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HomeMy WebLinkAbout1987-0372.Johnson.88-08-17EMPLOY& DE LA COURONNE OEL’ONTARIO CQMMISSION DE SElTLEMENT’ REGLEMENT DES GRIEFS .IB THE MATTER 08 AN ARBITRATION Under TRR CROWN EMPLOYEES COLLECTIVE BARGAINING ACT 0372/87 Before TEE GRIEVANCE SETTLBMBNT BOARD Between: CI&BEU (Danie1.S. Johnson) Before: -and-" The Crown in Right of Ontario (Liquor Control Board of Ontario) R.J. Roberts J.D. McManus D.A. Wallace Grievor Employer Vice-Chairman Member Member Par the Grievor: M. Levinson M. Zigler Counsels Roskie a hinsky Barristers & Solicitors For i!he Emnlover: I R. Atkinson Counsel Hicks Morley Hamilton Stewart Storie Barristers and Solicitors Hearinas: September 16, 1937 June 6, 1988 * DECISION This ca.se involves the discharge of a temporary employee from his job at the Durham District Warehouse of the Board. In his grievance, the grievor claimed that he was unjustly discharged. For reasons which follow, the grievance is - dismissed. The evidence disclosed that the grievor began to work as a temporary employee in the Shipping and Receiving area of the Durham Warehouse in September, 1985. The Board regularly employed numerous temporaries to assist in unloading containers .and palletizing the product. They primarily worked in the summer and fall, being laid off some time in December and recalled in March of the following year. The grievor's employment generally' followed this pattern. He was laid of on December 20, 1985 and was called back again in April, 1986. He stayed on the job until December, 1986 and then was called back again in February, 1987. This time, the grievor's employment lasted only until March 12, when he was terminated. Ther,e was considerable divergence in the evidence regarding the incident which triggered the grievor's termination. Six witnesses -- three, of them from the bargaining unit -- were called to testify on behalf of the Board. The first, Mr. Blake Whitla, was a bargaining unit member who was Acting.Foreman in charge of Domestic Receiving at the time of the incident. 2 Mr. Whitla stated that sometime in the morning of March 11, 1987, he found the grievor, whose work assignment was a : considerable distance away on the Import side of the dock, talking to another temporary employee who was working in Domestic. Noting that the conversation with the grievor was interfering with the work assigned to this employee, Mr: Whitla went over and told the grievor to go back to his station. According to Mr. Whitla, the grievor replied with a sarcastic answer. .Mr. Whitla responded, he said, that if the grievor wanted to talk to his friend he could just take it outside. The grievor then returned to his work station and Mr. Whitla went back to his office. At the time, the computer ized convey.& at the grievor's work station was temporarily shut down and as a result, the grievor did not have work to perform. The grievor was standing, according to Mr. Whitla, at Dock 33 which was kitty-corner from the office. The office was at a higher level than the dock and was glassed in. As a result, the grievor and Mr. Whitla were in full view of each other. Mr. Whitla stated that when he looked down at the grievor, the grievor was blowing kisses at him, giving him the finger and pointing to his crotch and mouthing, "Suck me off." 3 Mr. Whitla testified that he then asked Dave Comeau. the Acting Foreman from the Import Section, to take a look. Mr. Comeau was at his desk in the same office. He watched, Then, Mr. Dave Gilbert, one of the Dock Receivers: Import, walked in. He also watched. While this was going on, Mr. Whitla testified, he did not respond in any way. He did not say anything to the grievor or make any return gestures toward him. He simply sat at his desk. The grievor's antics, Mr. Whitla stated, went on for a couple of minutes. Then he.went back to work. At that time, Mr. .Whitla stated,' he and Mr.,Comeau went to see Mr. Bob Kyle, the Manager of the Receiving Area. They told him what the grievor had done. Mr. Kyle decided to investigate.‘ Later that day, Mr. Whitla stated, Mr. Bill McDowell, the Operations Manager of the Warehouse, called a meeting with the grievor and Mr. Richards, his Union Representative. Also in attendance were Mr. Whitla, Mr. Kyle, Mr. Comeau and the Shipping Manager, Mr. R. Graves. Mr. McDowell asked the grievor if the allegations about his behaviour were true and, according to Mr. Whitla, the grievor denied it. Mr. McDowell then brought up two prior incidents in which the grievor had been involved and told him that he was being discharged. I 4 The next witness was Mr. Comeau. He testified that, like Mr. Whitla, he was in the bargaining unit. At the time of the incident, he was Acting Foreman of the Import Receiving Department. As such, he stated, he was the grievor's supervisor at the time of the incident. When the grievor began making his gestures, Mr. Comeau stated, he was in the office along with Mr. Whitla, standing beside a file cabinet. Mr. Comeau stated that all of~a.+udden~ grievor began to make rude gestures at Mr. Whitla. He was, according to Mr. Comeau, making signs towards his crotch and saying things, although Mr. Comeau could not make out what he was saying. The grievor, Mr'. Comeau said, was looking right at them, smiling, smirking and laughing.. He car.ri.ed~ on like this for a couple of minutes. When he and Mr. Whitla went outside the office, the grievor was still making his gestures. Then once he realized that Mr. Comeau was out there, Mr. Comeau stated, the grievor went back to a container and started working. Neither he nor Mr. Whitla, Mr. Comeau stated, spoke to the grievor. After that, Mr. Comeau stated, he carried on with his work. Then Mr. Kyle called him into the front office to meet with him, Mr. Bill Graham and Dave Gilbert. Mr. Comeau related what he saw. Later on, he explained what happened once again. in the ~= 5 meeting with Mr. McDowell and the grievor. He added that while Mr. Whitla was annoyed when the grievor made his gestures, he did not retaliate. He said that he thought that the grievor's behaviour was very rude. It seemed like he was trying to provoke a fight with Mr. Whitla. The next witness was Mr. Dave Gilbert, He was a Warehouseman 4 in the bargaining unit. He said that when he walked into the Receiving Office he saw the grievor making his gestures. He said that the grievor was mouthing, "Suck me off," and he saw the grievor raise his middle finger. The grievor, he stated, was repeatedly laughing and blowing kisses at Mr. Whitla and seemed to be pointing down at his crotch with.his index finger. ., .' When he asked what it was all about, Mr. Gilbert stated, someone said that the grievor and Mr. Whitla had had some kind of an argument earlier. Mr. Gilbert then looked at Mr. Whitla. He said that Mr. Whitla was restrained and he was surprised that Mr. Whitla had not gone out and done something. The first member of management to testify was Mr. Kyle. He said that on March 11. Mr. Whitla came into his office and said that he had seen the grievor out of his work area and in his area. He told the grievor to go back to his own work area. The grievor replied, "Yeah, yeah, boss," and went back to his own ry s 2 z. 6 work area. A few minutes later, Mr. Whitla told Mr. Kyle, he saw the grievor outside of his office making lewd and obscene gestures. Mr. Kyle said that he asked Mr. Whitla if there were other witnesses and Mr. Whitla said that Mr. Comeau and Mr. Gilbert also saw the grievor's gestures. When these two people confirmed the grievor's lewd gestures and mouth movements, Mr. Kyle said, he called the grievor into his office and confronted him with the allegations against him. According to Mr. Kyle, the grievor denied the allegations and said that he did not know that Mr. Whitla was an Acting Foreman. Mr. Kyle re~plied, according to his testimony, that the grievor said; "Yeah, yeah boss," to Mr. Whitla. Then the grievor said, MT. Kyle stated, that Mr. Whitla returne.d his, gestures and made hand signs to him. On cross-examination, Mr. Kyle denied that the grievor told him that Mr. Whitla made rude *gestures. He also denied hearing the grievor tell him that Mr. Whitla had threatened to punch the grievor out in the parking lot. After this meeting, Mr. Kyle stated, he sat down and wrote a memo out to Mr. McDowell and then went up and saw him. On that same afternoon, Mr. McDowell called a meeting with everyone in attendance. Mr. McDowell told the grievor what the Foreman and the other witnesses had said about the incident and the grievor 7 replied that he did not do it. Mr. Richards, the Union Representative, then asked Mr. McDowell if an apology would be acceptable. Mr. McDowell replied that he thought it was too IT serious offense to let it go by that easily. He then made the decision to discharge the grievor. On cross-examination, Mr. Kyle stated that in the meeting with Mr. McDowell the grievor did not give any explanation for being off the job when he was initially confronted by Mr. Whitla. He also stated on cross-examination that while the grievor had said in his own meeting with the grievor that Mr. Whitla had returned the hand gestures, the grievor did not say this in the subsequent meeting with Mr. McDowell. Mr. Ron ~Graves, the Manager of Shipping Operations, testified that he came into the meeting held by Mr. McDowell toward the end it. As he walked in, he stated, Mr. McDowell filled him in on what had transpired and asked him what he could add. Mr. Graves then detailed an earlier incident involving a confrontation between the grievor and another temporary employee, Tim Kornick, which occurred on August 11, 1986, and resulted in the issuance of a written warning which stated, "This is to make you aware that any further problems with other warehouse staff will be treated as a second occurrence and dismissal will be the resulting condition." After relating the details of this 8 incident, Mr. Graves said, he told Mr. McDowell that the Company could not overlook this one. At that point, Mr. Graves stated, the grievor stood up and apologized with help from his Union Representative, Mr. Richards, for what had happened. Mr. Richards then asked whether Mr. McDowell and Mr. Graves could possibly reconsider. Mr. McDowell replied that he could not be swayed from the decision he had just made and that he would have a memo ready right away indicating point, Mr. Graves stated, the grievor his decision. At that stood up and said, "Just ma room. ,il it to me." as he stormed out of the Mr. McDowell testified that. upon.. being notified of the incident, he convened a meeting on March 12. At the meeting, he told the grievor of the allegations against him. The grievor replied, Mr. McDowell stated, that it was not a one-sided exchange. He said that Mr. Whitla had provoked him and then equivocated as to whether he did or did not make the rude gestures in question. Mr .' Whitla denied any attempt at provocation or returning the gestures and Mr. Comeau, Mr . McDowell stated, backed him up. Referring to this incident and the previous incident in which he was involved in a scuffle with Mr. Kornick, Mr. McDowell stated, he then told the grievor that he intended to dismiss him. He said that it looked like the 9 grievor had trouble with getting along with fellow workers and was not about to respect a supervisor or take direction from him. Mr. Richards, Mr. McDowell continued, then requested lenience. Mr. McDowell stated that he replied that in previous situations~at the facility the grievor had caused disruption and if he continued to work at the Board there might be's major situation for which he, Mr. McDowell, would be held responsible. Mr. McDowell said that he then asked the grievor if he wanted to wait for his dismissal letter but the grievor stormed out. 'As a result, the letter of dismissal was sent to him by registered mail. The grievor testified thaton March.11, 1987, his conveyor line shut down, leaving him with nothing to do. He then went to the Domestic Area to speak to another temporary employee, Scott Williamson. He said that he was concerned about problems with Mr. Williamson's car and asked him if he needed a boost. At that time, the grievor said, Mr. Whitla appeared on the scene and ordered him to get back to his station. According to the grievor, Mr. Whitla then said that he did not like the grievor and he was going to punch him out after work. In short, the grievor said, Mr. Whitla threatened him. The grievor then stated that he went back to his work station. He did not know who Mr. Whitla was, but he saw Mr. Whitla go directly into the office across from where he was working. Through the glass, the grievor 10 said, he saw Mr. Whitla spin around in his chair and begin making rude gestures at him. Mr. Whitla. according to the grievor, pointed to his crotch and madehand signs. The grievor said he retaliated, giving him the finger. It was Mr. Whitla, the grievor said, who was pointing to his crotch with his thumb and blowing kisses. Mr. Comeau, the grievor added, was grinning, egging Mr. Whitla on to do more. In response, the grievor said,'he blew a kiss back to Mr. Whitla. He said that at this point he did not consider the matter to be really serious. It was more like killing time for them, the grievor said; and amusing him. The whole thing, the grievor added, went on for approximately 15 minutes. ,~ .~ The grievor also stated that from this point until the end of his shift, no one from management came over and spoke to him.' The incident, he said, happened at about 2:50 p.m. and his shift finished at 3:50 p.m. Although Mr. Whitla had said earlier in the day that he was going to take him outside after work and punch his head in, the grievor said, Mr. Whitla did not wait for him in the parking lot. Mr. Williamson, the grievor added, did not have any trouble with his car. The grievor testified that he then went home and telephoned Mr. McDowell back at the Warehouse. He said he made this call to get the problem cleared up with management. He said he told Mr. 11 McDowell that he had been threatened and Mr. McDowell replied that they would discuss the matter when he came into work the next day, March 12. According to the grievor, there were three managers at this meeting, Mr. McDowell, Mr. Whitla and Mr. Comeau. He said that they discussed what happened in the ~past but not what happened with Mr. Whitla the day before. The grievor said he then told Mr. McDowell to mail him his termination papers. He said that Mr. Whitla denied he said anything or did anything to him. He got disgusted and felt that there was no point in going any further. The grievor denied having any meeting with Mr. Kyle on March 11.. On cross-examination he agreed with the suggestion of counsel that when Mr. Kyle testified that they did have a meeting in which he was confronted with the allegations against him, Mr. Kyle must have been lying. In line with this, the grievor denied on cross-examination that he called Mr. McDowell that evening to cover himself because he ,knew from his interview with Mr. Kyle that he was being investigated. We said the reason that he telephoned Mr. McDowell from his home after leaving work on the 11th was that .he was scared that Mr. Whitla had threatened him and he did not want to appear to be a "bit of a wimp" at work. His purpose was, he stated, to see what Mr. Whitla's problem was. . 12 Based upon our evaluation of all of this evidence, we conclude that on March 11, 1987, the grievor had an argument with Mr. Whitla when the latter came over to .him and told him to get back to his own station. The matter should have ended when the grievor complied with Mr. Whitla's instruction and Mr. Whitla went to his office. But it did not. For whatever reason, the grievor decided to raise the stakes by taunting Mr. Whitla with rude gestures in full view of other witnesses. The weight of the evidence is that Mr;,Whitla did not provoke this incident nor did he retaliate in kind. He reacted in a restrained manner. This means that the grievor, having been warned~ on August 11, 1986,' some six months before this incident "that any further problems with other warehouse st~aff wi",.~,be treated as a second occurrence and dismissal will be, the resulting condition", confronted Mr. Whitla with insubordinate and provocative gestures in what can only be taken as an attempt to carry on and escalate the conflict between them which commenced when Mr. Whitla ordered the grievor to return to his own work station. We now turn to consider the consequences of this act. Counsel for the Board submitted that the standard of arbitral review regarding the termination of a temporary employee was a much lower standard then that to be applied in the case of a regular employee. We were referred to several provisions of the Collective Agreement, including Article 32.3, 32.4, 26 and 13 26.2, all of which, counsel submitted, demonstrated an intent on the part of the parties to treat temporary employees differently from regular employees for purposes of discipline and discharge. This point was not directly disputed by counsel for the Union, although there might have been some dispute regarding the standard of review to be applied in the case of a discharge of a temporary. Counsel fqr the Board referred us to Re Labatts Ontario Breweries and National Brewery Union, Local.1 (~1982), 5 L.A.C.(3d) 32 (McLaren). for the proposition that 'we ought to uphold the discharge of the grievor so long as the decision to dismiss was not arbitrary, diicriminat'ory or made in bad faith. In that case,' Professor McLaren said: Arbitrators have much.debated ,the,two extreme positions of cause involving probationary employees. Unions have argued that the standard for such employees was to be identical with that of permanent employees while companies have argued it was a matter entirely within their discretion. A middle ground appears to be emerging in the arbitral jurisprudence in the case of probationary employees and has been articulated in Re Pacific Western Airlines Ltd. and Canadian Air Line Flioht Attendants Assoc. (19811, 30 L.A.C. (2d) 68 (Sychuck) at p. 76, wherein it was stated that: MY review of the arbitral decisions leads me to the conclusion that the.following principles and standards are applicable when the parties have and expressly set out in the collective agreement the standard of arbitral review for the termination of a probationary employee, namely: 1. ,Where a collective agreement expressly provides for a probationary period but does not contain an express provision setting the standard of review for the termination of a probationary employee, the decision of the employer to terminate the probationary employee shall not be set aside unless the said decision is arbitrary, discriminatory or in bad faith. 14 There is no evidence in this case which would suggest that the decision to terminate Mr. Gifford was either arbitrary, discriminatory or in bad faith. It was not in violation of the procedural requirement of a fair and just hearing found in art. 13.03. The case of Re PCL Packaqinq Ltd. and Enersv & Chemical Workers Union, Local 593 (1981), 29 .L.A.C. (2d) 372 (Saltman), confirms that as far as probationary employees are concerned the employer's discretion to terminate ought not to be interfered with except where the employer has acted in bad -faith or in an arbitrary or discriminatory manner. That case goes on to indicate that where the company relied upon specific offenses as the basis for its decision, the standard required of the company is to show only that the employee in fact committed the offence for which the employee was terminated. Even if the standard of a temporary employee's discharge is to be that of a probationary employee, the grievor's termination is justified. If the standard is the absence of an arbitrary, discriminatory or bad faith decision to terminate, it has been met. If the standard is to show that the employee in fact has committed the offence, that too has been met on the facts as found .in this award. He left work early on June 5th and 19th and was not at his work station after the lunch break.;.on~ both evenings, made shift assignment changes without permission of the foreman and had been late on Monday, June 1st. The grievor breached known company rules and conducted himself in a fashion which he realized was inappropriate to his status as a temporary employee. The Company, therefore, has established misconduct. The foregoing is sufficient to find that the company was justified in its action even if the standard of cause is that~of a probationary employee. Nothing in this award should be considered as finding that the standard for a temporary employee ought to be the same as for a probationary employee. . ..@. at pp. 41-42. Because it was found that the parties did not intend temporary employees to have even the same degree of security of tenure as probationers, it was concluded that the highest test that could be applied in a case of a discharge of a temporary employee was that applicable to probationers, .i.e., whether the decision to 15 discharge was arbitrary, discriminatory or in bad faith. Professor McLaren expressly reserved on the question whether the standard for temporaries and probationers ought to be the same.~ It seems to us that in the circumstances of this case, we too need not decide whether, as between temporaries and probationers, the standard of review need be different. For here, there was no arbitrariness, discrimination or bad faith in the decision to discharge the grievor~. We find that Mr. Kyle conducted a satisfactory investigation on March 11,'in which contrary to the recollection of the grievor, he interviewed Mr. Whitla, Mr'. Comeau and the grievor before referring the matter to Mr. McDowell. At the meeting with Mr. McDowell on the 12th, the grievor was accompanied by a UnionRepresentative and given a full opportunity to respond to the allegations against him before .Mr. McDowell concluded that discharge -was in order. It was submitted by counsel for the Union that lesser discipline ought to have been imposed in the present case. We were referred to Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 483, (1980), 26 L.A.C. (2d) 320 (Simmons) : Re Newmont Miles Ltd. and Canadian Association of .Industrial, Mechanical and Allied Workers, Local 22, 3 L.A.C. (3d) 396 (B.C.); and, Re Douglas Aircraft Company of. Canada Limited and United Automobile Workers, (1972), 2 L.A.C. (2d) 56 (Weiler). These cases were submitted in conjunction with 16 an argument that because the grievor was provoked by Mr. Whitla into making the gestures in question, it was appropriate to substitute a penalty even though the gestures were of an insubordinate nature. As has already been indicated, we have concluded that the grievor was not provoked by Mr. Whitla. We do not doubt that words might have been exchanged between the two when Mr. Whitla directed the grievor to return to his work station and the grievor responded in a sarcastic manner, but the gestures that the grievor made constituted a fresh incident. They-,did not represent a continuation of an. on-going confrontation between the two. The original encounter was over and done with when the grievor returned to his work stationand-Mr. Whitla went to his office. Nothing further was done by Mr. Whitla to provoke the grievor into initiating a new round of hostility We do not think that it was incumbent upon management to consider imposing a lesser discipline in the circumstances of this case. At the time of the incident, the grievor knew that his job was on the iine. Just six months previously he had been warned that he would be dismissed if he got involved in further problems with other warehouse staff. Yet as we have found, he ended up confronting Mr. Whitla with rude and obscene gestures. These facts do not appear to leave any room for the substitution of lesser discipline. 17 The grievance is dismissed. DATED at London, Ontario, this 17th day of August, 1988. / i Lx-Jt&&e D. A. Wallace;ember