A Coquitlam forklift operator fired from a Coca Cola Canada facility after wearing a bandana emblazoned with a Confederate flag and the words “The South Will Rise Again” has won a labour dispute in a case that tests the limits of workplace anti-harassment and discrimination policies.
The decision, decided Feb. 4 but released this week, stems from two incidents last year at Coca Cola Canada warehouses in Richmond and Coquitlam.
In the first incident on April 27, 2020, someone hung a noose from a supervisor's platform near an area where a person of colour usually worked at the company’s Nelson Road facility, says the decision.
When a fellow worker approached the forklift operator, D.D., to take it down — the colleague said he didn’t want to deal with it because his girlfriend had died by suicide by hanging — he did so.
The incident prompted managers to speak with the workers, later telling them “they thought the noose was a symbol of race, hate, and violence,” wrote arbitrator Randall J. Noonan in his decision.
But following an investigation in which 23 employees were interviewed, management was unable to identify who hung the noose and no evidence linked D.D. to the incident, outside of taking it down.
According to notes taken in a June 30 interview with D.D., he said the noose had no racist or discriminatory meaning and that it wasn’t meant as a threat against black employees because the person of colour hadn’t been working that day. The whole incident, said D.D., was overblown, according to the decision.
A week after the interview, D.D. was working at a Coquitlam Coca Cola facility when a company-wide mandatory mask policy went into place to stem the spread of COVID-19. Masks were handed out to all employees, but according to D.D., he found them uncomfortable.
That’s when D.D. went out to his car to retrieve a bandana he said he got at a Lynyrd Skynyrd concert. Emblazoned with the Confederate flag on one section of the bandana, it also showed a Confederate soldier encircled in the words “The South Will Rise Again.”
Inside, D.D. folded the bandana into a makeshift mask.
When another worker told D.D.’s supervisor about the bandana, he Googled the Confederate flag, determined it was a racist symbol and told him to remove it, the decision said.
D.D. did so immediately. According to notes from a meeting with a supervisor, D.D. was told “people may be scared to speak up” and that the symbols on the bandana were “not appropriate in the workplace.”
INVESTIGATION ON THE HEELS OF GEORGE FLOYD’S MURDER
The investigation into both incidents came at a time when many businesses around the world faced heightened scrutiny over their role in either upholding or dismantling systemic racism.
In between the Richmond and Coquitlam incidents, the murder of George Floyd, a black man, at the hands of a Minneapolis police officer had sparked a global Black Lives Matter movement, rocking cities across North America and beyond with protests calling for meaningful change.
Witnesses for Coca Cola Canada said the company had long strived to be a leading voice for equality and live by the words of the song in a famous 1971 commercial: “I’d like to teach the world to sing in perfect harmony…”
At the time, Coca Cola’s CEO encouraged reluctant politicians and business leaders to attend the ceremony celebrating Martin Luther King’s award of the Nobel Peace Prize, stated company witnesses.
The company’s chief people officer testified that in May, leadership decided that they “had to do something. There was a lot going on in the world, and not just in the U.S. There were racist slurs, anti-Asian discrimination, Nazi symbols in Jewish Synagogues and anti-Black racism in Canada.”
Coca Cola Canada, said the Human Resources executive, wanted “to be very clear about what side of history we are on” and that “racism, intolerance, bigotry and hate will not be tolerated.”
WORKER FIRED
On July 10, D.D. received a letter of termination stating that, based on the two incidents, he showed a “flagrant disregard for issues of racism in the workplace” inconsistent with the company’s policies around harassment and violence, said the decision.
When the company investigated the noose incident, one worker questioned why management thought it was racist because white people got hung in the past and “cowboys did it all the time.” And at least two managers said they were “shocked” D.D. thought the noose incident may have been “a joke by somebody with a dark sense of humour,” said the decision.
According to the decision, the Vancouver manager who recommended D.D.’s termination “saw the wearing of the Confederate flag mask as blatant racism done in spite of what he should have known based on the discussions and interviews around the noose incident,” and that “his dismissal was very much influenced by his attitude in relation to the noose incident.”
“Despite your understanding of the racist connotations of the confederate flag, with an emblem that says The South Will Rise Again and your knowledge of issues of racism at the Richmond warehouse, you chose to wear the confederate flag in the workplace,” reads his termination letter.
At arbitration, witnesses for Coca Cola Canada also noted that D.D. had been involved in other “racist events” over the years, including racist drawings, jokes and music played when a black employee crossed a pick line.
But in his decision, Noonan noted evidence did not make clear when these events took place and that many of them likely occurred before he was employed at Coca Cola.
Further, the arbitrator wrote there was no evidence D.D. had played any role in the hanging of the noose, and that in the case of the bandana, he immediately removed it when confronted by his supervisor.
TERMINATION TOO HARSH
The decision said that Coca Cola considered the incidents as blatant examples of racism and therefore warranted a dismissal, but the arbitrator disagreed, writing that the legal precedent for “zero tolerance” in workplace transgressions has not been established, and that “every case must be assessed against specific facts.”
When D.D. was asked in direct testimony what the Confederate flag means to him, he said it reminds him of music like Kid Rock, Alabama and Lynyrd Skynyrd. “It’s about southern culture — food and things you can’t get anywhere else,” he said.
Noonan found D.D. was only answering workplace investigators’ questions honestly, that there is “no allegation or evidence” that he hung the noose, and that nothing D.D. said fairly indicates he supports or condones racism or racist acts in the workplace.
Coca Cola leaned on legal precedent in a case where a worker had hurled violent and racist epithets at a Black co-worker, and in another where three corrections officers posted racist comments on Facebook about First Nations inmates.
But the arbitrator wrote that D.D.’s conduct was “not of that character” and agreed with the worker’s union that it was “on the low end of the scale.” He found Coca Cola Canada’s firing of the forklift operator was “an excessive response.”
Far from termination, the union suggested a letter of reprimand was appropriate for the bandana incident. “In earlier times, the Union may well have been right,” answered Noonan in his decision. “However, we are in an era of heightened awareness of systemic and individual discrimination.”
“Although I find that (D.D.) 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.
Noonan ordered Coca Cola Canada to reinstate D.D. and make up for his subsequent financial losses. For the bandana incident, the arbitrator ruled D.D. deserved a one-day suspension, but in the end, upped it to five days.
“Whether or not it would have been viewed in the same light in earlier times, his offence must be considered as serious today,” wrote Noonan. “This case presents a true ‘teachable moment.’”
If D.D. had pushed back when asked to remove the mask or claimed he was wearing the bandana as an expression of free speech, this could have been a “very different case,” wrote Noonan.
