Loading...
HomeMy WebLinkAboutBush 96-01-19IN THE MATTER OF the grievance of David Bush AND IN THE MATTER OF the arbitration of the grievance BETWEEN; Humber College of Applied Arts and Technology - and - Ontario Public Service Employees' Union PLACE AND DATES OF HEARING: Toronto, Ontario, April 26, September 29, December 11, 18 and 20, 1995 BOARD OF ARBITRATION: Hugh John Cook Barry Stephens Stanley Schiff, chairman APPEARANCES FOR THE EMPLOYER: Nancy Hood, director, human resources J. Henry D. Davenport W. J. Hayter, counsel APPEARANCES FOR THE UNION: Irena DiRito, local president David Bush Gary Adams, counsel AWARD & REASONS The grievor is a parking officer at Humber College. On October 28th, 1994 he was suspended without pay for five working days. At the hearing the parties focused on six incidents earlier in October as the alleged justification. The union asks that we set aside or modify the suspension. At the hearing the grievor's testimony often contradicted testimony from witnesses the College called. This means that, when the versions of the events we heard do not coincide, our determination of what happened hinges on an assessment of relative credibility. On that we must prefer the witnesses for the College. They all testified in a straightforward manner, sometimes supported by near-contemporaneous memoranda, and were hardly bruised in cross- examination. Moreover, Mohammed Mia, whose story the grievor wholly denied, had no interest in this proceeding nor any other motive to falsify or distort. In contrast, the grievor often gave unresponsive answers and answers that were transparently self-serving. He asked for repetition of what seemed straightforward questions. He gave self-contradictory answers on cross-examination and was contradicted on some important points by evidence of his previous inconsistent statements and conduct. The result is that, by and large, the outline of the events we accept and set out here is what we draw from the testimony of the College's witnesses. The grievor started the job in mid-June 1994. As one of three full-time parking officers, his duties include manning kiosks near the entrances to parking lots, patrolling the campus to find illegally-parked cars and collecting money from meters. He may also be called upon to testify in court to support prosecutions for illegal parking. Because of the -2- nature of the job, it is done without any on-the-spot supervision. When the grievor first started, Donna Davenport, his direct supervisor, outlined to him what the job was about and emphasized that, as the first person students and other patrons see on campus, he must supply good customer service. To ensure that he would understand the various parking regulations and settled practices, Davenport gave him for study volumes of memoranda setting them out. For training in the day-to-day duties, she assigned him in rotation to the other two officers as a "buddy" to follow, observe and question during the first two weeks. His solo duties did not begin until July. During the summer, there were Several occasions when Davenport was obliged to emphasize to the grievor the need to follow the directions the memo books and ongoing memoranda set out. In mid-July, despite a previous memorandum defining several free parking spaces in the day care area, the grievor ticketed cars parking there. When Davenport told him that the matter was covered in the memorandum book, he challenged the procedure: in his view free parking should not have been granted to the particular persons. Davenport told him to follow the procedure in place. A month later, despite Davenport's memorandum giving instructions about parking for a large group coming onto the campus, the grievor gave them instructions inconsistent with what the memorandum said. When Davenport directed the grievor back to the memorandum, he questioned the instructions there and added his own thoughts about what 3 should have been done. Davenport repeated that he should obey what she had set out regardless of his contrary opinions. At least after these two exchanges, the grievor should have been in no doubt that Davenport expected him to follow whatever rules and procedures the memoranda directed. We come to the six incidents in issue here. On the morning of October 3rd or 4th, Mr. Mia, a part-time teacher, found that the lot~ where he usually parked was full. Attempting to find alternative parking space to avoid being late for class, Mia came to the kiosk of the green lot where the grievor was on duty. Instead of helping Mia immediately, the grievor waved other cars on while he lectured him about what the grievor considered the inappropriateness of part-time teachers taking over full-timers' jobs. Even Mia's announcement that he was going to be late apparently did not stop the lecture. Finally the grievor allowed Mia to park in another lot. The grievor denies that this event occurred but, as we have said, Mia has no reason to lie or exaggerate. We also believe Mia's corroborating testimony that he reported the incident to the program coordinator later that day. The grievor was boUnd to serve Mia by helping him find a parking space immediately. The grievor had no business lecturing Mia about the College's alleged hiring practices, and certainly nothing justifies delaying Mia while he did so. The grievor's failure to provide the -4- customer service his job requires and his threatening to make a teacher late for class warrant some discipline. We move to the next incident. In September, Davenport had issued a memorandum to the parking officers about sPecial parking arrangements for continuing education students. The memorandum included statements about the students' attendance at the main kiosk to obtain passes for free parking. As the grievor admitted before us, he received a copy of the memorandum and understood its contents. Nevertheless, on October 4th, when students whom the grievor knew were enrolled in continuing education came to the green kiosk the grievor was manning, he did not immediately send them to the nearby main lciosk to get the passes. Instead, as he told us, he put to them a series of options from which they might choose, including parking for a $4 fee in the main lot. The result was that the students paid to park and, because they had to find a place to obtain change, were late for class. Angry at what had happened to them, they complained to Deborah McBaine, who was in charge of organizing their courses. When McBaine telephoned the grievor at the green kiosk, he offered no explanation except his disagreement with the procedures set out in the September memorandum and the decision to let continuing education students park free. In the course of the conversation, he also questioned Davenport's competence in arranging for the parking and, as he said in testimony, her competence in managing the parking department. -5- The grievor was bound to follow the directions in the September memorandum. Whatever he thought of Davenport's scheme, he was forbidden to act deliberately, as he did, to scuttle it in his small way. That, as we see it, is insubordination. The directions in the memorandum were direct orders to the parking officers, including the grievor, which the grievor knew and understood at the time the students came to him. His conduct in the face of the directions was effectively a refusal tO .obey them. The inherent defiance of Davenport's authority was compounded and explained by what he said to McBaine. But, even if what happened should not be characterized as an employee's refusal to obey his superior's order, we still see the whole as the grievor's conduct rejecting and showing contempt for Davenport's authority. That is the essence of insubordination. Whether insubordination as arbitrators have often defined the concept or something not dissimilar, what the grievor did deserved discipline. The third incident: Some time during the first week of October, the grievor sold parking passes from the main kiosk in violation of a rule forbidding such conduct: passes may only be sold from another location and those issued from the main kiosk go only to guests and a certain category of students free of charge. Ron White, the safety and parking coordinator, learned what the grievor had done on October 6th when the grievor admitted in a conversation that he had recently sold passes to some students. The grievor told us that he knew his conduct violated the rule but, for the first time at the hearing, he attempted to justify what he had -6- done by telling of his scheme to get change to avoid traffic Congestion on nearby roads by satisfying patrons who needed $1 coins for paid parking. He testified that the money float at the kiosk Was unduly low at the time and that no ordinary source of change was then available. As a stop gap measure before White arrived with change, he decided, despite the prohibition, to sell enough passes to satisfy the patrons' immediate demands. In the result, he said, he sold nine passes at $4 each and ended up by giving the $36 to White when White arrived later. We have considerable doubt that the sale of passes happened that way. Apart from all else, we have trouble understanding how a scheme of selling passes was suppOsed to produce the necessary pool of $1 coins. In addition, White denied ever getting money from the grievor to cover the sale of any passes and we find White a more credible witness than the grievor. But, even if we were to accept some version of the grievor's story, we know that the sale of passes from the main kiosk was forbidden. We also know' that White had instructed the grievor on some similar occasions to apologize to customers for running out of change and to direct them to other sources for the necessary coins. Neither White nor Davenport ever authorized the grievor to respond to this situation by selling passes to get change to satisfy customers. If we accept only White's testimony, we find simply that the grievor sold passes in known violation of the prohibition. If we add the grievor's story of what happened, we see in addition another instance of his acting according to his personal judgment about how to 7 handle a parking problem rather than following directions honouring the parking regulations. Either way, discipline is justified. The union argues that the grievor's conduct was the result of a judgment call in his exercise of discretion to solve a traffic and parking problem as best he could in the difficult circumstances. That judgment call, says the union, we should not second-guess. We disagree. An employee cannot be free to exercise discretion in the known presence of a contrary rule or practice the employer has set out. While the grievor's job description does, as the union points out, require him to exercise discretion, the context makes clear that .he must do so within the boundaries of the parking rules and procedures. The fourth of the incidents: On October 6th, while White was at the main kiosk with the grievor, one or more students approached, seeking change for $5 bills so that he (or they) could deposit $4 in $1 coins in parking meters. (White testified, supported by his'memorandum outlining the event, that there was only one student; the grievor says that there were two.) According to White, the grievor asked, "Do you want three loonies or four?" The person (or persons) said four, got change and departed without objection. White thought the question so unusual that he asked the grievor about it. The grievor replied, said White, that if patrons say four, he gives four loonies unless the person asks for the fifth: "How do you think the short fall [in the float] is made up?" The union argues that White must have misheard what the grievor asked -8- the patrons. According to the grievor's testimony, the question was, "Do you want three loonies or five?" Although many patrons answered "four", the grievor said, the question-was designed, to help protect the supply of $1 coins by allowing him to give a $2 bill as part of the change to someone who wanted only three loonies. He agreed that, when White questioned him, he did say that keeping the extra loonie when someone answered four would help make up the shortfall but, he insisted, he was not serious. In light of our assessment of the grievor's credibility, we might well conclude that White's version here is what happened. If so, we would find another instance of the grievor's going his own way. It might also lead to a decision that he was defrauding patrons. But, in light of our conclusions based on the other five incidents, we need not choose between White and the grievor. For the purpose of this grievance, we can leave unresolved what actually happened. The fifth incident: On October 18th, because the grievor had to fill in for another parking officer who was temporarily absent, he missed his fifteen-minute afternoon break. At about 2:40 p.m.-- twenty minutes before his shift was to end--he came to the main kiosk, discussed his security offence reports with White and, then, while White was discussing their reports with other officers, announced that he was leaving immediately to make up the time of the missed break. Within ten or fifteen seconds White finished with the other officers, turned to respond to the grievor, but found that he was already half-way up the walkway to the bus stop. The grievor testified that it was after the other officers had left that he said, "If you have no objection, I will leave early...". According to the grievor, since White made no response, he assumed that he had permission to go. We do not believe the grievor: his credibility here depends strongly on his assertion that he submitted no security offence reports that day and that he had no discussion with White about such reports before he spoke. In fact, security checks for forged or stolen parking passes had been conducted earlier that day, and the grievor and the other officers submitted a total of eleven reports as a result. In addition, because a new coding system had recently been introduced, White deliberately came out early to the kiosk to discuss their reports with each of the officers. f The grievor knew the governing rule that, except for a break lost because of an emergency, breaks not taken cannot be made up. It may be, as the grievor said, that on occasion White had given approval to a parking officer to leave early when he had not taken a break for some reason other than an emergency. Even if so, White's permission was needed and, as we see it, was not obtained. Here again, whether the ordinary rule applied or an exception based on White's occasional grant of permission, the grievor chose to do what suited him. This is another example of his knowing disregard of the authority of the rules and practices governing his job. The last of the incidents: -10- Some time in September a $19 shortage was discovered in the change float at the main kiosk. To make up the difference the grievor says that he put in $19 of his own money. He claims no responsibility for the shortage; he says he put in the money solely as a gesture of good will by a new man trying to get along. At a meeting with Davenport on Friday, October 14th, she discussed the various incidents earlier in the month including the selling of passes allegedly to makeup the shortage in the float. Angry at what he thought was an accusation of theft, the grievor told White that he wanted $19 back from the float. White told him that he would not authorize removal of the money but would pass on the request to Davenport. For her part, Davenport told White to inform the grievor that he should not take the money until she had reached a decision about the matter in the next few days: she wanted to talk to human resources about the matter and had to go out of town to a conference. During the next two days, the grievor kept asking White for the money and White repeated that Davenport would let the grievor know of her decision shortly. On Wednesday, October 14th, White told the grievor that Davenport would be back on campus the next day and would then tell him what to do. Meanwhile, White said, "Do not take the money" or "I'm advising you not to take the money". Convinced, as the grievor testified, that White was stalling him, late that afternoon he took $19 from the float. His justification, he told us, was that a fellow parking officer, ostensibly in charge of the float, told him he could have the money if he signed for it on the float balance sheet. He signed and the money came out. As the grievor admitted, the money was not his to take; what he wanted, he said, was reimbursement. To get that from the float, as he said he knew, he needed the College's -Il- permission, in this instance, Davenport's permission. But, since he was sure he was owed the money, he decided not to wait the extra day White had indicated was needed for Davenport's decision. He did what he wanted to do despite knowing Davenport's order not to take money until she said so. It had occurred to him that he might grieve instead of taking the money but, he told us, he did not want to spoil his relationShip with the other parking officers by mixing them into a grievance. That was a mistake: he was bound to obey what Davenport had said and, if she later refused to let him have the money, he might have grieved to get compensation. The grievor's conduct here was insubordination. More than that, we could well see it in these circumstances as theft. In all, even applying a high standard of persuasion appropriate to the allegations, we find .five incidents demonstrating a pattern of the grievor's conduct over the three weeks demonstrating his willingness, despite clear knowledge of what contrary conduct was expected of him, to act according to his personal assessment of what ought to happen. As we have said, several of the instances amount to insubordination or the equivalent. Even taking into account the grievor's previous clean record, we cannot think that the five-day suspension imposed was wholly disproportionate to the total misconduct added up. In other circumstances, we might have been concerned that the College did not impose a series of penalties increasing in severity as each successive incident occurred. But here, the 12- incidents happened in rapid succession. Beyond that, the grievor was never misled about whether the College regarded his conduct as unacceptable. Respecting most of the incidents, he admits that he was in breach of rules or procedures that he understood; for the incident involving Mia, we cannot think he believed he could properly treat any customer that way or that the College would condone it. When he was first hired, the public service aspect of his job was sixessed to him and, as early as mid-July, Davenport emphasized to him the need to obey the existing rules whatever his opinion of the!r wisdom might be. From the beginning, he knew what the College wanted of him. He nevertheless chose to go his own way. This grievance is dismissed. DATED at Toronto this/t~day of January 1996. Hugh John Cook Barry Stephens