to examine the transcripts carefully. In those transcripts it
will be noted Mr. Crocker refers to a candidates' debate in which certain questions are proposed
to be asked. This is a right of any citizen. Mr. Crocker raises the issue of a $7,500.00 cap. But
the Board should go back and review Mr. Colbert's statements, and note that Mr. Crocker reports
those statements pretty accurately.
       The Employer complains that his statement that Metrobus management retirees "don't
have any cap on theirs" is false. Mr. Crocker admits it is a false statement, one which he found to
be false afterwards. However, at the time of making the statement he was acting on information
provided by Damian Ryan, to the effect that management had the benefit. Mr. Crocker made this
statement in good faith at the time. In any case, it is hardly the focus of the whole interview,
which was the cap.

                                                 187
        The Union filed a grievance that complained the Employer had implemented a plan with
a cap, and should have implemented a plan according to the Memorandum of Understanding.
There was no authority for the Employer to impose a cap unilaterally. The Employer says that
the Joint Benefit Committee bears the responsibility. But that is not the option in HH #8. That is
not what the grievance demanded. He is saying that they have reneged on the MOU. That is the
Union's position.
       The Employer complains of Mr. Crocker's calling on Mr. Colbert to "do the right thing
now", and yet if you look at Mr. Colbert's own statements on the radio as the man who stepped
forward and was in contact with the team "minute by minute" on the cell phone, and who broke
the impasse, who else would you call on to "do the right thing"? The Employer complains of his
reference to expenses in respect of arbitration. According to the Employer Mr. Crocker should
have laid out all the details about the Joint Benefits Committee, etc.
       Yes, his comment about the plan as it relates to the Employer retirees was incorrect. Mr.
Crocker admits that. The Employer says he was reckless and that he did know the facts. They
base this on HH #44, a transcript of an earlier conversation, where he was talking about people
who are working at Metrobus have the same plan as the bargaining unit members. But that was
talking about retiree benefits. It is a structurally different situation. HH#44 proves nothing. The
Employer also talks about the fact that he had got a copy of the plan, or at least that 'We sent him
one'. In response to GC #13 they sent out HH #43. Perhaps it was sent by mail; but the
Employer's file does not have the plan attached to the letter, and Mr. Crocker says he does not
recall seeing it. But management admits sending him a copy with all the pertinent information
referring to non-bargaining unit employees blacked out.
       The Employer's allegation of his having made false statements is groundless. The point
Mr. Crocker was making was that the Employer was reneging on a deal. As an aside he makes
the comment which has no impact on the Employer except as another issue to dig up to build a
case against Mr. Crocker. It did not matter to them at all. Was it raised in AS #5? Is it the
genesis of the decision to fire Mr. Crocker? That is not their complaint. HH #40 (pp. 2 & 4),
HH #38 (p. 4) and AS #4 (pp. 2, 4, 5) cover Mr. Colbert's activities. They show why it was
entirely appropriate for Mr. Crocker to call on Mr. Colbert to "do the right thing".

                                                188
       In Consent #4 the Employer complains that Mr. Crocker violated the chain of command
in respect of Mr. Ray Lawlor. Mr. Crocker understood what he considers to be the protocol in
labour relations matters, and the evidence shows that such matters do go before the Commission.
The Commissioners are politicians. It is a public service operation and the public has an interest
in knowing these facts.
       The last paragraph of Consent #4 p.2 cites Mr. Crocker's statements about the operator
assault and his alleged, "intent to defy management's rights to determine whether a passenger
should be banned from the bus or not." This invites the question whether management is saying
that a member of the Union cannot rely on their right to refuse dangerous work. That right is
legislatively defined. The Board should take notice of the way in which the HH #28 interview
develops. Mr. Crocker refers to the Act, as is entirely appropriate, but the Union is telling its
membership to refer to the Act. That is not "defying management". It is clear that the Employer
would like to diminish the significance of these incidents, but the reality is that if what had
happened on Anderson Avenue had happened on a vehicle while the bus was operating someone
could have been killed.
       The Employer does not seem to think it is a serious issue, but the Union does. No one
can challenge the bona fides of Mr. Crocker's attempt to deal with this issue. The Employer
seems to see this as a platform of some kind of political campaign, and refers to its own actions
as a strategy to "take the sting out of " the Union meeting.
       The Employer's claims that Mr. Crocker was, in fact, intending to charge management
under the criminal code (Consent #4, p. 3; (See also HH #28, AS #5, p.5). The Employer knows
it is a weak argument. Mr. Earle suggested that if the Board does not accept the Employer's
argument on this point it cannot, in fact, find just cause has been made out. This is the lynch pin
of the Employer argument. He argued that the Board should consider the evidence carefully.
What Mr. Crocker intends is very clear from the transcript, and even more clear if one listens to
the tape recording of the actual interview itself.
       Mr. Crocker has a habit of frequently inserting "...you know..." as a mannerism of speech.
If you remove the "you know", the meaning of his reference to the Criminal Code's application
becomes very clear. What he is saying is, "So what we're attempting to do now is to have our

                                                 189
Employer have these people charged under the section of the criminal code." It is not that Mr.
Crocker is intending that members of the management of the Commission should be "charged. "
It is the persons causing disturbances on the bus and endangering the workplace and the
travelling conditions for passengers of Metrobus who should be charged. That is what this
sentence says. In Mr. Earle's submission this interpretation is confirmed by what is said in the
balance of the interview. Mr. Crocker's response to the announcer's question is precisely to that
affect. "Anyone who causes a disturbance on these buses should be banned for an indefinite
period of time." The Employer's interpretation is paranoid.
       The Employer says we should look at Consent #5; but this is merely somebody's notes
made at a meeting, and certainly not approved minutes. There is a portion on p.6 which refers to
the possibility of charging the Employer. But look at what is happening at this point in the
meeting. It is a series of questions and answers. The individual did not even record the question.
If we look back to the beginning of Consent #5, the context becomes clear. Mr. Crocker has
made the point that the company is not doing enough, and is pushing management to do more.
They are seeking to have the company have the courts handle the situation. As is clear at the top
of page 6 of Consent #5 Mr. Crocker is encouraging Ray Lawlor to do something, and he has
responded that we can leave them at the stop and also encouraging his membership to file
incident reports.
       The onus is clearly on the Employer to demonstrate that this statement was intended to
suggest that the Employer should be charged. The Union respectfully submits that the onus has
not been discharged in this matter. The Board should carefully read the transcript in conjunction
with the tape. In Mr. Earle's submission, no dispassionate person can read it as other than a
reference to charging those who were committing the assaults.
       The Employer also suggests there is some imbalance in his presentation of events. The
fact is there is no "balance" involved. Assault is not justifiable. The fact that it was about a fare
dispute is not relevant. It is not about a question of balance. This is not a safe person to have on
the bus if he is capable of engaging in assault. It is not rational behaviour. For the Employer to
suggest (Consent #4, top of p.3) that there is some imbalance in Mr. Crocker's treatment of the



                                                 190
matter on the radio incorrectly describes what is going on. This is not an attempt to embarrass
the Commission. It is important for the Commission to do more to preserve a safe workplace.
        For the Employer to toss in the issue of route deviation shows how they are struggling to
find enough material on which to act. It should not be considered. It should be noted that the
Employer tried to do the same thing as is evidenced in HH #1a, and Arbitrator Oakley stopped it.
It did not succeed in that case and should not succeed in this case.
        Mr. Earle summarised the Union's case by pointing out that it differs substantially from
other cases. It is focussed specifically on the Union's right to exercise its authority, and that an
Employer cannot tell the Union how it should conduct its business. A Union can only act
through its officers, so the action of an officer when acting solely in the Union's interest must be
such that it is equality with the company. There is nothing insubordinate possible about a Union
leader's statements.
        The Employer has failed to establish that any of Mr. Crocker's statements were made in a
reckless or malicious way, or in a way that was inimical to the employment relationship. The
case law requires that labour relations is not a tea party. Resort to the media is now an everyday
part of labour relations. That is simply a fact of life.
        The Employer argues that Mr. Crocker sought to have management personnel under the
Criminal Code, but this does not bear scrutiny. Mr. Crocker's language is not as precise as one
would require of a lawyer hired to speak precisely. But the Board must be satisfied that, as a
reason for firing Mr. Crocker, this does meet the requirements set out in the jurisprudence. In the
Union's submission, it is something the Board will have great difficulty satisfying itself about.
        There were several attempts to introduce inadmissible evidence. The Board should be
aware of the importance of Article 5.5.3 of the Collective Agreement. Do not allow the Employer
to get even because of the strike. That is not an appropriate ground for discipline.
        The Board must identify the actual reasons for termination. On the basis of the law set out
in the cases it is, in the Union's submission, impossible for Consent #4 to stand as justification
for the dismissal. Consent#4 is an effort to find any little thing that could justify another attack
on Mr. Crocker. It is evidence of paranoia, an attitude towards Mr. Crocker which, frankly,
needs repair, in the Union's view.

                                                  191
IN REBUTTAL ARGUMENT FOR THE EMPLOYER Mr. Smith noted that the Union's
argument shows that the Employer's position is, in fact, the status of the current law.
       Mr. Earle's argument is an attempt to achieve two bifurcations, one of Mr. Crocker and
the other of the Commission. Mr. Earle tries to bifurcate Mr. Crocker into President of the Union
and Metrobus operator. He tries to bifurcate the Commission into the Board of Commissioners
and the management team. So Mr. Earle's whole argument moves down this path. The problem
is that the Collective Agreement, the source of the Board's jurisdiction, does not bifurcate the
Commission. Nor does it bifurcate the Grievor.
       The Commission has a management structure and is part of that structure. As reflected in
AS #5, 6 & 7 the Commission concluded a series of deliberations in AS #7 with a special
meeting of the Commission, and determined:
       "per a vote by (show of) hands, it was the unanimous decision of the Commission
       that its management team be directed, under the advice of its legal counsel, to
       notify G. Crocker of his termination of employment."
There simply was no alternative. Mr. Crocker breached the terms of his reinstatement. He
continued to disrespect the lines of authority. It should be noted that these minutes were not
produced by the Employer's evidence in chief but by the Grievor's on cross examination.
        The Commission did take legal opinion. Mr. Hann raised a question about the reasons in
AS #6 (p.2). The Commission knew Mr. Crocker could make inflammatory press statements.
Mr. Crocker knew his limits. Mr. Spurrell provides the chronological history of incidents that
stretched over ten months (AS #6). So Mr. Hann was briefed about the last ten months. AS #6
& 7 reveal that the considerations did not go outside of the sunset clause. No decision was taken
until the vote by show of hand.
       The Commission is a group of seven with a quorum of four under the by-law. There is no
doubt that the Commission considered Mr. Crocker's breaches of the rules and of the Letter of
Expectation as recorded in Consent #4 as a letter from the Commission acting through the
management group. The Commission is acting through management. Mr. Earle's argument
cannot be taken seriously under this Collective Agreement. The "Whereas" clause of the
Collective Agreement makes this very clear. With this in mind the Board may then wish to go to



                                                192
Article 3.1 which sets out exclusive management rights within the Collective Agreement,
specifically relating to just cause or legitimate reasons. Article 5.5.1 shows the Agreement
ratifies the management structure of the Commission. Management plays a role in applying the
Agreement. It is ludicrous to suggest that the Commission are the people Mr. Crocker has had to
deal with, when these Commissioners have told the Union to work within the management
structures. Successive chairpersons have told Mr. Crocker, not to contact them concerning
'operational matters', which are within the competence of the management team. The Board
was also invited to look at the step process in the Collective Agreement at Article 4 where the
management structure is again described. Arbitration is binding both on the Union and on
management, and on Mr. Crocker as an employee. It is binding on him whether he is 'bifurcated'
or not. If he has a dispute, then the Agreement is how it is to be resolved. Mr. Earle's suggestions
fly in the face of the fact of binding arbitration.
        Mr. Crocker thinks he can create another dispute resolution mechanism outside the
Collective Agreement, and Mr. Earle argues that the Board should actually consider it a Union
option to go public in order to bring pressure upon the Employer to conform to the Union's
interpretation of the Collective Agreement. That not only flies in the face of the collective
bargaining regime; it flies in the face of the Union movement. When you sign a collective
agreement you are bound by it, including the dispute resolution mechanism. So what has the
$7,500 cap on the drug plan for those over 75 to do with all of this? It simply has to do with the
fact that the workers who would benefit from this change actually vote for Mr. Crocker's job as
President. And it has to do with Mr. Crocker's lack of confidence in taking his dispute on this
matter to arbitration. His appeals to the Commission and Council to create a way around the
Agreement directly challenge the provisions of the Agreement.
        Look at the public record. The Employer rarely speaks on matters of internal concern.
Yes, Mr. Colbert did speak; but no Agreement was in place at the time. If there is a dispute, it is
handled via the Collective Agreement. Mr. Earle asks what authority the Employer has of this
claim. The answer is that the Collective Agreement is the authority and the Collective Agreement
says not to go outside the Collective Agreement in order to resolve disputes.



                                                  193
        Mr. Crocker does not accept that. If I do not like my chances, in Mr. Crocker's view, I'll
go to the press and to the politicians and suggest that the Employer has reneged in face of a filed
grievance. This is a reckless, malicious process, and it is not the role of a Union leader. Mr.
Crocker is flaunting the Collective Agreement that he, himself, signed.
        Mr. Smith invited the Board to look at the cases, but agreed with Mr. Earle that this case
does have unique features. Samson considers an issue in which the public is intimately
interested. One can easily see why that board concluded the matter was a public issue. The
Employer takes no issue at all with Mr. Crocker's talking about assaults on drivers and working
with management to create a safe environment. That is a public issue.
        But it is not a problem that calls for suggestions of criminal liability against the
Employer. There is no way that Mr. Earle's reinterpretation of what Mr. Crocker said can stand.
The statute itself says what Mr. Crocker says it says. He claimed that the Employer's actions
attract criminal liability. What foundation did he have for that statement? There is nothing to
support criminal liability. Mr. Crocker simply did not have the right to make the statement
attributed to him in HH #28. There is no speech hesitation here. The Code states what it states.
Mr. Crocker is referring to the Employer, and imputes criminal activity to management people.
        There are two clear and unambiguous points on which this matter turns. Disputes are
handled under the Collective Agreement and must be resolved by the arbitration process; and Mr.
Crocker's statements are outside any immunity that the jurisprudence might provide to Union
officers.
        In summary Mr. Crocker is clearly in breach of the Handbook. He clearly has failed to
abide by the expectations set out for him. The fourteen month suspension is very clearly relevant
to the position that the Employer takes at this point in its history with Mr. Crocker. That fourteen
month suspension, imposed by the Oakley award, shows that he is in great danger. It involved a
false report of ridership. It has parallels with the deviation from route in the instant case.
        But clearly that is not the real reason the Employer is here. The Union argued that Mr.
Crocker is on an equal footing, but the case law is clear that the equal footing does not apply to
everything that he does. There are limits which include malicious or false or reckless behaviour
that takes anyone outside immunity.

                                                 194
       Mr. Earle suggests there are explanations for each of the matters raised in Consent #4.
For instance, the overtime issue as discussed in Mr. Spurrell's evidence, and the Grievor's refusal
to deal with Mr. Lawlor, did relate to a personal issue, as is shown in the chronology given to the
Commission. Mr. Crocker was complaining that it was his overtime. It became a Union issue
only after Mr. Spurrell refused to handle it (AS #8, at pages 7 & 8). Issues that affect Mr.
Crocker personally become suddenly become Union issues. They spark an issue that is important
to him personally, as with the drug plan for those over 75, a matter where those retirees vote for
the executive and he is providing for his own constituency.
       If we look at Consent #4 we see very, very clearly that the reasons for the dismissal are as
set out in AS #7. It is simply misleading for the Union to suggest that management separated out
the issue there from those laid out in Consent #4 and raised issues pertinent to itself rather than
those pertinent to the Commission.
       Mr. Smith also took issue with Mr. Earle's interpretation of what "malicious "means as
that which is "intended to do harm". Mr. Smith argued it is reckless for Mr. Crocker to accuse
the Employer of criminal activity as he does on the radio and confirmed by Consent #5. It is
reckless, Mr. Smith submits, to disregard what you yourself agreed: that is, to say that disputes
shall be resolved by the grievance and arbitration procedures as an obligation both of the Union
and of the Employer. Mr. Earle appears to suggest that, since the Union can use the media, there
is another dispute resolution process now available.
       Mr. Earle regards Mr. Crocker's statements as not malicious, just adversarial. Bargaining
is one thing; but where matters are already under the Collective Agreement and agreed between
the parties, pressure tactics no longer apply, especially if we are dealing with false or reckless
statements. It is reckless and false to suggest that management reneged on its agreement over
drug plan for those retirees over 75 years of age. To suggest that the benefit was, in fact, one
enjoyed by non-unionized members of the Metrobus staff is also reckless. The evidence is that it
was based simply on a casual comment alleged to have come from a former City Hall employee.
Mr. Crocker knew that management and bargaining unit people had the same plans.
       It is reckless and malicious to disparage management. It is simply not the fact that case
law has gone beyond that view, as Mr. Earle suggests. The issue is whether or not the Union has

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negotiated in good faith to resolve operational disputes. The free speech issue is not relevant.
Mr. Crocker himself insists that the issues he raised were under the Collective Agreement. Mr.
Crocker therefore did not need to go to the press about these issues.
        The concept of maliciousness is broader than Mr. Earle suggests in his argument. When
he suggests that the Employer is wrong headed at para.1 of Consent #4 he misses that point. The
first paragraph of Consent #4 acknowledges precisely that division that Mr. Earle amplifies into a
principle. The two people, Mr. Crocker the President and Mr. Crocker the employee, are one.
There is a duty of fidelity recognized uniformly within the jurisprudence. That duty is not
breached as easily when someone is president of the union; but it can be breached and, in Mr.
Crocker's case, clearly has been breached in a number of particulars.
        It is breached, for instance, if he exercises his role as President inconsistently, or ignores
the duty of the President to uphold the Collective Agreement, or fails to defend the Collective
Agreement, as the case law shows. Rules can be broken, as is consistently demonstrated in the
jurisprudence. A "committeeman" can go outside the bounds of the Collective Agreement by
violating his duty of fidelity.
        Mr. Earle suggests that the Employer is hanging its case on two statements that Mr.
Crocker made. That is simply not the case. There are several areas that contain errors or false
statements. Mr. Earle focussed only on the issues concerning the drug plan for those retirees
over 75 and the specific reference to the Criminal Code. Mr. Earle acknowledges that violation
of Rule # 6 falls under current jurisprudence. Mr. Crocker is not permitted to make false or
malicious statements. Mr. Earle suggests that talking to the media is part of the day-to-day
practice of labour relations. The Employer agrees; but not on issues that have been agreed to be
dealt with within the Collective Agreement under the grievance and arbitration procedure.
        Mr. Earle says that Mr. Crocker did not contact Mr. Colbert, and thus did not disregard
the chain of management. But this requires we answer the preliminary question. Why would Mr.
Kinnear approach the Chairman, other than to deal with issues in which Mr. Crocker was
intimately involved? Mr. Crocker has insisted, and the evidence is clear, that he runs and speaks
for the Local Union. Why would Mr. Kinnear act except at Mr. Crocker's bidding? Only Mr.
Crocker could have occasioned it.

                                                 196
       Mr. Earle also made much of Mr. Colbert's comments concerning his own role in the
matter; but by September that was all stale news. The bargaining concluded in December of
2004, and according to Mr. Crocker it was the payment of the premiums that was keeping the
parties apart in December. There was no issue, at that point in December, of a drug plan for
retirees over 75 having been instituted with a cap.
       Clearly there are some public issues, but the rights and obligations under a Collective
Agreement are not a public issue. Mr. Earle repeatedly asked, Where is the authority which
imposes a duty on Mr. Crocker to deal with the management and not with the Commission? The
answer is clear: it is in the Collective Agreement. Why is the Employer concerned about Mr.
Crocker's consistent disrespect of management? It became a Union issue when Mr. Spurrell said,
Deal with Mr. Lawlor.
       Mr. Earle suggested that Mr. Crocker was acting in good faith based on information
provided by Mr. Damian Ryan when he blithely declared that the Employer enjoyed benefits that
it was now denying to bargaining unit retirees over 75. But this flies in the face of his own
previous testimony and his comments on the radio in December 2004.
       To claim that management has no authority to impose a cap is not at issue. The Employer
agrees. In fact, the Employer had no authority to impose a plan at all. But Mr. Crocker filed a
grievance saying that management was in violation of the Agreement. It is the Joint Benefits
Committee that has that responsibility, as Mr. Crocker well knows, having been a member of that
committee. The Union is sucking and blowing at the same time.
       Mr. Earle's defence of Mr. Crocker's admonition that the Employer and Mr. Colbert to
"do the right thing" fails to recognise that such a call implies that the Employer had done the
wrong thing. The grievance and arbitration procedure is where such "wrongs" are put right.
       Mr. Earle is right to say that labour relations is not a tea party. There are strikes. And it is
because it is not a tea party that we have collective agreements. Mr. Earle also noted that labour
matters go to the Commission; and of course they do in the case of temporary employees as an
item of information concerning the fait accompli of a termination.
       Mr. Earle keeps insisting that Metrobus is a publicly funded operation. Of course, it is to
some extent; but it is also sustained on the basis of fares as well. Clearly, employees do have a

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statutory right to refuse to do unsafe work, but there is a procedure to be followed in such
circumstances and that is what was lacking in the matters raised in this instance.
        It is important that the Board look at Mr. Earle's argument to the effect that the Union
takes assaults seriously, while the Employer does not do so. This is precisely what the public
was intended to conclude from Mr. Crocker's comments ... right up to the level of accusations of
criminal liability in the matter.
        Mr. Earle suggests that the onus is on Employer to prove its case against Mr. Crocker.
On the basis of the transcripts, and of Consent #5 alone, that onus is discharged. The Board
should also review AS #8 and Ms. Hopkins evidence in reviewing the Grievor's statements to the
press in the light of the fact that, in the case of the altercation on Anderson Avenue, it is quite
possible that the assailant was known to be a pass holder.
        Mr. Earle's treatment of Mr. Crocker's suggestion to management that it consult the AVL
system in respect of his deviation from route fails to note GC #14. This shows the answer to this.
This is a minute that was signed off concerning the use of the AVL system. The AVL system
was clearly a live issue, and he was exploring the use of the system from a disciplinary point of
view to determine if the Employer would use it or not. Even on his own admission it was a
disciplinable offence because it shows an inattention which might well have been hazardous.
                              CONSIDERATIONS AND DECISION
AT ISSUE BETWEEN THE PARTIES is a grievance (Consent #2) complaining of the "...
dismissal of ... George Crocker on 2 November 2005 ”. Mr. Crocker was, at the time, a Transit
Operator with the St. John's Transportation Commission, and was also President and Business
Manager of ATU Local1462.
        The Board must determine, on the balance of probabilities (Brown & Beatty Canadian
Labour Arbitration, 4th Edition para. 3:2500) in light of the evidence and argument, first,
whether or not discipline was justified; and if it is determined that discipline was justified, then
whether or not termination was appropriate.
I. Was there just cause for discipline?
The Employer led evidence and argument to show that, based on his disciplinary record and on
continuing violations of established employer rules and regulations over the 10 months prior to

                                                 198
it, the dismissal was the only appropriate response to the Grievor's behaviour. The Letter of
termination (Consent #4) cited a number of alleged violations:
       1) "false and malicious" public media comments – in violation of the Transit
       Operator Handbook "and of "the direction as to the Commission's expectations
       set out in your letter of reinstatement dated December 21, 2004" – concerning the
       retiree drug plan dispute;

       2) "false and malicious" public media comments, in violation of the same rules,
       concerning a driver assault issue that was being addressed through standing union
       / management procedures;

       3) uttering threats of action against management for criminal liability under the
       Criminal Code of Canada that are "detrimental to the Commission's reputation";

       4) insubordinately showing continued disrespect for "the Commission's chain of
       authority" and "of line managers", and "contrary to direction" attempting "to
       contact the Commission Chair, whether personally, or through an agent";

       5) politicisation of matters that are contractually internal to the workplace, thereby
       undermining "the Commission's and management 's authority" by attempting to
       make the drug plan issue, which had already been submitted to arbitration at the
       time, "... an election issue, during the recent municipal election";

       6) Route deviation.
The Union led evidence and argument to show that the dismissal was an improper attempt to
muzzle a union officer in the conduct of the normal duties of the position. The Union rejects the
Employer’s argument on all points. Specifically, the Union position is that:
       1) The Grievor is both an employee and a Union officer. As an employee, the
       Grievor is subject to the disciplinary supervision of the Employer. But as a Union
       President, Mr. Crocker represents a contractually equal Party to the Collective
       Agreement, and is free to represent the Union's views in the media with whatever
       vigour is deemed necessary in the members' interests. "Insubordination" is not
       available as a just cause for discipline.

       2) The Grievor's media comments both on the drug plan and on the driver assaults
       were true and factually accurate representations made by the duly authorised
       officer who, at all material times, was speaking as the President and Business
       Agent of the Local Union which is certified as the sole Bargaining Agent for
       employees of the Commission. As such, and in such circumstances, the Grievor is
       beyond the reach of the Employer's discipline.

                                                199
       3) The Employer's interpretation of the Grievor's Criminal Code comment is
       simply wrong, and tinged, perhaps, with paranoia.

       4) As a public service arm of a political body, the City of St. John's, the Employer
       must recognise that the Union officers and employees comprising the Union's
       membership have rights to freedom of speech and assembly, and are not fettered
       by the Collective Agreement from applying political pressure in order to achieve
       what the Union sees as redress of an injustice.

       5) The Union and the Grievor both acknowledge that the route deviation occurred,
       but, in the Union’s view, the Employer’s reliance upon this incident is an index
       of its unreasonable determination to "get" an effective Union leader, perhaps as
       revenge for the strike that occurred in November and December of 2004.
THE EVIDENCE:
The facts and events recorded in the Chronology set out in the Appendix to the Letter of
Termination (Consent #4) are not substantially disputed, and the Board is satisfied that it serves
as an accurate basic narrative of events. There are, however, substantial issues of interpretation of
these events and some contradictory claims that the Board must address.
The Letter of Reinstatement (AS #1):
       The Employer justifies its imposition of discipline, in part, on its finding that the Grievor
had "failed to comply with items 1, 2, 3 and 5 of the" Commission's expectations set out in the
letter of reinstatement dated December 21, 2004. This letter (AS #1) describes itself as written
"to clarify the expectations governing the conduct of your duties", and points out that "these are
the same expectations that we have of all employees in the workplace." The five expectations are
expressed as follows:
       1. you are required to conduct yourself professionally at all times and to respect
       the Commission's chain of authority and all levels of management;

       2. you are required to refrain from any insubordinate behaviour, particularly as
       directed toward managers of the Commission;

       3. you are required to refrain from contacting the chairperson of the Commission
       unless specifically authorised to do so in writing by management and to follow the
       established and proper protocol with regards to contacting the Commission;

       4. you are required at all times to treat your co-workers respectfully and


                                                200
       5. you are required to follow Commission policies and procedures with regard to
       the proper conduct of your duties.
       The Union questioned the legitimacy of the Employer's contractual right to issue such a
letter since the Oakley Award had not required such "clarification." The Union also questioned
the Employer's use of the document as a basis to justify discipline in light, especially, of Section
23. (1) of the Labour Relations Act:
       An employer or employers' organization, and a person acting on behalf of an
       employer or employers' organization, shall not
             (a) participate in or interfere with the selection, formation or
             administration of a trade union;
        The Board notes that there was no evidence of the Union having grieved AS #1. The
Board also notes the assertion in AS #1 that "these are the same expectations that we have of all
employees in the workplace".
       The Board has considered the Union's questions in light of the Collective Agreement
itself and of the Transit Operator Handbook (HH #16). The Board finds nothing in the letter's
stated expectations that is inconsistent with, adds to, or detracts from provisions and regulations
governing all employees that were already agreed or accepted without objection by the Union.
The letter is a clarification, which, in light of a 14 month suspension without pay or benefits, is
not an unreasonable exercise of supervision.
       While it did not sustain the dismissal, the Oakley Award did, by imposing such a
suspension, confirm that a substantial discipline had been justified. The Board finds that the
Employer was justified in taking precautionary supervisory steps to ensure that, after an extended
absence, the common expectations were clear to Mr. Crocker.
       The Union also challenged the Employer's right to invoke AS #1 as a means to limit the
actions of the President of the Union in the "administration" and exercise of his union office. The
Board is aware of, and strongly endorses the fundamental right of trade Unions to act under the
protection of the Act, and in particular of Section 23 of the Act.
       The Board also notes that the Collective Agreement sets out at Section 4.1 an agreed
procedure for administering "any differences that arise between the Employer and any of the
employees..." Such a pattern of communication over "any differences" is standard in most


                                                 201
agreements, and is based, in part, on a need to avoid dangerous confusions, misunderstandings,
ambiguities, and needless repetition in such matters.
        The Board is also aware that administrative chains of command are normal, and can serve
the same purpose in assisting economic communication by avoiding confusion and needless
repetition. The Grievor signed that Agreement, and, as noted above, there is no evidence that the
Union grieved AS #1. Thus the Board finds no contradiction or tension in the instant matter,
between this Section of the Act and the Employer’s reliance upon AS #1 as one of the elements
governing the Grievor's conduct.
        As will become clear, the Board's disposition of the instant grievance turns ultimately on
the question of whether the Grievor's conduct was "false" and "malicious". The expectations set
out in AS #1 do not ground that determination. AS #1 figures in the Board's disposition of the
instant grievance only in respect of other matters that are addressed once the question of the
Grievor's immunity is determined. It is the Board's position that the Letter of Termination
(Consent #4) does not, and cannot, assert a right to limit the Union's ability to speak out on
labour relations issues as this right is secured by the Act and in the arbitral jurisprudence.
        Given the Board's finding that AS #1 is a legitimate administrative clarification of
Consent #1 and HH #16 requirements, the Board finds nothing improper in the Employer's use
of AS #1 in setting out some of its reasons in justification of the instant dismissal.
Jurisprudence: Chedore v. Samson?
        The Board notes that the Employer made frequent references to the fact that Mr. Crocker
had participated in media interviews on the "cap" and on driver assaults prior to exhausting
internal procedures available to remedy them including the grievance and arbitration process
already initiated in relation to the "cap."
        The Union argues that nothing turns on this, since the Chedore approach, which favours
restricting a union officer's access to the media until internal resources are exhausted, has been
displaced by a more realistic approach adopted in Samson (cf. re Government of Alberta and the
Alberta Union of Provincial Employees, Local 6, 57 L.A.C. 4th at p.400 ff.; and St. Catherine's
Hospital).



                                                 202
       The Board finds it is not required to make a definitive ruling on this specific question,
since, as will become clear below, its disposition of the Grievance turns on the question of
whether the statements Mr. Crocker made were or were not "false" and "malicious", a matter not
at issue between the Chedore and Samson cases.
Jurisprudence on Issues Raised in the Letter of Termination:
       The Board strongly endorses the principle expressed in Re Ford Motor Company Canada
Ltd. and United Automobile Workers Local 707, E.E. Palmer, (1976) where Arbitrator Palmer
notes (p.336) in the concluding paragraph that:
        "...When acting in his representative capacity a union steward stands in a position
       of equality with management."
       As the Union argued, equality precludes the possibility of insubordination. This Board
must determine whether the Employer has discharged the onus it has of demonstrating that the
Grievor was liable to discipline because, in certain particulars, his conduct was "false" and
"malicious", and that he therefore violated the "equality" principle and lost any immunity he had
under it, thus exposing himself to insubordination-related discipline.
       The Board notes that the Union and the Employer both accept that the "false" and
"malicious" test applies in the instant matter.
       The Union, however, suggested that "malicious" connotes "intended to do harm", and
that, in the adversarial context of labour relations, which inherently requires a mutual application
of pressure, it must not be assumed that "pressure" is the same thing as "harm". In the case law,
pressure unrelated to the labour relations goals is what constitutes "malicious". To speak in such
a way as to pressure the Employer to make changes in the work place is not, in and of itself,
malicious, in the Union's view.
       One ground on which the Employer seeks to justify the discipline is that certain of the
Grievor's media comments concerning the retirees' drug plan and the driver assault issues were
"false and malicious." Another relates to the Grievor's suggestion in the media that the Employer
was liable to charges under the Criminal Code.




                                                  203
       The Board is aware that the Union claims the Grievor enjoys a immunity from discipline
in respect of his conduct, and public statement, of the Union's position or policy since he was, at
all material times, acting as the President and Business Agent of the Local Union.
       The Board notes that, in the Letter of Termination (Consent #4), the Employer (using
similar language to Arbitrator Brandt's in Re Firestone Steel Products of Canada and U.A. W.,
Local 27 1975), 8 L.A.C. (2d) at p.168) addressed an aspect of the immunity question, claiming
that the Grievor's behaviour was not "... a reasonable exercise of your functions as President of
the Union Local while also being an employee."
       The Board has reviewed the arbitral jurisprudence tendered by the Parties relating to this
claimed "immunity", and finds itself in substantial accord with the line of approach that flows
through all these cases and is perhaps best summarised in Re Bell Canada and C.E.P. (Hofstede)
(1996), 57 L.A.C. (4th) 289 Dissanayake), pp. 297-98 as quoted by Arbitrator Shime in National
Steel Car (at p.326-327):
          In our view, the question of whether a union official is entitled to immunity
          from discipline must depend on the facts of each case. The starting point must
          be that there must be a recognition that once an employee is elected to union
          office his status in the work-place changes substantially. He has a dual role. As
          an employee, he must conform to the same rules and policies as his
          co-workers. However, when acting in his union capacity he is an integral part
          of the collective bargaining regime that governs the workplace on a day-
          to-day basis. He is then on an equal footing with members of management
          when carrying out his union duties. He must be free to police the collective
          agreement for compliance, and enforce it with vigour. In so doing, it is
          unavoidable that he will be required to take a higher profile than his fellow
          workers. Inevitably from time to time he will encounter areas of conflict with
          members of management. Regardless of the individual's degree of tact and
          diplomacy, it comes with the territory that on occasion he will be bordering
          the line between vigorously representing his fellow workers and engaging in
          insubordination towards members of management. Given this difficult role
          undertaken, the right of a union official to properly carry out his duties must
          be strictly protected except in the most extreme cases. Mere militancy or
          overzealousness, should not result in penalty. A union official must be able to
          press his point of view with as much vigour and emotion as he wishes, even
          though it may turn out in the end that his point of view was wrong.
                   However, the foregoing considerations do not mean that there are no
          limits to acceptable behaviour on the part of a union official. A balance

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          must be struck between the right of a union official to be accorded a wide
          latitude in the manner he goes about carrying out his union duties and his
          concomitant responsibility as a union official to scrupulously refrain from
          the abuse of his union position to cloak patent insubordination and defiant
          challenge of management's rights to manage the workplace and to carry on
          production without disruption.... Each case must be determined on the basis
          of the total surrounding circumstances."
       Union Counsel argued strongly that the Employer has an unresolved problem with the
inherent and inescapable duality of Mr. Crocker's responsibilities, "as President of the Union
Local" and as "also being an employee." The Union based its review of the Jurisprudence of this
duality problem on a line of reasoning to be found principally in Samson v. Canada Post
Corporation, Canada Labour Relations Board, (1987), but also in Re Ford Motor Company
Canada Ltd. and United Automobile Workers Local 707, E.E. Palmer, (1976) and in Burns Meats
Ltd. and Canadian Food and Allied Workers, Local P139 (1980), 26 L.A.C. (2d) (379), where
M.J. Picher says:
       If union stewards are to have the freedom to discharge their responsibilities in an
       adversarial collective bargaining system, they must not be muzzled into quiet
       complacency by the threat of discipline at the hands of their employer...
       The Employer argues, on the other hand, that no such immunity attaches to a union
officer's conduct that is found to be "false and malicious." The Employer's position relies on a
line of reasoning first represented by Re Firestone Steel Products of Canada and U.A. W., Local
27 1975), 8 L.A.C. (2d) 164 (Brandt); and then by Burns Meats Ltd. and Canadian Food and
Allied Workers, Local P139 (1980), 26 L.A.C. 2d.; and Re Canada Post and C.U.P.W. Van Donk
(1990), 12 L.A.C. (4th) 336, and finally by Re National Steel Car Ltd. and United Steelworkers of
America Local 7, Local 7135 Arbitrator O.B. Shime, Q.C., 2001.
       Both lines of reasoning appear to accept a definition of "malicious" that is perhaps best
summarised in National Steel Car (p. 101) where Arbitrator Shime relies on Burns Meats (p.384)
as follows:
       The fact that a statement is false and that it might appear harmful to a reputation is
       not enough to make it actionable. Striving to tailor the law to the realities of
       industrial relations, the Court has limited actionability to offensive statements that
       are malicious in that they amount to a deliberate or reckless falsehood...


                                                205
         The definition of a malicious untruth as a "deliberate or reckless falsehood", in which this
Board concurs, appears to derive from Firestone Steel Products at p.168 (cf. Burns Meats p.368
f.) where Arbitrator Brandt says:
         The statements of union stewards must be protected, but that protection does not
         extend to statements that are malicious in that they are knowingly or recklessly
         false. The privilege that must be accorded to the statements of union stewards
         made in the course of their duties is not an absolute licence or an immunity from
         discipline in all cases.
         As will be seen below, it is this definition of "malicious" as "knowingly or recklessly
false" that the Board adopts in its review of the particulars in evidence in the instant matter.
Specific Issues:
         In the instant case the Board notes that the Employer has attached this characterization to
a number of the Grievor's media comments and conduct.
1)       In particular, the Employer argued that the adjectives "false" and "malicious" apply to the
Telegram article (recorded in HH #15, Consent #4 Appendix entry for August 23, 2005) in which
the Grievor is quoted as saying that the cap on retiree benefits "was put in after the agreement
was signed". The Employer noted that Mr. Crocker made the same allegation on other occasions,
in particular during the September 4, 2005 on VOCM Nightline with Linda Swain (HH #18),
during which Mr. Crocker also called on Mr. Colbert to "Do the right thing" in respect of the cap
issue.
         The Board is aware that the Union had filed a grievance, which remains outstanding, on
this issue. This Board is not seised of, and has nothing to say about, the merits of that grievance.
The Board here confines itself strictly to the facts in evidence concerning Mr. Crocker's comment
as recorded in HH#15 and HH#18, and as it was explored in examination and cross examination.
         There is at least a quadruple ambiguity in the word "agreement." It might mean the
Collective Agreement itself (as Mr. Crocker explicitly says more than once in HH #18) that
contains the MOU. Or it might mean some specific drug plan agreement contemplated, but never
realised, under that MOU, that was to have been crafted by the Joint Benefits Committee on the
agreed principles set out in the MOU. Or it might mean an "agreement" which Mr. Crocker and
Mr. Kinnear describe as reached privately between Mr. Kinnear and Mr. Colbert, but which is


                                                 206
not expressly reflected in the words of the MOU as it appears in the Agreement the Grievor
signed. Or it might mean the MOU itself, as Mr. Earle argued at one point in his submission for
the Union.
       The Board has no evidence that the Grievor does not understand the various senses of
"agreement" in play in his Telegram article comment. Mr. Crocker testified that he made the
comment, and also stated his continuing view that the Employer's action was "unacceptable."
Mr. Crocker's testimony makes it clear that the public position he adopted on the cap was a
conscious attempt to bring political pressure. The Board notes the following exchange during
cross examination:
   Asked whether the Collective Agreement allows him to apply pressure to make
   operational changes, Mr. Crocker answered:
           No, probably not.
   Asked then, why he had breached the Collective Agreement, Mr. Crocker answered:
           We did not breach it.
   Asked why pressure had been brought rather than following through on the grievance and
   arbitration procedure, Mr. Crocker answered:
           Because these people are politicians seeking votes from our members and
           we decided to make this an election issue.
       The Board finds that the effect of Mr. Crocker's comment is deceptively ambiguous. It
knowingly deprived the public of access to the basic facts necessary for it to draw a minimally
informed judgement. In the Board's view, he was employing ambiguity, rather than the basic
facts, in order to portray the employer's actions in a bad light so as to apply the political pressure.
If public pressure is to be invoked on bargaining issues, the public is owed at least enough of the
truth to enable it to draw informed judgements.
       The Board finds that Mr. Crocker's statements contrived to be less than factually truthful
in a situation where the facts were required for the public to be informed rather than misled, and
in order to preserve the minimally open communication between the Parties that the bargaining
relationship requires.
       The Board is satisfied, on the basis of the Telegram article, the media interviews, and the
Grievor's testimony, that the Grievor's comments on the cap issue cited in Consent #4 cross the




                                                 207
line into the area of the false and malicious as defined in National Steel Car and in much of the
arbitral jurisprudence provided by both the Parties.
2)     Another public comment which the Employer argues was "false" and "malicious" is the
Grievor's statement (recorded in HH #18, Consent #4 Appendix entry for September 4, 2005) to
the effect that Metrobus managers do not have a cap on drugs after age 75 when actually the
managers are not entitled to any retiree drug or group benefits after age 75. The Board notes Mr.
Crocker's testimony concerning this comment:
       It was my understanding that management at Metrobus were the same as at City
       Hall; and at that time I understood that they had the same benefits; but I was
       wrong. I learned after that management at Metrobus has no drugs after 75.
There is some evidence (HH #44) to support the view that he had previously been aware of the
facts, and been provided access to documentary evidence that contradicted this understanding.
       The Union pointed to Mr. Crocker's testimony at the hearing that, at the time of making
the statement he was acting on information provided by Mr. Damian Ryan. In the Union's view,
Mr. Crocker, therefore, made this statement in good faith at the time.
       The Board is not persuaded by the Union's position on this. Good faith requires minimal
care which the Board finds missing in Mr. Crocker's conduct at this point. There was no evidence
of any attempt to check the accuracy of a claim that had the potential to erode public confidence
in, and respect for, the Commission and its management.. The Board has no evidence that Mr.
Crocker made any effort to set the public record straight on this matter once he learned of the
error. Mr. Crocker was, at best, reckless with the truth on this occasion.
       The Board endorses the view that duty of fidelity an employee and a union officer owes to
the collective agreement does not bar a union officer from making the union's concerns public in
ways that are not false or malicious and which conform to legislative requirements and the norms
of the jurisprudence. (See also Meadow Park (London) Inc. and Canadian Auto Workers, Local
302, Ontario, Arbitrator T. Crljenica, 122 L.A.C. (4th) 431, October 2003 at p. 441 - 442 citing Re
Camosun College and C.U.P.E. Local 2081 (1999) B.C.C.A.A.A. No. 490 where Arbitrator
Germane quotes Arbitrator Weiler (Re British Columbia (Attorney-General) and BCGU (1981),
3 L.A.C. 3rd at p.158.) Re City of Nanaimo and International Association of Firefighters, Local


                                                208
905, (2002) Arbitrator H.A. Hope, Q.C. makes (at p 421) it clear that a union officer who "...
'knowingly' misstated the facts, or was 'reckless' with respect to whether his facts were correct..."
is not immune from discipline.
         If a genuine mistake is made, then, in the Board's view, timely and effective retraction, to
the extent it is practicable, is not an irrelevant consideration. (See Re National Steel Car, p. 335)
         The Board is satisfied that this statement, too, crosses the line into the area of the false
and malicious as defined in National Steel Car, by spreading a potentially damaging untruth, and
without retraction.
3)       Another public comment which the Employer argues was "false and malicious" in that it
"... can reasonably be viewed as detrimental to the Commission's reputation" (Consent #4) is the
Grievor's statement (recorded in HH #28) during the September 18, 2005 Night Line interview
when speaking of the issue of assaults on the drivers that he wanted to "have our employer, you
know, have these people charged under this section of the Criminal Code".
     Announcer:: Well, I heard on the radio the disturbing story surrounding an assault on a
                 Metrobus driver.

     Crocker: Yes, that happened Tuesday last. We had an operator who was proceeding to his
              place of work on Anderson Avenue and he was assaulted by a, by a passenger
              waiting for the bus.

     Announcer:: So now that's raised some concerns. You're going to be having a meeting on this
                 issue. My understanding is that bus drivers right now cannot ban anyone from
                 travelling on the, on the, on the system unless they have a court order to do so.

     Crocker   And we're trying to enforce these rules and collect fares and we feel that
               our operators should not be subject to assaults when we're just trying to
               enforce the rules of the employer. Now there is a section in the Criminal
               Code of Canada that states, and it's Section 2., 2.17.1 of the Criminal
               Code which states that everyone who undertakes or has the authority
               to direct how another person, how another person does work or performs
               tasks is under legal duty to take the reasonable steps to prevent bodily
               harm to that person or other persons arising from that work or task. So
               what we're attempting to do now is have our employer, you know, have
               these people charged under this section of the Criminal Code. We feel
               that, you know, why should someone who's trying to perform their duties
               be subject to an assault and the Employer not act on our behalf?


                                                  209
   Announcer:: So you feel that the company isn't doing enough there to give you enough power
               to conduct your job in a safe manner?

   Crocker: Absolutely, what, what we're saying is anybody who causes a disturbance
            on these buses, on these buses or threatens an operator or threatens a
            member of the public on one of these buses, should be banned for, for an
            indefinite period of time until they get to court and the courts decide on
            how this, you know, how these incidents should be treated and take the
            direction from the courts.
       The Board notes that, as indicated by the announcer's initial question and by the Grievor's
answer to the Announcer's response to his Criminal Code comment, the Grievor's project is to
urge the Employer to engage more directly in forestalling violence on the buses. The Board also
notes that the Grievor's manner of speaking is ambiguous.
       Union Counsel pointed out that the Grievor has a habit of inserting the phrase ", you
know," frequently and indiscriminately into his sentences. If that phrase were removed from the
clause, the Employer's interpretation would cease to apply. The clause would then read: "... have
our employer have these people charged under this section of the Criminal Code..." Mr. Crocker
would then be making the point that the Union is pressing the Employer to use the law to have
troublemakers ("these people") charged. Mr. Crocker himself testified that this reading was his
intent, and that he was not suggesting it was his or the Union's intention to have Management
people charged "...under this section of the Criminal Code..." The audio of this portion of the
interview was played for the Board during the hearing.
       On direct examination, Union Counsel asked Mr. Crocker to explain who he was saying
should be "charged". Mr. Crocker answered: The people who are causing the disturbances on the
buses and the threats. Asked what action he was pressing the Employer to take, Mr. Crocker said:
       The Union was seeking the Employer to act on our behalf to have those who were
       threatening or disturbing or throwing rocks ... to have them prosecuted to the full
       extent of the law.
       It was pointed out to Mr. Crocker that the Employer interprets him to have said that
"employer ... people" should be charged, Mr. Crocker answered: "No. Definitely not." He was....
       stating the Union's position that the Employer should get court orders to bar
       people the same as a threat on an airline stewardess...


                                               210
       The Board notes that there is an ambiguity. The Board also notes that the clause as it was
spoken did actually include the ", you know," phrase. The Board notes, even more importantly,
that the section of the Code which the Grievor actually quotes does directly refer, not to an
employer charging others, but to an employer itself being charged. Thus, Mr. Crocker's
comment, taken as a whole, clearly refers to charges directly against the Employer.
       The Board also notes Ms. Hopkins' testimony and the Grievor's own testimony on the
point. This provides additional evidence that the Board must consider. Ms. Hopkins testified that:
       I did have some discussion relating to the September 18th Night Line show (HH
       #28). I wasn't aware of that discussion when I met Mr. Crocker on the 19th after
       we spoke about the assaulted driver. Mr. Crocker mentioned to me about the
       Criminal Code reference – the part about the responsibility of an employer about
       the safety of everyone – and he felt that it should be applied to this driver assault.
       I thought he meant having the assailant charged under this Section. I indicated to
       Mr. Crocker that I thought that he was misunderstanding it, and that it related to
       employer liability. He said that he knew that, and had talked to legal counsel. I
       mentioned this to Mr. Spurrell a few days later, and he told me that Mr. Crocker
       had said it on Open Line on the 21st or 22nd. I had not been aware of this Night
       Line program prior to that.
Asked if Mr. Spurrell had asked her to take steps at that point, Ms. Hopkins said:
       Not at that time. I told him I could not believe that Crocker wanted to charge the
       Employer. That Section of the Code has to do with the Westray Bill C45 situation.
Cross examined on his Criminal Code reference on VOCM, the Grievor said:
       I was ready for it, yes. I had the Section in front of me... I had it to read out on
       the program.
Asked who it is, in his view, that the Act refers to as "having the authority", Mr. Crocker said:
       That would have been the Employer.
Asked who, in his view, has a duty to "take reasonable steps...": Mr. Crocker said:
       Yes, that's the Employer.
Asked then, what he means when he says, "have these people charged", Mr. Crocker said:
       I believe the Employer has the duty to have these people charged...
Having been directed to the announcer's response to his Criminal Code comments, he said:




                                                211
       The individuals have the power to get them charged... What I am saying here is
       even if the Operator does not file a complaint, we wanted the Employer to file a
       complaint as well.
       Asked if he recalls a discussion with Ms. Hopkins about this statement, Mr. Crocker said:
       I don't know if it was Heather Hopkins or Mr. Spurrell.
Asked whether he had said that he thought the Employer could be charged, Mr. Crocker said:
Definitely not.
Asked, "Did you say that you understood that Section?" Mr. Crocker said:
       I may have said that, yes. We talked about that Section, yes.
Asked whether he thinks it is appropriate for an employee to suggest that management should be
charged criminally, Mr. Crocker said:
       Speaking for myself, if the Employer breaks the law, it would be appropriate to
       have them charged.
       The Board concludes that Mr. Crocker did intend his remarks to suggest the Employer
might be charged under this Section of the Act. On his own testimony it is clear that he intended
the comment to be understood as a public statement that the Employer is liable to be charged
under this Section of the Act if it does not, itself, file charges against troublemakers even if the
Operator involved does not file a complaint.
       The Board must consider the handwritten notes of Sept. 21, 2005 union meeting (Consent
#5) where the minute taker (not Mr. Crocker) notes: "Under B-C-45 217. We can charge the
Employer." Asked to explain this notation, Mr. Crocker testified:
       I believe the question was asked of me at the meeting, whether we could have the
       Employer charged, and I said, Yes.
       It is clear to the Board from the evidence, including Mr. Crocker's testimony, that Mr.
Crocker knew at the time, and now knows, that the comment he made during the interview
publicly suggested that the Employer, at the very least, could, and perhaps should, be charged for
a criminal offence in respect of its actions on the driver assault issue.
        The Board accepts that a union officer has the right, and even the duty, to offer such a
public comment where evidence and circumstances warrant.



                                                 212
       The Board notes, however, that the evidence and circumstances in the instant matter does
not demonstrate that the Employer was acting in other than a responsible manner in respect of the
Anderson Avenue incident that sparked this public interest and framed this particular exchange
in the radio interview. The incident was investigated by the appropriate committee. Mr. Crocker
had himself participated in the investigation, and had even offered a comment to the effect that
there may have been some background factors affecting a full understanding of that incident. Mr.
Crocker did not share these aspects of the driver assault issue with the public at any time, so far
as the Board is informed, and certainly not at the time he invoked the Criminal Code in reference
to the Employer response to it and similar incidents.
       The Board therefore finds this comment, given the circumstances set out in evidence at
this hearing, to be false and malicious as defined in National Steel Car. The comment had the
real potential to mislead the public by withholding adequate access to factual information the
public needed in order to make minimally informed judgements. The comment was malicious in
that the Grievor was reckless with the truth in making the public claim that had the obvious
potential to damage the Commission among those whose taxes, in part, sustain it. Mr. Crocker
has displayed a willingness to spin facts maliciously and to be parsimonious with the truth in his
public media statements.
4)     Another ground on which the Employer sought to justify its discipline is the Grievor's
pattern of insubordinately disrespectful behaviour. The Employer argues that Mr. Crocker's
conduct shows he believes that rules and regulations do not apply to the Union President.
Specifically, the Employer argued that the discipline was justified by virtue of: his pattern of
showing "disrespect" for "the Commission's chain of authority"; the disrespect he has shown for
"line managers," and that "contrary to direction, (he) attempted to contact the Commission Chair,
whether personally, or through an agent."
       The Union argues that the Employer has no business telling the Union President how, or
with whom, to conduct the business of the Union. The Union and the Employer are equals in a
contractual relationship and as such insubordination does not have any place in the relationship.
As Arbitrator Palmer says in Re Ford Motor Company Canada Ltd. and United Automobile
Workers Local 707, E.E. Palmer, (1976) (at p.336)

                                                213
        "...When acting in his representative capacity a union steward stands in a position
       of equality with management."
       The evidence shows Mr. Crocker was explicitly reminded at the time of his reinstatement
(AS #1) of the Employer's expectation that "you are required to conduct yourself professionally at
all times and to respect the Commission's chain of authority and all levels of management..." So
far as the Board is aware, the Union did not grieve AS #1. As noted above, the Board does not
find anything improper in the contents of AS #1, or in its having been given to Mr. Crocker on
his return after a 14 month suspension imposed by a previous arbitration award.
       The Board notes that Mr. Spurrell was asked on cross examination to indicate which of
the particular requirements set out in AS #1 Mr. Crocker had violated and how. He said:
       He violated expectation #1 in failing to deal with the Operations Manager about
       an overtime issue. He made contact with me and with Mr. Lawlor and said to Mr.
       Lawlor, 'I'll go over your head', and would continue to do so 'because I'm not
       dealing with you anymore.' He said that Mr. Lawlor 'did not listen'. This was all
       in the context of the overtime issue. On the occasion that he came to me he said it
       was about overtime. I asked if he had spoken to Ray Lawlor, and told him 'I am
       not dealing with operations issues unless you deal with the Operations Manager.'
       He did not want to deal with the right people.
       The Union argues that, as this resulted in the development of an MOU, it was clearly and
properly a Union matter. Since AS #1 can not limit the range of contacts a Union officer may
make in performing union duties, the Grievor is immune. The Board notes, however, the
persuasive testimony of witnesses, including the Grievor, that the particular incident involved a
difference that concerned primarily, if not exclusively, the Grievor himself. This raises a serious
doubt about the degree to which he was acting rather more in a self-serving than in the immune
"representative" capacity such as Arbitrator Palmer describes in Re Ford Motor Company
Canada Ltd. and United Auto-mobile Workers Local 707, E.E. Palmer, (1976) at p.336.
       In the Board's view, the Union's argument that a Collective Agreement change occurred
does not address the unchallenged fact that the Grievor went over the head of the appropriate
manager on an issue primarily if not exclusively of interest to himself. In so doing, the Board
finds, he lost the immunity that attaches to representative functions. Thus, Mr. Crocker became
vulnerable to discipline, and AS #1 became pertinent.


                                                214
       The Board finds that the evidence persuasively demonstrates, on the balance of
probabilities, that the Grievor did show disrespect for the Employer's duly established and
unchallenged administrative chain of command.
       The Employer also argued that, contrary to AS #1, Mr. Crocker contacted the Chairperson
of the Commission, Mr. Colbert. The Employer points to the December 15, 2004 telephone
"meeting" between Mr. Kinnear and Mr. Colbert when Mr. Kinnear acted, in the Employer's
view, as Mr. Crocker's agent.
       The Board notes Mr. Kinnear's evidence that the December 15th "meeting" was not done
at Mr. Crocker's request. The Board also notes that the Parties were in a legal strike situation at
that point, and a Collective Agreement was not in place.
       The Board, therefore, does not find persuasive the Employer's position in respect of this
particular incident.
5.     The Employer argued that discipline was also justified in respect of the Grievor's attempt,
acknowledged in his testimony, to bring political pressure on the Employer through the media by
politicising matters that were already being addressed through contractually agreed procedures
and committees internal to the workplace. The Grievor's efforts to undermine "the Commission's
and management 's authority" by making the drug plan issue, "... an election issue was, therefore,
a justifiable matter for discipline, in the Employer's submission.
       The Employer's position, insofar as it relates to the way the Grievor conducted himself, is
persuasive on three grounds. First, as noted above, the content of the Grievor's media campaigns
(concerning the retirees' drug plan cap and driver assaults) was false and malicious.
       Second, the Board notes that the Handbook (HH #16), which testimony shows has not
been grieved, contains two provisions that bear on this issue:
A6. Public Image
      Making or publishing malicious or false statements concerning any employee or
      the Commission, or other conduct detrimental to the Commission, its employees
      or the employee/Employer relationship will not be tolerated.

A13. News Media
      No employee shall make any statements to the media regarding the Commission
      without prior authorization from the Commission.


                                                215
       In view of the Board's rulings, above, that certain of the Grievor's statements to the media
concerning the Commission were false and malicious, the Board finds that Grievior is also liable
for discipline under regulation (A6).
       Absent immunity due to the false and malicious character of his comments (please see
the Board's rulings above), and absent evidence that the Commission had granted any "prior
authorization", the Board finds that the Grievor was also liable for discipline under A13.
       The Board also notes Re Pacific Press and Communications, Energy & Paperworkers'
Union, Local 115M (C. Bruce) 1997 at p 233 offers the following relevant comment:
       The dispute .. was one that could have been effectively handled through the
       grievance procedure. The employees' rights would not have been irreparably
       harmed by the Employer’s actions. The Grievor could have equally accomplished
       his objective by... filing a grievance. I am unable to conclude that the Grievor is
       clothed with an immunity from discipline in the circumstances.
The Board notes that these two issues were already being addressed through provisions of the
Collective Agreement. The driver assaults issue was being investigated by the Employer and
reported to the Occupational Health and Safety Committee, a committee established within the
Collective Agreement. The cap issue was grieved. On the Grievor's own testimony, the reason he
went to the media was to apply "pressure" in respect of a "difference" which the Agreement says
(at Section 4) is to be resolved by the contractually agreed procedures, an act which he
acknowledged in testimony is "probably not" allowed by the Collective Agreement.
       Thus in view of the reasons set out above taken together, the Board finds the Employer
has shown just cause for discipline in view of the way the Grievor attempted to apply pressure.
6.     The Grievor and the Union both acknowledge that the route deviation did occur. The
Employer demonstrated through unchallenged evidence that various drivers have been variously
disciplined for the same or similar deviations, which also violate regulations in the Handbook
((HH #16). There was no evidence that a driver had ever been terminated for such a violation.
       The route deviation was, however, noted in the letter of termination after the termination
decision had been taken. As such, it does not figure as an element of termination decision itself.
       The Board makes no finding in relation to this matter.



                                                216
Reasons or Rationalization?
        The Union urged the Board to take note of the fact that the onus is on the Commission as
the Employer to show that the reasons for that dismissal constitute just cause for its decision. The
Union suggests that the actual termination, effected by Ms. Powell for management, does not
represent an adequate or accurate account of those reasons, but is a post hoc rationalization.
        With respect, The Board is not persuaded that there is a procedural defect or a substantial
concern posed by these suggestions. The evidence shows the Commission works with and
through its Management, as is recognised by the Collective Agreement in the preamble.
In conclusion, the Board finds that the Grievor's conduct in certain particulars as reviewed above
was a justifiable ground for discipline. The Board, therefore, finds that the Employer has
discharged its onus to the extent that it has proved just cause for discipline as reviewed above in
these considerations.
Mitigation? The Union argued the Employer’s discipline was completely groundless. In light of
the Board's findings, the Board must consider the question of mitigation in light of the Arbitral
Jurisprudence. In Canada Post Corporation and Canadian Postmasters and Assistant Assn.
(Walsh grievance), C.U.P.W. NF-96-004. The Board notes that Arbitrator Montgomery sets out
nine grounds for mitigation:
    (1) bona fide confusion or mistake made by the grievor as to whether he was entitled
    to do the act complained of;
    (2) the grievor's inability, due to drunkenness or emotional problems, to appreciate
    the wrong-fulness of his act;
    (3) the impulsive or non-premeditated nature of the act;
    (4) the relatively trivial nature of the harm done;
    (5) the frank acknowledgement of his misconduct by the grievor;
    (6) the existence of a sympathetic, personal motive for dishonesty, such as family
    need rather than hardened criminality;
    (7) the past record of the grievor;
    (8) the grievor's future prospects for likely good behaviour, and
    (9) the economic impact of discharge in view of the grievor's age, personal
    circumstances, etc.
       The Board has considered each of the above, and concluded, on the evidence available as
set out above, that it can rely on none of them as grounds for mitigation in the Grievor's case.



                                                217
          The Union suggested the media interventions of the Commission Chairman, Mr. Colbert,
must be considered as providing a context that justified the Grievor's media comments in the Fall
of 2005 as reviewed above. With respect, the Board is not persuaded this constitutes a mitigation.
Whatever one may think of the wisdom of the Chairman's December 2004 interventions, it is hard
to regard them as providing a mitigating context to the Grievor's false and malicious comments
later in 2005, even though the retiree prescription drug issue (though not the cap) figures in some
of the 2004 and the 2005 interviews. The Board finds no mitigation in the Chairman's 2004 media
comments for the Grievor's Fall 2005 false and malicious media comments.
          The Board is not persuaded that the Grievor falls into the situation addressed, for instance,
in Re City of Nanaimo and International Association of Firefighters, Local 905, (2002) Arbitrator
H.A. Hope, Q.C where the arbitrator accepted the Grievor did believe what he communicated,
despite its falsehood. In the instant case, the Board is persuaded that Mr. Crocker was aware of
the facts and set out to apply political pressure by expressing them in a misleading manner. The
Board has found that in doing so, he went beyond what arbitral jurisprudence finds acceptable,
and crossed the line into the area of the false and malicious. Similarly, the Board cannot describe
Mr. Crocker's conduct in terms of Samson v. Canada Post Corporation, Canada Labour Rela-
tions Board, (1987) where the situation and Ms. Samson's comments were different from his.
          National Steel Car found that the Grievor in that matter had exercised poor judgement and
panicked when informed of a possible fire, so that his conduct was explicable as impulsive or
non-premeditated in nature. Mr. Crocker's conduct shows no similarity. For example, he testified
that he had the text of the Criminal Code in front of him, and had consulted legal counsel. There
is evidence of premeditation.
          The Board can find no mitigating circumstances in the instant case.
II. Was termination the appropriate discipline?
          The Board notes that the Grievor was suspended for 14 months by order of the Oakley
award, and also that this Employer practises progressive discipline. On the evidence provided, the
Board concludes that the employment relationship has been irreparably broken.
          The Board finds, therefore, that termination was appropriate discipline in the instant
matter.

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                                           DECISION




The Board finds that in view of all the foregoing considerations,




                                THE GRIEVANCE IS DENIED.


Respectfully submitted as the decision of the Board:




For the Employer:
                                                            Mr. John Peddle




For the Union:                                               DISSENTING
                                                            Mr. Jack Harris, Q.C.




Chairman:
                                                            Mr. John A. Scott


June 18, 2007




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