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HomeMy WebLinkAbout1986-0753.Brown.88-09-29ONTARIO EMPLOI~S OEU COURONNE CROWNEMPLOYEES DE L’ONTARIO 0753fa6 IN THE MATTER OF AN ARSITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: 3efore: OLBEIJ (Harvey Brown) and The Crown in Right of Ontario (Liquor Control Board of Ontario) J. Gandz Vice Chairperson I. Freedman Member H. Roberts Member For the Griever: E. Mitchell Counsel Koskie & Minsky Barristers and Solicitors For the Employer: M. Hines Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors May 25, 1988 August 25, 1938 Griever Employer 2 DECISION The Grievance The grievor, Harvey Brown, was suspended for five days for an alleged failure to follow proper accounting procedures and "insubordinate, threatening, and truculent behaviour" when confronted with this irregular accounting practice by his manager. Mr. Brown claims that he was disciplined without just cause, contrary to Article 3.2 (c) of the Collective Agreement, and asks that he be made whole in all respects. The Facts Tony McGrath became manager of Store 385 in April 1986. On May 17 Brown was disciplined (a three day suspension, subsequently reduced to two days following a grievance meeting) for leaving the store and falsifying an attendance record. McGrath also gave Brown an unsatisfactory evaluation on one of the several criteria which make up the LCBO's evaluation system. There was little doubt, both from his testimony and from the correspondence he sent to the LCBO following this incident, that Brown intensely dislikes McGrath and views him with contempt. This poor manager-employee relationship was identified and referred to by Mr. F.B. Rankin, the Acting Vice President of the retail division, when he wrote to Brown following the first disciplinary incident in May (letter dated June 16, 1986) urging him to try to improve the relationship with his manager. On August 1, 1986 McGrath came into work and started the task of balancing the safe. He had not been at work the previous day and the accounting procedures at the end of the previous day had been done by the acting manager, Harvey Brown, who held the position of Clerk 4 (Bookkeeper-l. The records made the previous day by Brown, and deposited in the safe at the end of the day, indicated that one of the cashiers, Milt Slaughter, had been $2.50 over in his cash. When he counted the safe, McGrath found that it was actually $22.50 less than the figure noted by Brown on the deposit slip placed in the safe. He counted the safe again, balanced the daily sales report, and reached the same conclusion . . . there was a $22.50 discrepancy between his count 3 and the figures provided by Brown on the bank deposit slip in the safe. McGrath testified that he counted the safe yet again, cross-referencing his count with the details (numbers of ones, twos, fives, etc.) on the deposit slip. He found that Brown had one entry for $30 which he did not have and that he had one entry of $7.50 which Brown did not have. This $7.50 consisted of 15 rolls of pennies, each containing 50 pennies. He had cleared out pennies from cashiers' boxes earlier in the week and had put them in the safe himself. He realized that if Brown had inadvertently counted these fifteen rolls of pennies as nickels he would have been $22.50 over. However, if he had done this but nevertheless balanced the safe (reporting only $2.50 over for Slaughter's cash, then it was apparent to McGrath that Brown must have removed some money from the safe. McGrath testified that these pennies were wrapped in white paper, unlike other coins which were wrapped in brown paper. Brown was not scheduled to come to work that day until 2.00 p.m. ~McGrath asked Slaughter if he had any problem balancing his cash the day before. Slaughter said that he had been out by $20, at first stating that he had been over by that amount. Now McGrath was really more concerned since it appeared that there was another discrepancy between the reported figure by Brown - which had Slaughter as $2.50 over - and Slaughter's statement that he had been $20 out. McGrath said that he asked Slaughter where the $20 was... Slaughter told him that Brown had balanced the safe and told him that "everything's okay - you balance." In subsequent discussions with McGrath, Slaughter stated that he was not sure whether he was $20 over or $20 under. It is quite clear from the testimony of Brownhimself that he did not follow the correct accounting procedures with respect to balancing the cash on August 31. By his own testimony, Brown found that at the end of the day, Slaughter's cash was short $20. 4 Slaughter testified that Brown asked him for $9.00 since the Collective Agreement provided that an employee must make up one- half of any shortage beyond $2.00 but that Brown subsequently gave him that money back, indicating that the problem had been corrected. The manner of this correction was described by Brown himself. When he came to count the safe, he found that it was over by $22.50. He reached the conclusion that this was because he had made an error in the amount of float that he had given to Slaughter at the start of the day. He concluded that he must have been out by $20 in that float, which varied daily between $150-200. Being short $20 would at least account for $20 of the $22.50 that the safe was o,ver. Figuring that it was unlikely to have an error of $2.50 in petty cash (in the safe), particularly since odd amounts like 50 cents did not normally occur in petty cash, he then decided that all the $22.50 overage in the safe must have been due to Slaughter's cash overage and he therefore decided to record the remaining $2.50 as a surplus in Slaughter's cash. He subsequently made out a fresh, clean deposit record and put it in the safe with the money. Taken at face value, this revisionist accounting method was a rather pragmatic solution to the problem . . . at least in Brown's mind. He did not report Slaughter's shortage, report the overage in the safe, advise his manager.of his suspicions about the float shortage, and then suggest how the matter should be resolved. He took it into his own hands to balance the books in accordance with his own instincts about the reasons for the discrepancy. St was apparent from the content and tone of his testimony at the hearing itself that Brown saw nothing wrong with this then . . . and still sees nothing wrong with it now. Norman Bryden, a Clerk 3 with the LCBO for 23 years and at Store 395 when this incident took place, testified that there were often errors in cash at the end of the day and that the bookkeepers try to resolve any discrepancies by the end of the 5 ' day, sometimes keeping their rough work and sometimes throwing it ,away. However, Bryden's testimony was very short on the specifics about what kind of errors occur and what reasonable steps to correct discrepancies might be. We will have more to say about the absolute need to have people in positions of trust adhere rigidly to accounting and bookkeeping procedures for their own good, as well as the protection of others, subsequently. McGrath testified that after he had confirmed this cash shortage he tried to telephone Brown but was not able to contact him. Slaughter mentioned that there had been a cash audit the day before and McGrath immediately contacted the auditor, Bob Pereira to ask if there had been any problems the previous day. McGrath told Pereira that the safe was short $22.50 - probably pennies counted as nickels. In his testimony to the Board, Pereira did not remember any mention of possible theft . . . only a discrepancy in the count. He suggested that McGrath examine all the records. retrieve any rough records from the garbage, and check the deposit envelopes. McGrath did all of this, actually retrieving a calculator tape which referred to an item of $7.50 7 presumably the fifteen rolls of pennies - but was unable to produce this tape at the hearing. McGrath testified that Pereira in this conversation recounted finding pennies and counting them as such, not as nickels. Pereira also testified that it was not unusual to have pennies around - about 80 percent of stores have pennies in the safe he said - and that as far as he could recall these pennies were rolled in white paper. Pereira decided to go to store 385 immediately and he rechecked the safe and all the records, confirming the $22.50 discrepancy. He then decided to wait until Brown arrived at work. Brown arrived at the store at 1.30 p.m., spotted Bob Pereira immediately and asked him why he was back so soon. According to McGrath, he told Brown of the problem balancing the safe and Brown said "safe balanced last night - not my problem." Brown's 6 i version of this is a little different, but not materially so. According to Brown's testimony he was greeted by McGrath who asked how things had gone the night before. Brown said "things were fine", not initially describing the problem which had occurred with Milt Slaughter's cash shortage. It was only after McGrath pursued the matter, saying "are you sure?", that Brown testified he said "we had a little problem the night before but we fixed it." When McGrath asked what the problem was, Brown testified that he first said "Have you looked at the deposit slip", they said Ilyes", and he then went on to explain the whole matter. In view of the arguments made by Brown's counsel that he was provoked into subsequent behaviour by McGrath and the whole situation in which he found himself, we must observe that even when confronted with a direct question about the incident of the day before, it was Brown who prevaricated in his response, at first denying that anything untoward had happened and only admitting there had been a problem under repeated questioning. Indeed, Pereira testified that Brown only mentioned the problem ( the night before after he had been requested to count the safe's contents and realized the discrepancy actually existed. What then transpired.was an incident of escalating conflict. Even Brown acknowledges that he was very angry, upset, and "probably swore" at McGrath. Despite testifying that he could not recall much of what happened because he was angry and upset, Brown was very specific about what he did not say . . . and his testimony is clearly at variance with that of McGrath and Pereira who, even Brown agreed, had no axe to grind in this matter. McGrath asked Brown to recount the safe's contents. He did so, again counting the pennies as nickels. It was then pointed out to him that there were fifteen rolls of pennies, not nickels, and that accounted for the difference. Brown testified that he felt that he was being deliberately set-up and made to look like a thief and that he was angry that McGrath and Pereira did not appear to accept that this was an honest mistake and that he had been right to make the adjustments in the cash the previous night. McGrath described Brown as being in "a complete frenzy, becoming abusive, and starting to swear." He recalled Brown saying, at this juncture, "You fucking guys are not going to get away with this shit. My lawyers know all about you people, we have it well documented. This time I've got you - I'm going to sue the fucking ass off you and the Board." Pereira was present during this conversation. He testified that Brown was loud and abusive using phrases such as 'I'll fucking get you" and "111 fucking get the Board". Pereira also testified that, despite the fact that neither McGrath nor he had ever mentioned theft, Brown said "I didn't take the money. Tony's the crook.'1 McGrath testified that he was trying to calm Brown down at this time, assuring him that there was no allegation of theft but that an explanation was needed. McGrath's recall of this is confirmed by Pereira's testimony which was that there was never an allegation of theft. Brown left the office momentarily to see Slaughter and then came back to the office, telling McGrath that Slaughter had been over $20. When McGrath said that Slaughter must have been $20 short, Brown replied "all I know is that the safe balanced, Milt was $2.50 over, and everything was okay when I left last night." McGrath also testified that the money was subsequently recovered from Slaughter . . . which Slaughter could not recall happening. McGrath testified that he was prepared to treat this matter as being over at that time since there was at least a plausible explanation. However, Brown was not prepared to let the matter drop. When McGrath asked Brown if he was prepared to work the night shift, since he seemed angry, Brown is reported to have said: "Of course. You bastards are not going to get away a with this. I'm going to get my lawyer to send a letter to Mr. Rankin and I'm going to sue ycu bastards." McGrath testified that he told Brown that "the situation is over" to which Brown responded "It's not over until I say its over and you're going to hear from my lawyer." McGrath went on to testify that he then told Brown that in view of his attitude he would report the whole matter to Rankin and then started to prepare a letter of possible discipline by actually sitting at a typewriter in the office and starting to type it. Brown responUed "You bastard. Why are you doing this to me. I've never done anything wrong in this outfit." McGrath said that he then said to Brown "1 said you may never have done anything wrong in your own mind but your attitude is your problem. This matter this morning could have been easily explained and forgotten but you want to pursue it with your lawyer and I must therefore write the letter." It is important to recognize that this was an increasingly heated exchange, although Pereira testified that McGrath never got angry, raising his voice only sufficiently to try to get Brown to listen. In her arguments, Counsel for Brown tried to characterize this incident as "lawyer bargaining" - in effect McGrath offering to take the matter no further if Brown dropped his legal action threat. The Board is unimpressed with this characterization of events. Indeed, we find that McGrath was prepared to let the matter rest without disciplinary action but that Brown's insistence on pushing the matter further, his continued aggressive and abusive demeanour and behavior, left McGrath with no option except to report the whole incident. As McGrath sat at his typewriter to prepare a notice of discipline, Brown continued to pace the office. McGrath's testimony, corroborated by Pereira, was that Brown continued to accuse McGrath of "setting him up", saying that he had never seen pennies in the safe in all his many years with the Board. McGrath also testified that Brown accused him of being a thief. 9 : He was behaving in an aggressive manner, repeatedly asking McGrath why he was doing this to him, why he was setting him up, and so on. McGrath testified that he told Brown that "he was doing it to himself by bringing his lawyer into it." There were more threats, similar in character to those described previously and Pereira's testimony fully corroborated McGrath's evidence in this matter. Finally McGrath asked Brown to leave the office and he refused, saying "No fucking way, I want to see the lies you're writing about me." When advised that he would be getting a copy of the letter, he still refused to leave. McGrath then told him to leave the store, in effect suspending him (without pay) for the balance of the day... drawing the response "Fuck you, you can't do that to me" and the counter "I just did - get out of the store." McGrath testified that he continued to type but that "Brown came up behind me, came over to the typewriter and poked me three to four times in the back with his finger. As he did, he said "this is not over, I'm going to fucking get you for this." I got a cold shiver - I thought he'd stabbed me. I felt very nervous . and uncomfortable." Brown denies poking McGrath and Pereira was unable to confirm or deny any physical contact. McGrath called his regional director, Tom Scowcroft, to let him know him what was happening. Scowcroft advised NcGrath to ask Brown to leave once again and, if he refused, to call the police. Brown refused, tried to call Scowcroft, but was not able to speak with him. Brown then tried to contact his union. Brown testified that McGrath had only allowed him one telephone call but that he refused to leave the store until he knew "his rights" by contacting the union. Finally he contacted the union .president who advised him to leave. Under cross examination, McGrath stated that he was prepared to accept that the counting of the pennies as nickels was an 10 honest mistake and that he would not discipline someone for an honest mistake. However, it was the hiding of the facts of the discrepacy, prevarication, and attitude of Brown which drew the discipline. While he reported the events to senior management, McGrath testified that he had no part in deciding on the quantum of discipline. It is quite clear from correspondence between Brown and Rankin, in which Brown attempted to explain his actions, that Brown continued to feel highly aggressive toward McGrath and also continued to distort the events of August 1. In one letter he stated that "the store manager secretly switched the rolls of nickels in the petty cash with rolls of pennies.... I know the manager did the switching because I asked him and he admitted doing so but refused to tell me why." In his testimony at this hearing Brown did not say that McGrath had made any such admission. In another letter dated August 2, Brown wrote to Rankin that "I was ~inunediately confronted by the manager and the auditor and was accused of stealing $20.00 from petty cash." At the hearing Brown acknowledged that no such accusation had been made. His letters to Rankin contain gratuitous insults, focussing on such extraneous issues as McGrath's grammar, maturity, "incredible and useless form of non-productive behavior for a store manager", the store manager's absence from the store (harking back to his previous disciplinary incident), and suggest that it was McGrath, who was at the root of all of these problems. The Arguments The Employer argued that discipline was warranted in this case for two reasons: the first was for the breach of accepted accounting policies; the second was for the subsequent behaviour of Brown, specifically his prevarication, threats, excessive verbal abuse, refusal to leave McGrath's office and refusal to leave the store. 11 In support of its position that both of these incidents warranted disciplinary action, the Employer cited several cases including Douglas, a decision of the Grievance Settlement Board (28 L.A.C. (2d) 332 Swinton 1981) in which a five day suspension was upheld in the case of an employee who had no previous disciplinary record but had not followed LCD0 procedures for ringing up cash sales. The Union argued that there was no serious breach of accounting practices and that, in any case, it would be unreasonable of the Employer to discipline Brown for this since it was accepted as an "innocent mistake 'I by McGrath and he was prepared to let the matter rest at one point. Counsel suggested that this was conditional on Brown dropping his threat to get his lawyer involved - an approach which Counsel found reprehensible. Furthermore, Counsel argued that while Brown was upset and probably did swear at McGrath, his behaviour was provoked by the store manager who: humiliated Brown by making him recount the safe in front of the auditor, despite knowing what the problem was; "bargained" with him over the lawyer threat: actually started to write the disciplinary letter while Brown was in the office, rather than do it afterward; suspended him without pay; attempted to limit him to one phone call from the store; and, overall, deliberately aggravated the incident while knowing that Brown was upset. The Union cited several cases which indicate that provocation by a supervisor must be taken into account when assessing the culpability of insubordinate behaviour, notably Re - Douglas Aircraft Co. of Canada Ltd. and,U.A.W. (19121, 2 L.A.C. .-.-. -v (2d) 56 (Weiler) which is cited with approval in ReNewmont Mines Ltd. and Canadian Association of Industrial, Mechanical a& Allied.Workers, Local & (1982) 3 L.A.C. (3d) 397 (Brown). The Decision There is no doubt that Brown failed to comply with proper accounting procedures in that he did not report unadjusted cashier counts and petty cash records. .While the section on balancing cashiers in the LCBO Store Operating Manual does not 12 explicitly forbid using overages in petty cash to balance out cashier shortages, it is clearly implicit in this policy that actual cashier counts must be reported and recorded on the deposit slips. Brown should have reported the figures as he found them, not his assumptions about what had taken place. To do what he did is totally unacceptable. It subverts the whole purpose of an accounting system. Furthermore, it creates a climate of mistrust and suspicion .., precisely the situation which adherence to recognized bookkeeping and accounting practices is designed to avoid. We are not satisfied that Brown and Bryden's claims that discrepancies are routinely adjusted in any way represent an excuse for what Brown did in these circumstances. This raises the question about whether the Employer can proceed with discipline on this issue alone given that McGrath indicated that he was prepared to accept Brown's explanation of the fact that the cash shortage was due to the mistaken counting of pennies as nickels. We note in this respect that McGrath testified that he had no part and was not consulted about the penalty imposed on Brown . . . that was done by senior management. The fact that McGrath was prepared not to report the incident may be taken as some indication that it was not in and of itself considered to be a heinous offense. However, we can see no reason why it should preclude senior management from considering it to be worthy of some disciplinary action. Furthermore, since it seems quite clear that Brown still has not got the message that accounting procedures must be followed, perhaps some discipline will serve to drive home the point and result in some remedial change in attitude by Brown. However, the real issue in this case is clearly the extraordinary behaviour of Brown in the confrontation which occurred after McGrath called him into the office on August 1 . . . behaviour which was described by McGrath and largely corroborated by Pereira. Pereira testified that never, in his many years with the LCBO, had he ever heard a manager spoken to in the way in 13 i which Brown spoke to McGrath. Moreover, it was behaviour which was not just a flash of temper exhibited in the office. The letters from Brown to Rankin are truculent, rancorous, bitter, and highly inaccurate. As for provocation, the timing of what took place is important. Many of the allegedly provocative actions (such as typing the letter of discipline, sending him home for the balance of the shift, allegedly refusing to let Brown make more than one telephone call, for examples) occurred well after Brown had accused his manager of being a thief, sworn at him, threatened him in the most aggressive way with legal action, and other aggressive and insubordinate acts. The Union suggests that simply asking Brown to count the safe - given that McGrath and Pereira knew what the problem was - was an act of provocation. We accept the Employer's response that this was a reasonable and prudent thing to do to ensure that Brown realized his own error. If Brown found this action to be humiliating and was subsequently provoked by it, then it is perhaps understandable but can in no way be taken as justification for his subsequent behavior. Counsel for the Union makes much of the fact that it was the threat of legal action which made McGrath report this issue. But this must be examined in context. This was not an individual who coolly, calmly, respectfully, suggested that he wished to consult his lawyer. This was someone who, according to McGrath whose evidence we find to be quite credible, said angrily, You fucking guys are not going to get away with this shit. My lawyers know all about you people, we have it well documented. This time I've got you - I'm going to sue the fucking ass off you and the Board." "Of course. You bastards are not going to get away with this. I'm going to get my lawyer to send a letter to Mr. Rankin and I'm going to sue you bastards." "It's not over until I say its over and you're going to hear from my lawyer." 14 t ; To respond to this by actually reporting the incident seems, in our view, the only reasonable thing for McGrath to have done and we completely reject the idea that this was 'lawyer bargaining' in any respect. We agree that it might have.been sensible for McGrath to have waited to type his letters until Brown had actually left the store and if he actually did try to limit Brown to only one 'phone call that might also have been too restrictive. Howeirer, by the time that occurred Brown had gone well over the boundary of acceptable behaviour. Maybe Brown thought that he was being set-up for something by McGrath; maybe the antipathy he felt at that time toward his manager, and obviously still feels toward McGrath, made him lose his temper. But he overstepped the mark by a long way. He was insubordinate, aggressive, evasive in his initial answers to McGrath about the original incident, and fully deserving of the discipline which was meted out. Its severity, a five-day suspension, is not out of line particularly since it followed so closely on a three-day (subsequently modified to two-day) suspension. Accordingly, this grievance is denied. Dated at London, Ontario, this 29th day of septersber, 19 68. RM H. Roberts, Member