Coca Cola ordered to reinstate worker fired for Confederate flag mask
Termination too harsh for Lynyrd Skynyrd fan with no attachment to flag’s ‘negative ideology,’ says arbitrator
A labour arbitrator has ordered Coca Cola Canada to reinstate a forklift operator fired after wearing a Confederate flag mask in the workplace.
According to arbitrator Randall Noonan’s recent ruling on the union employee’s grievance, at least some form of discipline was warranted for the incident, even though the man had no disciplinary record and immediately removed the face-covering when asked to do so.
“Workers today must be sensitive to issues of diversity and inclusion and must take care not to act in ways that marginalize, offend, hurt, denigrate, or otherwise discriminate against others. Although I find that the Grievor did not intend to cause harm, he nevertheless wore a mask that, through its symbolism, was offensive to the values of Coca Cola and Canadian society,” Noonan wrote.
Still, the soft drinks giant went over the top by firing the worker, Noonan added, concluding that termination was an “excessive response” for misconduct he put at “the low end of the scale.”
“The employer acted in pursuit of a noble cause – the elimination of racism and harassment in the workplace. That goal, however, does not detract from requirement that any discipline imposed must be just and reasonable in the circumstances. A measured approach is always required,” he added.
Had the case been heard in the 1980s, the arbitrator said the outcome might easily have resulted in no disciplinary action against the employee.
“However, times have changed. Whether or not it would have been viewed in the same light in earlier times, his offence must be considered as serious today,” Noonan concluded, imposing a five-day suspension that he wrote was “likely to drive home the need for sensitivity to the Grievor and others in the workplace.”
According to the ruling, the forklift operator at Coca Cola’s Coquitlam, B.C. warehouse ran into trouble on July 7, 2020, when the company instituted its mandatory mask policy.
Unsatisfied by the uncomfortable employer-provided masks on offer, the employee retrieved a bandana from his car that he had picked up at a Lynyrd Skynyrd concert, and fashioned it into a face covering, the decision says. The image on the bandana included part of a Confederate flag, plus a Confederate soldier and the inscription: “The South Will Rise Again.”
In testimony at the hearing, the employee claimed to have worn the bandana as a head covering in the workplace many times without incident. But on this occasion, a co-worker notified a supervisor, who asked him to remove it, although only after Googling the flag to find out why someone might object to it as a racist symbol.
The decision says the worker removed the bandana without complaint immediately, before he was summoned to a meeting with a manager, who explained that the flag could be seen as a symbol of hate and segregation.
“I guess some do. I don’t see it like that,” he responded, according to the ruling. At his hearing, he explained that the Confederate flag reminds him of music acts including Kid Rock, Alabama, and Lynyrd Skynyrd. “It’s about southern culture – food and things you can’t get anywhere else,” he testified.
In addition to the mask incident, the worker’s termination letter also referenced his responses during an earlier investigation into the hanging of a noose at his previous worksite, the latest in a “series of racist and harassing occurrences” at Coca Cola’s Richmond, B.C. warehouse. Together, the wearing of the mask and his insistence that the noose was probably meant as a joke indicated his “flagrant disregard for issues of racism in the workplace,” the letter alleged.
However, the arbitrator found the company could find no “comfort or justification” for its decision to dismiss the man in the noose interview, noting there was no suggestion he was responsible for its hanging or any of the other racist incidents – which occurred before his hiring. Instead, the employee was one of 23 employees asked for their opinions about the noose incident.
“I take from the notes that he thought that it was likely done as a joke by someone with a dark sense of humour and not meant as harassment,” Noonan wrote. “Whether he was right or wrong in his opinion of the motive, I do not find that his views constituted misconduct in any form.”
Narrowed down to his wearing of the Confederate flag mask, the arbitrator accepted that the worker’s conduct fell below the employer’s reasonable expectations, and warranted some form of disciplinary action.
“Notwithstanding that he had worn it on earlier occasions without issue and that there was no ill-intent on his part, he should have been more thoughtful before putting it on,” Noonan wrote.
In alternative to reinstatement, Coca Cola asked the arbitrator to award the worker damages, claiming his conduct contributed to a poisoned workplace environment.
However, Noonan was not convinced, concluding there was no evidence suggesting any risk of a poisoned atmosphere.
“Having reviewed all of the factors, I have concluded that this is not an appropriate case to deviate from the normal remedy of reinstatement,” he wrote.
The case represents a “teachable moment,” Noonan added, substituting a five-day suspension for dismissal, and ordering Coca Cola Canada to repay the employee’s lost wages and benefits over the seven months since his termination.
“It is significant that there is no evidence that the Grievor was attached to the negative ideology or underlying symbolism of the Confederate flag. It seems to me that if the Employer had, at the outset, determined to suspend the Grievor for a one-week period and used that as a lesson, it would have driven home a strong point to all its staff,” he concluded.
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